1 As filed with the Securities and Exchange Commission on July 14, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ 8X8, INC. (Exact name of Registrant as specified in its charter) ------------------ DELAWARE 77-0142404 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 2445 MISSION COLLEGE BLVD. SANTA CLARA, CA 95054 (Address of principal executive offices) ------------------ AMENDED AND RESTATED 1999 NONSTATUTORY STOCK OPTION PLAN UFORCE COMPANY - SOCIETE UFORCE AMENDED AND RESTATED 1999 STOCK OPTION PLAN ------------------ PAUL VOOIS CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD 8X8, INC. 2445 MISSION COLLEGE BLVD. SANTA CLARA, CA 95054 (408) 727-1885 (Name, address and telephone number of agent for service) ------------------ Copy to: John T. Sheridan, Esq. Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 ------------------ ================================================================================================================== CALCULATION OF REGISTRATION FEE ================================================================================================================== Proposed Maximum Proposed Maximum Amount to be Offering Price Aggregate Amount of Title of Securities to be Registered Registered Per Share Offering Price Registration Fee - ------------------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par value per share: Issued under 8x8, Inc. Amended and Restated 1999 Nonstatutory Stock Option Plan ....... 3,600,000 $ 9.89(1) $35,604,000 $ 9,400 Common Stock, $0.001 par value per share: Issued under UForce Company - Societe UForce Amended and Restated 1999 Stock Option Plan ............................... 1,023,898 $ 10.21(2) $10,453,998(2) $ 2,760 (1) Estimated in part in accordance with Rule 457(c) solely for the purpose of calculating the registration fee based upon the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on July 11, 2000, which was $10.375 per share, for a total of 2,632,985 shares not yet subject to outstanding options under the plan, and in part in accordance with Rule 457(h) for a total of 967,015 shares subject to outstanding options under the plan with a weighted average exercise price of $8.60 per share. The proposed offering price per share is the weighted average of the foregoing estimates. (2) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee based upon the price at which the options may be exercised. ================================================================================
2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference 8x8, Inc. (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's Annual Report on Form 10-K for the fiscal year ended March 31, 2000. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end of the fiscal year covered by the Company document referred to in (a) above. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A (No. 000-21783) filed pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Article 8 of the Company's Amended and Restated Certificate of Incorporation and Article 6 of the Bylaws of the Company provide for indemnification of certain agents to the maximum extent permitted by the Delaware General Corporation Law. Persons covered by these indemnification provisions include current and former directors, officers, employees and other agents of the Company, as well as persons who serve at the request of the Company as directors, officers, employees or agents of another enterprise. In addition, the Company has entered into agreements with its officers and directors which require the Company to indemnify its officers and directors to the maximum extent permitted under Delaware law. II-1
3 Item 7. Exemption From Registration Claimed Not applicable. Item 8. Exhibits 4.1 Amended and Restated 1999 Nonstatutory Stock Option Plan 4.2 UForce Company - Societe UForce Amended and Restated 1999 Stock Option Plan 5.1 Opinion of counsel as to legality of securities being registered 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (contained in Exhibit 5.1) 24.1 Power of Attorney (contained on signature page) Item 9. Undertakings (a) Rule 415 Offering The undersigned Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filing incorporating subsequent Exchange Act documents by reference The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Company'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 section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 2
4 (c) Request for acceleration of effective date or filing of registration statement on Form S-8 Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of such issue. 3
5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California, on July 13, 2000. 8x8, Inc. By: /s/ Paul Voois ---------------------------------------- Paul Voois Chief Executive Officer and Chairman of the Board 4
6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul Voois and David M. Stoll jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------------------------------- ---------------------------------------- ------------- /s/ Paul Voois Chairman of the Board and Chief July 13, 2000 - --------------------------------- Executive Officer and Director Paul Voois (Principal Executive Officer) /s/ David M. Stoll Chief Financial Officer and Vice July 13, 2000 - --------------------------------- President, Finance (Principal Financial David M. Stoll and Accounting Officer) /s/ Lee Camp Director July 13, 2000 - --------------------------------- Lee Camp Director - --------------------------------- Bernd Girod /s/ Guy L. Hecker Director July 13, 2000 - --------------------------------- Guy L. Hecker Director - --------------------------------- Christos Lagomichos /s/ Joe Markee Director July 13, 2000 - --------------------------------- Joe Markee /s/ William Tai Director July 13, 2000 - --------------------------------- William Tai 5
7 EXHIBIT INDEX Exhibit Number 4.1 Amended and Restated 1999 Nonstatutory Stock Option Plan 4.2 UForce Company - Societe UForce Amended and Restated 1999 Stock Option Plan 5.1 Opinion of counsel as to legality of securities being registered 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (contained in Exhibit 5.1) 24.1 Power of Attorney (contained on signature page) 6
1 Exhibit 4.1 8X8, INC. 1999 NONSTATUTORY STOCK OPTION PLAN (AS AMENDED MAY 16, 2000) 1. Purposes of the Plan. The purposes of this Nonstatutory Stock Option Plan are: - to attract and retain the best available personnel for positions of substantial responsibility, - to provide additional incentive to Employees and Consultants, and - to promote the success of the Company's business. Options granted under the Plan will be Nonstatutory Stock Options. 2. Definitions. As used herein, the following definitions shall apply: (a) "Administrator" means the Board or any of its Committees as shall be administering the Plan, in accordance with Section 4 of the Plan. (b) "Applicable Laws" means the requirements relating to the administration of stock option plans under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Options are, or will be, granted under the Plan. (c) "Board" means the Board of Directors of the Company. (d) "Code" means the Internal Revenue Code of 1986, as amended. (e) "Committee" means a committee of Directors appointed by the Board in accordance with Section 4 of the Plan. (f) "Common Stock" means the Common Stock of the Company. (g) "Company" means 8x8, Inc., a Delaware corporation. (h) "Consultant" means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render services to such entity. (i) "Director" means a member of the Board.
