As filed with the Securities and Exchange Commission on
May 25, 2007
Registration
No. 333-140630
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Pre-Effective
Amendment No. 2 to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
SHORETEL, INC.
(Exact name of Registrant as
specified in its charter)
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Delaware
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3661
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77-0443568
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(State or other jurisdiction of
incorporation or organization)
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(Primary standard industrial
code number)
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(I.R.S. employer
identification no.)
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960 Stewart Drive
Sunnyvale, CA
94085-3913
(408) 331-3300
(Address, including zip code,
and telephone number, including area code, of Registrants
principal executive offices)
John W. Combs
Chairman, President and Chief Executive Officer
ShoreTel, Inc.
960 Stewart Drive
Sunnyvale, CA 94085
(408) 331-3300
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Dennis
DeBroeck, Esq.
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Jeffrey D.
Saper, Esq.
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Jeffrey R.
Vetter, Esq.
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Steven V.
Bernard, Esq.
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Fenwick & West
LLP
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Wilson Sonsini
Goodrich & Rosati, P.C.
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801 California Street
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650 Page Mill Road
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Mountain View, California
94041
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Palo Alto, California
94304
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(650) 988-8500
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(650)
493-9300
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following box.
o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act
of 1933, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act of 1933, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering.
o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Title of Each Class of
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Aggregate
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Amount of Registration
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Securities to be Registered
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Offering Price(1)
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Fee(2)
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Common Stock, $0.001 par
value per share
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$
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85,000,000
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$
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9,095
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(1)
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Estimated pursuant to
Rule 457(o) solely for the purpose of calculating the
amount of the registration fee.
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(2)
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Previously paid.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment that
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
The
information in this preliminary prospectus is not complete and
may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell nor does it seek an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
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SUBJECT TO COMPLETION. DATED
MAY 25, 2007.
Shares
Common Stock
This is our initial public offering, and no public market
currently exists for our shares of common stock. We are
offering shares
of common stock. We anticipate that the initial public offering
price will be between $ and
$ per share.
We have applied to have our common stock approved for quotation
on the NASDAQ Global Market under the symbol SHOR.
Investing in our common stock involves risks. See Risk
Factors beginning on page 7.
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Per Share
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Total
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Initial public offering price
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$
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$
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Underwriting discount
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$
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$
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Proceeds, before expenses, to
ShoreTel
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$
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$
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To the extent that the underwriters sell more
than shares
of common stock, the underwriters have the option to purchase up
to an
additional shares
from us at the initial public offering price less the
underwriting discount.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The underwriters expect to deliver the shares on or
about ,
2007.
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Piper
Jaffray
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JMP
Securities
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Wedbush
Morgan Securities
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Prospectus
dated ,
2007
TABLE OF
CONTENTS
No dealer, salesperson or other person is authorized to give
any information or to represent anything not contained in this
prospectus.
You should rely only on the information contained in this
prospectus and any free writing prospectus prepared by or on
behalf of us. This prospectus is an offer to sell only the
shares offered hereby but only under circumstances and in
jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its date.
Through and
including ,
2007 (the 25th day after the date of this prospectus), all
dealers effecting transactions in these securities, whether or
not participating in this offering, may be required to deliver a
prospectus. This is in addition to a dealers obligation to
deliver a prospectus when acting as an underwriter and with
respect to an unsold allotment or subscription.
i
PROSPECTUS
SUMMARY
This summary highlights information contained elsewhere in
this prospectus and does not contain all of the information you
should consider before buying shares of our common stock. Before
deciding to invest in shares of our common stock, you should
read the entire prospectus carefully, including our consolidated
financial statements and the related notes and the information
set forth under the headings Risk Factors and
Managements Discussion and Analysis of Financial
Condition and Results of Operations, in each case included
elsewhere in this prospectus. Except where the context requires
otherwise, in this prospectus, Company,
ShoreTel, we, us, and
our refer to ShoreTel, Inc., a Delaware corporation,
and our predecessor, ShoreTel, Inc., a California corporation,
and where appropriate, their respective subsidiaries.
ShoreTel,
Inc.
Overview
We are a leading provider of Internet Protocol, or IP,
telecommunications systems for enterprises. Our systems are
based on our distributed software architecture and switch-based
hardware platform which enable multi-site enterprises to be
served by a single telecommunications system. Our systems enable
a single point of management, easy installation and a high
degree of scalability and reliability, and provide end users
with a consistent, full suite of features across the enterprise,
regardless of location. As a result, we believe our systems
enable enhanced end user productivity and provide lower total
cost of ownership and higher customer satisfaction than
alternative systems.
Our solution is comprised of ShoreGear switches, ShorePhone IP
telephones and ShoreWare software applications. We provide our
systems to enterprises across all industries, including to
small, medium and large companies and public institutions. Our
enterprise customers include multi-site Fortune
500 companies with tens of thousands of employees. As of
March 31, 2007, we had sold our IP telecommunications
systems to approximately 4,500 enterprise customers,
including CNET Networks, Robert Half International and the
City of Oakland, California. We sell our systems through our
extensive network of more than 400 channel partners.
We have achieved broad industry recognition for our technology
and high customer satisfaction. Our enterprise IP
telecommunications systems received PC Magazines Best of
the Year 2005 Editors Choice designation. For the last
four years, IT executives surveyed by Nemertes Research, an
independent research firm, have rated ShoreTel highest in
customer satisfaction among leading enterprise
telecommunications systems providers.
We increased our total revenue over the last two fiscal years,
from $18.8 million in fiscal 2004 to $61.6 million in
fiscal 2006, and we generated net income of $4.0 million in
fiscal 2006 and net income of $4.2 million for the
nine-month
period ended March 31, 2007. As of March 31, 2007, we had
an accumulated deficit of $86.7 million and total
shareholders deficit of $34.5 million.
Industry
Background
Enterprises have historically operated separate networks for
voice and data communications which resulted in significant
complexity and high cost. Multi-site enterprises typically
operated separate telecommunications systems at each of their
sites that often were difficult to install and manage. These
systems also required significant additional investments to
scale and did not enable delivery of a uniform set of features
and functions across all sites. Enterprises are increasingly
migrating to a single IP network for both voice and data
communications to reduce costs and network complexity and
increase end user productivity. This migration is creating a
significant opportunity for providers of IP telecommunications
systems. Gartner, Inc., an independent research firm, estimates
that worldwide enterprise telephony systems equipment end user
revenue was $17.2 billion in 2006, including legacy TDM
PBX/KTS equipment,
IP-enabled
PBX equipment and
IP-PBX
equipment. According to Gartner, the
IP-PBX
market was estimated to have been $3.9 billion in 2006 and
is expected to grow to $7.9 billion by 2010, which
represents a 19.1% compound annual growth rate. We refer to the
TDM PBX/KTS equipment as TDM systems,
IP-enabled
PBX equipment as hybrid systems, and
IP-PBX
equipment as IP systems.
TDM systems, hybrid systems and a common form of IP systems,
server-centric IP telecommunications systems, each have
significant limitations. TDM systems require a dedicated voice
network that consists of circuits
1
and phones, as well as a separate PBX switch for each office
site, which results in a series of standalone telecommunications
systems within a single enterprise. This also results in high
installation, integration, and on-going management and
maintenance costs. Hybrid systems are based on a TDM
infrastructure and suffer from many of the same shortcomings as
TDM systems. Hybrid systems also require enterprises to maintain
two telecommunications systems, further increasing management
complexity and cost and leading to inconsistent features for end
users across the enterprise. Server-centric IP systems typically
have a centralized software architecture and require system
management to be performed on a
site-by-site
basis. These systems can be costly to scale because significant
additional equipment is often required to accommodate growth
while maintaining adequate redundancy. Server-centric IP systems
also run on operating systems that were not optimized for
real-time voice processing, which we believe results in lower
reliability and decreased performance.
Our
Solution
We provide switch-based IP telecommunications systems for
enterprises that address the limitations of TDM, hybrid and
server-centric IP systems. Our systems are based on our
proprietary distributed software architecture and switch-based
hardware platform. Our software applications are distributed
across each site of an enterprise, providing end users with a
consistent, full suite of features across the enterprise,
regardless of location. Our switch-based hardware platform uses
our proprietary software to allow for a single point of
management of an enterprises telecommunications system
across all sites.
As a result of our distributed software architecture and
switch-based hardware platform, our systems provide enterprise
customers with a number of key benefits, including:
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Ease of use.
We provide a wide range of
innovative, high performance phones that we combine with our
feature-rich desktop software application, Personal Call
Manager. Personal Call Manager allows end users to control their
phones from their PCs, regardless of their location, and
integrates with enterprise software applications, such as
Microsoft Outlook and salesforce.com.
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Ease of installation and management.
Our
systems are easy to install as a result of our proprietary
installation software, which automatically recognizes and
configures the elements of our solution as they are added to the
systems. Our systems also feature a single point of management
with a simple, intuitive interface that allows IT managers to
modify their systems from anywhere through a web browser. We
believe our systems are also easier to install and manage
because they require fewer hardware elements than alternative
systems.
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Scalability.
We believe our distributed
software architecture and the modular design of our system
hardware allow enterprises to incrementally scale our systems
more cost-effectively than alternative systems, which can
require replacement of substantial amounts of system equipment
to increase capacity. In contrast, all of the investment an
enterprise customer makes in our systems will continue to
operate as their implementation of our systems expands to
support their growth.
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Reliability.
Our switches are designed to be
highly reliable and operate independently. Each switch in our
systems is capable of independently establishing and terminating
calls without relying on a centralized call control server, as
is the case with alternative systems. As a result, enterprise
telecommunications can survive a variety of LAN, WAN and
hardware failures using our systems.
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Low total cost of ownership.
Our systems allow
enterprise customers to lower the overall capital expenditures
and on-going operating expenses typically associated with the
deployment and management of enterprise telecommunications
systems.
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Our
Strategy
Our goal is to become the leading provider of IP
telecommunications systems for enterprises. Key elements of our
strategy include:
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Extend our technology advantage.
We intend to
continue our research and development activities and expand our
relationships with technology partners to enhance our product
functionality, feature set and end
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2
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user experience. We also intend to continue to develop
additional applications for our systems and expand the
interoperability of our systems with additional enterprise
applications.
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Grow our distribution network.
We intend to
increase our market penetration and extend our geographic reach
by expanding our business with existing channel partners and by
adding channel partners that serve specific target markets. We
are particularly focused on expanding our relationships with
channel partners that are focused on large enterprise accounts
and with channel partners that operate in strategic
international markets.
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Maintain focus on customer satisfaction.
We
intend to continue to work closely with enterprise customers to
gain valuable knowledge about their existing and future product
requirements to help us develop new products and product
enhancements that address their evolving requirements. We will
continue to actively measure, and develop programs to continue
to enhance, customer satisfaction.
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Increase our brand awareness.
We believe that
increased visibility and awareness of the ShoreTel brand will
enhance our ability to participate in enterprise customer
evaluations of telecommunications systems, and will enable us to
continue to grow our enterprise customer base. We intend to
increase our sales and marketing activities to both channel
partners and enterprise customers through targeted marketing
programs, such as participation in seminars, trade shows and
conferences, and advertising and public relations initiatives.
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Increase penetration of our installed base.
We
plan to leverage our installed enterprise customer base to
increase future sales. Since many organizations initially deploy
our systems at a single location, we believe we can drive
further penetration of our systems at multiple locations within
these enterprises.
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Corporate
Information
We were originally incorporated in California in September 1996,
and we plan to reincorporate into Delaware prior to the
completion of this offering. Our principal offices are located
at 960 Stewart Drive, Sunnyvale, CA 94085, and our telephone
number is
(408) 331-3300.
Our world wide web address is http: //www.shoretel.com. The
information found on, or accessible through, our website is not
a part of this prospectus.
ShoreTel, our logo, ShorePhone, ShoreGear and ShoreWare are
registered trademarks of ShoreTel. All other trademarks,
tradenames and service marks appearing in this prospectus are
the property of their respective owners.
3
THE
OFFERING
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Shares of common stock offered by ShoreTel
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shares
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Shares of common stock to be outstanding after this offering
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shares
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Use of proceeds
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We estimate that we will receive net proceeds of
$ million
from our sale of
the shares
of common stock offered by us in this offering, based on an
assumed initial public offering price of
$ per share, the midpoint of
the range set forth on the cover page of this prospectus, after
deducting estimated underwriting discounts and commissions and
estimated expenses payable by us. We intend to use the net
proceeds of this offering for working capital and general
corporate purposes. In addition, we may use up to
$5.0 million of the net proceeds of this offering to
acquire technology to extend and enhance the functionality of
our existing products. See Use of Proceeds.
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Proposed NASDAQ Global Market symbol
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SHOR
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The number of shares of common stock to be outstanding after
this offering is based on 333,560,256 shares outstanding as
of March 31, 2007, and excludes:
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32,494,685 shares of common stock issuable upon exercise of
outstanding options as of March 31, 2007, at a weighted
average exercise price of $0.13 per share;
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13,020,500 shares of common stock issuable upon exercise of
options granted between April 1, 2007 and May 25,
2007, at a weighted average exercise price of $1.13 per
share;
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708,851 shares of common stock issuable upon exercise of
outstanding warrants as of March 31, 2007, at a weighted
average exercise price of $0.28 per share; and
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36,979,500 shares of common stock reserved for future grant
or issuance under our 2007 equity incentive plan and
5,000,000 shares of common stock to be available for
issuance under our 2007 employee stock purchase plan effective
upon the completion of this offering.
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Except as otherwise noted, all information in this prospectus:
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reflects our reincorporation into Delaware and the filing of our
restated certificate of incorporation prior to the completion of
this offering;
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reflects the conversion of all our outstanding shares of
redeemable convertible preferred stock into an aggregate of
233,164,369 shares of common stock effective upon the
completion of this offering;
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reflects the conversion of all outstanding warrants to purchase
shares of our redeemable convertible preferred stock into
warrants to purchase an aggregate of 677,037 shares of
common stock effective upon completion of this offering;
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reflects
a -for-
reverse split of our outstanding capital stock to be effective
prior to the completion of this offering; and
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assumes no exercise of the underwriters option to purchase
up to an
additional shares
from us.
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4
SUMMARY
CONSOLIDATED FINANCIAL DATA
The following tables summarize our consolidated financial data.
The consolidated statements of operations data for the fiscal
years ended June 30, 2004, 2005 and 2006 have been derived
from our audited consolidated financial statements included
elsewhere in this prospectus. The consolidated statements of
operations data for the nine-month periods ended March 31,
2006 and 2007 have been derived from our unaudited consolidated
financial statements included elsewhere in this prospectus. The
unaudited consolidated financial statements include, in the
opinion of management, all adjustments, which include only
normal recurring adjustments, that management considers
necessary for the fair presentation of the financial information
set forth in those financial statements. You should read this
data together with our consolidated financial statements and the
notes to those statements included elsewhere in this prospectus
and the information under Selected Consolidated Financial
Data and Managements Discussion and Analysis
of Financial Condition and Results of Operations. Our
historical results are not necessarily indicative of the results
to be expected in any future period.
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Year Ended June 30,
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Nine Months Ended March 31,
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2004
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2005
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2006
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2006
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2007
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(Dollars in thousands, except per share amounts)
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Consolidated statement of
operations data:
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Revenue:
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Product
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$
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16,587
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$
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31,970
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$
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55,300
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$
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37,972
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$
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61,473
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Support and services
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2,241
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3,512
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6,308
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4,552
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7,431
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Total revenue
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18,828
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35,482
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61,608
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42,524
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68,904
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Cost of revenue:
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Product (1)
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7,725
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13,961
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21,855
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15,723
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21,271
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Support and services (1)
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1,660
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2,907
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5,425
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3,942
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4,853
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Total cost of revenue
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9,385
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16,868
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27,280
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19,665
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26,124
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Gross profit
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9,443
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18,614
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34,328
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22,859
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42,780
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Operating expenses:
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Research and development (1)
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5,517
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7,034
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9,720
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6,520
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11,450
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Sales and marketing (1)
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8,004
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10,050
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15,699
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10,855
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18,441
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General and administrative (1)
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2,166
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3,045
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4,936
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3,108
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8,383
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Total operating expenses
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15,687
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20,129
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30,355
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20,483
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38,274
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Income (loss) from operations
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(6,244
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)
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(1,515
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)
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3,973
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2,376
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4,506
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Other income (expense)
net
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(7
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)
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124
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248
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96
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(7
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)
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Income (loss) before provision for
income taxes
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(6,251
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)
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(1,391
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)
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4,221
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2,472
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4,499
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Income tax provision
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(11
|
)
|
|
|
(219
|
)
|
|
|
(140
|
)
|
|
|
(311
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
(6,251
|
)
|
|
|
(1,402
|
)
|
|
|
4,002
|
|
|
|
2,332
|
|
|
|
4,188
|
|
Accretion of preferred stock
|
|
|
(26
|
)
|
|
|
(32
|
)
|
|
|
(51
|
)
|
|
|
(38
|
)
|
|
|
(38
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available to
common shareholders
|
|
$
|
(6,277
|
)
|
|
$
|
(1,434
|
)
|
|
$
|
3,951
|
|
|
$
|
2,294
|
|
|
$
|
4,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per common share
available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.06
|
|
|
$
|
0.04
|
|
|
$
|
0.05
|
|
Diluted
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.05
|
|
|
$
|
0.03
|
|
|
$
|
0.03
|
|
Shares used in computing net income
(loss) per share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
66,091,748
|
|
|
|
63,588,435
|
|
|
|
83,415,702
|
|
Diluted
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
84,867,945
|
|
|
|
91,209,085
|
|
|
|
121,763,446
|
|
Unaudited pro forma net income per
share available to common shareholders (2):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
Unaudited shares used in computing
pro forma net income per share available to common shareholders
(2):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
299,256,117
|
|
|
|
|
|
|
|
316,580,071
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
318,032,314
|
|
|
|
|
|
|
|
354,927,815
|
|
5
|
|
|
(1)
|
|
Includes stock-based compensation
expense as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
Year Ended June 30,
|
|
|
Ended March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Cost of product revenue
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
7
|
|
Cost of support and services revenue
|
|
|
|
|
|
|
|
|
|
|
16
|
|
|
|
14
|
|
|
|
55
|
|
Research and development
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
6
|
|
|
|
190
|
|
Sales and marketing
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
|
2
|
|
|
|
331
|
|
General and administrative
|
|
|
45
|
|
|
|
82
|
|
|
|
45
|
|
|
|
24
|
|
|
|
1,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
|
|
$
|
45
|
|
|
$
|
82
|
|
|
$
|
82
|
|
|
$
|
46
|
|
|
$
|
2,053
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2)
|
|
See note 2 to our consolidated
financial statements for a description of the method used to
compute basic and diluted net income (loss) per share available
to common shareholders. Unaudited pro forma basic and diluted
net income per share available to common shareholders have been
computed to give effect to
the -for-
reverse split of our outstanding common stock prior to the
closing of this offering and the assumed conversion of
redeemable convertible preferred stock upon the closing of this
offering on an if-converted basis for the fiscal year ended
June 30, 2006 and the nine-month period ended
March 31, 2007.
|
The actual consolidated balance sheet data as of March 31,
2007 have been derived from our unaudited consolidated financial
statements included elsewhere in this prospectus. The pro forma
consolidated balance sheet data set forth below give effect to
the conversion of all outstanding redeemable convertible
preferred stock into common stock and the reclassification of
the preferred stock warrant liability to additional paid-in
capital upon the completion of this offering. The pro forma as
adjusted consolidated balance sheet data set forth below give
effect to our receipt of the net proceeds from the sale
of shares
of common stock offered by us at an assumed initial public
offering price of $ per
share, the midpoint of the range set forth on the cover page of
this prospectus, after deducting the estimated underwriting
discounts and commissions and estimated offering expenses
payable by us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2007
|
|
|
|
|
|
|
|
|
|
Pro Forma As
|
|
|
|
Actual
|
|
|
Pro Forma
|
|
|
Adjusted(1)
|
|
|
|
(In thousands)
|
|
|
Consolidated balance sheet
data:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
16,811
|
|
|
$
|
16,811
|
|
|
$
|
|
|
Working capital
|
|
|
22,443
|
|
|
|
22,443
|
|
|
|
|
|
Total assets
|
|
|
48,112
|
|
|
|
48,112
|
|
|
|
|
|
Preferred stock warrant liability
|
|
|
666
|
|
|
|
|
|
|
|
|
|
Redeemable convertible preferred
stock
|
|
|
56,329
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
(deficit)
|
|
|
(34,453
|
)
|
|
|
22,542
|
|
|
|
|
|
|
|
|
(1)
|
|
Each $1.00 increase or decrease in
the assumed initial public offering price of
$ per share would increase or
decrease, respectively, the amount of cash and cash equivalents,
working capital, total assets and total shareholders
equity on a pro forma as adjusted basis by approximately
$ million, assuming the
number of shares offered by us, as set forth on the cover of
this prospectus, remains the same and after deducting the
estimated underwriting discounts and commissions payable by us.
|
6
RISK
FACTORS
This offering and an investment in our common stock involve a
high degree of risk. You should carefully consider the risks and
uncertainties described below, together with all of the other
information in this prospectus, including the consolidated
financial statements and the related notes appearing at the end
of this prospectus, before deciding to invest in our common
stock. If any of the following risks actually occurs, our
business, financial condition, results of operations and future
prospects could be materially and adversely affected. In that
event, the market price of our common stock could decline and
you could lose part or all of your investment.
Risks
Related to Our Business
Our
recent profitability and growth rates may not be indicative of
our future profitability or growth, and we may not be able to
continue to maintain or increase our profitability or
growth.
While we have been profitable in recent periods, we had an
accumulated deficit of $86.7 million as of March 31,
2007. This accumulated deficit is attributable to net losses
incurred from our inception in September 1996 through the end of
the third quarter of fiscal 2005. We may not succeed in
maintaining or increasing our profitability and could incur
losses in future periods. We expect to incur significant
additional operating expenses associated with being a public
company. We also expect that our operating expenses, including
recognition of stock-based compensation, will continue to
increase in all areas as we seek to grow our business. If our
gross profit does not increase to offset these expected
increases in operating expenses, our operating results will be
negatively affected. You should not consider our recent growth
rates in terms of revenue and net income as indicative of our
future growth. Accordingly we cannot assure you that we will be
able to maintain or increase our profitability in the future.
The
market in which we operate is intensely competitive, and many of
our competitors are larger, more established and better
capitalized than we are.
The market for IP telecommunications and other
telecommunications systems is extremely competitive. Our
competitors include companies that offer IP systems, such as
Cisco Systems, Inc. and 3Com Corporation, and that offer
hybrid systems, such as Alcatel-Lucent, Avaya, Inc., Inter-Tel
Incorporated, Mitel Networks Corporation (which recently
announced plans to acquire Inter-Tel Incorporated) and Nortel
Networks Corporation. Several of the companies that offer hybrid
systems are beginning to also offer IP telecommunications
systems. Many of our competitors are substantially larger and
have greater financial, technical, research and development,
sales and marketing, manufacturing, distribution and other
resources. We could also face competition from new market
entrants, whether from new ventures or from established
companies moving in to the market. These competitors have
various other advantages over us, including:
|
|
|
|
|
greater market presence, name recognition and brand reputation;
|
|
|
|
a larger installed base of telecommunications and networking
systems with enterprise customers;
|
|
|
|
larger and more geographically distributed services and support
organizations and capabilities;
|
|
|
|
a broader offering of telecommunications and networking
products, applications and services;
|
|
|
|
a more established international presence to address the needs
of global enterprises;
|
|
|
|
substantially larger patent and intellectual property portfolios;
|
|
|
|
longer operating histories;
|
|
|
|
a longer history of implementing large-scale telecommunications
or networking systems;
|
|
|
|
more established relationships with industry participants,
customers, suppliers, distributors and other technology
companies; and
|
|
|
|
|
|
the ability to acquire technologies or consolidate with other
companies in the industry to compete more effectively.
|
7
Given their capital resources, many of these competitors are in
a better position to withstand any significant reduction in
capital spending by enterprise customers on telecommunications
equipment and are not as susceptible to downturns in a
particular market. This risk is enhanced because we focus our
business solely on the enterprise IP telecommunications market
and do not have a diversified portfolio of products that are
applicable to other market segments.
We compete primarily on the basis of price, feature set,
reliability, scalability, usability, total cost of ownership and
service. Because our competitors have greater financial strength
than we do and are able to offer a more diversified bundle of
products and services, they have offered and in the future may
offer telecommunications products at lower prices than we do.
These larger competitors can also bundle products with other
services, such as hosted or managed services, effectively
reducing the price of their products. In order to remain
competitive from a cost perspective, we have in the past reduced
the prices of our products, and we may be required to do so in
the future, in order to gain enterprise customers. Price
reductions could have a negative effect on our gross margins.
