<PAGE>
As filed with the Securities and Exchange Commission on December 14, 2000
Registration No. 333-49498
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
COMMERCE ONE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------------
DELAWARE 7372 68-0322810
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION
NUMBER)
4440 ROSEWOOD DRIVE
PLEASANTON, CA 94588
(925) 520-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
ROBERT M. TARKOFF, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
COMMERCE ONE, INC. 4440 ROSEWOOD DRIVE
PLEASANTON, CA 94588
(925) 520-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------------
COPIES TO:
N. ANTHONY JEFFRIES, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this registration statement becomes effective.
----------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the SEC, acting pursuant to said Section
8(a) may determine.
================================================================================
<PAGE>
The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any jurisdiction where the offer of sale is not
permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 14, 2000
PROSPECTUS
367,993 SHARES
COMMERCE ONE, INC.
COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of 367,993 shares of our common stock which are held by some of
our current stockholders.
The prices at which such stockholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
Our common stock is quoted on The Nasdaq Stock Market's National Market
under the symbol "CMRC." On December 13, 2000, the closing price of our common
stock was $37.875 per share.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE THE SECTION ENTITLED
"RISK FACTORS" BEGINNING ON PAGE 2 FOR CERTAIN RISKS AND UNCERTAINTIES THAT YOU
SHOULD CONSIDER.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
----------------------
The date of this prospectus is December ___, 2000.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this prospectus in connection with
this offering, and if given or made, such information or representations may not
be relied upon as having been authorized by Commerce One, Inc. (referred to in
this prospectus as "Commerce One," "we," "us," "our" or the "registrant"), any
selling stockholder or by any other person. Neither the delivery of this
prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that information herein is correct as of any time subsequent to
the date hereof. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the securities covered
by this prospectus, nor does it constitute an offer to or a solicitation of any
person in any jurisdiction in which an offer or solicitation may not lawfully be
made.
----------------------
TABLE OF CONTENTS
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THE COMPANY...........................................................................................................1
RISK FACTORS..........................................................................................................2
PLAN OF DISTRIBUTION.................................................................................................15
SELLING STOCKHOLDERS.................................................................................................17
LEGAL MATTERS........................................................................................................18
EXPERTS..............................................................................................................18
WHERE YOU CAN FIND MORE INFORMATION..................................................................................19
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THE COMPANY
We are a leading provider of business-to-business electronic commerce
solutions that link buyers and suppliers of goods and services into trading
communities over the Internet. We were founded under the name DistriVision
Development Corporation in 1994. In March 1997, we changed our name to Commerce
One, Inc. and embarked on an aggressive product development effort, which
culminated in the release of the BuySite and MarketSite products in April 1998.
In March 1999, we reincorporated under the laws of the State of Delaware.
We released subsequent versions of the BuySite and MarketSite
products in November 1998, April 1999, December 1999 and September 2000. Our
principal executive offices are located at 4440 Rosewood Drive, Pleasanton
California 94588. Our telephone number is (925) 520-6000.
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RISK FACTORS
This Form S-3 and the documents incorporated by reference into this
Form S-3 contain forward-looking statements within the "safe harbor" provisions
of the Private Securities Litigation Reform Act of 1995 with respect to our
financial condition and results of operations and business. Statements that are
not statements of historical facts may be deemed to be forward-looking
statements. For example, words such as "may," "will," "should," "estimates,"
"predicts," "potential," "continue," "strategy," "believes," "anticipates,"
"plans," "expects," "intends," and similar expressions are intended to identify
forward-looking statements. These statements also include statements regarding
our agreements with General Motors, Ford and DaimlerChrysler concerning the
establishment of an electronic exchange for the automotive industry, the
establishment of other exchanges, the growth of our business and related
matters. These forward-looking statements are based upon current expectations,
and are not guarantees of future performance and are subject to risks and
uncertainties that could cause actual results to differ materially from the
results contemplated by the forward-looking statements. Factors that might cause
or contribute to such a discrepancy include, but are not limited to, regulatory
delays and issues, competitive pressures, difficulties in growing our business
to meet our commitments, technical challenges and those discussed in this "Risk
Factors" section and the risks discussed in our other filings with the
Securities and Exchange Commission incorporated by reference into this Form S-3.
An investment in our common stock involves a high degree of risk. In evaluating
our stock, you should carefully consider the discussion of risks and
uncertainties below.
WE HAVE A LIMITED OPERATING HISTORY, A HISTORY OF LOSSES AND HAVE YET TO
ACHIEVE PROFITABILITY.
We incurred net losses of $63.3 million, $24.6 million and $11.2
million for the years ended December 31, 1999, 1998 and 1997, respectively,
and $147.4 million for the nine months ended September 30, 2000. As of
September 30, 2000, we had an accumulated deficit of $250.0 million.
In addition, we have a limited operating history that makes it
difficult to forecast our future operating results. We expect to continue to
substantially increase our sales and marketing, product development and
general and administrative expenses and experience increased costs associated
with the issuance of equity securities and the amortization of intangible
assets and deferred stock compensation as a result of our recent acquisition
of AppNet, Inc., a provider of end-to-end Internet professional services, and
other transactions. As a result, we will need to generate significant
additional revenues to achieve and maintain profitability in the future.
Although our revenues have grown in recent quarters, we cannot be certain
that such growth will continue or that we will achieve sufficient revenues
for profitability.
THE QUARTERLY FINANCIAL RESULTS OF COMPANIES IN OUR INDUSTRIES ARE PRONE TO
SIGNIFICANT FLUCTUATIONS AND THIS COULD CAUSE OUR STOCK PRICE TO FALL.
