8x8 2009 Annual Report Download

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–UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended March 31, 2009
Commission file number 000-21783
(Exact name of Registrant as Specified in its Charter)
Delaware 77-0142404
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification Number)
3151 Jay Street
Santa Clara, CA 95054
(Address of Principal Executive Offices including Zip Code)
(408) 727-1885
(Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
COMMON STOCK, PAR VALUE $.001 PER SHARE NASDAQ Stock Market LLC
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  YES ⌧ NO
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  YES ⌧ NO
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. ⌧ YES  NO
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files). î‚… YES î‚… NO
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best
of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K, or any amendment to this
Form 10-K. ⌧
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer î‚… Accelerated filer î‚…
N
on-accelerated filer ⌧
(Do not check if a smaller reporting company)
Smaller reporting company î‚…
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act.) Yes  No ⌧
Based on the closing sale price of the Registrant's common stock on the NASDAQ Capital Market System on September 30, 2008, the aggregate market value
of the voting stock held by non-affiliates of the Registrant was $53,481,192. For purposes of this disclosure, shares of common stock held by persons who
hold more than 5% of the outstanding shares of common stock and shares held by officers and directors of the Registrant have been excluded because such
persons may be deemed to be affiliates. The determination of affiliate status for this purpose is not necessarily a conclusive determination for any other
purpose.
The number of shares of the Registrant's common stock outstanding as of May 21, 2009 was 62,694,039.
DOCUMENTS INCORPORATED BY REFERENCE
Items 10, 11, 12, 13 and 14 of Part III incorporate information by reference from the Proxy Statement to be filed within 120 days of March 31, 2009 for the
2009 Annual Meeting of Stockholders.

Table of contents

  • Page 1
    ...Jay Street Santa Clara, CA 95054 (Address of Principal Executive Offices including Zip Code) (408) 727-1885 (Registrant's Telephone Number, Including Area Code) Securities registered pursuant to Section 12(b) of the Act: Name of each exchange on which registered Title of each class COMMON STOCK, PAR...

  • Page 2
    8X8, INC. INDEX TO ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED MARCH 31, 2009 Part I. Item 1. Item 1A. Item 1B. Item 2. Item 3. Item 4. Part II. Item 5. ...and Director Independence Principal Accountant Fees and Services 73 73 73 74 74 Market for Registrant's Common Stock and Related Security Holder ...

  • Page 3
    ... caller ID, call forwarding, hold, line-alternate, 3-way conferencing, web and voice-prompt access to account controls, and online billing. In addition, we offer videophones and video telephony software in conjunction with our service plans that connect to a customer' s high-speed Internet network...

  • Page 4
    ... Office service plans, which enable our business customers to access additional Virtual Office features through on-screen phone menus. 8x8 MobileTalk enables mobile phone users to make international calls from their mobile phones over the 8x8 international network. The current 8x8 international...

  • Page 5
    ... software associated with the Virtual Office product line including the call control engine, protocol stacks and network address translation (NAT) traversal firmware for the customer premise equipment. As a result, we are able to update the software functionality of our services without third party...

  • Page 6
    ...free number porting from the customer' s previous service provider to 8x8. All 8x8 customers receive access to a variety of telephone features, including voice mail, caller ID, call forwarding, call waiting, 3-way calling, online account management and billing, international call blocking and caller...

  • Page 7
    ...8x8 subscribers, as well as low international rates; Unlimited 8x8 extension-to-extension dialing anywhere in the world; Direct Inward Dial (DID) phone number with any desired area code for each extension; Conference bridge, 3-way calling, music on hold, call park/pick-up, call transfer, hunt groups...

  • Page 8
    ... the broadband phone gateway, or BPG-510, for our residential service. The BPA or BPG device is installed by the subscriber and supports up to two voice ports with its own direct dial phone number. These adapters run a variety of communication and network protocols, including SIP and MGCP. 8x8 Video...

  • Page 9
    ... Promotional Activities We currently sell and market our 8x8 services to end users through our direct sales force, website, retail channels, online channels, network marketing firms and third party resellers. Our inside sales force primarily takes inbound telephone calls and website leads which are...

  • Page 10
    ... and directed to a regular telephone anywhere in the world. Our billing and back office systems manage and enroll customers and bill calls as they originate and terminate on the service. Network Operations Center We maintain a network operations center at our headquarters in Santa Clara, California...

  • Page 11
    ...calling capabilities similar to those available to subscribers of traditional switched phone lines. Moreover, interconnected VoIP providers were required to distribute stickers and labels warning customers of the limitations associated with accessing emergency services through an interconnected VoIP...

  • Page 12
    ..., and timing of such calls and any services/features purchased by the consumer, such as call waiting, call forwarding, and caller ID, in addition to other information that may appear on a consumer' s bill. Under the FCC' s existing rules, carriers may not use CPNI without customer approval except...

  • Page 13
    ...May 13, 2009, the FCC released another order concerning LNP that reduces the timeframe for certain types of ports that interconnected VoIP providers, like us, have to process requests from our customers to port numbers out to other service providers. The new rules imposing reduced porting timeframes...

