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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 9, 2000
REGISTRATION NO. 333-76987
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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)
DELAWARE 1600 RIVIERA AVENUE 68-0322810
WALNUT CREEK, CALIFORNIA 94596 (I.R.S. EMPLOYER
(STATE OF INCORPORATION) IDENTIFICATION NO.)
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1997 INCENTIVE STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
ROBERT M. TARKOFF
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
COMMERCE ONE, INC.
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(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
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO AMOUNT PROPOSED PROPOSED AMOUNT OF
BE REGISTERED TO BE MAXIMUM MAXIMUM REGISTRATION
REGISTERED OFFERING PRICE AGGREGATE FEE
PER SHARE OFFERING PRICE
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<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 3,750,000 shares (1) $161.78125 (2) $606,679,687.50 (2) $160,164.00
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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) With respect to 3,750,000 shares of Common Stock available for future
grant under the 1997 Incentive Stock Option Plan, the estimated Proposed
Maximum Offering Price Per Share was determined pursuant to Rule 457(h)
to be the average of the high and low price reported on the Nasdaq Stock
Market on February 4, 2000, which average was $161.78125 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
EXPLANATORY NOTE:
This Registration Statement is filed with respect to additional
shares of common stock that may be issued under the Registrant's 1997
Incentive Stock Option Plan as a result of certain automatic annual increases
in the number of authorized shares for issuance under the plan. The offer and
sale of 11,303,754 shares of common stock (as adjusted for the 3-for-1 stock
split in December, 1999) issuable under these plan was previously registered
on a Registration Statement on Form S-8 filed on July 1, 1999 (File No.
333-76987).
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 Current Report on Form 8-K, filed with the
Commission on February 2, 2000.
2. The Registrant's Current Report on Form 8-K/A, filed with the
Commission on January 25, 2000.
3. The Registrant's Current Report on Form 8-K, filed with the
Commission on January 20, 2000.
4. The Registrant's Current Report on Form 8-K, filed with the
Commission on November 24, 1999.
5. The Registrant's Quarterly Report on Form 10-Q for the period
ending September 30, 1999.
6. The Registrant's Prospectus, filed with the Commission on July
2, 1999, pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
7. The Registrant's Quarterly Report on Form 10-Q, for the period
ending June 30, 1999.
8. 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
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock in this offering will be passed upon
for Commerce One by Wilson Sonsini Goodrich & Rosati, Professional Corporation,
Palo Alto, California. As of the date of this registration statement, investment
partnerships composed of certain current and former members of and persons
associated with Wilson Sonsini Goodrich & Rosati, as well as certain individual
attorneys of this firm, beneficially own an aggregate of approximately 87,000
shares of Commerce One common stock.
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.
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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Caption
Exhibit Document
Number
<S> <C>
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
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 declared effective on July 1, 1999.
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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.
(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.
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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 9th
day of February, 2000.
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 February 9, 2000
- -------------------- Chairman of the Board (Principal
Mark B. Hoffman Executive Officer)
Peter F. Pervere Vice President and Chief Financial February__, 2000
- -------------------- Officer(Principal Financial and Accounting
Officer)
/s/ Robert M. Kimmet Director February__, 2000
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Robert M. Kimmet
/s/ John V. Balen Director February 9, 2000
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John V. Balen
William B. Elmore Director February 9, 2000
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Kenneth C. Gardner Director February__, 2000
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Thomas Gonzales Director February__, 2000
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/s/ William J. Harding Director February 9, 2000
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William J. Harding
David H. J. Furniss Director February__, 2000
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Jay M. Tenenbaum Director February__, 2000
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<S> <C> <C>
/s/ Jeffrey T. Webber Director February 9, 2000
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Jeffrey T. Webber
/s/ Noriyoshi Osumi Director February 9, 2000
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Noriyoshi Osumi
</TABLE>
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<TABLE>
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INDEX TO EXHIBITS
Exhibit Document
Number
<S> <S>
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
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)
</TABLE>
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(*) Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1 (File No. 333-76987), declared effective on July 1, 1999.
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EXHIBIT 5.1
February 9, 2000
Commerce One, Inc.
1600 Riviera Avenue
Walnut, California 94596
Re: REGISTRATION STATEMENT ON FORM S-8
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 February 9,
2000 (the "Registration Statement") in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of 3,750,000
shares of your Common Stock reserved for issuance under your 1997 Incentive
Stock Option Plan. 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 Plan.
It is our opinion that, when issued and sold in the manner referred
to in the Plan and pursuant to the agreements which accompany the Plan, 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 of Commerce
One, Inc. of our report dated March 5, 1999 (except for Note 8, as to which
the date is June 25, 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., and
of our report dated December 30, 1999 with respect to the financial
statements of CommerceBid.com, Inc. as of October 31, 1999, included in the
Current Report on Form 8-K/A of Commerce One, Inc. dated January 25, 2000,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
February 2, 2000
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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 are incorporated by
reference in Form S-8 of Commerce One, Inc.
/s/ PricewaterhouseCoopers LLP
San Jose, California
February 4, 2000