We believe that quarter-to-quarter comparisons of our revenues and
operating results are not necessarily meaningful, and that such comparisons
may not be accurate indicators of future performance. The operating results
of companies in the electronic commerce industry have in the past experienced
significant quarter-to-quarter fluctuations which may adversely affect us. As
with other companies in this industry, our operating expenses, which include
sales and marketing, product development, general and administrative expenses
and amortization of intangible assets and deferred stock compensation, are
based on our expectations of future revenues and are relatively fixed in the
short term. Our fixed expenses will increase substantially as a result of our
recent acquisition of AppNet, whose former business now largely makes up the
business of our Global Services division. Further, our revenues will decline
if AppNet's existing agreements with clients, which are now administered by
Global Services, are
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terminated before engagements can be completed, or if Global Services is unable
or otherwise does not enter into new engagements. If our revenues for a quarter
fall below our expectations and we are not able to quickly reduce spending in
response, our operating results for that quarter would be harmed. It is likely
that in some future quarter our operating results may be below the expectations
of public market analysts and investors and, as a result, the price of our
common stock may fall.
OUR FUTURE SUCCESS DEPENDS UPON OUR GLOBAL TRADING WEB PARTNERS DEVELOPING AND
OPERATING SUCCESSFUL E-MARKETPLACES.
We have established strategic relationships with various companies
that have licensed our BuySite and MarketSite products in order to create
e-marketplaces. We cannot assure you that these companies will be able to
implement our products and services effectively, that they will develop and
launch e-marketplaces or that buyers and suppliers will participate in their
e-marketplaces. These companies may encounter delays in launching their
e-marketplaces, in fully deploying these marketplaces and in achieving
supplier participation in their marketplaces. Many of the companies that have
agreed to launch MarketSites, or have indicated that they will launch
MarketSites, have not yet done so. Additionally, although our technology
architecture is designed to support the development of trading communities
that can operate with each other, these marketplaces may not in fact operate
with each other. If these or any other e-marketplaces are not successful, our
business, operating results and financial condition will suffer.
IF OUR JOINT PRODUCT DEVELOPMENT RELATIONSHIPS ARE NOT SUCCESSFUL OUR BUSINESS
COULD SUFFER.
We have entered into relationships with various companies to jointly
develop new software products. In particular, we recently entered an agreement
with SAP AG to jointly develop and market a comprehensive software solution for
the business-to-business electronic commerce marketplace. These joint
development and marketing relationships can be difficult to implement and may
not succeed for various reasons, including:
- operating differences between the companies and their respective
employees;
- difficulties in coordinating sales and marketing efforts;
- technical obstacles to combining existing software products or
developing new compatible products; and
- the need to divert significant management attention, technical and
sales personnel and capital to these relationships.
We cannot assure you that these joint development and marketing
relationships will lead to successful new products, greater market penetration
or increased revenues for us.
THE DEVELOPMENT OF LARGE, INDUSTRY OR GEOGRAPHICALLY SPECIFIC MARKETPLACES OR
EXCHANGES ENTAILS CERTAIN RISKS FOR US.
Many of the e-marketplaces are intended to be very large and to
include many of the most significant companies in the particular industry or
region they address. These marketplaces include the proposed exchange with
Covisint, an exchange owned primarily by General Motors, Ford and
DaimlerChrysler. The development of these large trading exchanges will entail
significant risks for us. These risks include:
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- the diversion of a significant portion of our management,
technical and sales personnel to develop the exchanges;
- technical hurdles associated with developing an exchange on this
scale and integrating it with companies' existing computer systems
and those of other parties;
- antitrust issues arising from the creation of the exchanges;
- difficulties reaching agreements with the founders of the
exchanges and other parties concerning the establishment and
development of the exchanges; and
- all of the other risks of creating such exchanges described
elsewhere in this Risk Factors section.
These exchanges, including the proposed automotive exchange, may not be
successfully established or operated. If we are not able to manage these risks,
our business, results of operations and financial condition will suffer.
In addition, the establishment and operation of these exchanges may
raise issues under U.S. and foreign antitrust laws. To the extent that U.S. or
foreign antitrust regulators take adverse action or establish rules or
regulations with respect to the proposed exchange or business-to-business
e-commerce exchanges in general, the establishment and growth of such exchanges
may be delayed. Our revenues may suffer as a result.
BECAUSE OUR INDUSTRY IS HIGHLY COMPETITIVE AND HAS LOW BARRIERS TO ENTRY, WE
CANNOT ASSURE YOU THAT WE WILL BE ABLE TO COMPETE EFFECTIVELY.
The market for Internet-based, business-to-business electronic commerce
solutions is extremely competitive. We expect competition to intensify as
current competitors expand their product offerings and new competitors enter the
market. Because there are relatively low barriers to entry in the electronic
commerce market, competition from other established and emerging companies may
develop in the future. In addition, our customers and partners may become
competitors in the future. Increased competition is likely to result in price
reductions, lower average sales prices, reduced margins, longer sales cycles and
a decrease or loss of our market share, any of which could harm our business,
operating results or financial condition.
Our competitors include Ariba, Freemarkets, i2, Oracle, PurchasePro,
and VerticalNet. Certain of these competitors have announced plans to jointly
offer business-to-business electronic commerce solutions to potential
customers. These joint efforts could intensify the competitive pressure in
our market. Many of our competitors have, and new potential competitors may
have, more experience developing Internet-based software and end-to-end
purchasing solutions, larger technical staffs, larger customer bases, more
established distribution channels and customer relationships, greater brand
recognition and greater financial, marketing and other resources than we
have. In addition, competitors may be able to develop products and services
that are superior to our products and services, that achieve greater customer
acceptance or that have significantly improved functionality as compared to
our existing and future products and services. The business-to-business
electronic commerce solutions offered by competitors may be perceived by
buyers and suppliers as superior to ours.