  • Page 14
    ... the belief that we must license a specified patent for use in our 8x8 broadband telephone service, as well as suggesting that we obtain a license to its portfolio of MPEG-4 patents for use with our video telephone products and services. At the same time, we began an evaluation of whether AT&T IP...

  • Page 15
    ... of our 8x8 voice and video communications services depends, among other things, upon future demand for VoIP telephony systems and services. Because the use of our service requires that the user be a subscriber to an existing broadband Internet service, usually provided through a cable or digital...

  • Page 16
    ...from broadband Internet service providers, telephone companies and cable companies must continue to invest in the deployment of high speed broadband networks to residential and business customers, over which we have no control. In addition, VoIP networks must improve quality of service for real-time...

  • Page 17
    ...E-911 fees and taxes onto our customers and in fiscal 2008 and 2009, we began to pass sales, use and communications taxes onto certain of our customers. International and domestic telecommunications rates have decreased significantly over the last few years in most of the markets in which we operate...

  • Page 18
    ...-site installation and more robust customer service. In addition, because of the other services our competitors provide, they may choose to offer VoIP services as part of a bundle that includes other products, such as video, high speed Internet access and wireless telephone service, which we do not...

  • Page 19
    ... a number of risks, including reduced control over delivery schedules, quality assurance and costs. We currently do not have long-term supply contracts with any of these component vendors. As a result, most of these third party vendors are not obligated to provide products or perform services to...

  • Page 20
    ...In addition, some countries are considering subjecting VoIP services to the regulations applied to traditional telephone companies. Regulatory developments such as these could have a material adverse effect on our international operation. Future legislation or regulation of the Internet and/or voice...

  • Page 21
    ... new customers and harm our revenue and growth. These problems have arisen in the past in the United States and in certain international markets. Taxes will increase our customers' cost of using our service and we may be subject to liabilities for past sales and additional taxes, surcharges and fees...

  • Page 22
    ... areas where we are currently unable to provide E-911 service as described above are supported by a national call center that is run by a third-party provider and operates 24 hours per day, seven days per week. These operators still receive the customer's registered service location and phone number...

  • Page 23
    ... the disability access requirements of Sections 225 and 255 of the Communications Act, which applied to traditional phone services, to providers of interconnected VoIP services and to manufacturers of specially designed equipment used to provide those services. In addition, the FCC determined...

  • Page 24
    ..., and timing of such calls, and any services/features purchased by the consumer, such as call waiting, call forwarding, and caller ID, in addition to other information that may appear on a consumer' s bill. Under the FCC' s existing rules, carriers may not use CPNI without customer approval except...

  • Page 25
    ... requirement for operating an Internet-based, worldwide voice and video communications service and electronically billing our 8x8 customers is the secure transmission of confidential information and media over public networks. Although we have developed systems and processes that are designed...

  • Page 26
    ... losses due to subscriber fraud and theft of service. Subscribers have obtained access to the 8x8 service without paying for monthly service and international toll calls by unlawfully using our authorization codes or by submitting fraudulent credit card information. To date, such losses from...

  • Page 27
    ... inventory. In addition, because we rely on third party vendors for the supply of components and contract manufacturers to assemble our products, our inventory levels are subject to the conditions regarding the timing of purchase orders and delivery dates that are not within our control. Excess...

  • Page 28
    ... into the VOIP service marketplace, including cable and incumbent telephone companies and other wellcapitalized competitors; new products or new contracts by us, our competitors or their customers; the perceived or real impact of events that negatively affect our direct competitors; and developments...

  • Page 29
    ... ITEM 2. PROPERTIES Our principal operations are located in Santa Clara, CA in a facility that is approximately 47,000 square feet and is leased through August 2009. Design, testing, research and development, sales and marketing, shipping, customer service and administrative activities are performed...

  • Page 30
    The following table sets forth the range of high and low close prices for each period indicated: Period Fiscal 2009: First quarter Second quarter Third ...0.94 See Item 12 of Part III of this Report regarding information about securities authorized for issuance under our equity compensation plans. 28

  • Page 31
    ...period assuming the investment of $100 on March 31, 2004 in each of 8x8' s common stock, the NASDAQ Composite Index and the NASDAQ Telecommunications Index. The graph is furnished, not filed, and the historical return cannot be indicative of future performance. COMPARISON OF 5 YEAR CUMULATIVE TOTAL...

  • Page 32
    ... public offering of common stock in 1997. We develop and market telecommunication services for Internet protocol, or IP, telephony and video applications. We offer the 8x8 broadband VoIP and video communications service, 8x8 Virtual Office service, 8x8 Trunking service, 8x8 Hosted Key System service...

  • Page 33
    ... the terms of our typical subscription agreement, new customers can terminate their service within 30 days of order placement and receive a full refund of fees previously paid. We have determined that we have sufficient history of subscriber conduct to make a reasonable estimate of cancellations...

  • Page 34
    ...term assets as of March 31, 2009 and is being amortized to cost of service revenues in the Consolidated Statements of Operations over the remaining life of the primary patent, which expires in September 2017. Warrant Liability We account for our warrants in accordance with Emerging Issues Task Force...