Our competitors may also be able to devote more resources to
developing new or enhanced products, including products that may
be based on new technologies or standards. If our
competitors products become more accepted than our
products, our competitive position will be impaired and we may
not be able to increase our revenue or may experience decreased
gross margins. If any of our competitors products or
technologies become the industry standard, if they are
successful in bringing their products to market earlier, or if
their products are more technologically capable than ours, then
our sales could be materially adversely affected. We may not be
able to maintain or improve our competitive position against our
current or future competitors, and our failure to do so could
materially and adversely affect our business.
As
voice and data networks converge, we are likely to face
increased competition from companies in the information
technology, personal and business applications and software
industries.
The convergence of voice and data networks and their wider
deployment by enterprises has led information technology and
communication applications deployed on converged networks to
become more integrated. This integration has created an
opportunity for the leaders in information technology, personal
and business applications and the software that connects the
network infrastructure to those applications, to enter the
telecommunications market and offer products that compete with
our systems. Competition from these potential market entrants
may take many forms, and they may offer products and
applications similar to those we offer. For example, Microsoft
Corporation has recently announced its unified communications
product roadmap. This includes its recently introduced
Office Communicator 2007, which Microsoft stated
will allow end users to control communications, including voice
over IP, through the Office Communicator application on their
PC, which we expect will provide functionality similar to that
offered by our Personal Call Manager application. Microsoft has
also announced plans to introduce Exchange Server 2007, a
product that will offer competing unified messaging
capabilities. Microsoft has also developed an IP phone and has
licensed the rights to produce such phones to third parties. In
addition, Microsoft has also entered into alliances with several
of our competitors, and in July 2006 announced an extensive
relationship with Nortel for the production of
IP-based
communications equipment that will be integrated with the
Microsoft systems and Office Communicator. Microsoft and other
leaders in the information technology, personal and business
applications and software industries, have substantial financial
and other resources that they could devote to this market.
If Microsoft continues to move into the telecommunications
market or if other new competitors from the information
technology, personal and business applications or software
industries enter the telecommunications market, the market for
IP telecommunications systems will become increasingly
competitive. If the solutions offered by Microsoft or other new
competitors achieve substantial market penetration, we may not
be able to maintain or improve our market position, and our
failure to do so could materially and adversely affect our
business and results of operations.
8
If the
emerging market for enterprise IP telecommunications systems
does not fully develop, our future business would be
harmed.
The market for enterprise IP telecommunications systems has
begun to develop only recently, is evolving rapidly and is
characterized by an increasing number of market entrants. As is
typical of a new and rapidly evolving industry, the demand for
and market acceptance of, enterprise IP telecommunications
systems products and services are uncertain. We cannot assure
you that enterprise telecommunications systems that operate on
IP networks will become widespread. In particular, enterprises
that have already invested substantial resources in other means
of communicating information may be reluctant or slow to
implement an IP telecommunications system that can require
significant initial capital expenditures as compared to a hybrid
system that might require a lower initial capital expenditure
despite higher potential total expenditures over the long term.
If the market for enterprise IP telecommunications systems fails
to develop or develops more slowly than we anticipate, our
products could fail to achieve market acceptance, which in turn
could significantly harm our business. This growth may be
inhibited by a number of factors, such as:
|
|
|
|
|
initial costs of implementation for a new system;
|
|
|
|
quality of infrastructure;
|
|
|
|
security concerns;
|
|
|
|
equipment, software or other technology failures;
|
|
|
|
regulatory encroachments;
|
|
|
|
inconsistent quality of service;
|
|
|
|
perceived unreliability or poor voice quality over IP networks
as compared to circuit-switched networks; and
|
|
|
|
lack of availability of cost-effective, high-speed network
capacity.
|
Moreover, as
IP-based
data communications and telecommunications usage grow, the
infrastructure used to support these services, whether public or
private, may not be able to support the demands placed on them
and their performance or reliability may decline. Even if
enterprise IP telecommunications systems become more widespread
in the future, we cannot assure you that our products will
attain broad market acceptance.
Our
operating results may fluctuate in the future, which could cause
our stock price to decline.
Our quarterly and annual results of operations may fluctuate in
the future as a result of a variety of factors, some of which
may be outside of our control. If our results of operations fall
below the expectations of securities analysts or investors, the
price of our common stock could decline substantially.
Fluctuations in our quarterly or annual results of operations
may be due to a number of factors, including, but not limited to:
|
|
|
|
|
the timing and volume of shipments of our products during a
particular period;
|
|
|
|
the timing and success of new product introductions by us or our
competitors;
|
|
|
|
|
|
the timing of recognition of revenue from sales to our customers;
|
|
|
|
|
|
changes in our or our competitors pricing policies or
sales terms;
|
|
|
|
changes in the mix of our products and services sold during a
particular period;
|
|
|
|
the amount and timing of operating costs related to the
maintenance and expansion of our business, operations and
infrastructure;
|
|
|
|
our ability to control costs, including third-party
manufacturing costs and costs of components;
|
|
|
|
our ability to obtain sufficient supplies of components;
|
|
|
|
our ability to maintain sufficient production volumes for our
products;
|
9
|
|
|
|
|
volatility in our stock price, which may lead to higher stock
compensation expenses pursuant to Statement of Financial
Accounting Standards No. 123(R),
Share-Based
Payment
, or SFAS 123(R);
|
|
|
|
the timing of costs related to the development or acquisition of
technologies or businesses;
|
|
|
|
conditions specific to the IP telecommunications market, such as
rates of adoption of IP telecommunications systems and
introduction of new standards;
|
|
|
|
changes in domestic and international regulatory environments
affecting the Internet and telecommunications industries;
|
|
|
|
seasonality in our target markets; and
|
|
|
|
the purchasing and budgeting cycles of enterprise customers.
|
Because our operating expenses are largely fixed in the
short-term, any shortfalls in revenue in a given period would
have a direct and adverse effect on our operating results in
that period. We believe that our quarterly and annual revenue
and results of operations may vary significantly in the future
and that
period-to-period
comparisons of our operating results may not be meaningful. You
should not rely on the results of one period as an indication of
future performance.
We
rely on third-party resellers to sell our products, and
disruptions to, or our failure to develop and manage, our
distribution channels and the processes and procedures that
support them could adversely affect our business.
Approximately 92% of our total revenue in fiscal 2006 was
generated through indirect channel sales. These indirect sales
channels consist of third-party resellers that market and sell
telecommunications systems and other products and services to
customers. We expect indirect channel sales will continue to
generate a substantial majority of our total revenue in the
future. Our future success is highly dependent upon establishing
and maintaining successful relationships with a variety of
third-party resellers of telecommunications products and
services. In addition, we rely on these entities to provide many
of the installation, implementation and support services for our
products. Accordingly, our success depends in large part on the
effective performance of these channel partners. By relying on
channel partners, we may in some cases have little or no contact
with the ultimate users of our products, thereby making it more
difficult for us to establish brand awareness, ensure proper
delivery and installation of our products, service ongoing
enterprise customer requirements and respond to evolving
enterprise customer needs. This difficulty could be more
pronounced in international markets, where we expect that
enterprise customers will purchase our systems from a channel
partner that purchased through a distributor. Additionally, some
of our channel partners are smaller companies that may not have
the same financial resources as other of our larger channel
partners, which could in some cases expose us to additional
collections risk. As of June 30, 2005 and 2006, we had
approximately 210 and 340, respectively, third-party resellers
in our channel partner program. Historically, we have
experienced relatively low turnover of the resellers in our
program, with 13 and 19 members leaving the program in fiscal
2005 and fiscal 2006, respectively.
Recruiting and retaining qualified channel partners and training
them in our technology and products requires significant time
and resources. In order to develop and expand our distribution
channel, we must continue to scale and improve our processes and
procedures that support our channel, including investment in
systems and training, and those processes and procedures may
become increasingly complex and difficult to manage. We have no
long-term contracts or minimum purchase commitments with any of
our channel partners, and our contracts with these channel
partners do not prohibit them from offering products or services
that compete with ours. Our competitors may be effective in
providing incentives to existing and potential channel partners
to favor their products or to prevent or reduce sales of our
products. Our channel partners may choose not to offer our
products exclusively or at all. Our failure to establish and
maintain successful relationships with channel partners would
likely materially adversely affect our business, operating
results and financial condition.
10
Our
sales cycle can be lengthy and unpredictable, which makes it
difficult to forecast the amount of our sales and operating
expenses in any particular period.
The sales cycle for our products typically ranges from six to
nine months, and in some cases can be over 12 months.
Part of our strategy is to increasingly target our sales efforts
on larger enterprises. Because the sales cycle for large
enterprises is generally longer than for smaller enterprises,
our sales cycle in the future may be even longer than it has
been historically. As a result, we may have limited ability to
forecast whether or in which period a sale will occur. The
success of our product sales process is subject to many factors,
some of which we have little or no control over, including:
|
|
|
|
|
the timing of enterprise customers budget cycles and
approval processes;
|
|
|
|
a technical evaluation or trial by potential enterprise
customers;
|
|
|
|
our ability to introduce new products, features or functionality
in a manner that suits the needs of a particular enterprise
customer;
|
|
|
|
the announcement or introduction of competing products; and
|
|
|
|
the strength of existing relationships between our competitors
and potential enterprise customers.
|
We may expend substantial time, effort and money educating our
current and prospective enterprise customers as to the value of,
and benefits delivered by, our products, and ultimately fail to
produce a sale. If we are unsuccessful in closing sales after
expending significant resources, our operating results will be
adversely affected. Furthermore, if sales forecasted for a
particular period do not occur in such period, our operating
results for that period could be substantially lower than
anticipated and the market price of our common stock could
decline.
Our
products incorporate some sole sourced components and the
inability of these sole source suppliers to provide adequate
supplies of these components may prevent us from selling our
products for a significant period of time or limit our ability
to deliver sufficient amounts of our products.
We rely on sole or limited numbers of suppliers for several key
components utilized in the assembly of our products. For
example, we source semiconductors that are essential to the
operation of our phones from separate single suppliers, and we
have not identified or qualified any alternative suppliers for
these components. We do not have supply agreements with our sole
source suppliers, and the components for our products are
typically procured by our contract manufacturers. If we lose
access to these components we may not be able to sell our
products for a significant period of time, and we could incur
significant costs to redesign our products or to qualify
alternative suppliers. This reliance on a sole source or limited
number of suppliers involves several additional risks, including:
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supplier capacity constraints;
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price increases;
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timely delivery; and
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component quality.
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This reliance is exacerbated by the fact that we maintain a
relatively small amount of inventory and our contract
manufacturers typically acquire components only as needed. As a
result, our ability to respond to enterprise customer orders
efficiently may be constrained by the then-current availability
or the terms and pricing of these components. Disruption or
termination of the supply of these components could delay
shipments of our products and could materially and adversely
affect our relationships with current and prospective enterprise
customers. For example, in December 2004, our power supply
component vendor was unable to provide sufficient components,
and we had to obtain this component from another source. Also,
from time to time we have experienced component quality issues
with products obtained from our contract manufacturers. For
example, in the first quarter of our 2005 fiscal year, we had to
expend resources to fix keys that were not working properly on
some of our phones. In addition, any increase in the price of
these components could reduce our gross margin and adversely
impact our profitability. We cannot assure you that we will be
able to obtain a sufficient quantity of these components to meet
the demands of enterprise customers in a timely manner or that
prices of these components will not increase. In
11
addition, problems with respect to yield and quality of these
components and timeliness of deliveries could occur. These
delays could also materially and adversely affect our operating
results.
Our
business may be harmed if our contract manufacturers are not
able to provide us with adequate supplies.
We outsource the manufacturing of our products. Currently, we
have arrangements for the production of our switches with a
contract manufacturer in California and for the production of
our phones with a contract manufacturer located in China. Our
reliance on contract manufacturers involves a number of
potential risks, including the absence of adequate capacity and
reduced control over delivery schedules.
We depend on our contract manufacturers to finance the
production of goods ordered and to maintain adequate
manufacturing capacity. We do not exert direct control over our
contract manufacturers, so we may be unable to procure timely
delivery of acceptable products to our enterprise customers.
If sales of our products continue to grow, one or both of our
contract manufacturers may not have sufficient capacity to
enable it to increase production to meet the demand for our
products. Moreover, both of our contract manufacturers could
have manufacturing engagements with companies that are much
larger than we are and whose production needs are much greater
than ours. As a result, one or both of our contract
manufacturers may choose to devote additional resources to the
production of products other than ours if capacity is limited.
In addition, our contract manufacturers do not have any written
contractual obligation to accept any purchase order that we
submit for the manufacture of any of our products nor do we have
any assurance that our contract manufacturers will agree to
manufacture and supply any or all of our requirements for our
products. Furthermore, either of our contract manufacturers may
unilaterally terminate their relationship with us at any time
upon 180 days notice with respect to the contract
manufacturer of our switches and 120 days notice with
respect to the contract manufacturer of our phones or seek to
increase the prices they charge us. For example, in January
2005, one of our former contract manufacturers, which at the
time was the sole manufacturer of our switches, notified us that
it was terminating its relationship with us upon six months of
advance notice, which required us to qualify and obtain a new
contract manufacturer. As a result, we are not assured that our
current manufacturers will continue to provide us with an
uninterrupted supply of products of at an acceptable price in
the future.
Even if our contract manufacturers accept and fulfill our
orders, it is possible that the products may not meet our
specifications. Because we do not control the final assembly and
quality assurance of our products, there is a possibility that
these products may contain defects or otherwise not meet our
quality standards, which could result in warranty claims against
us that could adversely affect our operating results and future
sales.
If our contract manufacturers are unable or unwilling to
continue manufacturing our products in required volumes and to
meet our quality specifications, or if they significantly
increase their prices, we will have to identify one or more
acceptable alternative contract manufacturers. The process of
identifying and qualifying a new contract manufacturer can be
time consuming, and we may not be able to substitute suitable
alternative contract manufacturers in a timely manner or at
acceptable prices. Additionally, transitioning to new contract
manufacturers may cause delays in supply if the new contract
manufacturers have difficulty manufacturing products to our
specifications or quality standards. Furthermore, we do not own
the electronic design for our phones, hence it may be more
difficult or costly for us to change the contract manufacturer
of our phones or to arrange for an alternate of or a replacement
for these products in a timely manner should a transition be
required. This could also subject us to the risk that our
competitors could obtain phones containing technology that is
the same as or similar to the technology in our phones.
Any disruption in the supply of products from our contract
manufacturers may harm our business and could result in a loss
of sales and an increase in production costs, which could
adversely affect our business and results of operations.
12
The
gross margins on our products may decrease due to competitive
pressures or otherwise, which could negatively impact our
profitability.
It is possible that the gross margins on our products will
decrease in the future in response to competitive pricing
pressures, new product introductions by us or our competitors,
changes in the costs of components or other factors. If we
experience decreased gross margins and we are unable to respond
in a timely manner by introducing and selling new, higher-margin
products successfully and continually reducing our product
costs, our gross margins may decline, which will harm our
business and results of operations.
If we
fail to make necessary improvements to address material
weaknesses and significant deficiencies in our internal control
over financial reporting noted by our independent registered
public accounting firm, we may not be able to report our
financial results accurately and timely or prevent fraud, any of
which could harm our business, reputation and cause the price of
our common stock to decline.
In connection with the audit of our financial statements for the
six-month period ended December 31, 2006, our independent
registered public accounting firm noted in their report to our
audit committee that we had the following material weaknesses in
our internal control over financial reporting as of
December 31, 2006:
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we do not have a sufficient number of accounting personnel with
the relevant technical accounting and financial reporting
experience and skills to facilitate the preparation of timely
and accurate consolidated financial statements; and
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we do not have sufficient internal controls related to the
identification of all products and services associated with a
sales arrangement, including commitments made by our sales and
marketing personnel and channel partners to provide specified
upgrades, services or additional products to customers in the
future, including through product roadmap presentations to
customers.
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If vendor-specific objective evidence, or VSOE, of fair value
does not exist for commitments to provide specified upgrades,
services or additional products to customers in the future, as
has been the case from time to time in the past, we defer all
revenue from the arrangement until the earlier of the point at
which VSOE of fair value does exist or all such elements from
the arrangement have been delivered.
Additionally, the following two significant deficiencies in the
design or operation of our internal control over financial
reporting were noted:
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we do not accurately maintain data sufficient to readily track
and validate the existence of fixed assets and we have no formal
procedures in place to ensure that fixed assets continue to be
held and used; and
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we do not have adequate procedures for identifying and recording
period-ended accrued expenses and in-transit inventory.
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A material weakness and significant deficiency are defined as a
control deficiency, or combination of control deficiencies, that
adversely affect an entitys ability to initiate,
authorize, record, process or report financial data reliably in
accordance with generally accepted accounting principles such
that there is more than a remote likelihood that a material
misstatement (with respect to a material weakness) of the
entitys financial statements or a misstatement that is
more than inconsequential (with respect to a significant
deficiency) will not be prevented or detected by the
entitys internal control over financial reporting.
These material weaknesses and significant deficiencies resulted
in a number of audit adjustments to our consolidated financial
statements for the six-month period ended December 31, 2006
that were noted during the course of the audit. In addition,
these material weaknesses and significant deficiencies
contributed to delays in the completion of the audit.
We are in the process of taking steps intended to remedy these
material weaknesses and significant deficiencies, and we will
not be able to fully address these material weaknesses and
significant deficiencies until these steps have been completed.
If we fail to further increase and maintain the number and
expertise of our staff for our accounting and finance functions
and to improve and maintain internal control over financial
reporting adequate to meet the demands that will be placed upon
us as a public company, including the requirements of the
Sarbanes-
13
Oxley Act, we may be unable to report our financial results
accurately and prevent fraud. If we cannot do so, our business,
reputation and stock price may decline.
Furthermore, SEC rules require that, as a publicly-traded
company following completion of this offering, we file periodic
reports containing our financial statements within a specified
time following the completion of quarterly and annual periods.
Prior to this offering, we have never been required to have our
financial statements completed and reviewed or audited within a
specified period, and, as such, we may experience difficulty in
meeting the SECs reporting requirements in a timely
manner. Any failure by us to timely file our periodic reports
with the SEC could harm our reputation and reduce the market
price of our common stock.
Even if we are able to report our financial statements
accurately and timely, if we do not make all the necessary
improvements to address the material weaknesses, continued
disclosure of our material weaknesses will be required in future
filings with the SEC, which could cause our reputation to be
harmed and our stock price to decline.
We
will incur significant increased costs as a result of operating
as a public company, and our management will be required to
devote substantial time to public company compliance
initiatives. These added costs and required management focus
could adversely affect our operating results.
As a public company, we will incur significant legal, accounting
and other expenses that we did not incur as a private company.
In addition, the Sarbanes-Oxley Act, as well as rules
subsequently implemented by the SEC and the NASDAQ Stock Market,
have imposed a variety of new requirements on public companies,
including requiring changes in corporate governance practices.
Our management and other personnel will need to devote a
substantial amount of time to these new compliance initiatives.
Moreover, these rules and regulations will increase our legal
and financial compliance costs and will make some activities
more time-consuming and costly. For example, we expect these new
rules and regulations will make it more difficult and expensive
for us to obtain director and officer liability insurance, and
we will be required to incur substantial costs to maintain the
same or similar coverage.
In addition, the Sarbanes-Oxley Act requires, among other
things, that we maintain effective internal control over
financial reporting and disclosure controls and procedures. In
particular, commencing in fiscal 2008, we must perform system
and process evaluation and testing of our internal control over
financial reporting to allow management and our independent
registered public accounting firm to report on the effectiveness
of our internal control over financial reporting, as required by
Section 404 of the Sarbanes-Oxley Act. Our compliance with
Section 404 will require that we incur substantial
accounting expense and expend significant management efforts. We
currently do not have an internal audit group, and we will need
to hire additional accounting and financial staff with
appropriate public company experience and technical accounting
knowledge. Moreover, if we are not able to comply with the
requirements of Section 404 in a timely manner, or if we or
our independent registered public accounting firm continues to
note or identify deficiencies in our internal control over
financial reporting that are deemed to be material weaknesses,
the market price of our stock could decline and we could be
subject to sanctions or investigations by the NASDAQ Stock
Market, the SEC or other regulatory authorities, which would
require additional financial and management resources.
The increased costs associated with operating as a public
company may decrease our net income or increase our net loss,
and may cause us to reduce costs in other areas of our business
or increase the prices of our products or services to offset the
effect of such increased costs. Additionally, if these
requirements divert our managements attention from other
business concerns, they could have a material adverse effect on
our business, financial condition and results of operations.
If we
fail to develop and introduce new products and features in a
timely manner, or if we fail to manage product transitions, we
could experience decreased revenue or decreased selling prices
in the future.
Our future growth depends on our ability to develop and
introduce new products successfully. Due to the complexity of
the type of products we produce, there are significant technical
risks that may affect our ability to introduce new products and
features successfully. In addition, we must commit significant
resources to developing new products and features before knowing
whether our investments will result in products that are
accepted by the market. The success of new products depends on
many factors, including:
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the ability of our products to compete with the products and
solutions offered by our competitors;
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the cost of our products;
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the reliability of our products;
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the timeliness of the introduction and delivery of our
products; and
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the market acceptance of our products.
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If we are unable to develop and introduce new products in a
timely manner or in response to changing market conditions or
enterprise customer requirements, or if these products do not
achieve market acceptance, our operating results could be
materially and adversely affected.
Product introductions by us in future periods may also reduce
demand for, or cause price declines with respect to, our
existing products. As new or enhanced products are introduced,
we must successfully manage the transition from older products,
avoid excessive levels of older product inventories and ensure
that sufficient supplies of new products can be delivered to
meet enterprise customer demand. Our failure to do so could
adversely affect our revenue, gross margins and other operating
results.
If we
fail to respond to technological changes and evolving industry
standards, our products could become obsolete or less
competitive in the future.
The telecommunications industry is highly competitive and
characterized by rapidly changing technologies and standards,
frequent product introductions and short product life cycles.
Accordingly, our operating results depend upon, among other
things, our ability to develop and introduce new products and
our ability to reduce production costs of existing products. The
process of developing new technologies and products is complex,
and if we are unable to develop enhancements to, and new
features for, our existing products or acceptable new products
that keep pace with technological developments or industry
standards, our products may become obsolete, less marketable and
less competitive and our business will be harmed.
In addition, as industry standards evolve, it is possible that
one standard becomes predominant in the market. This could
facilitate the entry into the market of competing products,
which could result in significant pricing pressure.
Additionally, if one standard becomes predominant and we adopt
that standard, enterprises may be able to create a unified,
integrated system by using phones, switches, servers,
applications, or other telecommunications products produced by
different companies. Therefore, we may be unable to sell
complete systems to enterprise customers because the enterprise
customers elect to purchase portions of their telecommunications
systems from our competitors. For example, if a single industry
standard is adopted, customers may elect to purchase our
switches, but could purchase software applications and phones
from other vendors. This could reduce our revenue and gross
margins if enterprise customers instead purchase primarily
lower-margin products from us. Conversely, if one standard
becomes predominant, and we do not adopt it, potential
enterprise customers may choose to buy a competing system that
is based on that standard.
Our
products are highly complex and may contain undetected software
or hardware errors, which could harm our reputation and future
product sales.
Because our enterprise customers rely on our products for
telecommunications, an application that is critical to their
business, any failure to provide high quality and reliable
products, whether caused by our own failure or failures by our
contract manufacturer or suppliers, could damage our reputation
and reduce demand for our products. Our products have in the
past contained, and may in the future contain, undetected errors
or defects. Some errors in our products may only be discovered
after a product has been installed and used by enterprise
customers. Any errors or defects discovered in our products
after commercial release could result in loss of revenue, loss
of enterprise customers and increased service and warranty
costs, any of which could adversely affect our business. In
addition, we could face claims for product liability, tort or
breach of warranty. Our purchase orders contain provisions
relating to warranty disclaimers and liability limitations,
which may not be upheld. Defending a lawsuit, regardless of its
merit, is costly and may divert managements attention and
adversely affect the markets perception of us and our
products. In addition, if our business liability insurance
coverage proves inadequate or future coverage is unavailable on
acceptable terms or at all, our business, operating results and
financial condition could be adversely affected.
15
Our
business could be harmed by adverse economic conditions in our
target markets or reduced spending on information technology and
telecommunication products.
Our business depends on the overall demand for information
technology, and in particular for telecommunications systems.
The market we serve is emerging and the purchase of our products
involves significant upfront expenditures. In addition, the
purchase of our products can be discretionary and may involve a
significant commitment of capital and other resources. Weak
economic conditions in our target markets, or a reduction in
information technology or telecommunications spending even if
economic conditions improve, would likely adversely impact our
business, operating results and financial condition in a number
of ways, including longer sales cycles, lower prices for our
products and reduced unit sales.