Our Global Services division, whose business is largely the former
business of AppNet, faces intense and growing competition in the professional
services market. Its competitors include e-business professional services
providers, large information technology consulting services providers,
electronic commerce software
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and service providers, and Internet access and service providers. Some of its
competitors have longer operating histories and client relationships, greater
financial, technical, marketing and public relations resources, larger client
bases and greater brand or name recognition than it has. Global Services'
competitors may also be able to respond more quickly to technological
developments and changes in clients' needs. In addition, there are relatively
low barriers to entry into its business. Global Services does not own any
technologies that preclude or inhibit competitors from entering its markets. Its
competitors may independently develop and patent or copyright technologies that
are superior or substantially similar to its technologies. The costs to develop
and provide e-business professional services are low.
WE MAY NOT BE ABLE TO HIRE AND RETAIN SUFFICIENT SALES, MARKETING, SERVICES AND
TECHNICAL PERSONNEL THAT WE NEED TO SUCCEED BECAUSE THESE PERSONNEL ARE LIMITED
IN NUMBER AND IN HIGH DEMAND.
If we fail to hire and retain sufficient numbers of sales, marketing,
services and technical personnel, our business, operating results and financial
condition will be harmed. Competition for qualified sales, marketing, services
and technical personnel is intense as these personnel are in limited supply, and
we may not be able to hire and retain sufficient numbers of such personnel to
grow our business. We need to substantially expand our sales operations and
marketing efforts, both domestically and internationally, in order to increase
market awareness and sales of our BuySite and MarketSite products and the
related services that we offer. We will also need to significantly increase our
technical and services staff to support the growth of our business and our
increasing commitments to other parties. In particular, we will need to hire a
significant number of technical personnel with various skill sets to establish
and operate the large industry specific exchanges. Although we increased the
size of our technical and services staff through the acquisition of AppNet,
these employees may not remain with our organization in the future.
In addition, the market price of our common stock has fluctuated
substantially since our initial public offering in July 1999. Consequently,
potential employees may perceive our equity incentives such as stock options as
less attractive and current employees whose options are no longer priced below
market value may choose not to remain employed with our organization. In that
case, our ability to attract employees will be adversely affected. Furthermore,
a substantial portion of the equity incentives previously granted to AppNet's
officers accelerated and became substantially vested upon the closing of the
acquisition. New options granted to these officers or other employees of AppNet
at the current market price of our common stock may not be sufficient to retain
these employees. Finally, should our stock price substantially decline, the
retention value of stock options granted since our initial public offering will
decline and our employees may choose not to remain with our organization.
WE MAY NOT BE ABLE TO EFFECTIVELY REDEPLOY APPNET'S PROFESSIONAL SERVICES
PERSONNEL INTO OUR BUSINESS.
We intend to gradually redeploy certain of AppNet's professional
services personnel from AppNet's historical business to our business, both
through Commerce One Global Services and our wider organization. In order for
this redeployment to be successful, we will need to retain these personnel,
incentivize them to work in our business and train many of them to implement
our MarketSite and BuySite products and build customized services for our
e-marketplaces. Further, as we shift personnel from AppNet's historical
business to our business, we may realize decreasing revenues from AppNet's
business. The revenues that we realize from redeploying these personnel to
our business may be less than the revenues generated from their activities at
AppNet. The redeployment of these personnel may also be expensive. We may not
be able to successfully redeploy these personnel and a failed redeployment
may have a material adverse effect on our business, results of operations or
financial condition.
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WE HAVE EXPERIENCED SIGNIFICANT GROWTH IN RECENT PERIODS AND FAILURE TO MANAGE
THIS GROWTH COULD STRAIN OUR MANAGEMENT AND OTHER RESOURCES.
Our ability to successfully offer products and services and implement
our business plan in a rapidly evolving market requires an effective planning
and management process. Future expansion efforts could be expensive and put a
strain on management and resources. We have increased, and plan to continue to
increase, the scope of our operations at a rapid rate. Our headcount has grown
and will continue to grow substantially. At September 30, 2000, we had a total
of 3,216 employees, including the addition of 1,454 employees as a result of
the AppNet acquisition, and at December 31, 1999 we had a total of 594
employees. In addition, we expect to continue to hire a significant number of
new employees in the near future. To manage future growth effectively, we must
maintain and enhance our financial and accounting systems and controls,
integrate new personnel and manage expanded operations. We may not be able to do
this effectively.
WE MAY NOT BE ABLE TO INTEGRATE ACQUISITIONS INTO OUR BUSINESS EFFECTIVELY.
As part of our business strategy, we have made and expect to continue
to make acquisitions of businesses that offer complementary products, services
and technologies, such as our recent acquisition of AppNet, a provider of
end-to-end Internet professional services. We have limited experience acquiring
businesses, and may not acquire such businesses on favorable terms or be able to
integrate such organizations into our business successfully. Our acquisitions
are and will be accompanied by the risks commonly encountered in acquisitions of
businesses, including, among other things:
- the possibility that we pay more than the acquired business is
worth;
- the difficulty of integrating the operations and personnel of the
acquired business into our business;
- the difficulty of integrating service and product offerings;
- the difficulty of integrating technology, back office, accounting
and financial systems;
- the potential disruption of our ongoing business;
- the distraction of management from our business;
- the inability of management to maximize our financial and
strategic position; and
- the impairment of relationships with, and difficulty of retaining,
employees and customers.
Further, our acquisitions and investments may have financial
consequences such as:
- potentially dilutive issuances of equity securities;
- one-time write-offs;
- incurrence of contingent liabilities; and
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- increased net loss resulting from the purchase method of
accounting for acquisitions, such as that of AppNet, pursuant to
which we incur amortization expenses related to goodwill and other
intangible assets.
These risks could have a material adverse effect on our business, financial
condition and results of operations.
OUR LENGTHY SALES CYCLE COULD CAUSE DELAYS IN REVENUE GROWTH.