2 (j) "Disability" means total and permanent disability as defined in Section 22(e)(3) of the Code. (k) "Employee" means any person, including Officers, employed by the Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the Company. (l) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (m) "Fair Market Value" means, as of any date, the value of Common Stock determined as follows: (i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the time of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the last market trading day prior to the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; (iii) In the absence of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the Administrator. (n) "Notice of Grant" means a written or electronic notice evidencing certain terms and conditions of an individual Option grant. The Notice of Grant is part of the Option Agreement. (o) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. (p) "Option" means a nonstatutory stock option granted pursuant to the Plan, that is not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. (q) "Option Agreement" means an agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan. 2
3 (r) "Option Exchange Program" means a program whereby outstanding options are surrendered in exchange for options with a lower exercise price. (s) "Optioned Stock" means the Common Stock subject to an Option. (t) "Optionee" means the holder of an outstanding Option granted under the Plan. (u) "Parent" means a "parent corporation," whether now or hereafter existing, as defined in Section 424(e) of the Code. (v) "Plan" means this 1999 Nonstatutory Stock Option Plan. (w) "Service Provider" means an Employee including an Officer, Consultant or Director. (x) "Share" means a share of the Common Stock, as adjusted in accordance with Section 12 of the Plan. (y) "Subsidiary" means a "subsidiary corporation," whether now or hereafter existing, as defined in Section 424(f) of the Code. 3. Stock Subject to the Plan. Subject to the provisions of Sections 12 and 17 of the Plan, the maximum aggregate number of Shares that may be optioned and sold under the Plan is 3,600,000 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock. If an Option expires or becomes unexercisable without having been exercised in full, or is surrendered pursuant to an Option Exchange Program, the unpurchased Shares that were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated). 4. Administration of the Plan. (a) Administration. The Plan shall be administered by (i) the Board or (ii) a Committee, which committee shall be constituted to satisfy Applicable Laws. (b) Powers of the Administrator. Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discretion: (i) to determine the Fair Market Value of the Common Stock; (ii) to select the Service Providers to whom Options may be granted hereunder; (iii) to determine whether and to what extent Options are granted hereunder; 3
4 (iv) to determine the number of shares of Common Stock to be covered by each Option granted hereunder; (v) to approve forms of agreement for use under the Plan; (vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or the shares of Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine; (vii) to reduce the exercise price of any Option to the then current Fair Market Value if the Fair Market Value of the Common Stock covered by such Option shall have declined since the date the Option was granted; (viii) to institute an Option Exchange Program; (ix) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan; (x) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of qualifying for preferred tax treatment under foreign tax laws; (xi) to modify or amend each Option (subject to Section 14(b) of the Plan), including the discretionary authority to extend the post-termination exercisability period of Options longer than is otherwise provided for in the Plan; (xii) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Option previously granted by the Administrator; (xiii) to determine the terms and restrictions applicable to Options; (xiv) to allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option that number of Shares having a Fair Market Value equal to the amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined. All elections by an Optionee to have Shares withheld for this purpose shall be made in such form and under such conditions as the Administrator may deem necessary or advisable; and (xv) to make all other determinations deemed necessary or advisable for administering the Plan. 4
5 (c) Effect of Administrator's Decision. The Administrator's decisions, determinations and interpretations shall be final and binding on all Optionees and any other holders of Options. 5. Eligibility. Options may be granted to Service Providers except Officers and Directors; provided, however, that Options may be granted to Officers in connection with the Officer's initial employment by the Company. 6. Limitation. Neither the Plan nor any Option shall confer upon an Optionee any right with respect to continuing the Optionee's relationship as a Service Provider with the Company, nor shall they interfere in any way with the Optionee's right or the Company's right to terminate such relationship at any time, with or without cause. 7. Term of Plan. The Plan shall become effective upon its adoption by the Board. It shall continue in effect for ten (10) years, unless sooner terminated under Section 14 of the Plan. 8. Term of Option. The term of each Option shall be stated in the Option Agreement. 9. Option Exercise Price and Consideration. (a) Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option shall be determined by the Administrator. (b) Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator shall fix the period within which the Option may be exercised and shall determine any conditions that must be satisfied before the Option may be exercised. (c) Form of Consideration. The Administrator shall determine the acceptable form of consideration for exercising an Option, including the method of payment. Such consideration may consist entirely of: (i) cash; (ii) check; (iii) promissory note; (iv) other Shares which (A) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall be exercised; (v) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; 5