Our
future success depends on our ability to attract, integrate and
retain key personnel, and our failure to do so could harm our
ability to grow our business.
Our future success will depend, to a significant extent, on our
ability to attract, integrate and retain our key personnel,
namely our management team and experienced sales and engineering
personnel. For example, we hired Michael E. Healy as our
new Chief Financial Officer, effective May 10, 2007, and we
have also recently hired other personnel in our finance
department. We may experience difficulty assimilating our newly
hired personnel, which may adversely affect our business. In
addition, we must retain and motivate high quality personnel,
and we must also attract and assimilate other highly qualified
employees. Competition for qualified management, technical and
other personnel can be intense, and we may not be successful in
attracting and retaining such personnel. Competitors have in the
past and may in the future attempt to recruit our employees, and
our management and key employees are not bound by agreements
that could prevent them from terminating their employment at any
time. If we fail to attract, integrate and retain key employees,
our ability to manage and grow our business could be harmed.
If we
fail to manage our growth effectively, our business could be
harmed.
We have recently experienced a period of rapid growth in our
headcount and operations. In the last year and a half, we have
more than doubled our workforce and significantly expanded our
channel partner network and the number and size of enterprise
customers implementing our systems. We anticipate that we will
further expand our operations. This growth has placed, and
future growth will place, a significant strain on our
management, administrative, operational and financial
infrastructure. Our success will depend in part upon our ability
to manage this growth effectively. To manage the expected growth
of our operations and personnel, we will need to continue to
improve our operational, financial and management controls and
our reporting systems and procedures. Failure to effectively
manage growth could result in difficulty in filling enterprise
customer orders, declines in product quality or customer
satisfaction, increases in costs or other production and
distribution difficulties, and any of these difficulties could
adversely impact our business performance and results of
operations.
We
intend to expand our international operations, which could
expose us to significant risks.
To date we have limited international operations and have not
had material revenue from international enterprise customers.
The future success of our business will depend, in part, on our
ability to expand our operations and enterprise customer base
successfully worldwide. Operating in international markets
requires significant resources and management attention and will
subject us to regulatory, economic and political risks that are
different from those in the United States. Because of our
limited experience with international operations, we cannot
assure you that our international expansion efforts will be
successful. In addition, we will face risks in doing business
internationally that could adversely affect our business,
including:
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our ability to comply with differing technical and environmental
standards and certification requirements outside the United
States;
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difficulties and costs associated with staffing and managing
foreign operations;
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greater difficulty collecting accounts receivable and longer
payment cycles;
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the need to adapt our products for specific countries;
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availability of reliable broadband connectivity and wide area
networks in targeted areas for expansion;
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unexpected changes in regulatory requirements;
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difficulties in understanding and complying with local laws,
regulations and customs in foreign jurisdictions;
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tariffs, export controls and other non-tariff barriers such as
quotas and local content rules;
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more limited protection for intellectual property rights in some
countries;
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adverse tax consequences;
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fluctuations in currency exchange rates, which could increase
the price of our products outside of the United States, increase
the expenses of our international operations and expose us to
foreign currency exchange rate risk;
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restrictions on the transfer of funds; and
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new and different sources of competition.
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Our failure to manage any of these risks successfully could harm
our future international operations and our overall business.
Failure
to protect our intellectual property could substantially harm
our business.
Our success and ability to compete are substantially dependent
upon our intellectual property. We rely on patent, trademark and
copyright law, trade secret protection and confidentiality or
license agreements with our employees, enterprise customers,
strategic partners and others to protect our intellectual
proprietary rights. However, the steps we take to protect our
intellectual property rights may be inadequate. We currently
have three issued patents and 11 patent applications in the
United States. We also have one foreign patent application
relating to one of our U.S. patents. We cannot assure you
that any additional patents will be issued. Even if patents are
issued, they may not adequately protect our intellectual
property rights or our products against competitors, and
third-parties may challenge the scope, validity
and/or
enforceability of our issued patents. In addition, other parties
may independently develop similar or competing technologies
designed around any patents that may be issued to us.
In order to protect our intellectual property rights, we may be
required to spend significant resources to monitor and protect
such rights. We may not be able to detect infringement, and may
lose our competitive position in the market before we are able
to do so. In the event that we detect any infringement of our
intellectual property rights, we intend to enforce such rights
vigorously, and from time to time we may initiate claims against
third parties that we believe are infringing on our intellectual
property rights if we are unable to resolve matters
satisfactorily through negotiation. Litigation brought to
protect and enforce our intellectual property rights could be
costly, time-consuming and distracting to management and could
result in the impairment or loss of portions of our intellectual
property. Furthermore, our efforts to enforce our intellectual
property rights may be met with defenses, counterclaims and
countersuits attacking the validity and enforceability of our
intellectual property rights. Our failure to secure, protect and
enforce our intellectual property rights could harm our brand
and adversely impact our business, financial condition and
results of operations.
If a
third party asserts that we are infringing on its intellectual
property, whether successful or not, it could subject us to
costly and time-consuming litigation or expensive licenses,
which could harm our business.
There is considerable patent and other intellectual property
development activity in our industry. Our success depends, in
part, upon our not infringing upon the intellectual property
rights of others. Our competitors, as well have a number of
other entities and individuals, own or claim to own intellectual
property relating to our industry. From time to time, third
parties may claim that we are infringing upon their intellectual
property rights, and we may be found to be infringing upon such
rights. Third-parties have in the past sent us correspondence
regarding their intellectual property and in the future we may
receive claims that our products infringe or violate their
intellectual property rights. For example, in January 2007, we
received a letter alleging that we infringed on two patents,
and, in
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April 2007, we were named as the defendant in a lawsuit
regarding this alleged infringement. This lawsuit was settled in
May 2007. However, we may be unaware of the intellectual
property rights of others that may cover some or all of our
technology or products. Any claims or litigation could cause us
to incur significant expenses and, if successfully asserted
against us, could require that we pay substantial damages or
ongoing royalty payments, prevent us from selling our products,
or require that we comply with other unfavorable terms. In
addition, we may decide to pay substantial settlement costs in
connection with any claim or litigation, whether or not
successfully asserted against us. Even if we were to prevail,
any litigation regarding our intellectual property could be
costly and time-consuming and divert the attention of our
management and key personnel from our business operations.
Litigation with respect to intellectual property rights in the
telecommunications industries is not uncommon and can often
involve patent holding companies who have little or no product
revenue and against whom our own patents may provide little or
no deterrence. We may also be obligated to indemnify our
enterprise customers or business partners in connection with any
such litigation, which could further exhaust our resources.
Furthermore, as a result of an intellectual property challenge,
we may be required to enter into royalty, license or other
agreements. We may not be able to obtain these agreements on
terms acceptable to us or at all. In addition, disputes
regarding our intellectual property rights may deter
distributors selling our products and dissuade potential
enterprise customers from purchasing such products. As such,
third-party claims with respect to intellectual property may
increase our cost of goods sold or reduce the sales of our
products, and may have a material and adverse effect on our
business.
Our
products include third-party technology and intellectual
property, which could present additional risks.
We incorporate certain third-party technologies, such as our
contact center, collaboration bridge and network monitoring
software, into our products, and intend to utilize additional
third-party technologies in the future. However, licenses to
relevant third-party technology or updates to those technologies
may not continue to be available to us on commercially
reasonable terms, or at all. Furthermore, we do not own the
electronic design for our phones, hence it may be difficult for
us to arrange for an alternate of or a replacement for these
products in a timely manner. Therefore, we could face delays in
product releases until equivalent technology can be identified,
licensed or developed, and integrated into our current products.
These delays, if they occur, could materially adversely affect
our business.
We are
subject to environmental and other health and safety regulations
that may increase our costs of operations or limit our
activities.
We are subject to environmental and other health and safety
regulations relating to matters such as reductions in the use of
harmful substances, the use of lead-free soldering and the
recycling of products and packaging materials. For example, the
European Parliament and the Counsel of the European Union have
published directives on waste electrical and electronic
equipment and on the restriction of the use of certain hazardous
substances in electrical and electronic equipment. These
directives generally require electronics producers to bear the
cost of collection, treatment, recovery and safe disposal of
past and future products from end users and to ensure that new
electrical and electronic equipment does not contain specified
hazardous substances. While the cost of these directives to us
cannot be determined before regulations are adopted in
individual member states of the European Union, it may be
substantial and may divert resources, which could detract from
our ability to develop new products or operate our business,
particularly if we increase international operations. We may not
be able to comply in all cases with applicable environmental and
other regulations, and if we do not, we may incur remediation
costs or we may not be able to offer our products for sale in
certain countries, which could adversely affect our results.
Some
of our competitors could design their products to prevent or
impair the interoperability of our products with enterprise
customers networks, which could cause installations to be
delayed or cancelled.
Our products must interface with enterprise customer software,
equipment and systems in their networks, each of which may have
different specifications. To the extent our competitors supply
network software, equipment or systems to our enterprise
customers, it is possible these competitors could design their
technologies to be closed or proprietary systems that are
incompatible with our products or to work less effectively with
our products than their own. As a result, enterprise customers
would be incentivized to purchase products that are compatible
with the
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products and technologies of our competitors over our products.
A lack of interoperability may result in significant redesign
costs and harm relations with our enterprise customers. If our
products do not interoperate with our enterprise customers
networks, installations could be delayed or orders for our
products could be cancelled, which would result in losses of
revenue and enterprise customers that could significantly harm
our business.
Our
revenue may decline as a result of changes in public funding of
educational institutions
In prior periods, public educational institutions have purchased
our products, and we derived approximately 5.0% and 7.2% of our
total revenue from sales to educational institutions in fiscal
2006 and the nine-month period ended March 31, 2007. Public
schools receive funding from local tax revenue, and from state
and federal government through a variety of programs, many of
which seek to assist schools located in underprivileged or rural
areas. We believe that the funding for a substantial portion of
our sales to educational institutions comes from federal
funding, in particular the
E-rate
program.
E-rate
is a
program of the Federal Communications Commission that subsidizes
the purchase of approved telecommunications, Internet access,
and internal connections costs for eligible public educational
institutions. In the event that the federal government reduces
the amounts dedicated to the
E-rate
program in future periods, or eliminates the program completely,
our sales to educational institutions may be reduced.
Furthermore, if state and local funding of public education is
significantly reduced because of legislative changes or by
fluctuations in tax revenue due to changing economic conditions,
our sales to educational institutions may also be negatively
impacted. Any reduction in spending on telecommunications
systems by educational institutions would likely adversely
affect our business and results of operations.
Our
principal offices and the facilities of our contract
manufacturers are located near known earthquake fault zones, and
the occurrence of an earthquake or other catastrophic disaster
could damage our facilities or the facilities of our contract
manufacturers, which could cause us to curtail our
operations.
Our principal offices and the facilities of one of our contract
manufacturers are located in California near known earthquake
fault zones and, therefore, are vulnerable to damage from
earthquakes. We and our contract manufacturers are also
vulnerable to damage from other types of disasters, such as
power loss, fire, floods and similar events. If any disaster
were to occur, our ability to operate our business could be
seriously impaired. In addition, we may not have adequate
insurance to cover our losses resulting from disasters or other
similar significant business interruptions. Any significant
losses that are not recoverable under our insurance policies
could seriously impair our business and financial condition.
Our
products require reliable broadband connections, and we may be
unable to sell our products in markets where broadband
connections are not yet widely available.
End users of our products must have reliable access to an
enterprise customers wide area network in order for our
products to perform properly. Accordingly, it is not likely that
there will be demand for our products in geographic areas that
do not have a sufficiently reliable infrastructure of broadband
connections. Many geographic locations do not have reliable
infrastructure for broadband connections, particularly in some
international markets. Our future growth could be limited if
broadband connections are not or do not become widely available
in markets that we target.
If our
enterprise customers experience inadequate performance with
their wide area networks, even if unrelated to our systems, our
product performance could be adversely affected, which could
harm our relationships with current enterprise customers and
make it more difficult to attract new enterprise
customers.
Our products rely on the reliable performance of the wide area
networks of enterprise customers. If enterprise customers
experience inadequate performance with their wide area networks,
whether due to outages, component failures, or otherwise, our
product performance would be adversely affected. As a result,
when these types of problems occur with these networks, our
enterprise customers may not be able to immediately identify the
source of the problem, and may conclude that the problem is
related to our products. This could harm our relationships with
our current enterprise customers and make it more difficult to
attract new enterprise customers, which could harm our business.
19
We
might require additional capital to support our business in the
future, and this capital might not be available on acceptable
terms, or at all.
Although we anticipate that our current cash on hand and the
proceeds from this offering will be sufficient to meet our
currently anticipated cash needs for the next twelve months, if
our cash and cash equivalents balances and any cash generated
from operations and from this offering are not sufficient to
meet our future cash requirements, we will need to seek
additional capital, potentially through debt or equity
financings, to fund our operations. We may also need to raise
additional capital to take advantage of new business or
acquisition opportunities. We may seek to raise capital by,
among other things:
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issuing additional common stock or other equity securities;
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issuing debt securities; or
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borrowing funds under a credit facility.
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We cannot assure you that we will be able to raise needed cash
on terms acceptable to us or at all. Financings, if available,
may be on terms that are dilutive or potentially dilutive to our
stockholders, and the prices at which new investors would be
willing to purchase our securities may be lower than the initial
public offering price. The holders of new securities may also
receive rights, preferences or privileges that are senior to
those of existing holders of common stock. In addition, if we
were to raise cash through a debt financing, such debt may
impose conditions or restrictions on our operations, which could
adversely affect our business. If new sources of financing are
required but are insufficient or unavailable, we would be
required to modify our operating plans to the extent of
available funding, which would harm our ability to maintain or
grow our business.
Risks
Related to the Offering
We
cannot assure you that a market will develop for our common
stock or what the market price of our common stock will
be.
Before this offering, there was no public trading market for our
common stock, and we cannot assure you that one will develop or
be sustained after this offering. If a market does not develop
or is not sustained, it may be difficult for you to sell your
shares of common stock at an attractive price or at all. We
cannot predict the prices at which our common stock will trade.
The initial public offering price for our common stock will be
determined through our negotiations with the underwriters and
may not bear any relationship to the market price at which our
common stock will trade after this offering or to any other
established criteria of the value of our business. It is
possible that, in future quarters, our operating results may be
below the expectations of securities analysts or investors. As a
result of these and other factors, the price of our common stock
may decline, and you could lose some or all of your investment.
The
price of our common stock may be volatile and the value of your
investment could decline.
In the past, technology stocks have experienced high levels of
volatility. The trading price of our common stock following this
offering may fluctuate substantially. The price of our common
stock that will prevail in the market after this offering may be
higher or lower than the price you pay, depending on many
factors, some of which are beyond our control and may not be
related to our operating performance. These fluctuations could
cause you to lose all or part of your investment in our common
stock. Factors that could cause fluctuations in the trading
price of our common stock include the following:
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price and volume fluctuations in the overall stock market from
time to time;
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significant volatility in the market price and trading volume of
technology companies;
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actual or anticipated changes in our results of operations or
fluctuations in our operating results;
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actual or anticipated changes in the expectations of investors
or securities analysts;
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actual or anticipated developments in our competitors
businesses or the competitive landscape generally;
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litigation involving us, our industry or both;
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20
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regulatory developments in the United States, foreign countries
or both;
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economic conditions and trends in our industry;
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major catastrophic events;
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sales of large blocks of our stock; or
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departures of key personnel.
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In the past, following periods of volatility in the market price
of a companys securities, securities class action
litigation has often been brought against that company. If our
stock price is volatile, we may become the target of securities
litigation. Securities litigation could result in substantial
costs and divert our managements attention and resources
from our business.
Future
sales of outstanding shares of our common stock into the market
in the future could cause the market price of our common stock
to drop significantly, even if our business is doing
well.
If our existing stockholders sell a large number of shares of
our common stock or the public market perceives that these sales
may occur, the market price of our common stock could decline.
Based on shares outstanding on March 31, 2007, upon the
completion of this offering, assuming no outstanding options are
exercised prior to the completion of this offering, we will have
approximately shares
of common stock outstanding. All of the shares offered under
this prospectus will be freely tradable without restriction or
further registration under the federal securities laws, unless
purchased by our affiliates. Taking into consideration the
effect of
lock-up
agreements entered into by our stockholders, the remaining
333,560,256 shares outstanding upon the completion of this
offering will be available for sale pursuant to Rules 144
and 701, and the volume, manner of sale and other limitations
under these rules, as follows:
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328,792,276 shares of common stock will be eligible for
sale in the public market, beginning on the 181st day after
the date of this prospectus, unless the
lock-up
period is otherwise extended pursuant to its terms, subject in
some cases to the provisions of Rule 144 under the
Securities Act of 1933, unless released sooner by the written
consent of Lehman Brothers Inc. and J.P. Morgan Securities Inc.,
however, we have no current intention to request that any shares
be released from lock-up restrictions prior to the expiration of
the lock-up period; and
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the remainder of the shares will be eligible for sale in the
public market from time to time thereafter upon the lapse of our
right to repurchase with respect to any unvested shares.
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Furthermore, following this offering, certain holders
of shares of our common stock and common stock issued upon
conversion of our preferred stock and warrants will be entitled
to rights with respect to the registration of a total of
274,053,117 shares under the Securities Act. See
Description of Capital Stock Registration
Rights. If we register their shares of common stock
following the expiration of the
lock-up
agreements, these stockholders can immediately sell those shares
in the public market.
In connection with this offering, we intend to register on a
registration statement on
Form S-8
up to approximately 32,494,685 shares of common stock that
are authorized for issuance pursuant to outstanding stock
options granted under our 1997 stock option plan and a non-plan
stock option, 50,000,000 shares of common stock that are
authorized for issuance under our 2007 stock option plan and
5,000,000 shares of common stock that are authorized for
issuance under our 2007 employee stock purchase plan. As of
March 31, 2007, 32,494,685 shares were subject to
outstanding options under our 1997 stock option plan and a
non-plan stock option, of which 10,791,926 shares were
vested as of that date, and of which an additional
6,349,605 shares will become vested as of March 31,
2008 (assuming no changes in current vesting schedules and
continuous employment of the holders of these options). As of
March 31, 2007, no shares were subject to outstanding
options under our 2007 equity incentive plan, although options
to purchase 13,020,500 shares have been granted under this
plan since March 31, 2007. No shares were subject to
outstanding purchase rights under our 2007 employee stock
purchase plan as of the date of this prospectus. All of these
shares when issued will be subject to the lock-up agreements
referred to above and 282,825,094 shares held by our affiliates
will be subject to Rule 144 restrictions. To the extent we
register these shares, they can be freely sold in the public
market upon issuance, subject to the lock-up agreements referred
to above and Rule 144.
21
If
securities analysts do not publish research or reports about our
business, or if they downgrade our stock, the price of our stock
could decline.
The trading market for our common stock will rely in part on the
availability of research and reports that third-party industry
or financial analysts publish about us. Further, if one or more
of the analysts who do cover us downgrade our stock, our stock
price may decline. If one or more of these analysts cease
coverage of our company, we could lose visibility in the market,
which in turn could cause the liquidity of our stock and our
stock price to decline.
Concentration
of ownership among our existing directors, executive officers,
and principal stockholders may prevent new investors from
influencing significant corporate decisions.
Upon closing of this offering, assuming the underwriters
option to purchase additional shares is not exercised, based
upon beneficial ownership as of March 31, 2007, our current
directors, executive officers, holders of more than 5% of our
common stock, including funds affiliated with Crosspoint Venture
Partners, Foundation Capital, Lehman Brothers and
J.P. Morgan, and their respective affiliates will, in the
aggregate, beneficially own approximately % of our
outstanding common stock. As a result, these stockholders will
be able to exercise a controlling influence over matters
requiring stockholder approval, including the election of
directors and approval of significant corporate transactions,
and will have significant influence over our management and
policies. Some of these persons or entities may have interests
that are different from yours. For example, these stockholders
may support proposals and actions with which you may disagree or
which are not in your interests. The concentration of ownership
could delay or prevent a change in control of our company or
otherwise discourage a potential acquirer from attempting to
obtain control of our company, which in turn could reduce the
price of our common stock. In addition, these stockholders, some
of whom have representatives sitting on our board of directors,
could use their voting influence to maintain our existing
management and directors in office, delay or prevent changes of
control of our company, or support or reject other management
and board proposals that are subject to stockholder approval,
such as amendments to our employee stock plans and approvals of
significant financing transactions.
We
have broad discretion in the use of the net proceeds from this
offering.
We cannot specify with certainty the particular uses of the net
proceeds we will receive from this offering. Our management will
have broad discretion in the application of the net proceeds,
including for any of the purposes described in the section
entitled Use of Proceeds. Accordingly, you will have
to rely upon the judgment of our management with respect to the
use of the proceeds, with only limited information concerning
managements specific intentions. Our management may spend
a portion or all of the net proceeds from this offering in ways
that our stockholders may not desire or that may not yield a
favorable return. The failure by our management to apply these
funds effectively could harm our business. Pending their use, we
may invest the net proceeds from this offering in a manner that
does not produce income or that loses value.
We do
not intend to pay dividends for the foreseeable
future.
We have never declared or paid any cash dividends on our common
stock. We intend to retain any earnings to finance the operation
and expansion of our business, and we do not anticipate paying
any cash dividends in the future. As a result, you may only
receive a return on your investment in our common stock if the
market price of our common stock increases.
If you
purchase shares of our common stock in this offering, you will
experience substantial and immediate dilution.
If you purchase shares of our common stock in this offering, you
will experience substantial and immediate dilution in the pro
forma net tangible book value per share of
$ per share, based on an
assumed initial public offering price of
$ per share, which is the
midpoint of the range set forth on the cover page of this
prospectus, because the price that you pay will be substantially
greater than the pro forma net tangible book value per share of
the common stock that you acquire. This dilution is due in large
part to the fact that our earlier investors paid substantially
less than the initial public offering price when they purchased
their shares of our capital stock. You will experience
additional dilution upon the exercise of options to purchase
common stock under our equity incentive
22
plans, if we issue restricted stock to our employees under these
plans or if we otherwise issue additional shares of our common
stock.
Our
charter documents and Delaware law may inhibit a takeover that
stockholders consider favorable and could also limit the market
price of our stock.
Upon the completion of this offering, provisions of our restated
certificate of incorporation and bylaws and applicable
provisions of Delaware law may make it more difficult for or
prevent a third party from acquiring control of us without the
approval of our board of directors. These provisions:
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prohibit stockholder action by written consent, thereby
requiring all stockholder actions to be taken at a meeting of
our stockholders;
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limit who may call a special meeting of stockholders;
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establish a classified board of directors, so that not all
members of our board of directors may be elected at one time;
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provide our board of directors with the ability to designate the
terms of and issue a new series of preferred stock without
stockholder approval;
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require the approval of two-thirds of the shares entitled to
vote at an election of directors to adopt, amend or repeal our
bylaws or repeal certain provisions of our certificate of
incorporation;
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allow a majority of the authorized number of directors to adopt,
amend or repeal our bylaws without stockholder approval;
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do not permit cumulative voting in the election of our
directors, which would otherwise permit less than a majority of
stockholders to elect directors; and
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set limitations on the removal of directors.
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In addition, Section 203 of the Delaware General
Corporation Law generally limits our ability to engage in any
business combination with certain persons who own 15% or more of
our outstanding voting stock or any of our associates or
affiliates who at any time in the past three years have owned
15% or more of our outstanding voting stock. These provisions
may have the effect of entrenching our management team and may
deprive you of the opportunity to sell your shares to potential
acquirers at a premium over prevailing prices. This potential
inability to obtain a control premium could reduce the price of
our common stock.
Please see Description of Capital Stock
Anti-takeover Provisions for a more detailed description
of these provisions.
23
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY
DATA
This prospectus, particularly in the sections entitled
Prospectus Summary, Risk Factors,
Managements Discussion and Analysis of Financial
Condition and Results of Operations and
Business, contains forward-looking statements that
are subject to substantial risks and uncertainties. All
statements other than statements of historical facts contained
in this prospectus, including statements regarding our future
financial position, the statements under the caption Our
Strategy in the Prospectus Summary section,
the statements under the caption Our Strategy in the
Business section, other statements regarding our
strategies for growth and current development initiatives,
statement regarding planned expenditures, including capital
expenditures, expansion of our research and development, sales
and marketing and support organizations, and statements
regarding other aspects of our business strategy, and plans and
objectives for future operations, are forward-looking
statements. In some cases, you can identify forward-looking
statements by terms such as believe,
may, estimate, continue,
anticipate, intend, should,
plan, expect, predict, or
potential, the negative of these terms or other
similar expressions. We have based these forward-looking
statements largely on our current expectations and projections
about future events and financial trends that we believe may
affect our financial condition, results of operations, business
strategy and financial needs. These forward-looking statements
are subject to a number of risks, uncertainties and assumptions
described in the section entitled Risk Factors and
elsewhere in this prospectus. We qualify all of our
forward-looking statements by these cautionary statements.