The period between our initial contact with a potential customer and
the purchase of our products and services is often long and may have delays
associated with the lengthy budgeting and approval process of our customers.
Historically, our typical sales cycle has been approximately three to six
months, and potentially longer in the case of larger, industry-focused
exchanges. This lengthy cycle could have a negative impact on the timing of our
revenues, especially our realization of any transaction-based revenues.
We believe that a customer's decision to purchase our products and
services is discretionary, involves a significant commitment of resources, and
is influenced by customer budgetary cycles. To successfully sell our products
and services, we generally must educate potential customers regarding the use
and benefit of our products and services, which can require significant time and
resources. Many of our potential customers are large enterprises that generally
take a longer time to make significant business decisions.
OUR FUTURE REVENUES DEPEND UPON OUR ABILITY TO INCREASE BUSINESS SERVICE AND
TRANSACTION FEE REVENUE FROM OUR E-MARKETPLACES.
To date, we have derived a substantial portion of our revenues from
licensing our MarketSite and BuySite products to customers and providing related
implementation, support and maintenance services. A significant portion of these
revenues have come from the recognition of one-time license fees by customers.
Although our revenues from business services has grown recently, our
transaction-based revenue has been immaterial to date. Our business model calls
for a significant portion of our revenues in the future to be derived from
business services and transaction based fees. If such revenues do not
materialize, our business will suffer.
OUR CUSTOMER BASE IS CONCENTRATED AND OUR SUCCESS DEPENDS IN PART ON OUR ABILITY
TO RETAIN EXISTING CUSTOMERS.
In calendar 1999, Toronto Dominion accounted for 21% of our total
revenues, Singapore Telecommunications accounted for 15%, and British
Telecommunications accounted for 11%. In the third quarter of 2000, no
customer accounted for more than 10% of our total revenues. The significant
contribution of these customers to our revenues in the periods described
generally reflects the payment by these customers of large one-time license
fees to us. We do not have long-term contractual commitments from any of our
current customers and our customers may terminate their contracts with us
with little or no advance notice and without significant penalty to them. As
a result, we cannot assure you that any of our current customers will be
customers in future periods. A customer termination would not only result in
lost revenues, but also the loss of customer references that are necessary
for securing future customers.
IF SUPPLIERS DO NOT PARTICIPATE IN THE E-MARKETPLACES, OUR BUSINESS MAY
BE ADVERSELY AFFECTED.
E-marketplaces will be attractive to suppliers only if a significant
number of buyers are willing to purchase goods and services through the
e-marketplaces. Suppliers incur costs making information relating to their
goods and services available on these trading communities and thus must
realize
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additional revenues to justify their continued participation in these trading
communities. Suppliers may not remain in the e-marketplaces or join these
communities in sufficient numbers to make them successful.
WE DEPEND UPON CONTINUING OUR RELATIONSHIP WITH THIRD-PARTY INTEGRATORS WHO
SUPPORT OUR SOLUTIONS.
Our success depends upon the acceptance and successful integration by
customers and their suppliers of our BuySite and MarketSite products. Our
current customers and potential customers and their related suppliers often rely
on third-party systems integrators such as Andersen Consulting,
PricewaterhouseCoopers and Cambridge Technology Partners and others to develop,
deploy and manage their Internet-based, business-to-business electronic commerce
platforms and solutions. We and our customers will need to continue to rely on
these systems integrators even as we increase the size of our professional
services organization. If large systems integrators fail to continue to support
our solution or commit resources to us, if any of our customers or suppliers are
not able to successfully integrate our solution or if we are unable to
adequately train our existing systems integration partners, our business,
operating results and financial condition could suffer.
OUR STRATEGY OF STRATEGIC RESELLING THROUGH PARTNERS MAY NOT BE SUCCESSFUL.
We have established strategic relationships with companies that
resell our existing BuySite and Marketsite applications to our customers.
These relationships are new and this strategy is unproven. We cannot assure
you that any of these companies, or those we may appoint in the future, will
be able to resell our product solution sets to a sufficient number of
customers, or that those customers will purchase our applications and more
importantly, connect into e-marketplaces. Further, we may encounter
disagreements from time to time with companies concerning the terms of their
reseller agreements. To date, a few of our partners have been unsuccessful in
reselling our BuySite products. If our current or future strategic partners
are not able to successfully resell our BuySite products, our business will
suffer.
OUR EXECUTIVE OFFICERS AND CERTAIN KEY PERSONNEL ARE CRITICAL TO OUR BUSINESS
AND THESE OFFICERS AND KEY PERSONNEL MAY NOT REMAIN WITH US IN THE FUTURE.
Our future success depends upon the continued service of our executive
officers and other key personnel, and none of our current executive officers
other than Jay M. Tenenbaum, our Senior Vice President and Chief Scientist, are
bound by an employment agreement for any specific term. Any of our officers may
leave our organization in the future. In particular, the services of Mark
Hoffman, our Chief Executive Officer; Robert Kimmitt, our President; and Chuck
Donchess, our Executive Vice President and Chief Strategy Officer, would be
difficult to replace. If we lose the services of one or more of our executive
officers or key employees, or if one or more of them decides to join a
competitor or otherwise compete directly or indirectly with us, our business,
operating results and financial condition would be seriously harmed.
WE INTEND TO CONTINUE TO EXPAND OUR INTERNATIONAL OPERATIONS AND THESE EFFORTS
MAY NOT BE SUCCESSFUL IN GENERATING ADDITIONAL REVENUES.
We have generated significant international revenues and are planning
to increase our international operations and sales efforts. However, we may not
be able to continue to increase international revenues and the risks of
international sales and operations may harm us.