6 (vi) a reduction in the amount of any Company liability to the Optionee, including any liability attributable to the Optionee's participation in any Company-sponsored deferred compensation program or arrangement; (vii) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws; or (viii) any combination of the foregoing methods of payment. 10. Exercise of Option. (a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder shall be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. An Option may not be exercised for a fraction of a Share. An Option shall be deemed exercised when the Company receives: (i) written or electronic notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 12 of the Plan. Exercising an Option in any manner shall decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised. (b) Termination of Relationship as a Service Provider. If an Optionee ceases to be a Service Provider, other than upon the Optionee's death or Disability, the Optionee may exercise his or her Option, but only within such period of time as is specified in the Option Agreement, and only to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for three (3) months following the Optionee's termination. If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan. 6
7 (c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a result of the Optionee's Disability, the Optionee may exercise his or her Option within such period of time as is specified in the Option Agreement, to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee's termination. If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan. (d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may be exercised within such period of time as is specified in the Option Agreement (but in no event later than the expiration of the term of such Option as set forth in the Notice of Grant), by the Optionee's estate or by a person who acquires the right to exercise the Option by bequest or inheritance, but only to the extent that the Option is vested on the date of death. In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee's termination. If, at the time of death, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall immediately revert to the Plan. The Option may be exercised by the executor or administrator of the Optionee's estate or, if none, by the person(s) entitled to exercise the Option under the Optionee's will or the laws of descent or distribution. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan. (e) Buyout Provisions. The Administrator may at any time offer to buy out for a payment in cash or Shares, an Option previously granted based on such terms and conditions as the Administrator shall establish and communicate to the Optionee at the time that such offer is made. 11. Non-Transferability of Options. Unless determined otherwise by the Administrator, an Option may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. If the Administrator makes an Option transferable, such Option shall contain such additional terms and conditions as the Administrator deems appropriate. 12. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale. (a) Changes in Capitalization. Subject to any required action by the shareholders of the Company, the number of shares of Common Stock covered by each outstanding Option, and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock 7
8 dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option. (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable prior to the effective date of such proposed transaction. The Administrator in its discretion may provide for an Optionee to have the right to exercise his or her Option until ten (10) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option would not otherwise be exercisable. In addition, the Administrator may provide that any Company repurchase option applicable to any Shares purchased upon exercise of an Option shall lapse as to all such Shares, provided the proposed dissolution or liquidation takes place at the time and in the manner contemplated. To the extent it has not been previously exercised, an Option will terminate immediately prior to the consummation of such proposed action. (c) Merger or Asset Sale. In the event of a merger of the Company with or into another corporation, or the sale of substantially all of the assets of the Company, each outstanding Option shall be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the Option, the Optionee shall fully vest in and have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If an Option becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator shall notify the Optionee in writing or electronically that the Option shall be fully vested and exercisable for a period of fifteen (15) days from the date of such notice, and the Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of assets, the option or right confers the right to purchase or receive, for each Share of Optioned Stock, immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or sale of assets is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each Share of Optioned Stock to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or sale of assets. 8