Moreover, we operate in a very competitive and rapidly changing
environment. New risks emerge from time to time. It is not
possible for our management to predict all risks, nor can we
assess the impact of all factors on our business or the extent
to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any
forward-looking statements we may make. Before investing in our
common stock, investors should be aware that the occurrence of
the events described in the section entitled Risk
Factors and elsewhere in this prospectus could have a
material adverse effect on our business, results of operations
and financial condition.
You should not rely upon forward-looking statements as
predictions of future events. Although we believe that the
expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee that the future results, levels
of activity, performance or events and circumstances reflected
in the forward-looking statements will be achieved or occur.
Moreover, neither we nor any other person assumes responsibility
for the accuracy and completeness of the forward-looking
statements. We undertake no obligation to update publicly any
forward-looking statements for any reason after the date of this
prospectus to conform these statements to actual results or to
changes in our expectations.
This prospectus also contains statistical data and estimates,
including those relating to market size and growth rates of the
markets in which we participate, that we obtained from industry
publications and reports generated by Gartner, Inc. and Nemertes
Research Inc. These publications generally indicate that they
have obtained their information from sources they believe to be
reliable, but do not guarantee the accuracy and completeness of
their information. Although we believe the publications are
reliable, we have not independently verified their data.
You should read this prospectus and the documents that we
reference in this prospectus and have filed with the SEC as
exhibits to the registration statement of which this prospectus
is a part with the understanding that our actual future results,
levels of activity, performance and events and circumstances may
be materially different from what we expect.
24
USE OF
PROCEEDS
We estimate that we will receive net proceeds of
$ million from our sale of
the shares
of common stock offered by us in this offering, based on an
assumed initial public offering price of
$ per share, the midpoint of
the range set forth on the cover page of this prospectus, after
deducting estimated underwriting discounts and commissions and
estimated offering expenses payable by us. If the
underwriters option to purchase additional shares is
exercised in full, we estimate that our net proceeds will be
approximately $ million. Each
$1.00 increase or decrease in the assumed initial public
offering price of $ per share
would increase or decrease the net proceeds to us from this
offering by approximately
$ million, assuming the
number of shares offered by us, as set forth on the cover page
of this prospectus, remains the same and after deducting
estimated underwriting discounts and commissions payable by us.
The principal purposes of this offering are to increase public
awareness of our company and improve our competitive position,
obtain additional capital, create a public market for our common
stock and facilitate our future access to the public equity
markets. We anticipate that we will use the net proceeds
received by us from this offering for working capital and other
general corporate purposes. We may use up to $5.0 million
of the net proceeds of this offering to acquire technology from
an unrelated third party that we expect will extend and enhance
the functionality of our existing products. In addition, we may
use a portion of the proceeds of this offering for other
possible acquisitions of complementary businesses, technologies
or other assets. We have no current agreements or commitments
with respect to any material acquisitions.
We currently have no specific plans for the use of the net
proceeds to us from this offering. The amounts and timing of our
actual expenditures will depend on numerous factors, including
the amount of cash used in or generated by our operations, sales
and marketing activities and competitive pressures. We therefore
cannot estimate the amount of the net proceeds to be used for
any of the purposes described above.
Pending the uses described above, we intend to invest the net
proceeds from the sale of shares of our common stock sold by us
in this offering in short-term, interest bearing, investment
grade securities. We cannot predict whether the net proceeds
will yield a favorable return.
DIVIDEND
POLICY
We have never declared or paid any cash dividends on our capital
stock. We currently intend to retain all available funds and any
future earnings to support our operations and finance the growth
and development of our business. We do not intend to pay cash
dividends on our common stock for the foreseeable future. In
addition, the terms of our current line of credit prohibits the
payment of cash dividends without the lenders consent.
25
CAPITALIZATION
The following table sets forth our cash and cash equivalents and
capitalization as of March 31, 2007:
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on an actual basis;
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on a pro forma basis to reflect (1) the conversion of all
outstanding redeemable convertible preferred stock into common
stock upon the completion of this offering and (2) the
reclassification of the preferred stock warrant liability to
additional paid-in capital upon the conversion of warrants to
purchase shares of our redeemable convertible preferred stock
into warrants to purchase shares of our common stock upon the
completion of this offering; and
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on a pro forma as adjusted basis to reflect the sale of the
shares of our common stock offered by us at an assumed initial
public offering price of
$ per share, the midpoint of
the range set forth on the cover page of this prospectus, after
deducting estimated underwriting discounts and commissions and
estimated offering expenses payable by us.
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You should read this table together with Managements
Discussion and Analysis of Financial Condition and Results of
Operations and our audited consolidated financial
statements and the related notes, each included elsewhere in
this prospectus.
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As of
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March 31, 2007
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Pro
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Pro Forma as
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Actual
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Forma
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Adjusted(1)
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(In thousands, except share and
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per share data)
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Cash and cash equivalents
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$
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16,811
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$
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16,811
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$
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Preferred stock warrant liability
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$
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666
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$
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$
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Redeemable convertible preferred
stock, $0.01 par value: 235,862,612 shares authorized,
233,164,369 shares issued or outstanding, actual; no shares
authorized, no shares issued and outstanding, pro forma and pro
forma as adjusted
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$
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56,329
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$
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$
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Shareholders equity
(deficit):
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Preferred stock, $0.01 par
value: no shares authorized, issued or outstanding, actual;
5,000,000 shares authorized, no shares issued and outstanding,
pro forma and pro forma as adjusted
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Common stock, $0.01 par
value: 400,000,000 shares authorized,
100,395,887 shares issued and outstanding, actual;
400,000,000 shares authorized, 333,560,256 shares
issued and outstanding, pro forma; 500,000,000 shares
authorized, shares
issued and outstanding, pro forma as adjusted
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1,113
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3,445
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Additional paid-in capital
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51,409
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106,072
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Deferred compensation
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(284
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)
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(284
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Accumulated deficit
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(86,691
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)
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(86,691
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Total shareholders equity
(deficit)
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$
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(34,453
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)
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$
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22,542
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$
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Total capitalization
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$
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22,542
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$
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22,542
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$
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(1)
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Each $1.00 increase or decrease in
the assumed public offering price of
$ per share would increase or
decrease, respectively, the amount of cash and cash equivalents,
additional paid-in capital and total shareholders
(deficit) equity by approximately
$ , assuming the number of shares
offered by us, as set forth on the cover of this prospectus,
remains the same and after deducting the estimated underwriting
discounts and commissions payable by us.
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The information in the table above excludes:
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32,494,685 shares of common stock issuable upon exercise of
outstanding options as of March 31, 2007, at a
weighted average exercise price of $0.13 per share;
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13,020,500 shares of common stock issuable upon exercise of
options granted between April 1, 2007 and May 25,
2007, at a weighted average exercise price of $1.13 per
share;
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708,851 shares of common stock issuable upon exercise of
outstanding warrants as of March 31, 2007, at a weighted
average exercise price of $0.28 per share; and
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36,979,500 shares of common stock reserved for future grant
or issuance under our 2007 equity incentive plan and
5,000,000 shares of common stock to be available for
issuance under our 2007 employee stock purchase plan effective
upon the completion of this offering.
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27
DILUTION
If you invest in our common stock, your interest will be diluted
immediately to the extent of the difference between the initial
public offering price per share of our common stock and the pro
forma as adjusted net tangible book value per share of our
outstanding common stock immediately after completion of this
offering.
As of March 31, 2007, we had a pro forma net tangible book
value of $ million, or
$ per share of common stock
outstanding. Pro forma net tangible book value per share is
equal to our total tangible assets (total assets less intangible
assets) less total liabilities, divided by the pro forma number
of outstanding shares of our common stock, which gives effect to
(1) the conversion of all outstanding shares of redeemable
convertible preferred stock into common stock upon the
completion of this offering and (2) the reclassification of
the preferred stock warrant liability reflected on our
consolidated balance sheet to additional paid-in capital upon
conversion of warrants to purchase shares of our redeemable
convertible preferred stock into warrants to purchase shares of
our common stock upon the completion of this offering.
Dilution in pro forma net tangible book value per share
represents the difference between the amount per share paid by
investors in this offering and pro forma net tangible book value
per share of our common stock immediately after the completion
of this offering. After giving effect to the sale
of shares
of common stock offered by us under this prospectus at an
assumed public offering price of
$ per share, which is the
midpoint of the range set forth on the cover page of this
prospectus, and after deducting the estimated underwriting
discounts and estimated offering expenses payable by us, our pro
forma as adjusted net tangible book value as of March 31,
2007 would have been approximately
$ million, or approximately
$ per share of common stock.
This represents an immediate increase in pro forma net tangible
book value of $ per share to
our existing stockholders and an immediate dilution in pro forma
net tangible book value of
$ per share to new investors
purchasing shares in this offering. The following table
illustrates this per share dilution:
|
|
|
|
|
|
|
|
|
Assumed initial public offering
price per share
|
|
|
|
|
|
$
|
|
|
Pro forma net tangible book value
per share as of March 31, 2007, before
giving effect to this offering
|
|
$
|
|
|
|
|
|
|
Increase in pro forma net tangible
book value per share attributable to this
offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma as adjusted net tangible
book value per share after giving effect to this offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution in pro forma net tangible
book value per share to new investors in this offering
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
Each $1.00 increase or decrease in the assumed public offering
price of $ per share would
increase or decrease, respectively, our pro forma as adjusted
net tangible book value per share after giving effect to this
offering by $ million per
share and the dilution in pro forma net tangible book value per
share to new investors in this offering by
$ per share, assuming the
number of shares offered by us, as set forth on the cover page
of this prospectus, remains the same and after deducting the
estimated underwriting discounts and commissions payable by us.
The following table shows, as of March 31, 2007, the number
of shares of common stock purchased from us, the total
consideration paid to us and the average price paid per share by
existing stockholders and by new investors purchasing common
stock in this offering at an assumed initial public offering
price of $ per share, which
is the midpoint of the range set forth on the cover page of this
prospectus, and before deducting the estimated underwriting
discounts and commissions and estimated offering expenses
payable by us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average
|
|
|
|
Shares Purchased
|
|
|
Total Consideration
|
|
|
Price per
|
|
|
|
Number
|
|
|
Percent
|
|
|
Amount
|
|
|
Percent
|
|
|
Share
|
|
|
Existing stockholders
|
|
|
|
|
|
|
|
%
|
|
$
|
|
|
|
|
|
%
|
|
$
|
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
Each $1.00 increase or decrease in the assumed initial public
offering price of $ per share
would increase or decrease, respectively, the total
consideration paid by new investors and total consideration paid
by all stockholders by
$ million, assuming the
number of shares offered by us, as set forth on the cover page
of this prospectus, remains the same and after deducting the
estimated underwriting discounts and commissions payable by us.
If the underwriters exercise in full their option to purchase up
to
additional shares from us in this offering, our pro forma as
adjusted net tangible book value per share as of March 31,
2007 will be $ , representing an
immediate increase in pro forma net tangible book value per
share attributable to this offering of
$ to our existing stockholders and
an immediate dilution per share to new investors in this
offering of $ . If the
underwriters option to purchase additional shares is
exercised in full, our existing stockholders would
own % and our new investors would
own % of the total number of shares
of our common stock outstanding after this offering.
The information in the tables above excludes:
|
|
|
|
|
32,494,685 shares of common stock issuable upon exercise of
outstanding options as of March 31, 2007, at a weighted
average exercise price of $0.13 per share;
|
|
|
|
|
|
13,020,500 shares of common stock issuable upon exercise of
options granted between April 1, 2007 and May 25,
2007, at a weighted average exercise price of $1.13 per
share;
|
|
|
|
|
|
708,851 shares of common stock issuable upon exercise of
outstanding warrants as of March 31, 2007, at a weighted
average exercise price of $0.28 per share; and
|
|
|
|
|
|
36,979,500 shares of common stock reserved for future grant
or issuance under our 2007 equity incentive plan and
5,000,000 shares of common stock to be available for
issuance under our 2007 employee stock purchase plan effective
upon the completion of this offering.
|
To the extent that any options or warrants are exercised, new
options or shares of common stock are issued under our 2007
equity incentive plan or our 2007 employee stock purchase plan
or we issue additional shares of common stock in the future,
there will be further dilution to investors participating in
this offering.
The following table assumes the exercise of all options and
warrants outstanding as of March 31, 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average
|
|
|
|
Shares Purchased
|
|
|
Total Consideration
|
|
|
Price
|
|
|
|
Number
|
|
|
Percent
|
|
|
Amount
|
|
|
Percent
|
|
|
per Share
|
|
|
Existing stockholders
|
|
|
|
|
|
|
|
%
|
|
$
|
|
|
|
|
|
%
|
|
$
|
|
|
Shares subject to options and
warrants(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Because some of the warrants may be
exercised on a net exercise basis, the actual number
of shares of common stock that may be issued upon exercise of
the warrants may be lower. In addition, warrants to
purchase
shares of common stock have exercise prices that exceed
$ , the midpoint of the range set
forth on the cover page of this prospectus. Accordingly, these
warrants may never be exercised.
|
29
SELECTED
CONSOLIDATED FINANCIAL DATA
The following tables summarize our selected consolidated
financial data. The consolidated statements of operations data
for the fiscal years ended June 30, 2004, 2005 and 2006 and
the consolidated balance sheet data as of June 30, 2005 and
2006 have been derived from our audited consolidated financial
statements included elsewhere in this prospectus. The
consolidated balance sheet data as of June 30, 2002, 2003
and 2004 and the consolidated statements of operations data for
the fiscal years ended June 30, 2002 and 2003 are derived
from our audited consolidated financial statements, which are
not included in this prospectus. The consolidated statements of
operations data for the nine-month periods ended March 31,
2006 and 2007 and the consolidated balance sheet data as of
March 31, 2007 have been derived from our unaudited
consolidated financial statements included elsewhere in this
prospectus. The unaudited consolidated financial statements have
been prepared on a basis consistent with our audited financial
statements contained in this prospectus and include, in the
opinion of management, all adjustments, which include only
normal recurring adjustments, that management considers
necessary for the fair presentation of the financial information
set forth in those financial statements. You should read this
data together with our consolidated financial statements and
related notes to those statements included elsewhere in this
prospectus and the information under Managements
Discussion and Analysis of Financial Condition and Results of
Operations. Our historical results are not necessarily
indicative of the results to be expected in any future period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(Dollars in thousands, except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated statement of
operations data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
$
|
5,302
|
|
|
$
|
8,537
|
|
|
$
|
16,587
|
|
|
$
|
31,970
|
|
|
$
|
55,300
|
|
|
$
|
37,972
|
|
|
$
|
61,473
|
|
Support and services
|
|
|
1,872
|
|
|
|
1,755
|
|
|
|
2,241
|
|
|
|
3,512
|
|
|
|
6,308
|
|
|
|
4,552
|
|
|
|
7,431
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
7,174
|
|
|
|
10,292
|
|
|
|
18,828
|
|
|
|
35,482
|
|
|
|
61,608
|
|
|
|
42,524
|
|
|
|
68,904
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product (1)
|
|
|
3,463
|
|
|
|
4,634
|
|
|
|
7,725
|
|
|
|
13,961
|
|
|
|
21,855
|
|
|
|
15,723
|
|
|
|
21,271
|
|
Support and services (1)
|
|
|
2,221
|
|
|
|
2,003
|
|
|
|
1,660
|
|
|
|
2,907
|
|
|
|
5,425
|
|
|
|
3,942
|
|
|
|
4,853
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
5,684
|
|
|
|
6,637
|
|
|
|
9,385
|
|
|
|
16,868
|
|
|
|
27,280
|
|
|
|
19,665
|
|
|
|
26,124
|
|
Gross profit
|
|
|
1,490
|
|
|
|
3,655
|
|
|
|
9,443
|
|
|
|
18,614
|
|
|
|
34,328
|
|
|
|
22,859
|
|
|
|
42,780
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development (1)
|
|
|
7,100
|
|
|
|
6,118
|
|
|
|
5,517
|
|
|
|
7,034
|
|
|
|
9,720
|
|
|
|
6,520
|
|
|
|
11,450
|
|
Sales and marketing (1)
|
|
|
8,419
|
|
|
|
6,847
|
|
|
|
8,004
|
|
|
|
10,050
|
|
|
|
15,699
|
|
|
|
10,855
|
|
|
|
18,441
|
|
General and administrative (1)
|
|
|
3,538
|
|
|
|
2,731
|
|
|
|
2,166
|
|
|
|
3,045
|
|
|
|
4,936
|
|
|
|
3,108
|
|
|
|
8,383
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
19,057
|
|
|
|
15,696
|
|
|
|
15,687
|
|
|
|
20,129
|
|
|
|
30,355
|
|
|
|
20,483
|
|
|
|
38,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
(17,567
|
)
|
|
|
(12,041
|
)
|
|
|
(6,244
|
)
|
|
|
(1,515
|
)
|
|
|
3,973
|
|
|
|
2,376
|
|
|
|
4,506
|
|
Other income (expense)
net
|
|
|
(31
|
)
|
|
|
19
|
|
|
|
(7
|
)
|
|
|
124
|
|
|
|
248
|
|
|
|
96
|
|
|
|
(7
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision for
income taxes
|
|
|
(17,598
|
)
|
|
|
(12,022
|
)
|
|
|
(6,251
|
)
|
|
|
(1,391
|
)
|
|
|
4,221
|
|
|
|
2,472
|
|
|
|
4,499
|
|
Income tax provision
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11
|
)
|
|
|
(219
|
)
|
|
|
(140
|
)
|
|
|
(311
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
(17,598
|
)
|
|
|
(12,022
|
)
|
|
|
(6,251
|
)
|
|
|
(1,402
|
)
|
|
|
4,002
|
|
|
|
2,332
|
|
|
|
4,188
|
|
Accretion of preferred stock
|
|
|
|
|
|
|
(38
|
)
|
|
|
(26
|
)
|
|
|
(32
|
)
|
|
|
(51
|
)
|
|
|
(38
|
)
|
|
|
(38
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available to
common shareholders
|
|
$
|
(17,598
|
)
|
|
$
|
(12,060
|
)
|
|
$
|
(6,277
|
)
|
|
$
|
(1,434
|
)
|
|
$
|
3,951
|
|
|
$
|
2,294
|
|
|
$
|
4,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share
available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(1.86
|
)
|
|
$
|
(1.10
|
)
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.06
|
|
|
$
|
0.04
|
|
|
$
|
0.05
|
|
Diluted
|
|
$
|
(1.86
|
)
|
|
$
|
(1.10
|
)
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.05
|
|
|
$
|
0.03
|
|
|
$
|
0.03
|
|
Shares used in computing net income
(loss) per share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
9,473,420
|
|
|
|
10,998,047
|
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
66,091,748
|
|
|
|
63,588,435
|
|
|
|
83,415,702
|
|
Diluted
|
|
|
9,473,420
|
|
|
|
10,998,047
|
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
84,867,945
|
|
|
|
91,209,085
|
|
|
|
121,763,446
|
|
Unaudited pro forma net income per
share available to common shareholders(2):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
Unaudited shares used in computing
pro forma net income per share available to common
shareholders(2):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
299,256,117
|
|
|
|
|
|
|
|
316,580,071
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
318,032,314
|
|
|
|
|
|
|
|
354,927,815
|
|
30
(1) Includes stock-based compensation expense as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Cost of product revenue
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
7
|
|
Cost of support and services revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16
|
|
|
|
14
|
|
|
|
55
|
|
Research and development
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
6
|
|
|
|
190
|
|
Sales and marketing
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
|
2
|
|
|
|
331
|
|
General and administrative
|
|
|
|
|
|
|
446
|
|
|
|
45
|
|
|
|
82
|
|
|
|
45
|
|
|
|
24
|
|
|
|
1,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
expense
|
|
$
|
|
|
|
$
|
446
|
|
|
$
|
45
|
|
|
$
|
82
|
|
|
$
|
82
|
|
|
$
|
46
|
|
|
$
|
2,053
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2) See note 2 to our consolidated financial
statements for a description of the method used to compute basic
and diluted net income (loss) per share available to common
shareholders. Unaudited pro forma basic and diluted net income
per share available to common shareholders have been computed to
give effect to the -for- reverse split of
our outstanding common stock prior to the closing of this
offering and the assumed conversion of redeemable convertible
preferred stock upon the closing of this offering on an
if-converted basis for the fiscal year ended June 30, 2006
and the nine-month period ended March 31, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
As of June 30,
|
|
|
March 31,
|
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Consolidated balance sheet
data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
6,182
|
|
|
$
|
3,451
|
|
|
$
|
723
|
|
|
$
|
5,373
|
|
|
$
|
12,333
|
|
|
$
|
16,811
|
|
Working capital
|
|
|
3,476
|
|
|
|
3,720
|
|
|
|
1,320
|
|
|
|
10,741
|
|
|
|
16,208
|
|
|
|
22,443
|
|
Total assets
|
|
|
13,426
|
|
|
|
8,231
|
|
|
|
7,962
|
|
|
|
20,960
|
|
|
|
30,885
|
|
|
|
48,112
|
|
Redeemable convertible preferred
stock
|
|
|
79,974
|
|
|
|
42,814
|
|
|
|
46,300
|
|
|
|
56,281
|
|
|
|
56,332
|
|
|
|
56,329
|
|
Total shareholders equity
(deficit)
|
|
|
(74,721
|
)
|
|
|
(38,374
|
)
|
|
|
(44,596
|
)
|
|
|
(45,713
|
)
|
|
|
(41,168
|
)
|
|
|
(34,453
|
)
|
31
MANAGEMENTS
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial
condition and results of operations should be read in
conjunction with the consolidated financial statements and
related notes included elsewhere in this prospectus. This
discussion contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ
materially from those discussed below. Factors that could cause
or contribute to such differences include, but are not limited
to, those identified below, and those discussed above in the
section entitled Risk Factors. We report results on
a fiscal year ending June 30. For ease of reference within
this section, 2006 refers to the fiscal year ended June 30,
2006, 2005 refers to the fiscal year ended June 30, 2005
and 2004 refers to the fiscal year ended June 30, 2004. The
consolidated financial data as of and for the nine-month periods
ended March 31, 2006 and 2007 are derived from financial
statements that are unaudited.
Overview
We are a leading provider of IP telecommunications solutions for
enterprises. Our solution is comprised of our ShoreGear
switches, ShorePhone IP phones and ShoreWare software
applications. We were founded in September 1996 and shipped our
first system in 1998. We have continued to develop and enhance
our product line since that time. We currently offer nine models
of our switches and five models of our IP phones.
We sell our products primarily through channel partners that
market and sell our systems to enterprises across all
industries, including to small, medium and large companies and
public institutions. We believe our channel strategy allows us
to reach a larger number of prospective enterprise customers
more effectively than if we were to sell directly. The number of
our authorized channel partners has more than doubled since
June 30, 2004 to more than 400 as of March 31, 2007,
including 30 in Europe. Channel partners typically purchase our
products directly from us. Our internal sales and marketing
personnel support these channel partners in their selling
efforts. In some circumstances, the enterprise customer will
purchase products directly from us, but in these situations we
typically compensate the channel partner for its sales efforts.
At the request of the channel partner, we often ship our
products directly to the enterprise customer.
Our channel partners generally perform installation and
implementation services for the enterprises that use our
systems. In most cases, our channel partners provide the
post-contractual support to the enterprise customer by providing
first-level support services and purchasing additional services
from us under a post-contractual support contract. For channel
partners without support capabilities or that do not desire to
provide support, we offer full support contracts to provide all
of the support to enterprise customers.
We outsource the manufacturing of our products to contract
manufacturers. Our outsourced manufacturing model allows us to
scale our business without the significant capital investment
and on-going expenses required to establish and maintain a
manufacturing operation. Our switch products are manufactured by
a contract manufacturer in San Jose, California and our
phone products are manufactured by a contract manufacturer in
China. Our contract manufacturers provide us with a range of
operational and manufacturing services, including component
procurement and final testing and assembly of our products. We
work closely with our contract manufacturers to manage the cost
of components, since our total manufacturing costs are directly
tied to component costs. We regularly provide forecasts to our
contract manufacturers, and we order products from our contract
manufacturers based on our projected sales levels. We seek to
maintain sufficient levels of finished goods inventory to meet
our forecasted product sales with limited levels of inventory to
compensate for unanticipated shifts in sales volume and product
mix.
