Commerce One, Inc. - MRRS Decision

Headnote

Mutual Reliance Review System for Exemptive Relief Applications - the first trade by former employees in shares acquired pursuant to the employee share purchase plan or employee stock option plan of the issuer shall not be subject to section 25 of the Act, subject to certain conditions.

Applicable Ontario Statutes

Securities Act, R.S.O. 1990, c.S.5., as am., ss. 25, 74(1).

Applicable Ontario Rules

Rule 45-503 - Trades to Employees, Executives and Consultants (1998) 21 OSCB 6559.

Rule 72-501 - Prospectus Exemption for First Trade Over a Market Outside Ontario (1998) 21 OSCB 2318.

IN THE MATTER OF

THE SECURITIES LEGISLATION

OF ALBERTA, BRITISH COLUMBIA,

NEW BRUNSWICK, NEWFOUNDLAND, NOVA SCOTIA, ONTARIO,

PRINCE EDWARD ISLAND, QUEBEC AND SASKATCHEWAN

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM FOR

EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

COMMERCE ONE, INC.

MRRS DECISION DOCUMENT

WHEREAS the local securities regulatory authority or regulator (the "Decision Maker", and collectively, the "Decision Makers") in each of British Columbia, Alberta, New Brunswick, Newfoundland, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan (the "Jurisdictions") has received an application (the "Application") from Commerce One, Inc. (the "Filer") for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the requirements contained in the Legislation to be registered to trade in a security (the "Registration Requirements") and to file and obtain a receipt for a preliminary prospectus and a prospectus (the "Prospectus Requirements") (collectively, the "Registration and Prospectus Requirements") shall not apply to certain trades of shares of common stock (the "Common Shares") in the capital of the Filer and in options (the "Options") for Common Shares made in connection with the Filer's 1999 Nonstatutory Stock Option Plan and 1999 Employee Stock Purchase Plan as such plans are amended from time to time.

AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the "System"), Ontario is the principal jurisdiction for this application;

AND WHEREAS the Filer has represented to the Decision Makers that:

1. The Filer is a corporation incorporated under the laws of the State of Delaware, is not a reporting issuer or the equivalent under the Legislation of any of the Jurisdictions and has no present intention of becoming a reporting issuer or the equivalent in any of the Jurisdictions. The Filer is currently subject to the reporting requirements of the United States Securities Exchange Act of 1934 (as amended) and is not in default of those requirements.

2. The authorized share capital of the Filer is 950,000,000 Common Shares and 50,000,000 shares of preferred stock. As at September 30, 2000, there were 191,999,213 Common Shares issued and outstanding.

3. The Common Shares are listed and posted for trading on the NASDAQ National Market (the "NASDAQ").

4. The Filer now conducts business in Canada directly and through Commerce One Canada Inc. ("Subsidiary"), a corporation incorporated under the Business Corporations Act (Ontario).

5. Subsidiary is a wholly owned subsidiary of the Filer, is not a reporting issuer or the equivalent under the Legislation of any of the Jurisdictions and does not have the present intention of becoming a reporting issuer or the equivalent in any of the Jurisdictions.

6. The Filer has established the 1999 Employee Stock Purchase Plan (the "Stock Purchase Plan") whereby it will allow eligible employees of the Filer and Subsidiary ("Stock Eligible Employees") to acquire Common Shares. All employees (those employees who work 20 hours or more per week and more than five (5) months in any calendar year period) of Subsidiary are Stock Eligible Employees. Any Stock Eligible Employee's participation in the Stock Purchase Plan is to be effective after he or she has initiated his or her enrollment. The purpose of the Stock Purchase Plan is to provide employees of the Filer and its subsidiaries with an opportunity to purchase Common Shares through payroll deductions. The Common Shares are issued from treasury.

7. As at October 23, 2000, there were approximately 4 Stock Eligible Employees resident in Alberta, 1 Stock Eligible Employee resident in British Columbia and 13 Stock Eligible Employees resident in Ontario. The Filer expects that Subsidiary will expand its operations to other Provinces in the near future and therefore will have employees in such other Provinces.

8. Participation in the Stock Purchase Plan by Stock Eligible Employees is voluntary and the Stock Eligible Employees have not been and will not be induced to participate in the Stock Purchase Plan by expectation of employment or continued employment with the Filer, Subsidiary or any other affiliated entity of the Filer.

9. Generally, each Stock Eligible Employee may elect to make contributions under the Stock Purchase Plan by payroll deduction of any amount up to, but not exceeding, 15% of his or her base earnings.