9 13. Date of Grant. The date of grant of an Option shall be, for all purposes, the date on which the Administrator makes the determination granting such Option, or such other later date as is determined by the Administrator. Notice of the determination shall be provided to each Optionee within a reasonable time after the date of such grant. 14. Amendment and Termination of the Plan. (a) Amendment and Termination. The Board may at any time amend, alter, suspend or terminate the Plan. (b) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company. Termination of the Plan shall not affect the Administrator's ability to exercise the powers granted to it hereunder with respect to options granted under the Plan prior to the date of such termination. 15. Conditions Upon Issuance of Shares. (a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of counsel for the Company with respect to such compliance. (b) Investment Representations. As a condition to the exercise of an Option the Company may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required. 16. Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained. 17. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. 9
10 8X8, INC. 1999 NONSTATUTORY STOCK OPTION PLAN STOCK OPTION AGREEMENT Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement. 1. NOTICE OF STOCK OPTION GRANT [OPTIONEE'S NAME AND ADDRESS] You have been granted an option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows: Grant Number ------------------------------ Date of Grant ------------------------------ Vesting Commencement Date ------------------------------ Exercise Price per Share $ ------------------------------ Total Number of Shares Granted ------------------------------ Total Exercise Price $ ------------------------------ Type of Option: Nonstatutory Stock Option Term/Expiration Date: ------------------------------ Vesting Schedule: Subject to the Optionee continuing to be a Service Provider on such dates, this Option shall vest and become exercisable in accordance with the following schedule:
11 [25% OF THE SHARES SUBJECT TO THE OPTION SHALL VEST TWELVE MONTHS AFTER THE VESTING COMMENCEMENT DATE, AND 1/48TH OF THE SHARES SUBJECT TO THE OPTION SHALL VEST UPON THE LAST DAY OF EACH MONTH THEREAFTER.] Termination Period: This Option may be exercised for _____ [DAYS/MONTHS] after Optionee ceases to be a Service Provider. Upon the death or Disability of the Optionee, this Option may be exercised for such longer period as provided in the Plan. In no event shall this Option be exercised later than the Term/Expiration Date as provided above. 2. AGREEMENT (a) Grant of Option. The Plan Administrator of the Company hereby grants to the Optionee named in the Notice of Grant attached as Part I of this Agreement (the "Optionee") an option (the "Option") to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the "Exercise Price"), subject to the terms and conditions of the Plan, which is incorporated herein by reference. Subject to Section 14(b) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Option Agreement, the terms and conditions of the Plan shall prevail. (b) Exercise of Option. (i) Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Grant and the applicable provisions of the Plan and this Option Agreement. (ii) Method of Exercise. This Option is exercisable by delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to [TITLE]. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the Exercised Shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such Exercised Shares. (c) Method of Payment. Payment of the aggregate Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: -2-
12 (i) cash; (ii) check; (iii) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; or (iv) surrender of other Shares which (i) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for more than six (6) months on the date of surrender, AND (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares. (d) Non-Transferability of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. (e) Term of Option. This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement. (f) Tax Consequences. Some of the federal tax consequences relating to this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. (i) Exercising the Option. The Optionee may incur regular federal income tax liability upon exercise of an NSO. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Exercised Shares on the date of exercise over their aggregate Exercise Price. If the Optionee is an Employee or a former Employee, the Company will be required to withhold from his or her compensation or collect from Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of exercise. (ii) Disposition of Shares. If the Optionee holds NSO Shares for at least one year, any gain realized on disposition of the Shares will be treated as long-term capital gain for federal income tax purposes. (g) Entire Agreement; Governing Law. The Plan is incorporated herein by reference. The Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the -3-
13 Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee's interest except by means of a writing signed by the Company and Optionee. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. (h) NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE. By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Option Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below. OPTIONEE 8x8, INC. - ----------------------------------- ----------------------------------- Signature By - ----------------------------------- ----------------------------------- Print Name Title - ----------------------------------- Residence Address - ----------------------------------- -4-
14 EXHIBIT A 8X8, INC. 1999 NONSTATUTORY STOCK OPTION PLAN EXERCISE NOTICE 8x8, Inc. 2445 Mission College Blvd. Suite 105 Santa Clara, CA 95054 Attention: [TITLE] 1. Exercise of Option. Effective as of today, ________________, _____, the undersigned ("Purchaser") hereby elects to purchase ______________ shares (the "Shares") of the Common Stock of 8x8, Inc. (the "Company") under and pursuant to the 1999 Nonstatutory Stock Option Plan (the "Plan") and the Stock Option Agreement dated, _________, ___ (the "Option Agreement"). The purchase price for the Shares shall be $__________, as required by the Option Agreement. 2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase price for the Shares. 3. Representations of Purchaser. Purchaser acknowledges that Purchaser has received, read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions. 4. Rights as Shareholder. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares so acquired shall be issued to the Optionee as soon as practicable after exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date of issuance, except as provided in Section 12 of the Plan. 5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax consequences as a result of Purchaser's purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with