Although we have historically sold our systems primarily to
small and medium sized enterprises, we have recently begun to
expand our sales and marketing activities to increase our focus
on larger enterprise customers. Accordingly, we have implemented
a major accounts program whereby our sales personnel assist our
channel partners to sell to large enterprise accounts, and we
coordinate with our channel partners to enable them to better
serve large multi-site enterprises. To the extent we are
successful in penetrating larger enterprise customers, we expect
that the sales cycle for our products will increase, and that
the demands on our sales and support infrastructure will also
increase.
32
We are headquartered in Sunnyvale, California and the majority
of our personnel work at this location. Sales and support
personnel are located throughout the United States and, to a
lesser extent, in the United Kingdom, Germany, Spain and
Australia. While we expanded our operations to Europe in 2005
and to the Asia Pacific region in 2006, most of our enterprise
customers are located in the United States. Revenue from
international sales has been 3% or less of our total revenue for
2004, 2005, 2006 and the nine-month period ended March 31,
2007, respectively. Although we intend to focus on increasing
international sales, we expect that sales to enterprise
customers in the United States will continue to comprise the
significant majority of our sales.
We have experienced significant growth in recent periods, with
our total revenue growing from $18.8 million for 2004 to
$61.6 million for 2006. This growth in revenue has largely
been driven by increased demand for IP telecommunications
systems from new enterprise customers, as well as sales of
additional products to our installed enterprise customer base.
Our operating expenses have also increased significantly from
$15.7 million for 2004 to $30.4 million for 2006. This
growth in operating expenses has primarily been driven by our
growth in headcount, from 76 employees at June 30, 2004 to
174 employees at June 30, 2006, and to 250 employees
at March 31, 2007. We expect to continue to add personnel
in all functional areas, including additional sales and support
personnel. However, we expect our total headcount to grow at a
slower rate as compared to recent periods.
Key
Business Metrics
We monitor a number of key metrics to help forecast growth,
establish budgets, measure the effectiveness of sales and
marketing efforts and measure operational effectiveness.
Initial and repeat sales orders.
Our goal is
to attract a significant number of new enterprise customers and
to encourage existing enterprise customers to purchase
additional products and support. Many enterprise customers make
an initial purchase and deploy additional sites at a later date,
and also buy additional products and support as their businesses
expand. As our installed enterprise customer base has grown we
have experienced an increase in revenue attributable to existing
enterprise customers, which currently represents a significant
portion of our total revenue.
Deferred revenue.
Nearly all system sales
include the purchase of post-contractual support contracts with
terms of up to five years, and our renewal rates on these
contracts have been high historically. We recognize support
revenue on a ratable basis over the term of the support
contract. Since we receive payment for support in advance of our
recognizing the related revenue, we carry a deferred revenue
balance on our consolidated balance sheet. This deferred revenue
helps provide predictability to our future support and services
revenue. Accordingly, the level of purchases of post-contractual
support with our product sales is an important metric for us
along with the renewal rates for these services. Our deferred
revenue balance at March 31, 2007 was $12.0 million,
of which $8.5 million is expected to be recognized within
one year.
Gross margin.
Our gross margin for products is
primarily affected by our ability to reduce hardware costs
faster than the decline in average overall system prices. We
have been able to increase our product gross margin by reducing
hardware costs and through product redesign and volume discount
pricing from our suppliers. For example, in 2004, we introduced
our current family of switches and IP phones, which generally
improved our gross margin. We have also introduced new, lower
cost hardware following these introductions, which has continued
to improve our product gross margin. In general, product gross
margin on our switches is greater than product gross margin on
our IP phones. As the prices and costs of our hardware
components have decreased over time, our software components,
which have lower costs than our hardware components, have
represented a greater percentage of our overall system sales. We
consider our ability to monitor and manage these factors to be a
key aspect of maintaining product gross margins and increasing
our profitability.
Gross margin for support and services is significantly lower
than gross margin for products, and is impacted primarily by
personnel costs and related expenses. The primary goal of our
support and services function is to ensure maximum customer
satisfaction and our investments in support personnel and
infrastructure are made with this goal in mind. We expect that
as our installed enterprise customer base grows, we will be able
to improve gross margin for support and services through
economies of scale. However, the timing of additional
investments in our support and services infrastructure could
materially affect our cost of support and services revenue, both
in absolute dollars and as a percentage of support and services
revenue and total revenue, in any particular period.
33
Operating expense management.
To date, we have
managed our operating expenses so that they have generally
increased at a slower rate than our revenue growth, and we
intend to continue to do so in the future. Our operating
expenses are comprised primarily of compensation and benefits
for our employees and, therefore, the increase in operating
expenses has been related to increases in our headcount. We
intend to expand our workforce to support our anticipated
growth, and therefore our ability to forecast revenue is
critical to managing our operating expenses.
Basis of
Presentation
Revenue.
We derive our revenue from sales of
our IP telecommunications systems and related support and
services. Our typical system includes a combination of IP
phones, switches and software applications. Channel partners buy
our products directly from us. Prices to a given channel partner
for hardware and software products depend on that channel
partners volume and customer satisfaction metrics, as well
as our own strategic considerations. In circumstances where we
sell directly to the enterprise customer in transactions that
have been assisted by channel partners, we report our revenue
net of any associated payment to the channel partners that
assisted in such sales. This results in recognized revenue from
a direct sale approximating the revenue that would have been
recognized from a sale of a comparable system through a channel
partner. Product revenue has accounted for 88%, 90%, 90% and 89%
of our total revenue for 2004, 2005, 2006 and the nine-month
period ended March 31, 2007, respectively.
Support and services revenue primarily consists of
post-contractual support, and to a lesser extent revenue from
training services and installations that we perform.
Post-contractual support includes software updates which grant
rights to unspecified software license upgrades and maintenance
releases issued during the support period. Post-contractual
support also includes both Internet- and phone-based technical
support. Post-contractual support revenue is recognized ratably
over the contractual service period.
Cost of revenue.
Cost of product revenue
consists primarily of hardware costs, royalties and license fees
for third-party software included in our systems, salary and
related overhead costs of operations personnel, freight,
warranty costs and provision for excess inventory. The majority
of these costs vary with the unit volumes of product sold. Cost
of support and services revenue consists of salary and related
overhead costs of personnel engaged in support and services, and
hence is substantially fixed in the near term.
Research and development expenses.
Research
and development expenses primarily include personnel costs,
outside engineering costs, professional services, prototype
costs, test equipment, software usage fees and allocated
facilities expenses. Research and development expenses are
recognized when incurred. We are devoting substantial resources
to the development of additional functionality for existing
products and the development of new products and related
software applications. We intend to continue to make significant
investments in our research and development efforts because we
believe they are essential to maintaining and improving our
competitive position. Accordingly, we expect research and
development expenses to continue to increase in absolute dollars.
Sales and marketing expenses.
Sales and
marketing expenses primarily include personnel costs, sales
commissions, travel, marketing promotional and lead generation
programs, trade shows, professional services fees and allocated
facilities expenses. We plan to continue to invest in
development of our distribution channel by increasing the size
of our field sales force and the number of our channel partners
to enable us to expand into new geographies, including Europe
and Asia Pacific, and further increase our sales to large
enterprises. In conjunction with channel growth, we plan to
increase the investment in our training and support of channel
partners to enable them to more effectively sell our products.
We also plan to continue investing in our domestic and
international marketing activities to help build brand awareness
and create sales leads for our channel partners. We expect that
sales and marketing expenses will increase in absolute dollars
and remain our largest operating expense category.
General and administrative expenses.
General
and administrative expenses relate to our executive, finance,
human resources and information technology organizations.
Expenses primarily include personnel costs, professional fees
for legal, accounting, tax, compliance and information systems,
travel, bad debt expense and allocated facilities expenses. We
expect that in connection with and following this offering, we
will incur significant additional accounting, legal and
compliance costs as well as additional insurance, investor
relations and other costs
34
associated with being a public company. In addition, as we
expand our business, we expect to increase our general and
administrative expenses.
In May 2007, we entered into a new lease for our existing
headquarters facility that extends until October 2009. In
addition, in May 2007, we executed a new two-year lease for
additional operational space in another location near our
corporate headquarters that expires in September 2009. As a
result of these new leases, our operating lease obligations will
increase significantly beginning in June 2007.
Other income (expense).
Other income (expense)
primarily consists of interest earned on cash balances and the
change in fair value of preferred stock warrants.
Income tax provision.
Income tax provision
includes federal, state and foreign tax on our income. From
inception through 2005 we accumulated substantial net operating
loss and tax credit carryforwards. We fully reserved the
deferred tax asset from these losses and tax credits on our
financial statements. We were profitable in 2006 and had an
effective tax rate of approximately 5% in 2006, as a result of
utilizing portions of the deferred tax asset and reducing the
related valuation allowance.
Our effective tax rate for the nine-month period ended
March 31, 2007 was 7%. Our effective tax rate for the
remainder of 2007 is dependent upon a number of factors,
including the extent of the impact from stock-based compensation
and the extent of possible limitations on our ability to use net
operating loss and tax credit carryforwards. We believe we have
had multiple ownership changes, as defined under Section 382 of
the Internal Revenue Code, due to significant stock transactions
in previous years, which may limit the future realization of our
net operating losses and we are currently analyzing these
ownership changes to determine the limitations on our ability to
utilize our net operating loss and tax credit carryforwards
under Sections 382 and 383 of the Internal Revenue Code in
future periods. At June 30, 2006, we had approximately
$84.4 million and $44.6 million of net operating loss
carryforwards for federal and state purposes, respectively.
Based on estimates prepared to date, we believe the provisions
of Section 382 could result in the forfeiture of
approximately $72 million of net operating losses for U.S.
federal income tax purposes. We believe there could also be an
impact on our ability to utilize California net operating loss
carryforwards and our research and development tax credit
carryforwards. As our analysis is incomplete, these estimates
are uncertain. After fiscal 2007, we anticipate our effective
tax rate will increase due to these limitations on our ability
to utilize net operating loss and tax credit carryforwards, and
the extent of the impact from stock-based compensation.
35
Results
of Operations
The following table sets forth selected consolidated statements
of operations data for each of the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
$
|
16,587
|
|
|
$
|
31,970
|
|
|
$
|
55,300
|
|
|
$
|
37,972
|
|
|
$
|
61,473
|
|
Support and services
|
|
|
2,241
|
|
|
|
3,512
|
|
|
|
6,308
|
|
|
|
4,552
|
|
|
|
7,431
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
18,828
|
|
|
|
35,482
|
|
|
|
61,608
|
|
|
|
42,524
|
|
|
|
68,904
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product (1)
|
|
|
7,725
|
|
|
|
13,961
|
|
|
|
21,855
|
|
|
|
15,723
|
|
|
|
21,271
|
|
Support and services (1)
|
|
|
1,660
|
|
|
|
2,907
|
|
|
|
5,425
|
|
|
|
3,942
|
|
|
|
4,853
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
9,385
|
|
|
|
16,868
|
|
|
|
27,280
|
|
|
|
19,665
|
|
|
|
26,124
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
9,443
|
|
|
|
18,614
|
|
|
|
34,328
|
|
|
|
22,859
|
|
|
|
42,780
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development (1)
|
|
|
5,517
|
|
|
|
7,034
|
|
|
|
9,720
|
|
|
|
6,520
|
|
|
|
11,450
|
|
Sales and marketing (1)
|
|
|
8,004
|
|
|
|
10,050
|
|
|
|
15,699
|
|
|
|
10,855
|
|
|
|
18,441
|
|
General and administrative (1)
|
|
|
2,166
|
|
|
|
3,045
|
|
|
|
4,936
|
|
|
|
3,108
|
|
|
|
8,383
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
15,687
|
|
|
|
20,129
|
|
|
|
30,355
|
|
|
|
20,483
|
|
|
|
38,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
(6,244
|
)
|
|
|
(1,515
|
)
|
|
|
3,973
|
|
|
|
2,376
|
|
|
|
4,506
|
|
Other income (expense)
net
|
|
|
(7
|
)
|
|
|
124
|
|
|
|
248
|
|
|
|
96
|
|
|
|
(7
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision for
income taxes
|
|
|
(6,251
|
)
|
|
|
(1,391
|
)
|
|
|
4,221
|
|
|
|
2,472
|
|
|
|
4,499
|
|
Income tax provision
|
|
|
|
|
|
|
(11
|
)
|
|
|
(219
|
)
|
|
|
(140
|
)
|
|
|
(311
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(6,251
|
)
|
|
$
|
(1,402
|
)
|
|
$
|
4,002
|
|
|
$
|
2,332
|
|
|
$
|
4,188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) Includes stock-based compensation expense as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of product revenue
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
7
|
|
Cost of support and services revenue
|
|
|
|
|
|
|
|
|
|
|
16
|
|
|
|
14
|
|
|
|
55
|
|
Research and development
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
6
|
|
|
|
190
|
|
Sales and marketing
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
|
2
|
|
|
|
331
|
|
General and administrative
|
|
|
45
|
|
|
|
82
|
|
|
|
45
|
|
|
|
24
|
|
|
|
1,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
expense
|
|
$
|
45
|
|
|
$
|
82
|
|
|
$
|
82
|
|
|
$
|
46
|
|
|
$
|
2,053
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36
The following table sets forth selected consolidated statements
of operations data as a percentage of total revenue for each of
the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
|
88
|
%
|
|
|
90
|
%
|
|
|
90
|
%
|
|
|
89
|
%
|
|
|
89
|
%
|
Support and services
|
|
|
12
|
|
|
|
10
|
|
|
|
10
|
|
|
|
11
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
|
41
|
|
|
|
40
|
|
|
|
35
|
|
|
|
37
|
|
|
|
31
|
|
Support and services
|
|
|
9
|
|
|
|
8
|
|
|
|
9
|
|
|
|
9
|
|
|
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
50
|
|
|
|
48
|
|
|
|
44
|
|
|
|
46
|
|
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
50
|
|
|
|
52
|
|
|
|
56
|
|
|
|
54
|
|
|
|
62
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
29
|
|
|
|
20
|
|
|
|
16
|
|
|
|
15
|
|
|
|
17
|
|
Sales and marketing
|
|
|
43
|
|
|
|
28
|
|
|
|
26
|
|
|
|
26
|
|
|
|
27
|
|
General and administrative
|
|
|
11
|
|
|
|
8
|
|
|
|
8
|
|
|
|
7
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
83
|
|
|
|
56
|
|
|
|
50
|
|
|
|
48
|
|
|
|
56
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
(33
|
)
|
|
|
(4
|
)
|
|
|
6
|
|
|
|
6
|
|
|
|
6
|
|
Other income (expense)
net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision for
income taxes
|
|
|
(33
|
)
|
|
|
(4
|
)
|
|
|
6
|
|
|
|
6
|
|
|
|
6
|
|
Income tax provision
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
(33
|
)%
|
|
|
(4
|
)%
|
|
|
6
|
%
|
|
|
5
|
%
|
|
|
6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine-month
period ended March 31, 2007 compared to nine-month period
ended March 31, 2006
Revenue.
Total revenue increased
$26.4 million, or 62%, from $42.5 million in the
nine-month period ended March 31, 2006, to
$68.9 million in the nine-month period ended March 31,
2007. This increase was primarily attributable to increased
sales of our products and services. Product revenue increased by
$23.5 million, or 62%, from $38.0 million in the
nine-month period ended March 31, 2006, to
$61.5 million in the nine-month period ended March 31,
2007. Support and services revenue increased $2.9 million,
or 63%, from $4.5 million in the nine-month period ended
March 31, 2006, to $7.4 million in the nine-month
period ended March 31, 2007, as a result of increased
revenue associated with post-contractual support contracts
accompanying new system sales, post-contractual support contract
renewals and increased revenue from training services and
installations.
Gross margin.
Total gross margin increased
from 54% in the nine-month period ended March 31, 2006, to
62% in the nine-month period ended March 31, 2007. Product
gross margin increased from 59% in the nine-month period ended
March 31, 2006, to 65% in the nine-month period ended
March 31, 2007. The increase in product gross margin in the
nine-month period ended March 31, 2007 was due to improved
margins on hardware products as a result of sales of hardware
products introduced in April 2006 that have higher margins
than the hardware products that they replaced. Support and
services gross margin increased from 13% in the nine-month
period ended March 31, 2006, to 35% in the nine-month
period ended March 31, 2007. The increase in support and
services gross margin in the nine-month period ended
March 31, 2007 was due to support and service revenue
increasing by 63% and service costs only increasing 23%,
compared to the same period in 2006. Compensation for support
and services employees, the largest category of support and
service costs, increased 45% in the nine-month period ended
March 31, 2007, as headcount increased from 26 employees at
March 31, 2006 to 44 employees at March 31, 2007.
37
Research and development.
Research and
development expenses increased $4.9 million, or 76%, from
$6.5 million in the nine-month period ended March 31,
2006, to $11.4 million in the nine-month period ended
March 31, 2007. These expenses represented 15% and 17% of
total revenue, respectively, in those periods. Compensation for
research and development employees accounted for
$3.4 million of the increase, primarily as a result of an
increase in headcount, from 38 employees at March 31, 2006,
to 81 employees at March 31, 2007. Additionally, consulting
and professional services, equipment costs, and prototype
expenses accounted for $701,000, $187,000, $211,000,
respectively, of the increase.
Sales and marketing.
Sales and marketing
expenses increased $7.6 million, or 70%, from
$10.9 million in the nine-month period ended March 31,
2006, to $18.4 million in the nine-month period ended
March 31, 2007. These expenses represented 26% and 27% of
total revenue, respectively, in those periods. Compensation for
sales and marketing employees represented $5.2 million of
this increase, primarily as a result of an increase in
headcount, from 58 employees at March 31, 2006 to 87
employees at March 31, 2007. Additionally, promotional and
lead generation programs, travel, advertising and public
relations, and marketing shows and events accounted for
$766,000, $691,000, $346,000 and $383,000 respectively, of the
increase.
General and administrative.
General and
administrative expenses increased $5.3 million, or 170%,
from $3.1 million in the nine-month period ended
March 31, 2006, to $8.4 million in the nine-month
period ended March 31, 2007. These expenses represented 7%
and 12% of total revenue, respectively, in those periods.
Compensation for general and administrative employees accounted
for $2.3 million of the increase, primarily as a result of
an increase in headcount, from 18 employees at March 31,
2006 to 24 employees at March 31, 2007. General and
administrative expenses for the nine-month period ended
March 31, 2007 also included $1.4 million of
stock-based compensation expense associated with an outstanding
option granted prior to the adoption of SFAS 123(R) that is
subject to variable accounting. Variable accounting on this
outstanding option ceased in March 2007 upon the repayment of
the related note receivable in exchange for the surrender of
shares of our common stock having a value equal to the amounts
outstanding under the note. Audit and legal fees and
professional services accounted for $1.0 million and
$964,000, respectively, of the increase. The remainder of the
increase was primarily attributable to various expenses
including travel expenses and allocated facility expenses.
Other income (expense).
Other income (expense)
decreased $103,000, from $96,000 of other income in the
nine-month period ended March 31, 2006, to $7,000 of other
expense in the nine-month period ended March 31, 2007. The
decrease was due to an expense of $624,000 associated with the
increase in fair value of preferred stock warrants issued in
2001 and 2003 in conjunction with a line of credit. The decrease
was partially offset by increased interest income of $471,000
associated with higher average cash balances and interest rates
in the nine-month period ended March 31, 2007, as compared
to average cash balances and interest rates in the nine-month
period ended March 31, 2006.
Income tax provision.
The income tax provision
increased $171,000, from $140,000 in the
nine-month
period ended March 31, 2006, to $311,000 in the nine-month
period ended March 31, 2007, primarily due to an increase
in our taxable income and in our effective tax rate from 5.6% to
6.9%.
Fiscal
2006 compared to Fiscal 2005
Revenue.
Total revenue increased
$26.1 million, or 74%, from $35.5 million in 2005 to
$61.6 million in 2006. This increase was primarily
attributable to increased sales of our products, including
hardware and software, and services. Product revenue increased
by $23.3 million, or 73%, from $32.0 million in 2005
to $55.3 million in 2006. Support and services revenue
increased by $2.8 million, or 80%, from $3.5 million
in 2005 to $6.3 million in 2006 as a result of increased
revenue associated with post-contractual support contracts
accompanying new system sales and post-contractual support
contract renewals and, to a lesser extent, revenue from training
services and installations. The increase in support and services
revenue reflected our increasing strategic focus on large
enterprise customers and overall growth in system sales.
Gross margin.
Total gross margin increased
from 52% in 2005 to 56% in 2006. Product gross margin increased
from 56% in 2005 to 60% in 2006. The increase in product gross
margin was due to improved margins on hardware products as a
result of sales of new hardware products with higher margins and
reduced costs for some existing hardware products. Support and
services gross margin decreased from 17% in 2005 to 14% in 2006.
The
38
decrease was due to hiring new support and services employees to
build our infrastructure at a faster rate than the growth in our
support and service revenue.
Research and development.
Research and
development expenses increased $2.7 million, or 38%, from
$7.0 million in 2005 to $9.7 million in 2006. These
expenses represented 20% and 16% of total revenue in 2005 and
2006, respectively. Of the increase, $2.0 million was for
salaries and benefits primarily as a result of an increase in
headcount, from 38 employees at June 30, 2005 to 48
employees at June 30, 2006. Engineering costs for new
products, prototype expenses, allocated facilities expenses and
software usage fees accounted for $288,000, $133,000, $104,000
and $99,000, respectively, of the increase.
Sales and marketing.
Sales and marketing
expenses increased $5.6 million, or 56%, from
$10.1 million in 2005 to $15.7 million in 2006. These
expenses represented 28% and 26% of total revenue in 2005 and
2006, respectively. Of the increase, $3.7 million was for
salaries, sales commissions and related employee benefits
primarily as a result of an increase in headcount, from 37
employees at the end of 2005 to 66 employees at the end of 2006.
Promotional and lead generation programs, travel, recruiting,
training and professional services accounted for $959,000,
$583,000, $140,000, $114,000 and $93,000, respectively, of the
increase.
General and administrative.
General and
administrative expenses increased $1.9 million, or 62%,
from $3.0 million in 2005 to $4.9 million in 2006.
These expenses represented 8% and 8% of total revenue in 2005
and 2006, respectively. Of the increase, $949,000 was for
salaries and benefits primarily as a result of an increase in
headcount, from 14 employees at the end of 2005 to 17 employees
at the end of 2006. Professional services and facilities
maintenance costs accounted for $576,000 and $153,000,
respectively, of the increase. The remainder of the increase was
attributable to various expenses including allocated facilities
expenses, expensed equipment, and an increase in the allowance
for bad debts.
Other income.
Other income increased $124,000
from $124,000 in 2005 to $248,000 in 2006. The increase was
primarily due to an increase in interest income, partially
offset by an increase in foreign currency exchange losses and
interest expense. Interest income increased $155,000 due to
higher average cash balances in 2006.
Income tax provision.
The income tax provision
increased $208,000 from $11,000 in 2005 to $219,000 in 2006,
primarily due to an increase in our taxable income.
Fiscal
2005 compared to Fiscal 2004
Revenue.
Total revenue increased
$16.7 million, or 88%, from $18.8 million in 2004 to
$35.5 million in 2005. This increase was primarily
attributable to increased sales of our products and services.
Product revenue increased by $15.4 million, or 93%, from
$16.6 million in 2004 to $32.0 million in 2005.
Support and services revenue increased by $1.3 million, or
57%, from $2.2 million in 2004 to $3.5 million in 2005
as a result of increased revenue associated with
post-contractual support contracts accompanying new system sales
and post-contractual support contract renewals and, to a lesser
extent, revenue from training services and installations
performed by us. Revenue from these other services, primarily
training, increased to $524,000 in 2005.
Gross margin.
Total gross margin increased
from 50% 2004 to 52% in 2005. Product gross margin increased
from 53% in 2004 to 56% in 2005. The increase in product gross
margin was due to sales of our IP phones following their
introduction in June 2004, as these phones had higher margins
than the third-party phones sold with our systems prior to that
time. Support and services gross margin decreased from 26% in
2004 to 17% in 2005. The decrease was due to support and service
employee related costs increasing faster than support and
service revenue over 2004. Support and services headcount
increased from 11 employees at June 30, 2004 to 21
employees at June 30, 2005, due to our ongoing efforts to
build our support and services functions. The reduction in
support and services gross margin resulted in reduction of total
gross margin.
Research and development.
Research and
development expenses increased $1.5 million, or 27%, from
$5.5 million in 2004 to $7.0 million in 2005. These
expenses represented 29% and 20% of total revenue in 2004 and
2005, respectively. Of the increase, $689,000 was for salaries
and benefits primarily as a result of an increase in headcount,
from 24 employees at June 30, 2004 to 38 employees at
June 30, 2005. Professional services, recruiting,
engineering costs and software usage fees accounted for
$417,000, $165,000, $145,000 and $136,000, respectively, of the
increase.
39
Sales and marketing.
