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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1999
REGISTRATION NO. 333________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMMERCE ONE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 1600 RIVIERA AVENUE 680322810
(STATE OF INCORPORATION) WALNUT CREEK, CALIFORNIA 94596 (I.R.S. EMPLOYER IDENTIFICATION NO.)
(ADDRESS, INCLUDING ZIP CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1997 INCENTIVE STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
ROBERT M. TARKOFF
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
COMMERCE ONE, INC.
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 9416000
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
DAVID J. SEGRE, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF SECURITIES TO AMOUNT MAXIMUM PROPOSED AMOUNT OF
BE REGISTERED TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
REGISTERED PER SHARE OFFERING PRICE FEE
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Common Stock, $.0001 par value 4,667,918 shares (1)(2) $13.16 (3) $61,429,801 (3) $17,078
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of Common Stock.
(2) Includes 3,767,918, 750,000 and 150,000 shares of Common Stock issuable
under the 1997 Incentive Stock Option Plan, 1999 Employee Stock Purchase
Plan and 1999 Director Option Plan, respectively.
(3) The Proposed Maximum Offering Price Per Share represents a weighted average
of the following estimates calculated in accordance with Rule 457(h) under
the Securities Act of 1933, as amended (the "Securities Act"). With respect
to 2,199,345 shares subject to outstanding options to purchase Common Stock
under the plans described above (collectively, the "Plans"), the Proposed
Maximum Offering Price Per Share is equal to the weighted average exercise
price of $4.34 per share pursuant to Rule 457(h) under the Securities Act.
With respect to 2,468,573 shares of Common Stock available for future grant
under the Plans, the estimated Proposed Maximum Offering Price Per Share
was determined pursuant to Rule 457(h) under the Securities Act to be equal
to the initial public offering price of $21.00 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference into this Registration Statement
and into the Prospectuses relating to this Registration Statement pursuant to
Rule 428 the following documents and information previously filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Form S-1 (File No. 333-76987), filed with the
Commission on July 1, 1999.
2. The Registrant's Prospectus, to be filed with the Commission on or about
July 1, 1999, pursuant to Rule 424(b) promulgated under the Securities Act of
1933, as amended (the "Securities Act").
3. The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A filed with the Commission on June 21, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which registers all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article IX of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Registrant, and, in any criminal action or
proceeding, the indemnified party had no reason to believe his or her conduct
was unlawful.
1
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The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit
Number Document
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4.1* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), as to legality of securities being
registered
10.2* Registrant's 1997 Incentive Stock Option Plan
10.3* Registrant's 1999 Employee Stock Purchase Plan
10.4* Registrant's 1999 Director Option Plan
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-76987), declared effective July 1, 1999.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended (the "Securities Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the items described in Item 6 of Part II of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Commerce One, Inc., certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Walnut Creek, state of California, on the 1st
day of July, 1999.
Commerce One, Inc.
By: /s/ Mark B. Hoffman
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Mark B. Hoffman
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark B. Hoffman and Robert M. Tarkoff and each of
them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments)
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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SIGNATURE TITLE DATE
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/s/ Mark B. Hoffman President, Chief Executive Officer and July 1, 1999
- ----------------------------------- Chairman of the Board (Principal
Mark B. Hoffman Executive Officer)
/s/ Peter F. Pervere Vice President and Chief Financial Officer July 1, 1999
- ------------------------------------ (Principal Financial Officer)
Peter F. Pervere
/s/ Asim Abdullah Director July 1, 1999
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Asim Abdullah
/s/ John V. Balen Director July 1, 1999
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John V. Balen
/s/ William B. Elmore Director July 1, 1999
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William B. Elmore
/s/ Kenneth C. Gardner Director July 1, 1999
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Kenneth C. Gardner
4
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- ------------------------------------- Director , 1999
Thomas Gonzales
/s/ William J. Harding Director July 1, 1999
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William J. Harding
/s/ John Swingewood Director July 1, 1999
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John Swingewood
/s/ Jay M. Tenenbaum Director July 1, 1999
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Jay M. Tenenbaum
/s/ Jeffrey T. Webber Director July 1, 1999
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Jeffrey T. Webber
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5
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INDEX TO EXHIBITS
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Exhibit
Number Document
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4.1* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), as to legality of securities being
registered
10.2* Registrant's 1997 Incentive Stock Option Plan
10.3* Registrant's 1999 Employee Stock Purchase Plan
10.4* Registrant's 1999 Director Option Plan
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-76987), declared effective July 1, 1999.
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EXHIBIT 5.1
July 1, 1999
Commerce One, Inc.
1600 Riviera Avenue
Walnut, California 94596
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about June 30, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 4,667,918
shares of your Common Stock reserved for issuance under your 1997 Incentive
Stock Option Plan, 1999 Employee Stock Purchase Plan and 1999 Director Stock
Plan (collectively, the "Plans"). As your legal counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the sale and issuance of such Common Stock under the
Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans and pursuant to the agreements which accompany the Plans, the
Common Stock issued and sold thereby will be legally and validly issued, fully
paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectuses constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the General
Instructions to Form S-8 under the Securities Act with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Incentive Stock Option Plan, 1999 Employee Stock
Purchase Plan and 1999 Director Option Plan of Commerce One, Inc. of our report
dated March 5, 1999 (except for Note 8, as to which the date is June , 1999)
with respect to the consolidated financial statements and financial statement
schedule of Commerce One, Inc. as of December 31, 1997 and 1998 and for each of
the three years in the period ended December 31, 1998 and our report dated March
5, 1999 with respect to the financial statements of VEO Systems, Inc. as of
December 31, 1998 and for the year then ended, included in the Registration
Statement (Form S-1, No. 333-76987), as amended, and the related Prospectus of
Commerce One, Inc., filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
June 25, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 8, 1998, except for the last
paragraph of Note 10, as to which the date is August 21, 1998, relating to
the financial statements of VEO Systems, Inc., which appear in Form S-1 (File
No. 333-76987) of Commerce One, Inc.
/s/ PricewaterhouseCoopers LLP
San Jose, California
June 25, 1999