10. The purchase price of the Common Shares under the Stock Purchase Plan (the "Purchase Price") will be 85% of the Fair Market Value of a Common Share on the Enrollment Date (as defined under the Stock Purchase Plan) or the Fair Market Value on the Exercise Date (as defined under the Stock Purchase Plan), subject to adjustments by the Board of Directors of the Filer.

11. The "Fair Market Value" under the Stock Purchase Plan (if the Common Shares are quoted on the NASDAQ) means the closing sales price for such shares (or the closing bid, if no sales were reported) as quoted on the NASDAQ for the last market trading day on the date of determination of the Fair Market Value, as reported in The Wall Street Journal or such other source as the Board of Directors of the Filer deems reliable.

12. Under the Stock Purchase Plan, each Stock Eligible Employee participating in such plan has the option to purchase on each Exercise Date as determined under the Stock Purchase Plan up to a number of Common Shares determined by dividing such Stock Eligible Employees' payroll deductions accumulated prior to such Exercise Date and retained in his or her account as of the Exercise Date by the applicable Purchase Price, provided that in no event shall a Stock Eligible Employee be permitted to purchase during each purchase period allowed under the Stock Purchase Plan more than 30,000 Common Shares (subject to adjustments and other limitations). Unless a Stock Eligible Employee withdraws from the Stock Purchase Plan his or her option to purchase Common Shares is exercised automatically on the Exercise Date, and the maximum number of full Common Shares subject to the option is to be purchased on his or her behalf at the applicable Purchase Price with the accumulated payroll deductions in his or her account.

13. The Stock Eligible Employee's participation in the Stock Purchase Plan will be terminated when he or she voluntarily elects to withdraw from the Stock Purchase Plan or upon the Stock Eligible Employee's termination of employment.

14. Stock Eligible Employees resident in Canada who purchase Common Shares will be provided with all the disclosure documentation that holders of Common Shares resident in the United States and the employees of the Filer who purchase Common Shares under the Stock Purchase Plan are entitled to receive.

15. An exemption from the Registration and Prospectus Requirements is not available in all of the Jurisdictions for the distribution of the Common Shares by the Filer to Stock Eligible Employees through the Stock Purchase Plan.

16. An exemption from the Registration and Prospectus Requirements is not available in all of the Jurisdictions for trades in Common Shares acquired under the Stock Purchase Plan by Stock Eligible Employees, former Stock Eligible Employees or the legal representatives of such present or former Stock Eligible Employees.

17. Because there is no market for the Common Shares in Canada and none is expected to develop, any trades of the Common Shares by Stock Eligible Employees will be effected through the facilities of and in accordance with the rules of a stock exchange or recognized market outside of Canada on which the Common Shares are traded and in accordance with all laws applicable to such trading.

18. The Filer has established the 1999 Nonstatutory Stock Option Plan (the "Stock Option Plan") whereby it may issue to eligible employees, officers, directors and consultants of Filer and Subsidiary, Options to acquire Common Shares. The Filer does not intend to issue Options to consultants in Canada (therefore the term "Option Eligible Service Providers" shall mean for the purposes of this decision, eligible employees, officers and directors under the Stock Option Plan, but shall not include consultants). The Stock Option Plan is for a term of ten years unless terminated as permitted pursuant to its terms. Each Option shall be designated in the agreement between the Filer and the Option Eligible Service Provider (the "Option Agreement") as a nonstatutory stock option. The purposes of the Stock Option Plan are: (i) to attract and retain the best available personnel for positions of substantial responsibility; (ii) to provide additional incentive to Filer's employees and (iii) to promote the success of the Filer's business.

19. As at October 23, 2000, there were approximately 4 Option Eligible Service Providers resident in Alberta, 1 Option Eligible Service Provider resident in British Columbia, and 13 Option Eligible Service Providers resident in Ontario. The Filer expects that the Subsidiary will expand its operations to other Provinces in the near future and therefore will have employees in such other Provinces.

20. Participation in the Stock Option Plan is voluntary and the Option Eligible Service Providers will not be induced to exercise Options by expectation of employment or continued employment with or expectation to provide services or to continue to provide services to the Filer, Subsidiary or any other affiliated entity of the Filer.

21. All Options granted under the Stock Option Plan to the Option Eligible Service Providers is determined by the relevant committee(s) of the Board of Directors of the Filer (the "Administrator") and stated in the Option Agreements. The Administrator administers the Stock Option Plan.