Sales and marketing
expenses increased $2.0 million, or 26%, from
$8.0 million in 2004 to $10.0 million in 2005. These
expenses represented 43% and 28% of total revenue in 2004 and
2005, respectively. Of the increase, $796,000 was for salaries,
sales commissions and benefits primarily as a result of an
increase in headcount, from 26 employees at June 30, 2004
to 37 employees at June 30, 2005. Promotional and lead
generation programs, professional services and travel accounted
for $995,000 and $208,000, respectively, of the increase.
General and administrative.
General and
administrative expenses increased $879,000, or 41%, from
$2.2 million in 2004 to $3.1 million in 2005. These
expenses represented 11% and 8% of total revenue in 2004 and
2005, respectively. Of the increase, $362,000 was for salaries
and benefits primarily as a result of an increase in headcount,
from 10 employees at June 30, 2004 to 14 employees at
June 30, 2005. Professional services, travel and bad debt
expense accounted for $316,000, $215,000 and $176,000,
respectively, of the increase. This was offset by reductions in
various other expenses, including depreciation.
Other income (expense).
Other income (expense)
increased from $7,000 of other expense in 2004 to $124,000 of
other income in 2005. The increase is primarily due to increases
in interest income and other income of $128,000 and $2,000,
respectively. In 2004, interest expense on borrowings of $22,000
exceeded interest and other income.
Income tax provision.
The income tax provision
increased $11,000 from $0 in 2004 to $11,000 in 2005.
40
Quarterly
Results of Operations
The following table sets forth our unaudited quarterly condensed
consolidated statement of operations data in dollars and as a
percentage of total revenue for each of our last seven quarters
in the period ended March 31, 2007. The quarterly data
presented below have been prepared on a basis consistent with
the audited consolidated financial statements included elsewhere
in this prospectus, and in the opinion of management reflect all
adjustments, consisting only of normal recurring adjustments,
necessary for a fair presentation of this information. You
should read this information together with our consolidated
financial statements and related notes included elsewhere in
this prospectus. Our quarterly results of operations may
fluctuate in the future due to a variety of factors. As a
result, comparing our operating results on a
period-to-period
basis may not be meaningful. Our results for these quarterly
periods are not necessarily indicative of the results of
operations for a full year or any future period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
March 31,
|
|
|
June 30,
|
|
|
September 30,
|
|
|
December 31,
|
|
|
March 31,
|
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Consolidated Statement of
operations data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
$
|
10,000
|
|
|
$
|
13,498
|
|
|
$
|
14,474
|
|
|
$
|
17,328
|
|
|
$
|
18,467
|
|
|
$
|
19,864
|
|
|
$
|
23,142
|
|
Support and services
|
|
|
1,214
|
|
|
|
1,219
|
|
|
|
2,119
|
|
|
|
1,756
|
|
|
|
1,948
|
|
|
|
2,616
|
|
|
|
2,867
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
11,214
|
|
|
|
14,717
|
|
|
|
16,593
|
|
|
|
19,084
|
|
|
|
20,415
|
|
|
|
22,480
|
|
|
|
26,009
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product(1)
|
|
|
4,044
|
|
|
|
5,668
|
|
|
|
6,011
|
|
|
|
6,132
|
|
|
|
6,507
|
|
|
|
6,767
|
|
|
|
7,997
|
|
Support and services(1)
|
|
|
1,078
|
|
|
|
1,109
|
|
|
|
1,755
|
|
|
|
1,483
|
|
|
|
1,445
|
|
|
|
1,595
|
|
|
|
1,813
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
5,122
|
|
|
|
6,777
|
|
|
|
7,766
|
|
|
|
7,615
|
|
|
|
7,952
|
|
|
|
8,362
|
|
|
|
9,810
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
6,092
|
|
|
|
7,940
|
|
|
|
8,827
|
|
|
|
11,469
|
|
|
|
12,463
|
|
|
|
14,118
|
|
|
|
16,199
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development(1)
|
|
|
2,051
|
|
|
|
2,083
|
|
|
|
2,386
|
|
|
|
3,200
|
|
|
|
3,117
|
|
|
|
4,051
|
|
|
|
4,282
|
|
Sales and marketing(1)
|
|
|
3,067
|
|
|
|
3,873
|
|
|
|
3,916
|
|
|
|
4,843
|
|
|
|
5,677
|
|
|
|
5,755
|
|
|
|
7,009
|
|
General and administrative(1)
|
|
|
875
|
|
|
|
995
|
|
|
|
1,238
|
|
|
|
1,828
|
|
|
|
2,573
|
|
|
|
2,837
|
|
|
|
2,973
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
5,993
|
|
|
|
6,951
|
|
|
|
7,540
|
|
|
|
9,871
|
|
|
|
11,367
|
|
|
|
12,643
|
|
|
|
14,264
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
99
|
|
|
|
989
|
|
|
|
1,287
|
|
|
|
1,598
|
|
|
|
1,096
|
|
|
|
1,475
|
|
|
|
1,935
|
|
Other income (expense)
net
|
|
|
30
|
|
|
|
6
|
|
|
|
61
|
|
|
|
151
|
|
|
|
157
|
|
|
|
(395
|
)
|
|
|
231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before provision for income
taxes
|
|
|
129
|
|
|
|
995
|
|
|
|
1,348
|
|
|
|
1,749
|
|
|
|
1,253
|
|
|
|
1,080
|
|
|
|
2,166
|
|
Income tax (provision) benefit
|
|
|
(13
|
)
|
|
|
(51
|
)
|
|
|
(76
|
)
|
|
|
(79
|
)
|
|
|
(207
|
)
|
|
|
22
|
|
|
|
(126
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
116
|
|
|
$
|
944
|
|
|
$
|
1,272
|
|
|
$
|
1,670
|
|
|
$
|
1,046
|
|
|
$
|
1,102
|
|
|
$
|
2,040
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) Includes stock-based
compensation as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of product revenue
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
1
|
|
|
$
|
3
|
|
|
$
|
3
|
|
Cost of support and services revenue
|
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
5
|
|
|
|
24
|
|
|
|
26
|
|
Research and development
|
|
|
|
|
|
|
|
|
|
|
6
|
|
|
|
8
|
|
|
|
17
|
|
|
|
82
|
|
|
|
91
|
|
Sales and marketing
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
5
|
|
|
|
97
|
|
|
|
111
|
|
|
|
123
|
|
General and administrative
|
|
|
9
|
|
|
|
13
|
|
|
|
2
|
|
|
|
21
|
|
|
|
702
|
|
|
|
415
|
|
|
|
353
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
expense
|
|
$
|
23
|
|
|
$
|
13
|
|
|
$
|
10
|
|
|
$
|
36
|
|
|
$
|
822
|
|
|
$
|
635
|
|
|
$
|
596
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
March 31,
|
|
|
June 30,
|
|
|
September 30,
|
|
|
December 31,
|
|
|
March 31,
|
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
As a percentage of total revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
|
89
|
%
|
|
|
92
|
%
|
|
|
87
|
%
|
|
|
91
|
%
|
|
|
90
|
%
|
|
|
88
|
%
|
|
|
89
|
%
|
Support and services
|
|
|
11
|
|
|
|
8
|
|
|
|
13
|
|
|
|
9
|
|
|
|
10
|
|
|
|
12
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
|
36
|
|
|
|
39
|
|
|
|
36
|
|
|
|
32
|
|
|
|
32
|
|
|
|
30
|
|
|
|
31
|
|
Support and services
|
|
|
10
|
|
|
|
7
|
|
|
|
11
|
|
|
|
8
|
|
|
|
7
|
|
|
|
7
|
|
|
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
46
|
|
|
|
46
|
|
|
|
47
|
|
|
|
40
|
|
|
|
39
|
|
|
|
37
|
|
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
54
|
|
|
|
54
|
|
|
|
53
|
|
|
|
60
|
|
|
|
61
|
|
|
|
63
|
|
|
|
62
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
18
|
|
|
|
14
|
|
|
|
14
|
|
|
|
17
|
|
|
|
15
|
|
|
|
18
|
|
|
|
16
|
|
Sales and marketing
|
|
|
27
|
|
|
|
26
|
|
|
|
24
|
|
|
|
25
|
|
|
|
28
|
|
|
|
26
|
|
|
|
27
|
|
General and administrative
|
|
|
8
|
|
|
|
7
|
|
|
|
7
|
|
|
|
10
|
|
|
|
13
|
|
|
|
12
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
53
|
|
|
|
47
|
|
|
|
45
|
|
|
|
52
|
|
|
|
56
|
|
|
|
56
|
|
|
|
55
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
1
|
|
|
|
7
|
|
|
|
8
|
|
|
|
8
|
|
|
|
5
|
|
|
|
7
|
|
|
|
7
|
|
Other income (expense)
net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
|
1
|
|
|
|
(2
|
)
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before provision for income
taxes
|
|
|
1
|
|
|
|
7
|
|
|
|
8
|
|
|
|
9
|
|
|
|
6
|
|
|
|
5
|
|
|
|
8
|
|
Income tax provision (benefit)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
1
|
%
|
|
|
7
|
%
|
|
|
8
|
%
|
|
|
9
|
%
|
|
|
5
|
%
|
|
|
5
|
%
|
|
|
8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue has increased sequentially in each of the quarters
presented due to increased sales of our products and an increase
in the number of channel partners and company sales staff and
additional products sold to new and existing enterprise
customers. Because of the rapid growth of our revenue, we have
not yet experienced the effects of seasonality on a
quarter-to-quarter
basis, but we expect that, over the longer term, we will
experience seasonally reduced activity in the first and third
quarters of each calendar year, as is the case with comparable
companies in our industry. Support and services revenue and
related cost of support and services revenue in the quarter
ended March 31, 2006 increased due to installation revenue
associated with one large sale. Product gross margins improved
in the quarter ended June 30, 2006, and remained higher in
succeeding quarters, primarily as a result of newly introduced
hardware products that have higher margins than the hardware
products that they replaced. Operating expenses increased
sequentially in each of the quarters presented as we continued
to add personnel and related costs to accommodate our growth. We
have invested substantially in research and development in
recent quarters as we believe technology leadership is an
important element to our continued growth. Starting largely in
the quarter ended June 30, 2006 we also increased general
and administrative spending in information technology systems,
outside audit and Sarbanes-Oxley-related consulting services.
General and administrative expenses for the quarters ended
September 30, 2006, December 31, 2006 and
March 31, 2007 included $699,000, $367,000 and $311,000,
respectively, of non-cash stock-based compensation associated
with an outstanding option granted prior to the adoption of
SFAS 123(R) that was subject to variable accounting. In
addition, other expense for the quarters ended December 31,
2006 and March 31, 2007 included $579,000 and $45,000 of
non-cash expenses associated with the change in fair value of
preferred stock warrants, respectively.
42
Liquidity
and Capital Resources
As of March 31, 2007, our principal sources of liquidity
consisted of cash and cash equivalents of $16.8 million and
accounts receivable net of $18.8 million. Our primary
sources of cash historically have been proceeds from the
issuance of redeemable convertible preferred stock and payments
for our products and services. From June 1998 through October
2004, we issued redeemable convertible preferred stock with
aggregate net proceeds of $101.3 million. We have a
$12.0 million line of credit with Silicon Valley Bank,
which has a borrowing base equal to 80% of the amount of
eligible accounts receivable plus 25% of the value of eligible
inventory. Interest will accrue on any outstanding borrowings
under the line of credit at a rate equal to the prime rate in
effect plus 0.5% per annum, except the rate will be equal
to the prime rate plus 1.5% per annum if our adjusted quick
ratio is less than 1.5:1.0. At March 31, 2007, no balance
was outstanding under the line of credit. The line of credit is
secured by substantially all of our assets, and contains a
financial covenant requiring us to maintain a tangible net worth
of not less than $5.0 million. As of March 31, 2007,
we were in compliance with all related financial covenants and
restrictions. The line of credit terminates on June 26,
2007.
Our principal uses of cash historically have consisted of the
purchase of finished goods inventory from our contract
manufacturers, payroll and other operating expenses and
purchases of property and equipment to support employee needs
and the development of new products.
We believe that our $16.8 million of cash and cash
equivalents at March 31, 2007, together with cash flows
from our operations and the net proceeds from this offering,
will be sufficient to fund our operating requirements for at
least 12 months. However, we may need to raise additional
capital or incur indebtedness to continue to fund our operations
in the future. Our future capital requirements will depend on
many factors, including our rate of revenue growth, the
expansion of our sales and marketing activities, the timing and
extent of our expansion into new territories, the timing of
introductions of new products and enhancements to existing
products, and the continuing market acceptance of our products.
We may enter into agreements relating to potential investments
in, or acquisitions of, complementary businesses or technologies
in the future, which could also require us to seek additional
equity or debt financing. Additional funds may not be available
on terms favorable to us or at all.
The following table shows our cash flows from operating
activities, investing activities and financing activities for
the stated periods:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended June 30,
|
|
|
Nine Months Ended March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Cash provided by (used in)
operating activities
|
|
$
|
(5,392
|
)
|
|
$
|
(4,957
|
)
|
|
$
|
7,266
|
|
|
$
|
4,525
|
|
|
$
|
5,039
|
|
Cash used in investing activities
|
|
|
(653
|
)
|
|
|
(590
|
)
|
|
|
(1,293
|
)
|
|
|
(749
|
)
|
|
|
(1,106
|
)
|
Cash provided by financing
activities
|
|
|
3,317
|
|
|
|
10,197
|
|
|
|
987
|
|
|
|
865
|
|
|
|
545
|
|
Cash
flows from operating activities
Our cash flows from operating activities are significantly
influenced by our cash expenditures to support the growth of our
business in operating expense areas such as research and
development, sales and marketing and administration. Our
operating cash flows are also influenced by our working capital
needs to support growth and fluctuations in inventory, accounts
receivable, vendor accounts payable and other current assets and
liabilities. We procure finished goods inventory from our
contract manufacturers and typically pay them in 30 days.
We extend credit to our channel partners and typically collect
in 50 to 60 days. We also prepay for license rights to
third-party products in advance of sales.
Net cash provided by operating activities was $4.5 million
and $5.0 million in the
nine-month
periods ended March 31, 2006 and March 31, 2007,
respectively. This increase was primarily attributable to net
income of $4.2 million in the
nine-month
period ended March 31, 2007 as compared to
$2.3 million in the
nine-month
period ended March 31, 2006. Noncash adjustments were
higher in the nine-month period ended March 31, 2007
compared to the nine-month period ended March 31, 2006,
including stock-based compensation expense, which was higher by
$2.1 million due to $1.4 million of stock-based
compensation expense associated with an award that
43
was subject to variable accounting, and the adoption of
SFAS 123(R) on July 1, 2006, and the increase in fair
value of the preferred stock warrants by $624,000. In addition
to the higher net income and non-cash adjustments in the
nine-month
period ended March 31, 2007 compared to the
nine-month
period ended March 31, 2006, the period-to-period change in
cash flows relating to operating activities was also affected by
an increase in deferred revenue of $4.5 million, due
primarily to revenue recognized from sales of post contractual
support contracts exceeding the amounts of post contractual
support contracts that were recognized as revenue during the
nine-month period ended March 31, 2007, and an increase in
accounts payable of $4.9 million, primarily attributable to
increased purchasing activity required to support our business
growth and increased headcount. These sources of cash were
partially offset by uses of cash associated with an increase in
accounts receivable of $6.6 million due to increased sales
in the
nine-month
period ended March 31, 2007 compared to the nine-month
period ended March 31, 2006, an increase in inventory of
$3.5 million, and an increase in prepaid expenses and other
current assets of $1.2 million.
Net cash provided by (used in) operating activities was ($5.4)
million, ($5.0) million and $7.3 million in 2004, 2005 and
2006, respectively. Net cash used in operating activities in
2004 primarily consisted of net losses of $6.3 million,
reduced by depreciation and amortization expense of $721,000 in
2004, and an increase in accounts receivable of
$2.8 million primarily related to revenue growth. This
increase in accounts receivable was largely offset by sources of
cash provided by increased accounts payable of $1.2 million
and deferred revenue of $1.2 million. Net cash used in
operating activities in 2005 primarily consisted of net losses
of $1.4 million, reduced by depreciation and amortization
expense of $592,000 and a use of $4.2 million related to
net changes in operating assets and liabilities. Of this
$4.2 million, the increased accounts receivable and
inventories were $4.5 million and $3.5 million,
respectively. These increases were partially offset by cash
provided due to increased accounts payable of $1.0 million
and payments for deferred revenue of $2.8 million. Net cash
provided by operating activities in 2006 primarily consisted of
net income of $4.0 million, depreciation and amortization
expense of $716,000 and an increase of $2.3 million related
to net changes in operating assets and liabilities. Of this
$2.3 million, the primary sources of cash were a
$1.9 million increase to accrued employee compensation,
largely employee bonuses relating to company performance
achievements in the six-month period ended June 30, 2006,
increased deferred revenue relating to support contracts of
$1.5 million and increased accounts payable of $809,000.
Cash
flows from investing activities
Cash flows from investing activities primarily relate to capital
expenditures to support our growth.
Net cash used in investing activities in the nine-month period
ended March 31, 2006 was $749,000 for capital expenditures
primarily related to supporting our growth in headcount. Net
cash used in investing activities in the nine-month period ended
March 31, 2007 was $1.1 million for capital
expenditures, primarily related to manufacturing tooling for the
production of our hardware products, computer equipment for our
research and development lab and to support our growth in
headcount. We expect to incur additional capital expenditures of
approximately $500,000 during the remainder of fiscal year 2007.
Our requirements for additional capital expenditures are subject
to change depending upon several factors, including our needs
based on our changing business and industry and market
conditions.
Net cash used in investing activities was $653,000, $590,000 and
$1.3 million in 2004, 2005 and 2006, respectively. Net cash
used in investing activities in 2004 was for capital
expenditures, primarily related to manufacturing tooling for
production of our hardware products. Net cash used in investing
activities in 2005 was for capital expenditures, primarily
related to computer equipment to support our growth in
headcount. Net cash used in investing activities in 2006 was for
capital expenditures, primarily related to computer equipment to
support our growth in headcount and manufacturing tooling for
production of our hardware products.
44
Cash
flows from financing activities
Net cash provided by financing activities was $865,000 and
$545,000 in the nine-month periods ended March 31, 2006 and
March 31, 2007, respectively, primarily due to stock option
exercises.
Net cash provided by financing activities was $3.3 million,
$10.2 million and $1.0 million in 2004, 2005 and 2006
respectively. In 2004, we issued Series G redeemable
convertible preferred stock for net proceeds of
$3.5 million and made capital lease payments of $142,000.
In 2005, we issued Series H redeemable convertible
preferred stock for net proceeds of $9.9 million and
received $222,000 from the repayment of shareholder notes issued
in connection with stock option exercises. In 2006, we generated
$1.0 million of net proceeds from the exercise of common
stock options.
Contractual
Obligations
The following is a summary of our contractual obligations as of
June 30, 2006:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Period
|
|
|
|
|
|
|
Less Than
|
|
|
|
|
|
|
|
|
More Than
|
|
|
|
Total
|
|
|
1 Year
|
|
|
1-3 Years
|
|
|
3-5 Years
|
|
|
5 Years
|
|
|
|
(In thousands)
|
|
|
Operating lease obligations
|
|
$
|
900
|
|
|
$
|
712
|
|
|
$
|
188
|
|
|
|
|
|
|
|
|
|
Purchase obligations(1)
|
|
|
7,120
|
|
|
|
7,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
8,020
|
|
|
$
|
7,832
|
|
|
$
|
188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Purchase obligations represent
commitments under non-cancelable orders for finished goods
inventory with our contract manufacturers. At March 31,
2007, our purchase obligations increased by $4.5 million as
a result of increased sales.
|
In May 2007, we entered into a new lease for our existing
headquarters facility that extends until October 2009 and
provides for minimum monthly base rent payments of $118,000 for
the period from October 2007 to October 2008, and
$124,000 for the period from October 2008 to
October 2009. As a result of entering into this new lease,
our operating lease obligations will increase significantly
beginning in June 2007.
Off-Balance
Sheet Arrangements
We do not have any material off-balance sheet arrangements nor
do we have any relationships with unconsolidated entities or
financial partnerships, such as entities often referred to as
structured finance or special purpose entities, which are
established for the purpose of facilitating off-balance sheet
arrangements or other contractually narrow or limited purposes.
Internal
Control Over Financial Reporting
In connection with the audit of our financial statements for the
six-month period ended December 31, 2006, our independent
registered public accounting firm noted in their report to our
audit committee that we have material weaknesses and significant
deficiencies in our internal control over financial reporting as
of December 31, 2006 that could, if not remedied, affect
our ability to record, process and report financial data. In
their report, our independent registered public accounting firm
has noted two specific material weaknesses:
|
|
|
|
|
we do not have a sufficient number of accounting personnel with
the relevant technical accounting and financial reporting
experience and skills to facilitate the preparation of timely
and accurate consolidated financial statements; and
|
|
|
|
|
|
we do not have sufficient internal controls related to the
identification of all products and services associated with a
sales arrangement, including commitments made by our sales and
marketing personnel and channel partners to provide specified
upgrades, services or additional products to customers in the
future, including through product roadmap presentations to
customers.
|
45
If VSOE of fair value does not exist for commitments to provide
specified upgrades, services or additional products to customers
in the future, as has been the case from time to time in the
past, we defer all revenue from the arrangement until the
earlier of the point at which VSOE of fair value does exist or
all such elements from the arrangement have been delivered.
In addition to the material weaknesses noted by our independent
registered public accounting firm, the following two significant
deficiencies in the design or operation of our internal control
over financial reporting were also noted:
|
|
|
|
|
we do not accurately maintain data sufficient to readily track
and validate the existence of fixed assets and we have no formal
procedures in place to ensure that fixed assets continue to be
held and used;
|
|
|
|
|
|
we do not have adequate procedures for identifying and recording
period-end accrued expenses and in-transit inventory.
|
These material weaknesses and significant deficiencies resulted
in a number of audit adjustments to our consolidated financial
statements for the six-month period ended December 31, 2006
that were noted during the course of the audit. In addition,
these material weaknesses and significant deficiencies
contributed to delays in the completion of our financial
statements.
We are in the process of taking steps intended to remedy these
material weaknesses and significant deficiencies. Since both
material weaknesses relate at least in part to inadequate
staffing, we are addressing them through the hiring of
additional personnel. We hired a new Chief Financial Officer in
May 2007, and we are currently seeking to hire a Corporate
Controller, a Revenue Accounting Manager and other finance and
accounting personnel. Further, we expect that our former Chief
Financial Officer, John Finegan, will be actively employed as
our Vice President of Finance for an indefinite period as new
staff members are hired and integrated.
To further address the material weakness related to the proper
accounting for sales arrangements containing future commitments,
we are implementing additional procedures and training programs
for all personnel involved in the selling and marketing of our
products and services and in the preparation of our financial
statements. We have also analyzed product roadmaps used for
sales presentations to determine when or if a specified upgrade
right has been provided to a customer notwithstanding that a
contract does not explicitly provide for that right. For sales
prior to March 31, 2007, we identified a few instances in
which we created specified upgrade or enhancement rights as a
result of these roadmap presentations. However, these were not
significant to our results of operations or financial
statements. We are continuing to analyze our product roadmap
presentations used in connection with sales made subsequent to
March 31, 2007. If it is subsequently determined that these
presentations resulted in commitments for specified upgrades or
enhancements, we would be required to defer the recognition of
revenue attributable to such sales until such commitments had
been satisfied.
We will not be able to assess whether the steps we are taking
will fully remedy the material weaknesses and significant
deficiencies in our internal control over financial reporting
identified by our auditors until we have fully implemented them
and a sufficient time passes in order to evaluate their
effectiveness.
Critical
Accounting Policies and Estimates
Our consolidated financial statements are prepared in accordance
with accounting principles generally accepted in the United
States of America, or GAAP. These accounting principles require
us to make certain estimates and judgments that can affect the
reported amounts of assets and liabilities as of the dates of
the consolidated financial statements, the disclosure of
contingencies as of the dates of the consolidated financial
statements, and the reported amounts of revenue and expenses
during the periods presented. Although we believe that our
judgments and estimates are reasonable under the circumstances,
actual results may differ from those estimates.
We believe the following to be our critical accounting policies
because they are important to the portrayal of our financial
condition and results of operations and they require critical
management judgments and estimates about matters that are
uncertain:
46
|
|
|
|
|
Allowance for doubtful accounts;
|
|
|
|
Stock-based compensation;
|
|
|
|
Inventory valuation; and
|
|
|
|
Accounting for income taxes.
|
If actual results or events differ materially from those
contemplated by us in making these estimates, our reported
financial condition and results of operations for future periods
could be materially affected. See Risk Factors for
certain matters that may affect our future financial condition
or results of operations.