  • Page 35
    ...to or collected from the customers of providers of traditional public switched telephone network services. We have recorded an expense of $72,000 and $375,000 for the years ended March 31, 2009 and 2008, respectively, as our estimate of the increase in probable tax exposure for such assessments. Our...

  • Page 36
    ... of a share-based award exceeds the deferred tax asset, if any, associated with the award that the company had recorded. We use the "with and without" approach as described in Emerging Issues Task Force ("EITF") Topic No. D-32, in determining the order in which our tax attributes are utilized. The...

  • Page 37
    ... (5) Business subscriber acquisition cost per service (6) Average number of services subscribed to per business customer Business customer subscriber acquisition cost (7) Residential lines in service Total (business, residential and video) customer churn (less cancellations within 30 days of sign-up...

  • Page 38
    ... customers resulted from a reduction in the number of residential and video lines in service from approximately 107,000 in fiscal 2008 to approximately 82,000 in fiscal 2009. Also, compared with fiscal 2008, there was a $0.6 million reduction in the one time recognition of revenue due to a ruling...

  • Page 39
    ... from sales of VoIP terminal adapters, telephones and videophones, primarily attributable to our 8x8 service. The increase in fiscal year 2009 from fiscal year 2008 resulted from a $2.2 million increase in product revenue attributable to growth in our business customer subscriber base. However...

  • Page 40
    ... indirect costs associated with product purchasing, scheduling, quality assurance, shipping and handling. We generally do not charge residential subscribers for the terminal adapters used to provide our service when they subscribe through our website. We also have offered incentives to customers who...

  • Page 41
    ... management. Such costs also include outsourced customer service call center operations, sales commissions, as well as trade show, advertising and other marketing and promotional expenses. The increase in selling, general and administrative expenses for fiscal 2009 from fiscal 2008 was primarily due...

  • Page 42
    ...$153.9 million and $88.1 million, respectively, that expire at various dates beginning in 2013 and continuing through 2029. In addition, at March 31, 2009, we had research and development credit carryforwards for federal and state tax reporting purposes of approximately $3.4 million and $2.8 million...

  • Page 43
    ... to the transition of a competitor's former customers to the 8x8 residential annual plan service offset by recognition of $3.1 million of annual plan revenue, net of $0.7 million non-cash items including depreciation and amortization, stock compensation expense, and change in fair value of warrant...

  • Page 44
    ... clauses and require us to pay utilities and normal maintenance costs. Rent expense is reflected in our consolidated financial statements on a straight-line basis over the term of the leases. We entered into a new contract with one of our third party customer support vendors containing a minimum...

  • Page 45
    ... in a number of areas including the treatment of contingent consideration, acquired contingencies, transaction costs, in-process research and development and restructuring costs. In addition, under SFAS No. 141(R), changes in an acquired entity's deferred tax assets and uncertain tax positions after...

  • Page 46
    ... AND FINANCIAL STATEMENT SCHEDULE Page FINANCIAL STATEMENTS: Report of Independent Registered Public Accounting Firm Report of Independent Registered Public Accounting Firm Consolidated Balance Sheets at March 31, 2009 and 2008 Consolidated Statements of Operations for each of the three years in the...

  • Page 47
    ... of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was...

  • Page 48
    ... of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the...

  • Page 49
    ...,000 shares; Issued and outstanding: no shares at March 31, 2009 and at March 31, 2008 Common stock, $0.001 par value: Authorized: 100,000,000 shares at March 31, 2009 and March 31, 2008; Issued and outstanding: 62,686,039 shares at March 31, 2009 and 62,067,269 shares at March 31, 2008 Additional...

  • Page 50
    ...of service revenues Cost of product revenues Research and development Selling, general and administrative Total operating expenses Loss from operations Other income, net Income on change in fair value of warrant liability Income (loss) before provision for income taxes Provision for income taxes Net...

  • Page 51
    ... income Balance at March 31, 2008 Issuance of common stock under stock plans Issuance of common stock on exercise of warrant Stock compensation charge Unrealized investment loss Net loss Total comprehensive loss Balance at March 31, 2009 Common Stock Shares Amount 61,138,280 $ 61 633,552 61,771...

  • Page 52
    ... (loss) to net cash provided by (used in) operating activities: Depreciation and amortization Stock compensation expense Income on change in fair value of warrant liability Amortization of discount and premium on marketable securities Other Changes in assets and liabilities: Accounts receivable, net...

  • Page 53
    ... telephone number. All 8x8 telephone accounts come with voice mail, caller ID, call waiting, call waiting caller ID, call forwarding, hold, line-alternate, 3-way conferencing, web access to account controls, and online billing. In addition, 8x8 offers videophones for use with the 8x8 service. 8x8...

  • Page 54
    ... typical subscription agreement, new customers can terminate their service within 30 days of order placement and receive a full refund of fees previously paid. The Company has determined that it has sufficient history of subscriber conduct to make a reasonable estimate of cancellations within the 30...

