<PAGE>
As filed with the Securities and Exchange Commission on November __, 2000
Registration Statement No. 333-
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)
<TABLE>
<S> <C> <C>
DELAWARE 4440 ROSEWOOD DRIVE 680322810
(STATE OR OTHER JURISDICTION OF PLEASANTON, CA 94588 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
1999 NONSTATUTORY STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
----------------------
ROBERT M. TARKOFF
SENIOR VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
COMMERCE ONE, INC.
4440 ROSEWOOD BLVD.
PLEASANTON, CA 94588
(925) 520-6000
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
NEIL ANTHONY JEFFRIES, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================= =================== ========================== ======================= ===================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER SHARE (2) PRICE REGISTRATION FEE
----------------------------------------- -------------------- ------------------------- ----------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value..............8,500,000(1)(3) $52.9375 $449,968,750.00 $118,792.00
----------------------------------------- -------------------- ------------------------- ----------------------- -------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the receipt
of consideration which results in an increase in the number of Commerce One's
outstanding shares of Common Stock.
(2) With respect to 8,500,000 shares of Common Stock available for future grant
under the 1999 Nonstatutory Stock Option Plan, the estimated Proposed Maximum
Offering Price Per Share was determined pursuant to equal to Rule 457(h) to be
the average of the high and low price reported on the Nasdaq Stock Market on
November 13, 2000, which average was $52.9375 per share.
(3) The offer and sale of 3,000,000 shares of common stock issuable under the
1999 Nonstatutory Stock Option Plan was registered on a Registration Statement
on Form S-8 filed on March 27, 2000 (File No. 333-33328).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
EXPLANATORY NOTE:
This Registration Statement is filed with respect to 8,500,000
additional shares of common stock that may be issued under Commerce One's 1999
Nonstatutory Stock Option Plan. THE OFFER AND SALE OF 3,000,000 SHARES OF COMMON
STOCK ISSUABLE UNDER THIS PLAN WAS PREVIOUSLY REGISTERED ON A REGISTRATION
STATEMENT ON FORM S-8 FILED ON MARCH 27, 2000. (FILE NO. 333-33328)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by Commerce One, Inc.
(the "Commerce One"):
1. Commerce One's Quarterly Report on From 10-Q for the quarter ended
September 30, 2000, filed with the Commission on November 14, 2000.
2. Commerce One's Current Report on Form 8-K dated September 13, 2000,
filed on September 28, 2000.
3. Commerce One's Quarterly Report on Form 10-Q for the quarter ended
on June 30, 2000, filed with the Commission on August 14, 2000.
4. Commerce One's Current Report on Form 8-K dated July 20, 2000, filed
on July 31, 2000.
5. Commerce One's Current Report on Form 8-K dated July 24, 2000, filed
on July 26, 2000.
6. Commerce One's Current Report on Form 8-K dated June 20, 2000, filed
on June 29, 2000.
7. Commerce One's Current Report on Form 8-K dated June 14, 2000, filed
on June 28, 2000.
8. Commerce One's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, filed with the Commission on May 15, 2000.
9. Commerce One's Amended Current Report on Form 8-K/A dated February
January 7, 2000, filed on March 23, 2000.
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<PAGE>
10. Commerce One's Amended Current Report on Form 8-K/A dated January
7, 2000, filed on March 22, 2000.
11. Commerce One's Annual Report on Form 10-K, for the year ended
December 31, 1999, filed on March 30, 2000.
12. Commerce One's Current Report on Form 8-K dated February 2, 2000,
filed on February 2, 2000.
13. Commerce One's Amended Current Report on Form 8-K/A dated November
24, 1999, filed on January 25, 2000.
14. Commerce One's Current Report on Form 8-K dated January 7, 2000,
filed on January 20, 2000.
15. The description of Commerce One's Common Stock contained in the
Commerce One's Registration Statement on Form 8-A, as declared effective by the
Commission on July 1, 1999, filed pursuant to Section 12 of the Exchange Act
and, any amendment or report filed for the purpose of updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Registration Statement on
Form S-8 and prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
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 October 15, 2000, 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
participating in this matter, beneficially own an aggregate of approximately
40,000 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.
II-2
<PAGE>
Article IX of Commerce One's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of Commerce One's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of Commerce One if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of Commerce One, and, in any criminal action or
proceeding, the indemnified party had no reason to believe his or her conduct
was unlawful.
Commerce One has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
Commerce One'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.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1* Commerce One, Inc. 1999 Nonstatutory Stock Option Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of WSGR (included in Exhibit 5.1).
24.1 Power of Attorney (see signature page).
</TABLE>
* Previously filed as an exhibit to Registrant's Registration Statement
on Form S-8 (File No. 333-33328) filed on March 27, 2000.
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
II-3
<PAGE>
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 Commerce
One's annual report pursuant to Section 13(a) or Section 15(d) of the 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 Commerce One pursuant to the foregoing provisions, or otherwise, Commerce One
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 Commerce One of expenses
incurred or paid by a director, officer or controlling person of Commerce One 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, Commerce One 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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<PAGE>
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 Pleasanton, State of
California, on this 14th day of November, 2000.
COMMERCE ONE, INC.
By: /s/ Mark B. Hoffman
---------------------------------------
Mark B. Hoffman
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, Peter F. Pervere and Robert M.
Tarkoff and each of them, acting individual as his attorney-in-fact, with full
power of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8 (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 on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------------------------------------- -------------------------------------------------- --------------------
<S> <C> <C>
/s/ Mark B. Hoffman Chief Executive Officer and Chairman of the November 14, 2000
--------------------------------------- Board (Principal Executive Officer)
Mark B. Hoffman
/s/ Robert M. Kimmitt November 14, 2000
--------------------------------------- President and Vice Chairman of the Board
Robert M. Kimmitt
/s/ Peter F. Pervere
--------------------------------------- Senior Vice President and Chief Financial Officer November 14, 2000
Peter F. Pervere (Principal Financial and Accounting Officer)
--------------------------------------- Director November __, 2000
John V. Balen
II-5
<PAGE>
-------------------------------------- Director November __, 2000
William B. Elmore
/s/ Kenneth C. Gardner
-------------------------------------- Director November 14, 2000
Kenneth C. Gardner
-------------------------------------- Director November __, 2000
Thomas J. Gonzalez
/s/ William J. Harding
-------------------------------------- Director November 14, 2000
William J. Harding
/s/ David H. J. Furniss
-------------------------------------- Director November 14, 2000
David H. J. Furniss
/s/ Noriyoshi Osumi
-------------------------------------- Director November 14, 2000
Noriyoshi Osumi
-------------------------------------- Director November __, 2000
Larry W. Sonsini
/s/ Jay M. Tenebaum
-------------------------------------- Director November 14, 2000
Jay M. Tenebaum
/s/ Jeffrey T. Webber
-------------------------------------- Director November 14, 2000
Jeffrey T. Webber
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1* Registrant's 1999 Nonstatutory Stock Option Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of WSGR (included in Exhibit 5.1).
24.1 Power of Attorney (see signature page).
</TABLE>
* Previously filed as an exhibit to Registrant's Registration Statement
on Form S-8 (File No. 333-33328) filed on March 27, 2000.