International business involves inherent risks, and we anticipate the
risks that may affect us include:
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- unexpected changes in regulatory requirements and tariffs that may
be imposed on electronic commerce
- seasonal reductions in business activity
- difficulties in staffing and managing foreign offices as a result
of, among other things, distance, language and cultural
differences
- longer payment cycles and greater difficulty in accounts
receivable collection
- potentially harmful tax consequences, including withholding tax
issues
- fluctuating exchange rates
- price controls or other restrictions on foreign currency
- difficulties in obtaining export and import licenses
- foreign antitrust regulation
In addition, we have only limited experience in marketing, selling and
supporting our products and services in foreign countries. This may be more
difficult or take longer than we anticipate especially due to international
problems, such as language barriers or currency exchange issues, and the fact
that the Internet infrastructure in such foreign countries may be less advanced
than the Internet infrastructure in the United States.
OUR MARKET MAY UNDERGO RAPID TECHNOLOGICAL CHANGE AND THIS CHANGE MAY MAKE OUR
PRODUCTS AND SERVICES OBSOLETE OR CAUSE US TO INCUR SUBSTANTIAL COSTS TO ADAPT
TO THESE CHANGES.
If the market for our products and services fails to develop and grow
or we fail to gain acceptance in this market, this failure would harm our
business, operating results and financial condition. Our market is characterized
by rapidly changing technology, evolving industry standards and frequent new
product announcements. To be successful, we must adapt to the rapidly changing
market by continually improving the performance, features and reliability of our
products and services or else our products and services may become obsolete. We
could also incur substantial costs to modify our products, services or
infrastructure in order to adapt to these changes. Our business, operating
results and financial condition could be harmed if we incurs significant costs
without adequate results, or are unable to adapt rapidly to these changes.
SECURITY RISKS OF ELECTRONIC COMMERCE MAY DETER FUTURE USE OF OUR PRODUCTS AND
SERVICES.
A fundamental requirement to conduct Internet-based,
business-to-business electronic commerce is the secure transmission of
confidential information over public networks. Failure to prevent security
breaches of the e-marketplaces, or well publicized security breaches
affecting the Internet in general, could significantly harm our business,
operating results and financial condition. Advances in computer capabilities,
new discoveries in the field of cryptography, or other developments may not
be sufficient to prevent a compromise or breach of the algorithms we use to
protect content and transactions on e-marketplaces or proprietary information
in our databases. Anyone who is able to circumvent our security measures
could misappropriate proprietary, confidential customer information or cause
interruptions in our operations. We may be required to incur significant
costs to protect against security breaches or to alleviate
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<PAGE>
problems caused by breaches. Further, a well-publicized compromise of security
could deter people from using the Internet to conduct transactions that involve
transmitting confidential information.
Our Global Services division provides e-business services that rely on
encryption and authentication technology licenses from third parties to provide
the security and authentication needed to safely transmit confidential
information. Unauthorized access, computer viruses, or the accidental or
intentional acts of Internet users, current and former employees or others could
jeopardize the security of confidential information and create delays or service
interruptions at the Global Services' e-business outsourcing centers. Such
disruptions or breaches in security could result in liability and in the loss of
existing clients or the deterrence of potential clients.
FAILURE TO EXPAND INTERNET INFRASTRUCTURE COULD LIMIT OUR FUTURE GROWTH.
The recent growth in Internet traffic has caused frequent periods of
decreased performance, and if Internet usage continues to grow rapidly, its
infrastructure may not be able to support these demands and its performance and
reliability may decline. If outages or delays on the Internet occur frequently
or increase in frequency, overall Internet usage, including usage of our
products and services, could grow more slowly or decline. Our ability to
increase the speed and scope of our services to customers is ultimately limited
by and depends upon the speed and reliability of both the Internet and our
customers' internal networks. Consequently, the emergence and growth of the
market for our services depends upon improvements being made to the entire
Internet as well as to our individual customers' networking infrastructures to
alleviate overloading and congestion. If these improvements are not made, the
ability of our customers to utilize our solution will be hindered, and our
business, operating results and financial condition may suffer.
CONTINUED ADOPTION OF THE INTERNET AS A METHOD OF CONDUCTING BUSINESS IS
NECESSARY FOR OUR FUTURE GROWTH.
The market for Internet-based, business-to-business electronic commerce
products is relatively new and is evolving rapidly. Our future revenues and any
future profits depend upon the widespread acceptance and use of the Internet as
an effective medium of business-to-business commerce, particularly as a medium
to perform procurement and fulfillment functions. The acceptance and use of the
Internet for business-to-business commerce could be limited by a number of
factors, such as the growth and use of the Internet in general, the relative
ease of conducting business on the Internet, the efficiencies and improvements
that conducting commerce on the Internet provides, concerns about transaction
security and taxation of transactions on the Internet. The failure of the
Internet to continue to develop as a commercial or business medium or of
significant numbers of buyers and suppliers to conduct business-to-business
commerce on the Internet would harm our business, operating results and
financial condition.
IF WE RELEASE PRODUCTS CONTAINING DEFECTS, WE MAY NEED TO HALT FURTHER SHIPMENTS
UNTIL WE FIX THE DEFECTS, AND OUR BUSINESS AND REPUTATION MAY BE HARMED.
Products as complex as ours often contain unknown and undetected errors
or performance problems. Many defects are frequently found during the period
immediately following introduction and initial shipment of new products or
enhancements to existing products. Although we attempt to resolve all errors
that we believe would be considered serious by our customers before shipment to
them, our products are not error-free. These errors or performance problems
could result in lost revenues or delays in customer acceptance and would be
detrimental to our business and reputation. In the past, defects in our products
have delayed their shipments after those products have been commercially
introduced. While these delays have not been
-10-
<PAGE>
material to date, undetected errors or performance problems in our existing or
future products may be discovered in the future and known errors currently
considered minor may in the future be considered serious by our customers. Any
delays in releasing new products, due to defects, the need for further
enhancements or otherwise, could adversely affect our revenues.