15 the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice. 6. Entire Agreement; Governing Law. The Plan and Option Agreement are incorporated herein by reference. This Agreement, the Plan and the Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser with respect to the subject matter hereof, and may not be modified adversely to the Purchaser's interest except by means of a writing signed by the Company and Purchaser. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. Submitted by: Accepted by: PURCHASER 8X8, INC. - ----------------------------------- ------------------------------------- Signature By - ----------------------------------- ------------------------------------- Print Name Title ------------------------------------- Date Received Address: Address: 2445 Mission College Blvd., Suite 105 - ----------------------------------- Santa Clara, CA 95054 - ----------------------------------- -2-
1 Exhibit 4.2 AMENDED AND RESTATED UFORCE COMPANY - SOCIETE UFORCE STOCK OPTION PLAN PLAN DESCRIPTION 1. PURPOSE OF THE PLAN The purpose of the Stock Option Plan is to develop the interest and incentive of eligible employees, directors and other service providers of UForce Company - Societe UForce (the "Company") in the Company's growth and development by giving eligible employees, directors and other service providers an opportunity to purchase Common Shares on a favourable basis, thereby advancing the interests of the Company, enhancing the value of the Common Shares for the benefit of all the shareholders and increasing the ability of the Company to attract and retain skilled and motivated individuals in the service of the Company. The Board of Directors has approved the terms of this Plan. 2. DEFINITIONS In this Plan: (a) "Associate" has the meaning assigned by the Securities Act (Quebec), as amended from time to time; (b) "Board of Directors" means the board of directors of the Company; (c) "Committee" means the appropriate compensation committee appointed by the Board of Directors to administer the Plan. All references in the Plan to the Committee means the Board of Directors if no Committee has been appointed; (d) "Common Shares" means the Common Stock of 8x8, Inc., a Delaware corporation doing business as Netergy Networks, or, in the event of an adjustment contemplated in Section 8 hereof, such other Common Shares to which a Participant may be entitled upon the exercise of an Option as a result of such adjustment; (e) "Date of Grant" means the date a Participant is granted an Option to purchase Option Shares; (f) "Director" means a person occupying the position of director on the Board of Directors; (g) "Employee" means a full time permanent employee of the Company or its subsidiaries; (h) "Exchange" means The Toronto Stock Exchange or, if the Common Shares are not then listed and posted for trading on The Toronto Stock Exchange, on such stock exchange or
2 quotation system (including Nasdaq) on which such shares are listed, posted for trading or quoted as may be selected by the Committee; (i) "Exercise Date" means the date the Company receives from the Participant a completed Stock Option Purchase Form with payment for the Option Shares being purchased; (j) "Fair Market Value" at any date in respect of the Common Shares shall be determined by the Committee in its sole discretion, unless the Common Shares become listed and posted for trading on the Exchange, in which case the Fair Market Value shall be equal to the closing price of the Common Shares on the Exchange on the trading day immediately preceding the Date of Grant; (k) "Option" means an option to purchase Common Shares granted to a Participant; (l) "Option Price" means the price per share at which a Participant may purchase Option Shares; (m) "Option Shares" means the Common Shares which a Participant is entitled to purchase under the Plan; (n) "Outstanding Issue" means the number of Common Shares that are outstanding immediately prior to any issuance of Option Shares, excluding Option Shares issued pursuant to the Plan during the preceding one year period; (o) "Parent" shall mean 8x8, Inc., a Delaware corporation doing business as Netergy Networks; (p) "Participants" means Directors, Employees and Service Providers to whom Option Shares are granted pursuant to the Plan and which remain unexercised; (q) "Plan" means the Amended and Restated UForce Company - Societe UForce Stock Option Plan; (r) "Service Provider" means any person other than an Employee or Director, engaged to provide ongoing management, advisory or consulting services for the Company or for a subsidiary of the Company; (s) "Stock Option Agreement" means the stock option agreement to be entered into between the Company and a Participant of the Plan upon the grant of an Option to a Participant in the form of Appendix "A"; and (t) "Vesting Period" for a Participant means, the four-year period during which the Option Shares vest as follows: up to 25% of the Option Shares vest on the first anniversary of the Date of Grant and 1/36 of the remaining Optioned Shares subject to such Option vest each month thereafter. -2-