  • Page 55
    ... losses on sales of all such investments are reported within the caption of other income, net in the statements of operations and computed using the specific identification method. The Company' s investments in marketable securities are monitored on a periodic basis for impairment. In the event that...

  • Page 56
    .... The remaining license amount was recorded as other long term assets as of March 31, 2009 and is being amortized to cost of service revenues in the Consolidated Statements of Operations over the remaining life of the primary patent, which expires in September 2017. See also Note 3, Commitments and...

  • Page 57
    ... its patents for $1.2 million. The proceeds from the sale of the two patents are included in other income, net. The Company has retained a worldwide, royalty-free nonexclusive, non-sublicensable, non-transferable right and license to use the technology covered by these patents for all of its current...

  • Page 58
    ... party network service providers to provide telephone numbers and public switched telephone network (PSTN) call termination and origination services for its customers. If these service providers failed to perform their obligations to the Company, such failure could materially impact future operating...

  • Page 59
    ...-counter market for the expected term equal to the expected term of the option. The dividend yield assumption is based on the Company' s history and expectation of future dividend payout. Stock-based compensation expense recognized in the Consolidated Statements of Operations for fiscal 2009, 2008...

  • Page 60
    ... Issue Task Force ("EITF") Topic No. D-32, in determining the order in which its tax attributes are utilized. The "with and without" approach results in the recognition of the windfall stock option tax benefits only after all other tax attributes of the Company have been considered in the annual tax...

  • Page 61
    ... average number of shares of common stock plus the effect of dilutive potential common shares outstanding during the period using the treasury stock method. Dilutive potential common shares include outstanding stock options, shares to be issued under the employee stock purchase plan and warrants...

  • Page 62
    ... for income taxes. In addition, at March 31, 2009, the Company had research and development credit carryforwards for federal and state tax reporting purposes of approximately $3.4 million and $2.8 million, respectively. The federal credit carryforwards will expire at various dates beginning in...

  • Page 63
    ... amount of net operating loss carryforwards that the Company may utilize in any one year include, but are not limited to, a cumulative ownership change of more than 50% over a three year period. A reconciliation of the tax provision (benefit) to the amounts computed using the statutory U.S. federal...

  • Page 64
    ... leases its primary facility in Santa Clara, California under a non-cancelable operating lease agreement that expires in August 2009. The Company also has leased facilities in France. The facility leases include rent escalation clauses, and require the Company to pay taxes, insurance and normal...

  • Page 65
    ... expense. Minimum Third Party Customer Support Commitments In March 2009, the Company entered into a contract with one of its third party customer support vendors containing a minimum monthly commitment of approximately $491,000 effective April 1, 2009. The agreement requires 150 day notice to...

  • Page 66
    ...calling capabilities similar to those available to subscribers of traditional switched phone lines. Moreover, interconnected VoIP providers were required to distribute stickers and labels warning customers of the limitations associated with accessing emergency services through an interconnected VoIP...

  • Page 67
    ..., and timing of such calls; and any services/features purchased by the consumer, such as call waiting, call forwarding, and caller ID, in addition to other information that may appear on a consumer' s bill. Under the FCC' s existing rules, carriers may not use CPNI without customer approval except...

  • Page 68
    ... of this date, the Company started to remit TRS fund contributions and implemented 7-1-1 abbreviated dialing which connects all of the Company' s customers to California relay service operators. On October 10, 2007, the FCC granted a limited waiver of the 7-1-1 call handling requirement. While still...

  • Page 69
    ... June 1997 and 2,000,000 shares in August 2000. The 1996 Plan also provides for an annual increase in the number of shares reserved for issuance under the 1996 Plan on the first day of the Company's fiscal year in an amount equal to 5% of the Company's common stock issued and outstanding at the end...

  • Page 70
    ... option groups outstanding at March 31, 2009 and related weighted average exercise price and contractual life information for 8x8, Inc.'s stock option plans are as follows: Options Outstanding Weighted Weighted Average Average Exercise Remaining Aggregate Price Contractual Intrinsic Per Share Life...

  • Page 71
    ... substantially all of the assets of the Company, the Purchase Plan provides that a new exercise date will be set for each option under the plan which exercise date will occur before the date of the merger or asset sale. Assumptions Used to Calculate Stock-Based Compensation Expense The fair value of...

  • Page 72
    ... disclosures about its products, services, geographic areas and major customers. Under SFAS No. 131, the method for determining what information to report is based upon the way management organizes the operating segments within the Company for making operating decisions and assessing financial...

  • Page 73
    8X8, INC. SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS (IN THOUSANDS) Additions Charged to Costs, Expenses and Other $ 48 2,632 142 338 $ Description Year ended March 31, 2007: Allowance for doubtful accounts Valuation allowance for deferred tax assets Year ended March 31, 2008: Allowance for ...

  • Page 74
    ... There have not been any changes in the Company's internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") during the most recent fiscal quarter that have materially affected, or are...