22. At the time an Option is granted, the Administrator determines the period within which the Option may be exercised and determines the terms of the Option and any conditions that must be satisfied before the Option may be exercised.

23. The Options are non-transferable during an Option Eligible Service Provider's life. Upon death, an Option Eligible Service Provider's personal representative may exercise his or her Options in full within 12 months thereafter.

24. Except as described below or otherwise provided in the Option Agreement, upon termination of his or her relationship as Service Provider of the Filer (a "Service Agreement"), an Option Eligible Service Provider is entitled to exercise only the Options that have vested up to 3 months after his or her termination unless otherwise specified in his or her Option Agreement.

25. Generally, if an Option Eligible Service Provider's Service Agreement terminates because of his or her permanent disability, then he or she may exercise his or her Options to the extent they have vested, within the period specified in his or her Option Agreement or in absence of such provisions, within 12 months of the date of such termination.

26. If an Option Eligible Service Provider dies, his Options may be exercised by his or her estate or by a person who acquires the right to exercise the Option by bequest or inheritance, but only to the extent that such Options have vested on the date of death, for a period of 12 months following his termination or within such other period as specified in his Option Agreement.

27. At any time, the Administrator may buy out for a payment in cash or Common Shares an Option previously granted based on such terms and conditions as the Administrator shall establish.

28. Option Eligible Service Providers who are issued Options under the Stock Option Plan resident in Canada will be provided with all the disclosure documentation that holders of Options resident in the United States are entitled to receive.

29. An exemption from the Registration and Prospectus Requirements is not available in all of the Jurisdictions for the distribution of Options by the Filer to Option Eligible Service Providers through the Stock Option Plan.

30. An exemption from the Registration and Prospectus Requirements is not available in all of the Jurisdictions for the exercise of Options acquired under the Stock Option Plan by Option Eligible Service Providers, former Option Eligible Service Providers or the legal representatives of such present or former Option Eligible Service Providers.

31. An exemption from the Registration and Prospectus Requirements is not available in all of the Jurisdictions for trades in Common Shares acquired under the Stock Option Plan by the Option Eligible Service Providers, former Option Eligible Service Providers or the legal representatives of such present or former Option Eligible Service Providers.

32. Because there is no market for the Common Shares in Canada and none is expected to develop, any trades of the Common Shares by Option Eligible Service Providers will be effected through the facilities of and in accordance with the rules of a stock exchange or recognized market outside of Canada on which the Common Shares are traded and in accordance with all laws applicable to such trading.

AND WHEREAS pursuant to the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");

AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met;

THE DECISION of the Decision Makers under the Legislation is that:

(1) the Registration and Prospectus Requirements shall not apply to:

(a) distributions and/or trades of Common Shares to or on behalf of Stock Eligible Employees in connection with the Stock Purchase Plan;

(b) the distribution of Options by the Filer to Option Eligible Service Providers, the exercise of such Options and the distribution of Common Shares pursuant to such exercise;

provided that the first trade in the Common Shares acquired pursuant to paragraph (1) is deemed a distribution subject to the Prospectus Requirements; and

(2) the first trade in any Common Shares acquired under the Stock Purchase Plan or the Stock Option Plan is not subject to the Registration and Prospectus Requirements where the first trade is made by a Stock Eligible Employee, Option Eligible Service Provider, former Stock Eligible Employee or Option Eligible Service Provider or the legal representatives of such present or former Stock Eligible Employee or Option Eligible Service Provider, provided that:

(a) either:

(i) at the time of the acquisition of the Common Shares or the Options, persons or companies whose last address as shown on the books of the Filer in any one of the Jurisdictions did not hold, in the aggregate, more than 10% of the outstanding Common Shares and did not represent in number more than 10% of the total number of holders of Common Shares; or

(ii) at the time of the acquisition of the Common Shares or the Options, persons or companies who were resident in any one of the Jurisdictions and who beneficially owned Common Shares did not beneficially own more than 10% of the outstanding Common Shares and did not represent in number more than 10% of the total number of holders of Common Shares; and

(b) at the time of the trade of any Common Shares, the Filer is not a reporting issuer under any of the Legislation; and

(c) such first trade is executed:

(i) through the facilities of a stock exchange outside of Canada;

(ii) on the NASDAQ Stock Market; or

(iii) on the Stock Exchange Automated Quotation System of the London Stock Exchange Limited;

in accordance with the rules of such exchange or market and all applicable laws.

February 20, 2001.

"Howard I. Wetston"       "R. Stephen Paddon"