3 3. ELIGIBILITY Participation in the Plan shall be limited to Participants who are designated from time to time by the Committee. Participation shall be voluntary and the extent to which any Participant shall be entitled to participate in the Plan shall be determined by the Committee. 4. PRICE FOR OPTION SHARES The Committee shall advise each Participant designated to participate in the Plan of the number of Option Shares such Participant is entitled to purchase and the Option Price at which the Option Shares may be purchased and the Vesting Period. The Option Price at which the Option Shares may be purchased under the Plan shall be fixed by the Committee based upon the Fair Market Value of the Common Shares. The Committee may impose performance thresholds which will need to be met prior to vesting of any Options granted. 5. EXERCISE Options granted under the Plan must be exercised within such period as fixed by the Committee, not exceeding 10 years from the Date of Grant, failing which the Participant's right to purchase such Option Shares lapses. Notwithstanding any other provision in this Plan, unless otherwise determined by the Committee, no options may be exercised unless the Option Shares are publicly traded or control of the Company has been acquired in a takeover transaction. Subject to the foregoing, the Vesting Periods during which Options or a portion thereof vest and may be exercised by the Participant shall be set forth in the Stock Option Agreement to be executed by the Participant, in the form attached hereto as Appendix "A," as amended by the Company and the Participant. Notwithstanding the Vesting Period set forth in the Stock Option Agreement, the Committee may, in its sole discretion, by written notice to any Participant, accelerate the vesting of all or any of the Options such that the Options become immediately fully vested. In such circumstances, the Committee may by written notice compel the Participant to exercise the Options within 30 days of the date of such written notice to exercise, failing which the Participant's right to purchase such Option Shares lapses. The Committee in its discretion may require that the exercise of an Option shall be subject to the Option holder signing a counterpart of the then existing shareholders agreement of the Company or any other agreement which is to apply to Option holders. 6. PAYMENT Subject to Article 5 above, the Participant from time to time and at any time after the vesting of any Options and prior to the lapse of such Options, may elect to purchase all or a portion of the Option Shares available for purchase by lump sum payment by delivering to the Company at its head office, a completed stock option purchase form in the form attached hereto as Appendix "A.1". Payment may be made by cash, certified cheque, bank draft, money order or the equivalent payable to the order of Netergy in United States dollars. -3-
4 7. SHARE CERTIFICATE Upon exercise of the Option and payment in full of the purchase price the Company shall cause to be delivered to the Participant within a reasonable period of time a duplicate certificate or certificates in the name of the Participant representing the number of Option Shares the Participant has purchased. The original share certificate shall be held in trust by the Company for delivery to the holder when the shares are to be transferred, as authorized by the Plan. 8. ADJUSTMENT IN SHARES The Committee will make appropriate adjustments in the number of Common Shares subject to the Plan and, as regards Options granted or to be granted, in the number of Common Shares optioned and in the Option Price, to give effect to the adjustments in the number of Common Shares resulting from sub-divisions, consolidations or re-classification of the Common Shares or other relevant changes (an "Event") in the authorized or issued capital of the Parent. No fractions of shares need be issued on the exercise of the Options and, accordingly, if after an Event a Participant has a right to a fraction of a share, he will only have the right to purchase the next lower whole number of shares and no payment or other adjustment will be effected with respect to the right to participate in the fraction which was not taken into account. When an Event occurs, the number of shares that the Board of Directors authorized under the Plan shall be adjusted appropriately. In the event that the Parent proposes to liquidate, dissolve or wind-up, the Company may give written notice thereof to each Participant holding Options under the Plan and in such case Participants shall be entitled to exercise all or a portion of the Options granted to such Participants, whether or not such Options have vested, within the 30-day period next following the giving of such notice. Upon the expiration of such 30 day period, all rights of the Participants to the Option Shares or to the exercise of the Options shall terminate and cease to have any further force and effect. In the event of a merger of the Parent with or into another corporation, or the sale of substantially all of the assets of the Parent, each outstanding Option shall be assumed or an equivalent option or right substituted by the successor corporation or a parent or subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute the Option, the Option shall fully vest and the Participant shall have the right to exercise the Option as to all of the Option Shares, including Option Shares which would not otherwise be vested or exercisable. If an Option becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Committee shall notify the Participant in writing or electronically that the Option shall be fully vested and exercisable for a period of fifteen (15) days from the date of such notice, and the Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following such merger or sale of assets, the option or right confers the right to purchase or receive, for each share of Option Shares, immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Shares for each share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Shares); provided, however, that if such consideration received in the merger or sale of -4-