  • Page 75
    ... with the policies or procedures may deteriorate. The effectiveness of our internal control over financial reporting as of March 31, 2009 has been audited by Moss Adams LLP, our independent registered public accounting firm, as stated in their report which appears in Item 8 of this Annual Report on...

  • Page 76
    ... presented in our definitive proxy statement for our 2009 Annual Meeting of Stockholders to be held on or about July 30, 2009, which information is incorporated into this report by reference. ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES Information required to be provided in response to this item...

  • Page 77
    ... caused this Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California, on May 26, 2009. 8X8, INC. By: /s/ BRYAN R. MARTIN Bryan R. Martin, Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY...

  • Page 78
    ...statement (File No. 333-114133), as amended, and as supplemented by a prospectus supplement dated March 3, 2005. Form of Common Stock Warrant issued in connection with the sale of the Registrant's common stock and warrants under its shelf registration statement (File No. 333-126350), as amended, and...

  • Page 79
    ... Purchase Agreement under the 2006 Stock Plan. Lease dated May 1, 2009, between the Registrant and SILICON VALLEY CA-I, LLC. Subsidiaries of Registrant. Consent of Independent Registered Public Accounting Firm. Consent of Independent Registered Public Accounting Firm. Power of Attorney (included on...

  • Page 80
    ... (File No. 000-21783). (f) Incorporated by reference to the same numbered exhibits to the Registrant's Report on Form 8-K filed October 1, 2004 (File No. 000-21783). (g) Incorporated by reference to the same numbered exhibit to the Registrant's Report on Form 8-K filed July 31, 2003 (File No. 000...

  • Page 81
    ... The 8x8, Inc. 2006 Stock Plan (the "Plan") is hereby established effective as of May 23, 2006. 1.2 Purpose. The purpose of the Plan is to advance the interests of the Participating Company Group and its stockholders by providing an incentive to attract, retain and reward persons performing services...

  • Page 82
    (d) "Change in Control" means, unless such term or an equivalent term is otherwise defined with respect to an Award by the Participant' s Option Agreement, Stock Purchase Agreement or written contract of employment or service, the occurrence of any of the following: (i) an Ownership Change Event or ...

  • Page 83
    ... exchange or market system constituting the primary market for the Stock, as reported in The Wall Street Journal or such other source as the Company deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such securities exchange or market system, the date on...

  • Page 84
    ..." means any person designated by the Board as an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. (r) "Option" means a right granted under Section 6 to purchase Stock pursuant to the terms and conditions of the Plan...

  • Page 85
    ... and instead shall be treated thereafter as a Nonstatutory Stock Option unless the Participant' s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, a leave of absence shall not be treated...

  • Page 86
    ... to any other powers set forth in the Plan and subject to the provisions of the Plan, the Board shall have the full and final power and authority, in its discretion: (a) to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of shares of Stock to be...

  • Page 87
    ... number of shares of Stock that may be issued under the Plan shall be seven million (7,000,000) which shall consist of authorized but unissued or reacquired shares of Stock or any combination thereof. If an outstanding Award for any reason expires or is terminated or canceled or if shares of Stock...

  • Page 88
    ...to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and class of shares subject to the Plan and to any outstanding...

  • Page 89
    ... each such portion shall be issued upon the exercise of the Option. 6. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by Option Agreements specifying the number of shares of Stock covered thereby, in such form as the Board shall from time to time establish. No Option or purported...

  • Page 90
    ...the exercise price for the number of shares of Stock being purchased pursuant to any Option shall be made (i) in cash, by check or cash equivalent, (ii) by tender to the Company, or attestation to the ownership, of shares of Stock owned by the Participant having a Fair Market Value not less than the...

  • Page 91
    ...(6) months to the extent required by applicable law (or such other legal period of time as determined by the Board, in its discretion) after the date on which the Participant' s Service terminated, but in any event no later than the date of expiration of the Option' s term as set forth in the Option...

  • Page 92
    ... Option is exercisable, but in any event no later than the Option Expiration Date. (c) Extension if Participant Subject to Section 16(b). Notwithstanding the foregoing, if a sale within the applicable time periods set forth in Section 6.4(a) of shares acquired upon the exercise of the Option would...

  • Page 93
    ... to the Company any and all certificates representing shares of Stock acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions. 7.5 [INTENTIALLY OMITTED] 7.6 Nontransferability of Stock Purchase Rights. To the extent required by...

  • Page 94
    ...ii) stock of the Company or of a corporation or other business entity a party to the Change in Control, or (iii) other property which, in any such case, shall be in an amount having a Fair Market Value equal to the Fair Market Value of the consideration to be paid per share of Stock in the Change in...

  • Page 95
    ...including by means of a Cashless Exercise of an Option, to make adequate provision for, the federal, state, local and foreign taxes (including any social insurance tax), if any, required by law to be withheld by the Participating Company Group with respect to an Award or the shares acquired pursuant...

  • Page 96
    ...or rules that would permit otherwise, without the approval of the Company' s stockholders, there shall be (a) no increase in the maximum aggregate number of shares of Stock that may be issued under the Plan (except by operation of the provisions of Section 4.2), (b) no change in the class of persons...