IF OUR POTENTIAL CUSTOMERS ARE NOT WILLING TO SWITCH TO OR ADOPT OUR ELECTRONIC
COMMERCE SOLUTION, OUR GROWTH AND REVENUES WILL BE LIMITED.
The failure to generate a large customer base would harm our growth and
revenues. This failure could occur for several reasons. Some of our
business-to-business electronic commerce competitors charge their customers
large fees upon the execution of customer agreements. Businesses that have made
substantial up-front payments to our competitors for electronic commerce
solutions may be reluctant to replace their current solution and adopt our
solution. As a result, our efforts to create a larger customer base may be more
difficult than expected even if we are deemed to offer products and services
superior to those of our competitors. Further, because the business-to-business
electronic commerce market is new and underdeveloped, potential customers in
this market may be confused or uncertain about the relative merits of each
electronic commerce solution or which electronic commerce solution to adopt, if
any. Confusion and uncertainty in the marketplace may inhibit customers from
adopting our solution, which could harm our business, operating results and
financial condition.
IF THIRD PARTIES CLAIM THAT WE INFRINGE UPON THEIR INTELLECTUAL PROPERTY, OUR
ABILITY TO USE CERTAIN TECHNOLOGIES AND PRODUCTS COULD BE LIMITED AND WE MAY
INCUR SIGNIFICANT COSTS TO RESOLVE THESE CLAIMS.
Litigation regarding intellectual property rights is common in the
Internet and software industries. We expect third-party infringement claims
involving Internet technologies and software products and services
-11-
<PAGE>
to increase. If an infringement claim is filed against us, we may be prevented
from using certain technologies and may incur significant costs to resolve the
claim.
We have in the past received letters suggesting that we are infringing
the intellectual rights of others and we may from time to time encounter
disputes over rights and obligations concerning intellectual property. Although
we believe that our intellectual property rights are sufficient to allow us to
market our existing products without incurring liability to third parties, our
products and services may be found to infringe on the intellectual property
rights of third parties.
In addition, we have agreed, and may agree in the future, to indemnify
customers against claims that our products infringe upon the intellectual
property rights of others. We could incur substantial costs in defending
ourselves and our customers against infringement claims. In the event of a claim
of infringement, we and our customers may be required to obtain one or more
licenses from third parties. We or our customers may not be able to obtain
necessary licenses from third parties at a reasonable cost or at all.
FAILURE TO PROTECT INTELLECTUAL PROPERTY RIGHTS OR MAINTAIN RIGHTS TO USE
LICENSED INTELLECTUAL PROPERTY COULD HAVE ADVERSE EFFECTS.
In connection with its e-business professional services, our Global
Services division develops intellectual property for its clients. Global
Services frequently assigns ownership of such intellectual property to the
client and retains only a license for limited uses. Issues relating to ownership
of and rights to use such intellectual property can be complicated. Global
Services may become involved in disputes that affect its ability to resell or
reuse this intellectual property. In addition, many projects involve the use of
material that is confidential or proprietary client information. The successful
assertion of one or more large claims against Global Services by its clients or
other third parties could have a material adverse effect on it.
BECAUSE THE PROTECTION OF OUR PROPRIETARY TECHNOLOGY IS LIMITED, OUR PROPRIETARY
TECHNOLOGY COULD BE USED BY OTHERS.
Our success depends, in part, upon our proprietary technology and other
intellectual property rights. To date, we have relied primarily on a combination
of copyright, patent, trade secret, and trademark laws, and nondisclosure and
other contractual restrictions on copying and distribution to protect our
proprietary technology. We have no issued patents to date. We may not be able to
protect our intellectual property rights adequately in the United States or
abroad.
Furthermore, litigation may be necessary to enforce our intellectual
property rights, to protect our trade secrets, to determine the validity and
scope of the proprietary rights of others, or to defend against claims of
infringement or invalidity. Such litigation could result in substantial costs
and diversion of resources and could harm our business, operating results and
financial condition.
-12-
<PAGE>
WE MAY NOT HAVE ADEQUATE BACK-UP SYSTEMS, AND A DISASTER COULD DAMAGE OUR
OPERATIONS.
We currently do not have a disaster recovery plan in effect and do
not have fully redundant systems for service at an alternate site. A disaster
could severely harm our business because our service could be interrupted for
an indeterminate length of time. Our operations depend upon our ability to
maintain and protect our computer systems in our principal facilities in
Pleasanton, Santa Clara, Mountain View and Cupertino, California, which exist
on or near known earthquake fault zones. We also depend upon third parties to
host most of our e-marketplaces and some of these third parties are also
located in the same earthquake fault zones. Although these systems are
designed to be fault tolerant, they are vulnerable to damage from fire,
floods, earthquakes, power loss, telecommunications failures and similar
events.
In the event our Global Services division's hardware malfunctions and
its back-up systems fail, it may not be able to maintain its standard of service
to its customers. If Global Services was unable to provide e-business
outsourcing services at either of its e-business outsourcing centers, it would
materially adversely impact its ability to continue to provide the type of
e-business outsourcing services processed through that center.
WE MAY HAVE POTENTIAL LIABILITY TO CLIENTS WHO ARE DISSATISFIED WITH OUR
PROFESSIONAL SERVICES.
We design, develop, implement and manage electronic commerce solutions
that are crucial to the operation of their clients' businesses. Defects in the
solutions they develop could result in delayed or lost revenues, adverse
customer reaction and negative publicity or require expensive corrections, any
of which could have a material adverse effect on our business, financial
condition or results of operations. Clients who are not satisfied with these
services could bring claims against us for substantial damages. Any claims
asserted could exceed the level of our insurance. There can be no assurance that
the insurance that we carry will continue to be available on economically
reasonable terms, or at all. The successful assertion of one or more large
claims that are uninsured, exceed insurance coverage or result in changes to
insurance policies, including premium increases, could have a material adverse
effect on our business, financial condition or results of operations.