5 assets is not solely common stock of the successor corporation or its parent, the Committee may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each share of Optioned Shares to be solely common stock of the successor corporation or its parent equal in fair market value to the per share consideration received by holders of Common Shares in the merger or sale of assets. 9. TERMINATION OF PARTICIPANT FOR ANY REASON Subject to Article 5 above, in the event that an Employee's employment with the Company, the Parent or any of their subsidiaries is terminated for any reason, a Director shall cease to be a Director on the Board of Directors for any reason or a Service Provider ceases to provide services to the Company, the Participant or the Participant's legal representative, as the case may be, may elect to purchase at the Option Price all or a portion of the remaining Option Shares subject to Options that have vested at the time such employment, position on the Board of Directors or services with the Company is terminated at any time during the 30 day period, or such later date as determined by the Board of Directors, following the date of such termination of employment or position on the Board of Directors or termination of services of a Service Provider (but in no event after the lapse of any Options held), failing which the exercise of any such Options shall lapse. Any Options not vested shall lapse, unless otherwise determined by the Committee at the time the Employee's employment is terminated, the Director ceases to be a Director on the Board of Directors or the Service Provider ceases to provide services to the Company. To the extent the Common Shares are not listed on any Exchange, the Company may, at any time within one year after termination, elect to purchase at the same Option Price paid by the Participant or the Participant's legal representative all of the Common Shares purchased by such Participant under this Plan. For the purposes of this Plan, the transfer of the Employee's employment to the Company, the Parent or to any subsidiary of the Company or the Parent shall not be considered a termination of employment and the Employee's rights under the Option shall be the same as if such transfer had not occurred. 10. TRANSFER AND ASSIGNMENT The Participant's rights under Options granted under the Plan are not assignable or transferable by the Participant or subject to any other alienation, sale, pledge or encumbrance by such Participant during the Participant's lifetime and therefore the Options are exercisable during the Participant's lifetime only by the Participant. The obligations of each Participant shall be binding on his or her heirs, executors and administrators. 11. EMPLOYMENT AND BOARD OF DIRECTORS POSITION NON-CONTRACTUAL The granting of an Option to a Participant under the Plan does not confer upon the Participant any right to continue in the employment of the Company or any subsidiary of the Company or as a member of the Board of Directors or as a Service Provider, as the case may be, nor does it interfere in any way with the rights of the Employee or of the Company's rights to terminate the Employee's employment at any time or of the shareholders' right to elect Directors. -5-
6 12. RIGHTS AS SHAREHOLDERS Participants shall not have any rights as a shareholder with respect to Option Shares until full payment has been made to the Parent and a share certificate or share certificates have been duly issued. 13. ADMINISTRATION OF THE PLAN The Plan shall be administered by the Committee. The Committee shall have the power to interpret and construe the terms and conditions of the Plan and the Options. Any determination by the Committee shall be final and conclusive on all persons affected thereby unless otherwise determined by the Board of Directors. The day-to-day administration of the Plan may be delegated to such officers and employees of the Company or any subsidiary of the Company as the Committee shall determine. 14. EMPLOYEE LOANS The Board of Directors may authorize the Company to lend or cause to be lent to Employees such portion of the purchase price of the Option Shares under the Plan as an Employee may request and as the Committee administering the Plan may approve for authorization by the Board of Directors. The terms and conditions of such loan which may be interest free, are to be determined by the Committee. 15. NOTICES All written notices to be given by the Participant to the Company may be delivered personally or by registered mail, postage prepaid, addressed as follows: UForce Company - Societe UForce 1001 de Maisonneuve Blvd. West 5th Floor Montreal, Quebec H3A 3C8 Attention: Chief Financial Officer Any notice given by the Participant pursuant to the terms of the Option shall not be effective until actually received by the Company at the above address. Any notice to be given to the Participant shall be sufficiently given if delivered personally or by postage prepaid mail to the last address of the Participant on the records of the Company and shall be effective seven days after mailing. 16. CORPORATE ACTION Nothing contained in the Plan or in the Option shall be construed so as to prevent the Company or any subsidiary of the Company from taking corporate action which is deemed by the Company or the subsidiary to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan. -6-