  • Page 97
    ... Company any and all certificates representing shares of Stock acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions. 13.2 Provision of Information. To the extent required by applicable law, at least annually, copies of the Company...

  • Page 98
    ... limit, impair, or otherwise affect the Company' s or another Participating Company' s right or power to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of its...

  • Page 99
    PLAN HISTORY May 23, 2006 Board adopts Plan, with an initial reserve of seven million (7,000,000) shares. September 18, 2006 Stockholders of the Company approve Plan

  • Page 100
    ... Right (as defined in Section 2.1 of the Company' s 2006 Stock Plan (the "Plan")) covering the number of shares of the Company' s common stock, par value $0.001 per share (the "Common Stock") set forth above (the "Shares"), subject to the terms and conditions of this Agreement (the "Agreement...

  • Page 101
    ... the Stock Purchase Right shall be canceled as provided under the Plan and shall be of no further force and effect. In the event of termination of Service, the Company, as soon as practicable following the effective date of termination, shall issue Shares to Participant (or Participant' s designated...

  • Page 102
    ... more than ten (10) years from the Award Date set forth in this Agreement. The Shares may be purchased during the term of the Stock Purchase Right only in accordance with the Plan and the terms of this Agreement. 9. Not Employment Contract Nothing in this Agreement shall confer upon Participant any...

  • Page 103
    ... to be outstanding effective as of the date of the Change in Control. Notwithstanding the foregoing, any and all shares of Common Stock acquired by Participant upon the vesting of Shares subject to the Stock Purchase Right prior to the Change in Control shall continue to be subject to all applicable...

  • Page 104
    ...the parties have executed this Agreement to be effective for all purposes between themselves as of the Award Date. 8X8, INC. By: Title: The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned. Signature: Date: Participant' s Name: Address...

  • Page 105
    [Schedule 1 Performance-Based Vesting Schedule]

  • Page 106
    LEASE SILICON VALLEY CA-I, LLC, a Delaware limited liability company, Landlord, and 8X8, INC., a Delaware corporation, Tenant

  • Page 107
    ... RESTRICTIONS ON USE ...1 TERM ...2 RENT ...3 RENT ADJUSTMENTS ...3 SECURITY DEPOSIT. [INTENTIONALLY OMITTED] ...5 ALTERATIONS ...5 REPAIR...6 LIENS ...7 ASSIGNMENT AND SUBLETTING ...7 INDEMNIFICATION ...10 INSURANCE ...10 WAIVER OF SUBROGATION ...10 SERVICES AND UTILITIES ...11 HOLDING OVER ...11...

  • Page 108
    ... ...25 PREMISES SIGNAGE ...25 TENANT'S SECURITY SYSTEM ...26 LIMITATION OF LANDLORD'S LIABILITY ...27 EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES EXHIBIT A-1 - SITE PLAN EXHIBIT B - INITIAL ALTERATIONS EXHIBIT C - COMMENCEMENT DATE MEMORANDUM EXHIBIT D - RULES AND REGULATIONS EXHIBIT E - FORM OF...

  • Page 109
    ... Santa Clara, California 95054 810 West Maude Avenue Sunnyvale, California 94089 Approximately 51,680 sq. ft. (for outline of Premises see Exhibit A) Laboratory, light manufacturing and shipping of products and general office use, with such possible use as a 24/7 call center and network monitoring...

  • Page 110
    ... Share of Taxes and Expenses during the initial Term of this Lease only as provided in Section 4.6 of this Lease. INITIAL ESTIMATED MONTHLY INSTALLMENT OF RENT ADJUSTMENTS (Article 4): TENANT' S PROPORTIONATE SHARE: SECURITY DEPOSIT: ASSIGNMENT/SUBLETTING FEE: PARKING: REAL ESTATE BROKER...

  • Page 111
    ... on the floor plan attached hereto as Exhibit A, and the Building is depicted on the site plan attached hereto as Exhibit A-1. The Reference Pages, including all terms defined thereon, are incorporated as part of this Lease. 1. USE AND RESTRICTIONS ON USE. 1.1 The Premises are to be used solely for...

  • Page 112
    ...Entities will be entitled to the non-exclusive use of the common areas of the Building as they exist from time to time during the Term, including the parking facilities, subject to Landlord' s rules and regulations regarding such use. However, in no event will Tenant or the Tenant Entities park more...

  • Page 113
    ...without notice or demand, at the Rent Payment Address, as set forth on the Reference Pages, or to such other person or at such other place as Landlord may from time to time designate in writing. If an Event of Default occurs, Landlord may require by notice to Tenant that all subsequent rent payments...

  • Page 114
    ... and legal fees; any sales, use or service taxes incurred in connection therewith. In addition, Landlord shall be entitled to recover, as additional rent (which, along with any other capital expenditures constituting Expenses, Landlord may either include in Expenses or cause to be billed to Tenant...

  • Page 115
    ... any transfer by Landlord of its interest in this Lease or the Building or any taxes to be paid by Tenant pursuant to Article 28. 4.2 Tenant shall pay as additional rent for each Lease Year Tenant' s Proportionate Share of Expenses and Taxes incurred for such Lease Year. 4.3 The annual determination...