Revenue
Recognition
Product
Revenue
Our software is integrated with our hardware and is essential to
the functionality of the integrated system product. Product
sales typically include a perpetual license to our software,
except in limited circumstances such as sales of spare or
replacement handsets, back-up switches and additional business
applications. We recognize revenue for these sales in accordance
with Statement of Position (SOP)
No. 97-2,
Software Revenue Recognition
, or Staff Accounting
Bulletin (SAB) No. 104,
Revenue Recognition in Financial
Statements
, as applicable, depending on whether the hardware
is sold in a multiple-element arrangement with software and
post-contractual support or on a standalone basis if the
enterprise customer purchases hardware, software, or maintenance
support separately. For the initial sale, we generally bundle
together the hardware, software, and post-contractual support
contracts with terms of up to five years. Thereafter, if the
enterprise customer increases the number of end user deployments
and/or
functionality, it may add more hardware, software, and related
post-contractual support by purchasing them separately. We have
established vendor-specific objective evidence, or VSOE, of fair
value for post-contractual support and, installation and
services and training, as noted below.
We recognize product revenue when persuasive evidence of an
arrangement exists, product has shipped or delivery has occurred
(depending on when title passes), the sales price is fixed or
determinable and free of contingencies and significant
uncertainties, and collection is probable. Our fee is considered
fixed or determinable at the execution of an agreement, based on
specific products and quantities to be delivered at specified
prices. Our agreements generally do not include rights of return
or acceptance provisions. To the extent that our agreements
contain such terms, we recognize revenue once the acceptance
provisions have been met or the right of return lapses. We
maintain a reserve for sales returns based on historical
experience. Payment terms generally range from net 30 to net
60 days. In the event payment terms are extended materially
from our standard business practices, the fees are deemed to not
be fixed or determinable and revenue is recognized when the
payments become due. We assess the ability to collect from
channel partners based on a number of factors, including
creditworthiness and past transaction history. If the channel
partner is not deemed creditworthy, we defer all revenue from
the arrangement until payment is received and all other revenue
recognition criteria have been met. Shipping charges are
included in product revenue and the related shipping costs are
included in cost of product revenue.
We monitor and analyze the accuracy of sales returns estimates
by reviewing actual returns and adjust it for future
expectations to determine the adequacy of our current and future
reserve needs. If actual future returns and allowances differ
from past experience and expectation, additional allowances may
be required.
We have arrangements with channel partners of their products to
reimburse the channel partners for cooperative marketing costs
meeting specified criteria. The reimbursements are limited to
50% of the actual costs charged to the channel partners by
third-party vendors for advertising, trade shows and other
related sales and marketing activities for which we receive an
identifiable benefit, subject to a limit of the total
cooperative marketing allowance earned by each channel partner.
In accordance with EITF Issue
No. 01-9,
Accounting for Consideration Given by a Vendor to a Customer
(including a Reseller of the Vendors Products)
, we
record the reimbursements to the channel partners meeting such
specified criteria within sales and marketing expenses in the
accompanying consolidated statements of operations. The
marketing allowance can also be used by the channel partners to
purchase demonstration products from us at greater than the
standard discount for products sold to channel partners.
47
Such discounts provided to the channel partners are recorded as
a reduction of revenue upon shipment of the demonstration units.
Post-Contractual
Support
Our support and services revenue is primarily derived from
post-contractual support. We account for post-contractual
support revenue based on
SOP 97-2,
which states that if an arrangement includes multiple elements,
the fee should be allocated to the various elements based on
VSOE of fair value, regardless of any separate prices stated
within the contract for each element. VSOE of fair value is
limited to the price charged when the same element is sold
separately. VSOE of fair value is established for support
through prior renewals of post-contractual support contracts,
which establishes a price which is based on a standalone sale.
We use the residual method, as allowed by
SOP No. 98-9,
Modification of
SOP 97-2,
Software Revenue Recognition With Respect to Certain
Transactions,
to determine the amount of product revenue to
be recognized. Under the residual method, the fair value of the
undelivered elements, such as post-contractual support,
installation services and training, are deferred and the
remaining portion of the sales amount is recognized as product
revenue. The fair value of the post-contractual support is
recognized as support and services revenue on a straight-line
basis over the term of the related support period, which can be
up to five years in length.
If VSOE of fair value does not exist for commitments to provide
specified upgrades, services or additional products to customers
in the future, as has been the case from time to time in the
past, we defer all revenue from the arrangement until the
earlier of the point at which VSOE of fair value does exist or
all such elements from the arrangement have been delivered.
Installation
and training
Installation services are sold on an elective basis. Channel
partners or enterprise customers generally perform installations
without our involvement, so we do not recognize substantial
revenue from installation services. As installation is typically
performed by the channel partner or enterprise customer, it is
not considered essential to the functionality of the delivered
elements. Installation is generally priced at established rates
based on estimated hours to install our systems. Training
services are also sold on an elective basis, both to channel
partners and to enterprise customers, and is purchased both with
system orders and on a standalone basis. VSOE of fair value is
established for training through sales made independent of a
bundled order. We recognize revenue related to installation
services and training upon delivery of the service.
Allowance
for Doubtful Accounts
We review our allowance for doubtful accounts on a quarterly
basis by assessing individual accounts receivable that
materially exceed due dates. Risk assessment for these accounts
includes historical collections experience with the specific
account and with our similarly situated accounts coupled with
other related credit factors that may evidence a risk of default
and loss to us. Accordingly, the amount of this allowance will
fluctuate based upon changes in revenue levels, collection of
specific balances in accounts receivable and estimated changes
in channel partner credit quality or likelihood of collection.
If the financial condition of our channel partners were to
deteriorate, resulting in an impairment of their ability to make
payments, additional allowances may be required. The allowance
for doubtful accounts represents managements best
estimate, but changes in circumstances, including unforeseen
declines in market conditions and collection rates, may result
in additional allowances in the future or reductions in
allowances due to future recoveries.
Stock-Based
Compensation
Prior to July 1, 2006, we accounted for employee stock
options using the intrinsic value method in accordance with
Accounting Principles Board Opinion No. 25,
Accounting
for Stock Issued to Employees
, or APB 25, and Financial
Accounting Standards Board Interpretation No. (FIN) 44,
Accounting for Certain Transactions Involving Stock
Compensation, an Interpretation of APB No. 25
, and had
adopted the disclosure only provisions of Statement of Financial
Accounting Standards, or SFAS No. 123,
Accounting
for Stock-Based Compensation
, or SFAS 123, and
SFAS No. 148,
Accounting for Stock-Based
Compensation Transition and Disclosure
, or
SFAS 148.
48
In accordance with APB 25, stock-based compensation
expense, which is a non-cash charge, resulted from stock option
grants at exercise prices that, for financial reporting
purposes, were deemed to be below the estimated fair value of
the underlying common stock on the date of grant.
Effective July 1, 2006, we adopted the fair value
recognition provisions of SFAS No. 123(revised 2004),
Share-Based Payment
, or SFAS 123(R), using the
prospective transition method, which requires us to apply the
provisions of SFAS 123(R) only to awards newly granted,
modified, repurchased or cancelled, after the adoption date.
Under this transition method, our stock-based compensation
expense recognized beginning July 1, 2006 is based on the
grant date fair value of stock option awards we grant or modify
after July 1, 2006. We categorize our options into two
classes. Class One includes all options granted with standard
four-year vesting and no ability to exercise prior to vesting.
Class Two includes options granted with standard four-year
vesting but allow for early exercisability. We recognize
stock-based
compensation expense for both Class One and Class Two on a
straight-line basis over the options expected vesting
terms. We estimated the grant date fair value of stock option
awards under the provisions of SFAS 123(R) using the
Black-Scholes option valuation model with the following
assumptions:
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
Ended
|
|
|
|
March 31, 2007
|
|
|
|
Class One
|
|
|
Class Two
|
|
|
Expected life
|
|
|
6.08 years
|
|
|
|
4.0 years
|
|
Interest rate range
|
|
|
4.6-4.8
|
%
|
|
|
4.6-4.8
|
%
|
Volatility
|
|
|
71
|
|
|
|
55
|
|
Dividend yield
|
|
|
0
|
|
|
|
0
|
|
During the nine-month period ended March 31, 2007, we
recorded non-cash stock-based compensation expense of $582,000
under SFAS 123(R). In future periods, stock-based
compensation expense is expected to increase as we issue
additional equity-based awards to continue to attract and retain
key employees. Additionally, SFAS 123(R) requires that we
recognize compensation expense only for the portion of stock
options that are expected to vest, assuming an expected
forfeiture rate in determining stock-based compensation expense,
which could affect the stock-based compensation expense recorded
if there is a significant difference between actual and
estimated forfeiture rates. Our estimated forfeiture rate in the
nine-month period ended March 31, 2007 was 13%. As of
March 31, 2007, total unrecognized compensation cost
related to stock-based awards granted to employees and
non-employee directors was $3.5 million, net of estimated
forfeitures of $1.3 million. This cost will be amortized on
a straight-line basis over a weighted-average vesting period of
approximately four years. As a result of adopting
SFAS 123(R) on July 1, 2006, our net income for the
nine-month period ended March 31, 2007, was $65,000 lower
than if we had continued to account for stock-based compensation
under APB 25. Basic and diluted net income per share for
the nine-month period ended March 31, 2007 are no different
than if we had continued to account for stock-based compensation
under APB 25.
49
Information regarding our stock option grants for July 1,
2005 through May 25, 2007 is summarized as follows:
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Deemed
|
|
|
|
|
|
|
Grant
|
|
Options
|
|
|
Exercise
|
|
|
Fair Market Value
|
|
|
Intrinsic Value
|
|
|
|
Date
|
|
Granted
|
|
|
Price per Share
|
|
|
per Share
|
|
|
per Share
|
|
|
2005
|
|
July 8
|
|
|
303,000
|
|
|
$
|
0.04
|
|
|
$
|
0.04
|
|
|
$
|
|
|
|
|
September 8
|
|
|
2,590,000
|
|
|
|
0.04
|
|
|
|
0.04
|
|
|
|
|
|
|
|
October 3
|
|
|
2,655,000
|
|
|
|
0.04
|
|
|
|
0.05
|
|
|
|
0.01
|
|
2006
|
|
January 12
|
|
|
4,665,000
|
|
|
|
0.08
|
|
|
|
0.12
|
|
|
|
0.04
|
|
|
|
April 13
|
|
|
1,510,000
|
|
|
|
0.10
|
|
|
|
0.15
|
|
|
|
0.05
|
|
|
|
May 1
|
|
|
445,000
|
|
|
|
0.10
|
|
|
|
0.16
|
|
|
|
0.06
|
|
|
|
June 1
|
|
|
832,500
|
|
|
|
0.10
|
|
|
|
0.19
|
|
|
|
0.09
|
|
|
|
July 10
|
|
|
575,000
|
|
|
|
0.10
|
|
|
|
0.25
|
|
|
|
0.15
|
|
|
|
July 28
|
|
|
60,000
|
|
|
|
0.25
|
|
|
|
0.25
|
*
|
|
|
|
|
|
|
August 7
|
|
|
410,000
|
|
|
|
0.25
|
|
|
|
0.40
|
|
|
|
0.15
|
|
|
|
September 5
|
|
|
1,250,000
|
|
|
|
0.10
|
|
|
|
0.65
|
|
|
|
0.55
|
|
|
|
September 5
|
|
|
75,000
|
|
|
|
0.25
|
|
|
|
0.65
|
|
|
|
0.40
|
|
|
|
September 11
|
|
|
891,500
|
|
|
|
0.25
|
|
|
|
0.65
|
|
|
|
0.40
|
|
|
|
October 3
|
|
|
5,231,000
|
|
|
|
0.32
|
|
|
|
0.65
|
|
|
|
0.33
|
|
|
|
October 4
|
|
|
405,000
|
|
|
|
0.32
|
|
|
|
0.65
|
|
|
|
0.33
|
|
|
|
November 6
|
|
|
963,000
|
|
|
|
0.32
|
|
|
|
0.78
|
|
|
|
0.46
|
|
|
|
December 4
|
|
|
345,000
|
|
|
|
0.32
|
|
|
|
0.91
|
|
|
|
0.59
|
|
|
|
December 14
|
|
|
900,000
|
|
|
|
0.36
|
|
|
|
0.91
|
|
|
|
0.55
|
|
2007
|
|
April 13
|
|
|
7,377,500
|
|
|
|
1.13
|
|
|
|
1.13
|
*
|
|
|
|
|
|
|
May 21
|
|
|
5,643,000
|
|
|
|
1.14
|
|
|
|
1.14
|
*
|
|
|
|
|
|
|
|
*
|
|
Contemporaneous valuation
determined by our board of directors with input from management.
|
|
|
|
|
|
Retrospective valuation determined
by our board of directors with input from management.
|
Valuation
of Common Stock
Background.
With respect to assessments of
fair value of the common stock for the preparation of our
financial statements we considered numerous objective and
subjective factors, including the following:
|
|
|
|
|
prices for our preferred stock that we sold to outside investors
in arms-length transactions, and the rights, preferences
and privileges of our preferred stock and our common stock;
|
|
|
|
|
|
valuations performed as of January 4, 2006, July 12,
2006, October 3, 2006, December 14, 2006,
April 6, 2007 and May 16, 2007;
|
|
|
|
|
|
interpolations for periods between valuations, essentially on a
straight-line basis for those intervening periods in which no
individually significant factors impacted fair value
the periods between valuations were three months or less for the
period from July 1, 2006 to May 16, 2007;
|
|
|
|
|
|
our actual financial condition and results of operations during
the relevant period;
|
|
|
|
|
|
the status of strategic initiatives to increase the target
market for our products;
|
|
|
|
|
|
forecasts of our financial results and market conditions
affecting the communications equipment industry;
|
|
|
|
the fact that the option grants involved illiquid securities in
a private company; and
|
|
|
|
the likelihood of achieving a liquidity event for the shares of
common stock underlying the options, such as an initial public
offering or sale of our company, given prevailing market
conditions and our relative financial condition at the time of
grant.
|
The deemed fair value per share of common stock underlying our
stock option grants was determined by our board of directors
with input from management at each grant date. Prior to January
2006, our board of directors did not consider the probability of
a public offering of our securities to be a significant factor
in its determination of fair value at each
50
grant date because it believed the likelihood of such an event
was remote for the foreseeable future at that time. Management
performed rudimentary valuation analyses during these periods
utilizing comparable revenue multiples with similar public
companies, adjusted for non-marketability discounts and with no
probability assigned to a prospective initial public offering.
The deemed fair value of common stock was therefore heavily
influenced by the value of the liquidation preferences of the
preferred stock, as the estimated enterprise value prior to
January 2006 was not significantly higher than aggregate
liquidation and participation preferences of the preferred
stock. Our board of directors believed that extensive valuation
analyses in this period would have had little practical benefit
in view of our stage of development and the status of execution
of our business strategy. Starting in January 2006, our board of
directors utilized more extensive valuation methodologies in our
valuation analyses.
In connection with the preparation of the consolidated financial
statements included in this prospectus, our board of directors
assessed the fair value of our common stock to determine whether
there was a compensatory element in our historical option
grants. Extensive valuations were performed as of
January 4, 2006, July 12, 2006, October 3, 2006,
December 14, 2006, April 7, 2006 and May 16,
2007. For grant dates between those valuation dates, our board
of directors determined the fair value of our common stock
primarily through interpolation of enterprise values between the
surrounding valuation dates. Our interpolations of change in
value between the valuation dates was essentially on a
straight-line basis, with the exception of September 2006, where
external capital market factors impacted the fair value.
Valuations.
Our valuations as of
January 4, 2006, July 12, 2006, October 3, 2006,
December 14, 2006, April 6, 2007 and May 16, 2007
used a combination of the following methods to estimate the
aggregate enterprise value at each valuation date:
|
|
|
|
|
Discounted cash flow model of the income approach, which derives
the fair value based on projected future net free cash flows,
discounted at a risk-adjusted equity rate of return required by
equity investors in the technology and telecommunications
industries and for the time value of money;
|
|
|
|
The comparative analysis of publicly traded companies, which
values shares of a minority interest in a closely-held
corporation by comparing to comparable publicly traded companies
to determine appropriate multiples to apply to our financial
measures; and
|
|
|
|
The transaction method, which derives an indication of fair
value from the purchase price multiples in recent mergers and
acquisitions involving target companies operating in the IP
telephony and similar communications equipment and other related
technology industries.
|
The selected dates of our valuations were in close proximity to
dates of major option grants. The July 12, 2006,
April 6, 2007 and May 16, 2007 valuations were
performed contemporaneously. The January 4, 2006,
October 3, 2006 and December 14, 2006 valuations were
performed retrospectively. The January 4, 2006
retrospective valuation was initiated at the same time as the
July 12, 2006 contemporaneous valuation, in conjunction
with the preparation of our audited financial statements for the
year ending June 30, 2006. The October 3, 2006 and
December 14, 2006 retrospective valuations were initiated
in February 2007, in conjunction with the preparation of our
audited financial statements for the six months ended
December 31, 2006.
We prepared financial forecasts for each valuation date that
were used in the computation of enterprise value for each of the
three methods. The financial forecasts were based on assumed
revenue growth rates that took into account our past experience
and our expectations of future performance at that time. The
risks associated with achieving our forecasts were assessed in
selecting the appropriate cost of capital rates, which ranged
from 22% to 25%. If different cost of capital rates had been
used, the valuations would have been different.
The January 4, 2006, July 12, 2006, April 6, 2007
and May 16, 2007 valuations valued common stock using the
Black-Scholes option pricing methodology with consideration for
an initial public offering, or IPO, and the probability weighted
expected return method, or PWERM. For the Black-Scholes option
pricing method, the per share value was derived by creating a
series of European call options on the enterprises value,
with exercise prices based on the liquidation preferences of the
preferred stock and derivative strike prices. For the PWERM, the
per share value was derived utilizing a probability weighted
scenario analysis. The per-share value was based on three
possible scenarios: (1) no IPO liquidity scenario,
(2) IPO liquidity scenario, and (3) stay-private
scenario. In the no IPO liquidity scenario and stay private
scenario, the per-share value was allocated using the current
value method
51
prescribed by the AICPA. The current value method allocates
value to the various series of preferred stock based on their
liquidation preferences or conversion values, whichever would be
greater. The residual enterprise value was allocated to the
common stock. In the IPO liquidity scenario, the current value
method was also used with the consideration that all series of
preferred stock would convert to common. For the January 2006
valuation, the Black-Scholes indication was weighted 40% and the
PWERM indication 60%. For July 2006, both indications were
weighted 50%.
The October 2006 and December 2006 valuations valued common
stock using the Black-Scholes option pricing methodology with
consideration for an IPO. The common stock was valued on a per
share basis utilizing a probability weighted scenario analysis.
The per-share value was based on two possible future liquidity
scenarios: (1) no IPO liquidity scenario, and (2) IPO
liquidity scenario. In the no IPO liquidity scenario, the
per-share value was based on the Black-Scholes option-pricing
model. This methodology treats various components of our capital
structure as a series of call options on the proceeds expected
from an expected sale of our company or the liquidation of our
assets at some future date. The model defines the
securities fair values as functions of the current fair
value of the company and assumptions based on the
securities rights and preferences. As a result, the option
pricing method requires assumptions regarding the anticipated
timing of a potential liquidity event, and the estimated
volatility of our equity securities. These call options were
then valued using the Black-Scholes option pricing model. In the
IPO liquidity scenario, it is assumed that all preferred
securities are converted into common stock, and that the
aggregate value related to options and warrants are subtracted
from the aggregate equity value of the company for purposes of
determining the preferred and common stock values on an as if
converted, per share basis. The probability of an IPO ranged
from 50% to 95% in these valuations.
The anticipated timing of the liquidity events utilized in these
valuations was based on then-current plans and estimates of our
board of directors and management.
Factors Associated with Black-Scholes
Method.
Estimates of the volatility of our stock
were made based on available information on the volatility of
the capital stock of comparable publicly traded companies and
ranged from 40% to 60%. Estimates of term, or estimated time to
a liquidity event, ranged from 1.5 months to
1.8 years. Had we used different estimates of volatility or
term, the allocations between preferred and common shares would
have been different. The risk free rate of return ranged from
4.23% to 5.04%.
Non-marketability Discount.
The estimated fair
value of our common stock at each stock option grant date
reflected a non-marketability discount partially based on the
anticipated likelihood and timing of a future liquidity event.
In the valuations used to establish fair value of our common
stock the non-marketability discounts were 25% in January 2006,
20% in July 2006, 15% in October 2006 and 10% in December 2006.
There was no non-marketability discount for the April 6,
2007 and May 16, 2007 valuations. In general, the board of
directors used similar discount factors to estimate the fair
value of our common stock on grant dates that did not coincide
with the dates on which the valuations were performed. The
reduction in this discount was attributable to steady and
continuing improvements in our financial performance thereby
improving the likelihood of a liquidity event and reducing the
likely time to accomplish such.
Liquidation and redemption rights of preferred
stock.
The preferential rights of all series of
our convertible redeemable preferred stock were also factored
into our board of directors determination of the fair
value of our common stock. These securities are convertible into
common stock at the option of the holder, and vote with the
common stock on an as-converted basis. As our enterprise value
and the probability of an initial public offering increased
starting in January 2006, the relatively weighting of the
preferred stock preferences on the value of common stock
declined. The impact of the preferences on common stock value in
a no IPO liquidity scenario and IPO liquidity scenario at
March 31, 2007 was negligible.
Significant Factors Contributing to the Difference Between
the Deemed Fair Value as of the Date of Each Grant and Estimated
Initial Public Offering Price.
From July 1, 2005 to
May 25, 2007, the difference between the fair value per
share of our common stock of $0.04 to $1.14 and the estimated
public offering price range of $ to
$ per share is attributable to our
continued growth and improved business prospects during this
period, as described in further detail below.
52
|
|
|
|
|
Starting with the quarter ended December 31, 2005 our
revenues have grown sequentially for each quarter from
$11.2 million for the quarter ended September 30, 2005
to $26.0 million in the quarter ended March 31, 2007,
as the number of our channel partners increased from 210 to over
400 and our enterprise customer base increased from 2,000 to
4,500 during this period. In addition, we hired our Vice
President of Sales in October 2005.
|
|
|
|
|
|
Starting with the quarter ended December 31, 2005 we have
had positive cash flows from operations.
|
|
|
|
|
|
In the quarter ending March 31, 2006, we hired our Vice
President for Engineering and Operations and our Managing
Director of European operations, and added two independent board
members. Additionally, we launched our major accounts program
and hired staff to support that program.
|
|
|
|
|
|
In the quarter ending June 30, 2006, we introduced a new
family of hardware products, with higher gross margins, that has
contributed to a measurable increase in overall gross margins.
Based on improved enterprise value, the rights and preferences
of preferred stock had less relative impact than for prior
periods and the value of our common stock began to increase more
rapidly than in prior periods.
|
|
|
|
|
|
In the quarter ended September 30, 2006 the initial public
offering market for emerging technology companies improved
substantially. Since that time the number of initial public
offerings and associated valuation multiples has been
substantially higher than for earlier periods. The changes in
the capital markets increased the likelihood of a liquidity
event through a public offering and reduced the
non-marketability discount.
|
|
|
|
|
|
In the quarter ended December 31, 2006, we hired our Vice
President of Business Development, opened our Australian sales
office. In late December 2006, we selected our lead investment
banking team in contemplation of this offering.
|
|
|
|
|
|
In the quarter ended March 31, 2007 we held our
organizational meeting in preparation for this offering and
filed our initial registration statement with the SEC. The
marketability discount was eliminated as the likelihood of an
initial public offering was considered very high.
|
|
|
|
|
|
In April 2007 and May 2007, we hired a new Chief Financial
Officer and added three new independent board members.
|
Estimation
of Fair Value of Warrants to Purchase Preferred
Stock
FASB Staff Position
No. 150-5,
Issuers Accounting under FASB Statement No. 150
for Freestanding Warrants and Other Similar Instruments on
Shares That Are Redeemable
, or FSP
150-5,
provides that the warrants we have issued to purchase shares of
Series E and Series F preferred stock are subject to
the requirements in FSP
150-5,
which
requires us to classify these warrants as current liabilities
and to adjust the value of these warrants to their fair value at
the end of each reporting period. We recorded $624,000 of
expense in other income (expense) for the
nine-month
period ended March 31, 2007, to reflect increase in the
estimated fair value of the warrants. We estimated the fair
value of these warrants at March 31, 2007 using the
Black-Scholes option valuation model. This model utilizes the
estimated fair value of the underlying preferred stock at the
valuation measurement date, the remaining term of the warrant,
risk-free interest rates, and expected dividends and expected
volatility of the price of the underlying convertible preferred
stock.
Upon the closing of this offering, these warrants will convert
into warrants to purchase shares of our common stock and, as a
result, will no longer be subject to FSP
150-5.