ADDITIONAL GOVERNMENT REGULATIONS MAY INCREASE OUR COSTS OF DOING BUSINESS.
The laws governing Internet transactions remain largely unsettled. The
adoption or modification of laws or regulations relating to the Internet could
harm our business, operating results and financial condition by increasing our
costs and administrative burdens. It may take years to determine whether and how
existing laws such as those governing antitrust, intellectual property, privacy,
libel, consumer protection and taxation apply to the Internet.
Laws and regulations directly applicable to communications or commerce
over the Internet are becoming more prevalent. We must comply with new
regulations in both Europe and the United States, as well as any other
regulations adopted by other countries where we may do business. The growth and
development of the market for online commerce may prompt calls for more
stringent consumer protection laws, both in the United States and abroad, as
well as new laws governing the taxation of Internet commerce. Compliance with
any newly adopted laws may prove difficult and may harm our business, operating
results and financial condition.
-13-
<PAGE>
INTERNET RELATED STOCK PRICES ARE ESPECIALLY VOLATILE AND THIS VOLATILITY MAY
DEPRESS OUR STOCK PRICE.
The stock market and specifically the stock prices of Internet related
companies have been very volatile. This volatility is often not related to the
operating performance of the companies. This broad market volatility and
industry volatility may reduce the price of our common stock, without regard to
our operating performance. Due to this volatility, the market price of our
common stock could significantly decrease at any time.
-14-
<PAGE>
PLAN OF DISTRIBUTION
We are registering 367,993 shares of common stock on behalf of
certain selling stockholders. We issued all of the shares in connection with
our acquisition of AppNet in September 2000. We will receive no proceeds from
this offering. The selling stockholders named in the table below or pledgees,
donees, transferees or other successors-in-interest selling shares received
from a named selling stockholder as a gift, partnership distribution or other
non-sale-related transfer after the date of this prospectus may sell the
shares from time to time. The selling stockholders will act independently of
us in making decisions with respect to the timing, manner and size of each
sale. The sales may be made on one or more exchanges or in the
over-the-counter market or otherwise, at prices and at terms then prevailing
at prices related to the then current market price or in negotiated
transactions. The selling stockholders may effect such transactions by
selling the shares to or through broker-dealers. The shares may be sold by
one or more of, or a combination of, the following:
- a block trade in which the broker-dealer so engaged will attempt
to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus;
- an exchange distribution in accordance with the rules of such
exchange;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers; or
- in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In effecting
sales, broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate in the resales.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular broker-dealer might be in excess of customary
commissions and will be in amounts to be negotiated in connection with the sale.
Broker-dealers or agents and any other participating broker-dealers or the
selling stockholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because selling
stockholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the selling stockholders will be subject to the
prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. The selling stockholders have advised us that they
have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. There is
no underwriter or coordinating broker acting in connection with the proposed
sale of shares by selling stockholders.
-15-
<PAGE>
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations of the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, each
selling stockholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and has informed them of
the need for delivery of copies of this prospectus to purchasers at or prior to
the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) promulgated under the Securities Act upon being notified by a
selling stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
- the name of each such selling stockholder and of the participating
broker-dealer(s);
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
- that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
- other facts material to the transaction.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the number of shares owned by each of
the selling stockholders. None of the selling stockholders has held any
position or office or had a material relationship with us within the past
three years other than as a result of the ownership of the shares or other
securities of Commerce One or as a result of their employment with us as of
the date of the closing of the acquisition. The selling stockholders named in
the table have sole voting and investment power with respect to all shares of
common stock shown as beneficially owned by them, subject to community
property laws where applicable. No estimate can be given as to the number of
shares that will be held by the selling stockholders after completion of this
offering because the selling stockholders may offer all or some of the shares
and because there currently are no agreements, arrangements or understandings
with respect to the sale of any of the shares. The shares offered by this
prospectus may be offered from time to time by the selling stockholders named
below:
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES PERCENT OF SHARES
BENEFICIALLY OUTSTANDING REGISTERED FOR
NAME OF SELLING STOCKHOLDER OWNED SHARES SALE HEREBY (1)
--------------------------------------------------------------------- ------------ ----------- ---------------
<S> <C> <C> <C>
Poe Revocable Trust Dated November 27, 1991 45,668 * 40,594
Geoffrey Dean Griffin and Barbara Elizabeth Griffin Living Trust
Agreement Dated August 3, 2000 45,668 * 40,594
Peter T. Dunn 45,668 * 40,594
James M. Edgar 36,533 * 32,474
Robert M. White 36,533 * 32,474
Clifton W. Lewis 31,963 * 28,412
Carole Kay Lynn 31,963 * 28,412
Jonathan H. Parker 31,963 * 28,412
Jane E. Cloninger 20,776 * 18,468
John M. Bresnahan 12,466 * 11,080
Thad D. Peterson 12,466 * 11,080
Kenneth J. Howes 11,635 * 10,342
Peter K. Sidenius 8,310 * 7,387
Roger K. Alexander 8,310 * 7,387
Angelita Verdun 6,233 * 5,540
Margaret C. Brown 4,155 * 3,693
Pascal Burg 4,155 * 3,693
Weston Cook 4,155 * 3,693
E E. Mia Nam 4,155 * 3,693
David Kevin Jenkins 4,155 * 3,693
-17-
<PAGE>
Brian J. Stifel 4,155 * 3,693
Eric F. Schneider 2,078 * 1,847
Linda R. Phillippe 830 * 738
---------------- ------------
Total 413,993 367,993
================ ============
</TABLE>
------------------
* Represents beneficial ownership of less than one percent.