  • Page 116
    ... the Building and appurtenant land against any loss from any mechanic' s, materialmen' s or other liens. Tenant shall pay in addition to any sums due pursuant to Article 4, any increase in real estate taxes attributable to any such alteration, addition or improvement for so long, during the Term, as...

  • Page 117
    ... event that Tenant determines within one hundred eighty (180) days after the full and final execution of this Lease that additional heating, ventilating and air conditioning equipment is reasonably necessary to meet Tenant' s needs in the network operations control room (the "NOC Room"), server room...

  • Page 118
    ...Section 9.3 and rented by Landlord to the proposed tenant or any other tenant. 9.4 In the event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall pay to Landlord as additional rent an amount equal to fifty percent (50%) of any Increased Rent (as defined below), less the Costs...

  • Page 119
    ...trust, any transfer or transfers of or change or changes within any twelve (12) month period in the number of the outstanding voting shares of the corporation or limited liability company, the general partnership interests in the partnership or the identity of the persons or entities controlling the...

  • Page 120
    ...000 disease policy limit, $500,000 disease--each employee; (d) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant' s alterations, additions, improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal property...

  • Page 121
    13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light, power, telephone, sewer, sprinkler system charges and other utilities and services used on or from the Premises, together with any taxes, penalties, and surcharges or the like pertaining thereto and any maintenance charges...

  • Page 122
    ... Lease shall control. Landlord shall have the right at any time to change the arrangement and/or locations of entrances, or passageways, doors and doorways, and corridors, windows, elevators, stairs, toilets or other public parts of the Building and to change the name, number or designation by which...

  • Page 123
    ..., or any state thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of entry thereof. 19. REMEDIES. 19.1 Upon the occurrence of any Event or Events of Default under this Lease, whether enumerated in Article 18 or not, Landlord...

  • Page 124
    ...demand as additional rent, for any expenses which Landlord may incur in thus effecting compliance with Tenant' s obligations under this Lease, plus interest from the date of expenditure by Landlord at the Wall Street Journal prime rate. 20. TENANT'S BANKRUPTCY OR INSOLVENCY. 20.1 If at any time and...

  • Page 125
    ... the extent to which the damage and the making of such repairs shall interfere with the use and occupancy by Tenant of the Premises (including if the same prevents access to the Premises) from time to time. Within forty-five (45) days from the date of such damage, Landlord shall notify Tenant, in...

  • Page 126
    ...this Lease for the expiration of the Term; provided, however, that if construction is delayed because of changes, deletions or additions in construction requested by Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor shortages, government regulation or control or other causes...

  • Page 127
    ... BY LANDLORD. In event of a sale or conveyance by Landlord of the Building, the same shall operate to release Landlord from any future liability upon any of the covenants or conditions, expressed or implied, contained in this Lease in favor of Tenant, and in such event Tenant agrees to look solely...

  • Page 128
    ... and enforce the Rules governing the use of the Parking Facility from time to time including any key-card, sticker or other identification or entrance system and hours of operation. Landlord may refuse to permit any person who violates such Rules to park in the Parking Facility, and any violation...

  • Page 129
    ..., the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: "List of Specially Designated Nationals and Blocked Persons." If the foregoing 19

  • Page 130
    ... the foregoing, so long as Tenant is a publicly traded company on an "over-the-counter" market or any recognized national or international securities exchange, the foregoing shall not apply so long as Tenant' s current public annual report (in compliance with applicable securities laws) for such...

  • Page 131
    ... within the previous ten (10) years as a real estate appraiser working in Sunnyvale, California, with working knowledge of current rental rates and practices. For purposes hereof, an "MAI" appraiser means an individual who holds an MAI designation conferred by, and is an independent member of...

  • Page 132
    ... of the end of the 12th month of the Term, the Acceleration Fee shall be $7.10 per rentable square foot of the Premises (as the same is initially set forth in this Lease). The foregoing estimate of the Acceleration Fee assumes a Wall Street Journal Prime lending rate of 3.25% and a full disbursement...

  • Page 133
    ...their direct supervision will be permitted to have access to the roof of the Building and the Roof Space. Tenant further agrees to exercise firm control over the people requiring access to the roof of the Building and the Roof Space in order to keep to a minimum the number of people having access to...

  • Page 134
    ...all times during the Term, it will keep the roof of the Building and the Roof Space free of all trash or waste materials produced by Tenant or Tenant' s agents, employees or contractors. 43.5 In light of the specialized nature of the Dish/Antenna, Tenant shall be permitted to utilize the services of...

  • Page 135
    ... shall pay its proportionate share of the cost of any maintenance and repair associated with the Monument Sign. In the event that additional names are listed on the Monument Sign, all future costs of maintenance and repair shall be prorated between Tenant and the other parties that are listed on...

  • Page 136
    ...sole cost and expense, for the monitoring, operation and removal of Tenant's Security System. Upon the expiration or earlier termination of this Lease, Tenant shall remove Tenant' s Security System. All costs and expenses associated with the removal of Tenant' s Security System and the repair of any...