7 17. AMENDMENTS The Board of Directors of the Company shall have the right, in its sole discretion, to alter, amend or discontinue the Plan from time to time and at any time. No such amendment or discontinuation, however, may, without the consent of the Participant, alter or impair the rights or increase the obligations of a Participant under the Plan. Any amendment to the Plan may require the prior approval of the Exchange and may require the approval of the Company's shareholders. 18. GOVERNING LAW The Plan is established under the laws of the Province of Quebec and the rights of all parties and the construction and effect of each provision of the Plan shall be according to the laws of the Province of Quebec and the laws of Canada applicable therein. 19. GOVERNMENT REGULATION The Company's obligation to cause the issuance and deliver Common Shares under any Option is subject to: (a) the satisfaction of all requirements under applicable securities law in respect thereof and obtaining all regulatory approvals as the Company shall determine to be necessary or advisable in connection with the authorization, issuance or sale thereof, including shareholder approval, if required; (b) the admission of such Common Shares to listing on any stock exchange on which Common Shares may then be listed; and (c) the receipt from the Participant of such representations, agreements and undertakings as to future dealings in such Common Shares as the Company determines to be necessary or advisable in order to safeguard against the violation of the securities law of any jurisdiction. In this connection, the Company shall take all reasonable steps to obtain such approvals and registrations as may be necessary for the issuance of such Common Shares in compliance with applicable securities law and for the listing of such Common Shares on any stock exchange on which such Common Shares are then listed. AMENDED AND RESTATED this 30th day of June, 2000. UFORCE COMPANY - SOCIETE UFORCE /s/ Jean-Luc Calonne ----------------------------------- Name: Jean-Luc Calonne Title: President -7-
8 APPENDIX "A" UFORCE COMPANY - SOCIETE UFORCE AMENDED AND RESTATED STOCK OPTION PLAN STOCK OPTION AGREEMENT Date: _______________ Dear _______________: This is to advise you that you have been granted an option (the "Option") to purchase __________ Common Shares at a price of $__________ per share under the UForce Company -Societe UForce Stock Option Plan (the "Plan"). This option expires the later of 3 years following the date of vesting and 3 years after an initial public offering of the shares or a takeover transaction, subject to other conditions of the Plan. The options granted hereunder shall vest, as to 25% of the Common Shares under Option, on the first anniversary of the date of grant, and thereafter 1/36 of the remaining Common Shares subject to the Option shall vest each month. Subject to such expiry and the other provisions of the Plan, this option, for the instalments vested, is exercisable after vesting for a period of 3 years following the later of vesting and 3 years after an initial public offering of the shares or a takeover transaction. This option is subject to the terms of the Plan and the approval of the Board of Directors. It is understood that you will not benefit from any right under any UForce shareholders' agreement in force at the time of exercising this Option, and that its exercise may be subject to the execution of an agreement governing the terms of your shareholding, as per Section 5 of the Plan. Please refer to the Plan explanatory document for any additional information regarding the exercise of your option and completion of the Option Exercise Form. Sincerely, - ----------------------------------- Please execute a copy of this grant and deliver it to _______________, to acknowledge your acceptance of the terms hereof. - -----------------------------------
9 APPENDIX "A.1" UFORCE COMPANY - SOCIETE UFORCE AMENDED AND RESTATED STOCK OPTION PLAN OPTION EXERCISE FORM PART 1: IDENTIFICATION - ----------------------------------- ----------------------------------- Name of Beneficiary Service - ----------------------------------- ----------------------------------- Address Office Phone Number - ----------------------------------- ----------------------------------- Social Insurance Number Home Phone Number PART 2: OPTION I hereby exercise the Option granted to me by letter dated _______________ under the Plan. Total number of option stock exercised: _______________________ Method of payment: (a) Cash (b) Other: (subject to committee approval) Cash amount: _______________________ I hereby acknowledge that I have read, understood and accepted each and all the conditions described in a document called "UForce Company - Societe UForce Stock Option Plan", and agree to execute, upon request, an agreement governing the terms of my shareholding. Given at ____________________, this _______ day of _______________. - ----------------------------------- Signature
1 EXHIBIT 5.1 July 13, 2000 8x8, Inc. 2445 Mission College Blvd. Santa Clara, CA 95054 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about July 13, 2000 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 3,600,000 shares of your Common Stock reserved for issuance under the Amended and Restated 1999 Nonstatutory Stock Option Plan and of 1,023,898 shares of your Common Stock reserved for issuance under the UForce Company - Societe UForce Amended and Restated 1999 Stock Option Plan (collectively, the "Plan"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of such Common Stock under the Plan. It is our opinion that, when issued and sold in the manner referred to in the Plan and pursuant to the agreements which accompany the Plan, the Common Stock issued and sold thereby will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including any Prospectus constituting a part thereof, and any amendments thereto. This opinion may be incorporated by reference in any abbreviated registration statement filed pursuant to Item E under the general instructions to Form S-8 under the Securities Act of 1933 with respect to the Registration Statement. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati
1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 10, 2000, except for Note 13, which is as of May 19, 2000, relating to the consolidated financial statements, which appears in 8x8, Inc.'s Annual Report on Form 10-K for the year ended March 31, 2000. PricewaterhouseCoopers LLP San Jose, California July 14, 2000