(1) This registration statement also shall cover any additional shares of
common stock which become issuable in connection with the shares registered
for sale hereby by reason of any stock divided, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of outstanding
shares of our common stock.
LEGAL MATTERS
The validity of the securities offered pursuant to this prospectus will
be passed upon for us by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California. As of the date of this prospectus,
investment partnerships composed of members of and persons associated with
Wilson Sonsini Goodrich & Rosati, Professional Corporation and members and
persons associated with the firm representing the firm in the transaction
beneficially own an aggregate of approximately 4,400 shares of our common stock.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and financial statement schedule included in our Annual
Report on Form 10-K for the year ended December 31, 1999, as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Our financial statements and financial statement
schedule are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
-18-
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the SEC's Public Reference Room, 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room. Our SEC filings are
also available to the public from the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13a, 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 as amended until
our offering is completed.
(a) Commerce One's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed March 30, 2000;
(b) Commerce One's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000, filed November 14, 2000;
(c) Commerce One's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000, filed August 4, 2000;
(d) Commerce One's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, filed May 15, 2000;
(e) Commerce One's Current Report on Form 8-K, filed September 28,
2000, as amended by the Current Report on Form 8-K/A filed on
December 12, 2000;
(f) Commerce One's Current Report on Form 8-K, filed July 31, 2000;
(g) Commerce One's Current Report on Form 8-K, filed July 26, 2000;
(h) Commerce One's Current Report on Form 8-K, filed June 29, 2000;
(i) Commerce One's Current Report on Form 8-K, filed June 28, 2000;
(j) Commerce One's Current Report on Form 8-K filed February 2,
2000;
(k) Commerce One's Current Report on Form 8-K filed January 20,
2000, as amended by the Current Report on Form 8-K/A filed on
March 22, 2000 and March 23, 2000; and
(l) The description of Commerce One Common Stock contained in its
registration statement on Form 8-A filed June 21, 1999.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Vinella I. Sido
Vice President, Assistant General Counsel and Assistant Secretary
Commerce One, Inc.
4440 Rosewood Drive
Pleasanton, California 94588
(925) 520-6000
You should rely only on the information incorporated by reference or
provided in this prospectus or in any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or in any prospectus
supplement is accurate as of any date other than the date on the front of the
prospectus or any prospectus supplement.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the registrant in connection
with the sale of common stock being registered. All amounts are estimates except
the SEC registration fee.
<TABLE>
<S> <C>
SEC Registration Fee................................... $ 6,552
Legal Fees and Expenses................................ 15,000
Accounting Fees and Expenses........................... 15,000
Printing Fees.......................................... 5,000
Transfer Agent Fees.................................... 5,000
Miscellaneous.......................................... 3,448
----------
Total................................................ $ 50,000
==========
</TABLE>
ITEM 15. 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 General Corporation 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.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
2.1* Agreement and Plan of Reorganization, dated May 16, 2000, by
and among AppNet, Inc., AppNet/EDC, Inc., Edgar Dunn & Company
and certain stockholders.
2.2* Amendment No. 1 to Agreement and Plan of Reorganization, dated
August 25, 2000, by and among AppNet, Inc., AppNet/EDC, Inc.,
Edgar Dunn & Company and certain stockholders.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
24.1* Power of Attorney (included on page II-4 of this registration
statement)
</TABLE>
--------------------
* Previously filed.
ITEM 17. UNDERTAKINGS
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: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii) 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, 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.
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 foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and therefore is 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.
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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to
II-2
<PAGE>
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of
Pleasanton, State of California, on the 14th day of December, 2000.
COMMERCE ONE, INC.
By: /s/ Mark B. Hoffman
--------------------------
Mark B. Hoffman
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 1 to the registration statement has been signed
below by the following persons on behalf of Commerce One, Inc. and in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------- -------------------------------------------- -------------------------
<S> <C> <C>
/s/ Mark B. Hoffman Chairman of the Board and Chief Executive
------------------------------------------------- Officer (Principal Executive Officer) December 14, 2000
Mark B. Hoffman
*
------------------------------------------------- Vice Chairman of the Board and President December 14, 2000
Robert M. Kimmitt
/s/ Peter F. Pervere Senior Vice President and Chief Financial
------------------------------------------------- Officer (Principal Financial and December 14, 2000
Peter F. Pervere Accounting Officer)
------------------------------------------------- Director
Thomas J. Gonzales, II
*
------------------------------------------------- Director December 14, 2000
Jay M. Tenenbaum
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------- -------------------------------------------- -------------------------
<S> <C> <C>
------------------------------------------------- Director
John V. Balen
------------------------------------------------- Director
William B. Elmore
*
------------------------------------------------- Director December 14, 2000
David H.J. Furniss
------------------------------------------------- Director
Kenneth C. Gardner
*
------------------------------------------------- Director December 14, 2000
William J. Harding
------------------------------------------------- Director
Noriyoshi Osumi
*
------------------------------------------------- Director December 14, 2000
Jeffrey T. Webber
*
------------------------------------------------- Director December 14, 2000
Larry W. Sonsini
</TABLE>
*By: /s/ Peter F. Pervere
---------------------------------------------
Peter F. Pervere
Attorney-in-Fact
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT TITLE
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<S> <C>
2.1* Agreement and Plan of Reorganization, dated May 16, 2000, by
and among AppNet, Inc., AppNet/EDC, Inc., Edgar Dunn & Company
and certain stockholders.
2.2* Amendment No. 1 to Agreement and Plan of Reorganization, dated
August 25, 2000, by and among AppNet, Inc., AppNet/EDC, Inc.,
Edgar Dunn & Company and certain stockholders.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
24.1* Power of Attorney (included on page II-4 of this registration
statement)
</TABLE>
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* Previously filed.
II-6