  • Page 137
    ... Date set forth in the Reference Pages of this Lease. LANDLORD: SILICON VALLEY CA-I, LLC, a Delaware limited liability company By: RREEF Management Company, a Delaware corporation, its Authorized Agent By: _____ Name: James H. Ida Title: Vice President, District Manager Dated: _____ TENANT: 8X8...

  • Page 138
    ... A - FLOOR PLAN DEPICTING THE PREMISES attached to and made a part of the Lease bearing the Lease Reference Date of April 30, 2009 between SILICON VALLEY CA-I, LLC, a Delaware limited liability company, as Landlord and 8X8, INC., a Delaware corporation, as Tenant 810 West Maude Avenue Sunnyvale...

  • Page 139
    ...Lease Reference Date of April 30, 2009 between SILICON VALLEY CA-I, LLC, a Delaware limited liability company, as Landlord and 8X8, INC., a Delaware corporation, as Tenant 810 West Maude Avenue Sunnyvale, California 94089 Exhibit A-1 is intended only to show the general layout of the Building and/or...

  • Page 140
    ... I; Replace carpet with vinyl tile in the break room in the Premises; Install drop ceiling office finish in open area between electrical room and Q&A/Shipping/Receiving area of the Premises; Expand server room as depicted on Schedule II attached hereto; Install double locks on exterior man doors as...

  • Page 141
    ... bills covering all labor and materials expended and used in the Approved Alterations; (b) a sworn contractor' s affidavit from the general contractor and a request to disburse from Tenant containing an approval by Tenant of the work done; (c) full and final waivers of lien; (d) as-built plans...

  • Page 142
    SCHEDULE I TO EXHIBIT B - SPACE PLANS B-3 Initials

  • Page 143
    SCHEDULE II TO EXHIBIT B - SPACE PLANS B-4 Initials

  • Page 144
    SCHEDULE III TO EXHIBIT B - SPACE PLANS B-5 Initials

  • Page 145
    ... liability company ("Landlord") and 8x8, INC., a Delaware corporation ("Tenant"). Recitals: A. Landlord and Tenant are parties to that certain Lease, dated for reference April 30, 2009 (the "Lease") for certain premises (the "Premises") consisting of approximately 51,680 square feet at the building...

  • Page 146
    ... to change from time to time the format of the signs or lettering and to require previously approved signs or lettering to be appropriately altered. 2. If Landlord objects in writing to any curtains, blinds, shades or screens attached to or hung in or used in connection with any window or door of...

  • Page 147
    ... of company vehicles owned and operated by Tenant at the parking area so long as all of the following are satisfied: (i) Such activity does not interfere with normal use, operation, maintenance and repair of the Building, the parking facility and or any common areas; and (ii) all wash water shall...

  • Page 148
    ... made to that certain lease dated April 30, 2009, between SILICON VALLEY CA-I, LLC, a Delaware limited liability company ("Landlord") and 8X8, INC., a Delaware corporation ("Tenant"), for the premises located in the City of Sunnyvale, County of Santa Clara, State of California, commonly known as 810...

  • Page 149
    EXHIBIT F - FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT attached to and made a part of the Lease bearing the Lease Reference Date of April 30, 2009 between SILICON VALLEY CA-I, LLC, a Delaware limited liability company, as Landlord and 8X8, INC., a Delaware corporation, as Tenant...

  • Page 150
    F-2 Initials

  • Page 151
    F-3 Initials

  • Page 152
    F-4 Initials

  • Page 153
    F-5 Initials

  • Page 154
    F-6 Initials

  • Page 155
    EXHIBIT 21.1 SUBSIDIARIES OF REGISTRANT Name 8x8 Europe SARL Netergy Microelectronics, Inc. Visit, Inc. France California, USA California, USA Jurisdiction of Incorporation

  • Page 156
    ... reports dated May 22, 2009, relating to the financial statements, financial statement schedule II, and the effectiveness of internal controls over financial reporting, appearing in this Annual Report on Form 10-K of 8X8, Inc. for the year ended March 31, 2009. /s/ Moss Adams LLP San Francisco, CA...

  • Page 157
    CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the ...8x8, Inc. of our report dated May 23, 2008 relating to the financial statements and financial statement schedule, which appears in this Form 10-K. /s/PricewaterhouseCoopers LLP San Jose, California May 22, 2009

  • Page 158
    ..., certify that: 1. I have reviewed this annual report on Form 10-K of 8x8, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such...

  • Page 159
    ..., certify that: 1. I have reviewed this annual report on Form 10-K of 8x8, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such...

  • Page 160
    ... In connection with the Annual Report on Form 10-K of 8x8, Inc. (the "Company") for the year ended March 31, 2009, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Bryan R. Martin, Chairman and Chief Executive Officer of the Company, hereby certify, pursuant...

  • Page 161
    ...-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of 8x8, Inc. (the "Company") for the year ended March 31, 2009, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Daniel Weirich, Chief Financial Officer, President and Secretary of the...