At
that time, the then-current aggregate fair value of these
warrants will be reclassified from liabilities to additional
paid-in capital, a component of stockholders deficit, and
we will cease to record any related periodic fair value
adjustments.
Inventory
Valuation
Inventories consist principally of finished goods and are stated
at the lower of cost or market value, with cost being determined
under a standard cost method that approximates
first-in,
first out. A small portion of our inventory also relates to
evaluation units located at enterprise customer locations and
service inventory. Inventory valuation reserves are established
to reduce the carrying amounts of our inventories to their net
estimated realizable values. Inventory valuation reserves are
based on historical usage, expected demand and, with respect to
evaluation units,
53
conversion rate and age. Inherent in our estimates of market
value in determining inventory valuation reserves are estimates
related to economic trends, future demand for our products and
technological obsolescence of our products. If future demand or
market conditions are less favorable than our projections,
additional inventory valuation reserves could be required and
would be reflected in cost of product revenue in the period in
which the reserves are taken. Inventory valuation reserves were
$495,000, $598,000 and $328,000 as of June 30, 2005,
June 30, 2006 and March 31, 2007, respectively. Once a
reserve is established, it is maintained until the unit to which
it relates is sold or scrapped. The reduced costs associated
with the revenue from this unit results in an increase in gross
profit and gross margin.
Accounting
for Income Taxes
We account for income taxes using an asset and liability
approach, in accordance with SFAS No. 109,
Accounting for Income Taxes
, which requires recognition
of deferred tax assets and liabilities for the expected future
tax consequences of events that have been recognized in our
financial statements, but have not been reflected in our taxable
income. A valuation allowance is established to reduce deferred
tax assets to their estimated realizable value. Therefore, we
provide a valuation allowance to the extent we do not believe it
is more likely than not that we will generate sufficient taxable
income in future periods to realize the benefit of our deferred
tax assets. To date, as a result of our uncertainty regarding
the realizability of our deferred tax assets, consisting
principally of net operating loss and tax credit carryforwards,
we have recorded a 100% valuation allowance.
At June 30, 2006, we had $84.4 million and
$44.6 million of net operating loss carryforwards for
federal and state purposes, respectively. Net operating loss
carryforwards will begin to expire in 2017 and 2007 for federal
and California purposes, respectively. As part of the process of
preparing our consolidated financial statements, we are required
to estimate our income taxes in each of the jurisdictions in
which we operate. This process involves estimating our actual
current tax exposure, including assessing the risks associated
with tax audits, and assessing temporary differences resulting
from different treatment of items for tax and accounting
purposes. The ability to maintain our current effective tax rate
is contingent upon existing tax laws in both the United States
and the respective countries in which our international
subsidiaries are located, and the availability of our net
operating loss and tax credit carryforwards.
We believe we have had multiple ownership changes as defined
under Section 382 of the Internal Revenue Code and we are
currently analyzing these ownership changes to determine the
limitations on our ability to utilize our net operating loss and
tax credit carryforwards under Sections 382 and 383 of the
Internal Revenue Code in future periods due to significant stock
transactions in previous years, which may limit the future
realization of our net operating losses and tax credits. Based
on estimates prepared to date, we believe the provisions of
Section 382 could result in the forfeiture of up to
$72 million of net operating losses for U.S. federal income
tax purposes. We believe there could also be an impact on our
ability to utilize California net operating loss carryforwards
as well. As our analysis is incomplete, these estimates are
uncertain.
As of June 30, 2006, we had research and development tax
credit carryforwards of approximately $2.5 million and
$2.8 million, which can be used to reduce future federal
and California income taxes, respectively. Federal research and
development tax credit carryforwards will expire beginning in
fiscal 2012 through 2026. California research and development
tax credits will carry forward indefinitely. In addition, a
portion of the federal research tax credit carryforwards may be
subject to forfeiture due to Section 383 limitations. We
are in the process of determining the impact of Section 383
on the tax credit carryforwards. As our analysis is incomplete,
these estimates are uncertain.
Recent
Accounting Pronouncements
In May 2005, the Financial Accounting Standards Board, or FASB,
issued SFAS No. 154,
Accounting Changes and Error
Corrections
(SFAS 154) that replaces
Accounting Principals Board Opinions No. 20
Accounting
Changes
and SFAS No. 3,
Reporting Accounting
Changes in Interim Financial Statements An Amendment
of APB Opinion No 28
. SFAS 154 provides guidance on the
accounting for and reporting of accounting changes and error
corrections. It establishes retrospective application, or the
latest practicable date, as the required method for reporting a
change in accounting principle and the reporting of a correction
of an error. SFAS 154 is effective for accounting changes and
corrections of errors made in fiscal years beginning after
December 15, 2005.
54
In June 2006, the FASB issued FIN No. 48,
Accounting for Uncertainty in Income Taxes
(FIN 48). FIN 48 applies to all tax
positions within the scope of FASB Statement No. 109,
applies a more likely than not threshold for tax
benefit recognition, identifies a defined methodology for
measuring benefits and increases the disclosure requirements for
companies. FIN 48 is mandatory for years beginning after
December 15, 2006. We are currently in the process of
evaluating the effects of this new accounting standard.
In September 2006, the SEC issued Staff Accounting Bulletin
(SAB) No. 108 regarding the process of
quantifying financial statement misstatements.
SAB No. 108 states that registrants should use both a
balance sheet approach and an income statement approach when
quantifying and evaluating materiality of a misstatement. The
interpretations in SAB No. 108 contain guidance on
correcting errors under the dual approach as well as provide
transition guidance for correcting errors. This interpretation
does not change the requirements within SFAS No. 154
for the correction of an error in financial statements.
SAB No. 108 is effective for annual financial
statements covering the first fiscal year ending after
November 15, 2006. We will be required to adopt this
interpretation in fiscal year 2007.
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements
(SFAS No. 157). This Statement defines
fair value, establishes a framework for measuring fair value in
generally accepted accounting principles, and expands
disclosures about fair value measurements. This statement
applies under other accounting pronouncements that require or
permit fair value measurements, the FASB having previously
concluded in those accounting pronouncements that fair value is
the relevant measurement attribute. Accordingly, this Statement
does not require any new fair value measurements. This statement
is effective for financial statements issued for fiscal years
beginning after November 15, 2007, and interim periods
within those fiscal years. We do not expect the adoption of
SFAS No. 157 in fiscal year 2009 to have a material
impact on our results of operations or financial position.
In February 2007, the FASB issued SFAS No. 159,
The
Fair Value Option for Financial Assets and Financial
Liabilities
(SFAS 159). SFAS 159
permits entities to choose, at specified election dates, to
measure eligible items at fair value (or fair value
option) and to report in earnings unrealized gains and
losses on those items for which the fair value option has been
elected. SFAS 159 also requires entities to display the
fair value of those assets and liabilities on the face of the
balance sheet. SFAS 159 establishes presentation and
disclosure requirements designed to facilitate comparisons
between entities that choose different measurement attributes
for similar types of assets and liabilities. SFAS 159 is
effective for us as of the first quarter of 2009. We are
currently evaluating the impact of this pronouncement on our
financial statements.
Quantitative
and Qualitative Disclosures about Market Risk
Interest
Rate Risk
As of March 31, 2007, we had cash and cash equivalents of
$16.8 million, which consisted of highly liquid money
market instruments with original maturities of three months or
less. Because of the short-term nature of these instruments, a
sudden change in market interest rates would not be expected to
have a material effect on our financial condition or results of
operations.
Foreign
Currency Risk
As we expand, we expect that many of our international
enterprise customers will be invoiced in foreign currencies and
our international sales and marketing operations will incur
expenses that are denominated in foreign currencies. These
revenues and expenses could be materially affected by currency
fluctuations. Changes in currency exchange rates could adversely
affect our consolidated results of operations or financial
position. Additionally, our international sales and marketing
operations maintain cash balances denominated in foreign
currencies. As a result, we could incur unanticipated
translation gains and losses. To date, the foreign currency
effect on our cash and cash equivalents has been immaterial and
we have not hedged our exposure to changes in foreign currency
exchange rates.
55
BUSINESS
Overview
We are a leading provider of Internet Protocol, or IP,
telecommunications systems for enterprises. Our systems are
based on our distributed software architecture and switch-based
hardware platform which enable multi-site enterprises to be
served by a single telecommunications system. Our systems enable
a single point of management, easy installation and a high
degree of scalability and reliability, and provide end users
with a consistent, full suite of features across the enterprise,
regardless of location. As a result, we believe our systems
enable enhanced end user productivity and provide lower total
cost of ownership and higher customer satisfaction than
alternative systems.
Our solution is comprised of ShoreGear switches, ShorePhone IP
phones and ShoreWare software applications. We provide our
systems to enterprises across all industries, including to
small, medium and large companies and public institutions. Our
enterprise customers include multi-site Fortune
500 companies with tens of thousands of employees. As of
March 31, 2007, we had sold our IP telecommunications
systems to approximately 4,500 enterprise customers, including
CNET Networks, Robert Half International and the City of
Oakland, California. We sell our systems through our extensive
network of more than 400 channel partners.
We have achieved broad industry recognition for our technology
and high customer satisfaction. Our enterprise IP
telecommunications systems received PC Magazines Best of
the Year 2005 Editors Choice designation. For the last
four years, IT executives surveyed by Nemertes Research, an
independent research firm, have rated ShoreTel highest in
customer satisfaction among leading enterprise
telecommunications systems providers.
Industry
Background
Enterprises have historically operated separate networks for
voice and data communications which resulted in significant
complexity and high cost. Multi-site enterprises typically
operated separate telecommunications systems at each of their
sites that often were difficult to install and manage. These
systems also required significant additional investments to
scale and did not enable delivery of a uniform set of features
and functions across all sites. Enterprises are increasingly
migrating to a single IP network for both voice and data
communications to reduce costs and network complexity and
increase end user productivity. This migration has created a
significant market opportunity for enterprise IP
telecommunications systems providers. Gartner, Inc., an
independent research firm, estimates that worldwide enterprise
telephony systems equipment end user revenue was
$17.2 billion in 2006, including legacy TDM PBX/KTS
equipment,
IP-enabled
PBX equipment and
IP-PBX
equipment. According to Gartner, the
IP-PBX
market was estimated to have been $3.9 billion in 2006 and
is expected to grow to $7.9 billion by 2010, which
represents a 19.1% compound annual growth rate. We refer to the
TDM PBX/KTS equipment as TDM systems,
IP-enabled
PBX equipment as hybrid systems, and
IP-PBX
equipment as IP systems.
Multi-site enterprises typically have deployed one of three
primary types of telecommunications systems: TDM systems, hybrid
systems or IP systems, which include server-centric and
switch-based systems. These systems are comprised of multiple
phones that are independently connected to a switch within the
enterprise, called the private branch exchange, or PBX. This
switch aggregates the calls from these phones and transports
them across the telecommunications network. In evaluating
telecommunications systems, enterprises consider several
factors, including: cost, scalability, reliability, ease of use,
functionality, ease of management and installation and ability
to integrate with existing applications.
Challenges
of TDM-based enterprise telecommunications systems
Developed in the 1980s, TDM systems require a dedicated
voice network that consists of circuits and phones, as well as a
separate PBX switch for each office site, which results in a
series of standalone telecommunications systems within a single
enterprise. These multiple independent systems are connected by
private, dedicated lines. Although enterprises can scale their
TDM systems by adding switches, the associated installation and
integration costs and on-going management and maintenance costs
are usually significant. Enterprises deploying TDM systems
typically also incur other telecommunications services expenses,
such as costs associated with dedicated circuits
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and service charges. As a result of these characteristics, TDM
systems are complicated and costly to install, upgrade, scale,
manage and maintain. In addition, because these systems operate
on dedicated voice networks, independent of the data network, an
enterprise cannot integrate its voice applications, such as
voicemail, fax, end user presence and outbound call initiation
and handling, with software that operates on its data network,
such as customer relationship management applications.
Challenges
of hybrid enterprise telecommunications systems
In an effort to address some of the limitations of TDM systems
and to extend the life of their existing telecommunications
infrastructure, some enterprises implement hybrid systems. A
hybrid system is a modification of a TDM system that supports IP
phones and enables voice signals to be sent as IP packets over
data networks, such as local area networks, or LANs, and wide
area networks, or WANs, instead of dedicated TDM lines. Although
hybrid system technology enables enterprises to migrate some of
their existing TDM infrastructure to an
IP-based
system, all switching is still accomplished with the TDM
infrastructure. Thus, a hybrid system suffers from some of the
same disadvantages of a TDM system. In addition, hybrid systems
require enterprises to maintain two telecommunications systems,
further increasing management complexity and cost and leading to
inconsistent features for end users across the enterprise.
Accordingly, we believe increased operating costs associated
with maintaining two networks typically outweigh the short-term
capital savings realized from implementing a hybrid system. In
order to achieve the full benefits of a converged voice and data
network, enterprises will ultimately need to implement an all-IP
telecommunications system.
Challenges
of server-centric enterprise IP telecommunications
systems
Server-centric IP systems seek to address the limitations of TDM
and hybrid systems by allowing enterprises to combine their
voice and data networks into a single IP network. Some vendors
offer server-centric enterprise IP telecommunications systems
that rely on servers and routers with IP telecommunications
modules for call management and applications. These systems
typically have a centralized software architecture and require
system management to be performed on a
site-by-site
basis. Although the management and control of these systems can
be carried out from a single computer, management often must be
performed on an
application-by-application
basis. In addition, these systems also run on operating systems
that were not optimized for real-time voice processing which can
result in lower reliability and decreased performance. Most
applications require a dedicated server to run on these systems,
increasing the cost and complexity of adding applications to the
existing network. In addition, server-centric IP systems can be
costly to scale because significant additional equipment is
often required to accommodate growth while maintaining adequate
redundancy. Server-centric IP systems also tend to be less
reliable because they require mechanical disk drives to be
available for placing and receiving calls. Further, to achieve
higher reliability, server-centric IP systems typically maintain
a backup server for each primary server, which increases the
cost and complexity of the enterprises entire
telecommunications system.
The
Opportunity
Because of the limitations of TDM, hybrid and server-centric IP
systems, we believe enterprises need an
IP-based
telecommunications system that provides management of the entire
system using a single software application from any computer, is
easy to install and use, provides scalability and reliability,
provides end users with a consistent, full suite of features
across the enterprise, regardless of location, and has a low
total cost of ownership.
Our
Solution
We provide switch-based IP telecommunications systems for
enterprises that address the limitations of TDM, hybrid and
server-centric IP systems. Our systems consist of our ShoreGear
switches, ShorePhone IP phones and ShoreWare software
applications, all based on our proprietary distributed software
architecture and switch-based hardware platform. In contrast to
server-centric IP systems, our switch-based hardware platform
uses flash memory and an embedded operating system, which
minimizes the use of expensive servers. As such, our solution is
designed to provide a more reliable, secure and scalable system.
Our proprietary software applications are distributed across
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each site of an enterprise, providing end users with a
consistent, full suite of features across the enterprise,
regardless of location. Our Personal Call Manager and other
desktop applications are easy to use and enable improved end
user productivity. Our browser-based system management provides
enterprises with a single point of management, enabling IT
administrators to view and manage the entire telecommunications
system of the enterprise using a single application at any
location. Through our distributed software architecture and
innovative switch design, we believe our system provides
scalability and reliability, a single point of management, is
easy to install and use and provides end users with a
consistent, full suite of features across the enterprise,
regardless of location, all for a low total cost of ownership.
Benefits
of our distributed software architecture and switch-based
hardware platform
As a result of our distributed software architecture and
switch-based hardware platform, we provide enterprise customers
with a number of key benefits, including:
Ease of use.
We provide a wide range of
innovative, high performance phones that we combine with our
feature-rich desktop software application, Personal Call
Manager. Personal Call Manager allows end users to control their
phones from their PCs, regardless of their location and
integrates with enterprise software applications, such as
Microsoft Outlook and salesforce.com. With the click of a mouse,
the end user can make phone calls from contact lists, convene
and manage participation in conference calls, listen to
voicemail and check the availability of others on the network.
Ease of installation and management.
Our
systems are easy to install as a result of our proprietary
installation software, which automatically recognizes and
configures the elements of our solution as they are added to the
systems. Our systems also feature a single point of management
with a simple, intuitive interface that allows IT managers to
modify their systems from anywhere through a web browser, which
reduces administrative complexity, resulting in reduced IT
management costs for enterprises. As a result of our
architecture, we believe our systems are also easier to install
and manage because they require fewer hardware elements than
alternative systems.
Scalability.
We believe our distributed
software architecture and the modular design of our system
hardware allow enterprises to incrementally scale our systems
more cost-effectively than alternative systems, which can
require replacement of substantial amounts of system equipment
to increase capacity. In contrast, all of the investment an
enterprise customer makes in our systems will continue to
operate as their implementation of our systems expand to support
their growth. Our systems are designed to seamlessly support
more than 10,000 lines and enterprises may scale beyond
that size by adding additional ShoreTel systems. As a result,
our systems can cost-effectively scale to support enterprises of
all sizes.
Reliability.
Our switches are designed to be
highly reliable and operate independently. Each switch in the
system is capable of independently establishing and terminating
calls without relying on a centralized call control server, as
is the case with alternative systems. As a result, enterprise
telecommunications based on our systems can survive a variety of
LAN, WAN and hardware failures using our systems. For increased
reliability, a single additional switch can be added
cost-effectively to the site to create n+1
redundancy, rather than requiring a dedicated back-up switch for
each primary switch to improve reliability as needed by
alternative systems.
Low total cost of ownership.
Our systems allow
enterprise customers to lower the overall capital expenditures
and on-going operating expenses typically associated with the
deployment and management of enterprise telecommunications
systems. In particular, the scalable nature and the lack of
multiple redundant units required in our systems can
significantly reduce investments in equipment. Although the
initial capital expenditure associated with the implementation
of our systems may be greater than those required to extend a
TDM system to a hybrid system, we believe that the total
expenditures required to deploy, maintain and upgrade ShoreTel
systems result in significantly lower total cost of ownership
over time. We also believe enterprises that use our systems
incur lower operating, maintenance and upgrade costs than those
that use competing systems.
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We believe that as a result of these key benefits and our
superior customer service, we maintain the industrys
highest level of customer satisfaction. According to Nemertes
Research, for the last four years, we have delivered the highest
level of customer satisfaction of any leading
IP-based
telecommunications vendor rated in its enterprise benchmarks
across all surveyed criteria, including value, technology,
value-added reseller expertise, customer service, solution
experience, product features, installation/troubleshooting and
performance.
Our
Strategy
Our goal is to become the leading provider of IP
telecommunications systems for enterprises. Key elements of our
strategy include:
Extend our technology advantage.
We believe
that our distributed software architecture and switch-based
hardware platform provide us with a key competitive advantage.
To further differentiate our systems, we intend to continue our
research and development activities to enhance the functionality
of our systems, feature set and end user experience. We also
intend to develop new and expand existing relationships with
technology partners to provide additional system applications,
such as multi-media capabilities. We also intend to continue to
develop additional applications for our systems and expand the
interoperability of our systems with additional enterprise
applications.
Grow our distribution network.
We intend to
increase our market penetration and extend our geographic reach
by expanding our business with existing channel partners and by
adding channel partners that serve specific target markets. We
are focused on expanding relationships with channel partners
that will enable us to increase adoption of our systems by large
enterprises. We also intend to further develop our relationships
with channel partners that operate in strategic international
markets. We believe international markets represent a
significant growth opportunity, since those markets are expected
to increasingly adopt IP telecommunications systems.
Maintain focus on customer satisfaction.
We
believe that satisfied enterprise customers are likely to
purchase more of our products and to serve as advocates for our
systems. We intend to continue to work closely with enterprise
customers to gain valuable knowledge about their existing and
future product requirements to help us develop new products and
product enhancements that address their evolving requirements.
We also intend to actively measure, and develop programs to
continue to enhance, customer satisfaction.
Increase our brand awareness.
We believe that
increased visibility and awareness of the ShoreTel brand will
enhance our ability to participate in enterprise customer
evaluations of telecommunications systems, and will enable us to
continue growing our enterprise customer base. We intend to
increase our sales and marketing activities with both channel
partners and enterprise customers through targeted marketing
programs, such as participation in seminars, trade shows and
conferences, and advertising and public relations initiatives.
Increase penetration of our installed base.
We
plan to leverage our installed enterprise customer base to
increase future sales. Since many organizations initially deploy
our systems at a single location, we believe we can drive
further penetration of our systems at multiple locations within
these enterprises. By increasing our penetration, we believe we
can continue to realize increased operating efficiencies while
driving a wider adoption of our systems.
Products
We provide a switch-based IP telecommunications system for
enterprises. Our systems are based on our distributed software
architecture and switch-based hardware platform that enable a
single telecommunications system to serve multi-site
enterprises. This architecture provides high network reliability
and allows for a single point of management and administration
of a system across all sites of a multi-site enterprise. System
administrators can make changes anywhere throughout the system
through a web browser interface that presents a user-friendly
view of the systems configuration. Our architecture also
provides end users with a consistent and full set of features
across an enterprise, regardless of location.
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We introduced our first suite of products in 1998 and have
continued to add features and functionality throughout our
history. Our solution is comprised of ShoreGear switches,
ShorePhone IP phones and ShoreWare software applications. As new
software versions of our solution have been released, existing
enterprise customers have been able to upgrade their switches,
phones and applications, allowing them to preserve their
ShoreTel investment.
ShoreGear switches.
Our switches provide call
management functionality, and each switch in the system is
capable of independently establishing and terminating calls
without relying on a centralized call control server. As a
result, enterprise telecommunications can survive a variety of
LAN, WAN and hardware failures. The high reliability of our
switches is enhanced by two key design features: the use of
flash memory in lieu of disk drives and running an embedded
operating system optimized for real-time processing, such as
call management. Unlike disk drives, flash memory does not rely
on mechanical movement, and therefore is less likely to break
down and cause our systems to fail. Furthermore, our embedded
operating system enables a higher performing and more reliable
software platform relative to server-centric IP systems because
it is optimized for real-time processing. The reliability of
each site within the system can be further improved by adding a
single additional switch to that site to create n+1
redundancy, rather than requiring a dedicated back-up switch for
each primary switch to improve reliability as needed by
alternative systems. In addition, our switches connect to the
public telephone network via one of several interfaces,
including T1 and E1 interfaces for high-density connectivity to
the public telephone network. We offer nine switches of varying
sizes to meet the needs of enterprises of all sizes. The modular
nature of our switches allows our enterprise customers to easily
expand their system capacity by deploying additional switches
across their network.
ShorePhone IP phones.
We offer a range of
innovative, high performance phones to meet the needs of the
different types of end users across the enterprise. Our phones
are designed to provide a superior combination of ergonomics,
sound quality and appearance. We offer five phones that vary by
size, display features and line capacity. ShorePhone IP phones
are designed to function without any configuration, simplifying
installation. Our systems also support Wi-Fi phones for mobile
workers. Our range of IP phones include the following models,
which are offered in silver and black:
ShoreWare software applications.
Our ShoreWare
software features a number of applications that facilitate the
end user experience and enterprise system management. In
addition, we offer additional business applications
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that integrate with core business processes to provide improved
functionality and enhanced end user productivity. An industry
standard server is used to support these applications, as
opposed to the call management functions of our systems, which
run entirely on ShoreGear switches. Our ShoreWare software
consists of our proprietary software as well as third-party
applications and includes:
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ShoreWare desktop applications.
ShoreWare
desktop applications for end users include the following primary
offerings: Personal Call Manager, Unified Messaging, Office
Anywhere, Automated Attendant and a softphone.
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Personal Call Manager.
Personal Call Manager
is an application that allows end users to manage their voice
communications from their desktops. With the click of a mouse,
end users can initiate, manage, terminate, and receive calls,
convene and manage conference calls, and see the availability of
others on the network. This functionality is enhanced by the
integration of our Personal Call Manager application with
Microsoft Outlook, which allows the end user to initiate calls
from a contact list.
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Unified Messaging.
Unified Messaging
integrates our voicemail application with Microsoft Outlook.
This enables end users to receive, send, be notified of and play
voice mail messages through their Microsoft Outlook email.
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Office Anywhere.
Office Anywhere enables end
users outside the office to manage calls with Personal Call
Manager and to enjoy the same call handling productivity
benefits as their office-based colleagues. Communications
directed to the end users office phone are forwarded to
the end users location, and the end users outbound
calls appear to the called party as if they originated in the
end users office. Using Office Anywhere, end users have
the same call management and unified messaging features and
functionality at remote locations as they have in their offices.
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Softphone.
ShoreTels softphone
application allows an end user to turn a PC into an IP phone by
simply connecting a headset to the PC and activating the
application.
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Automated Attendant.
Automated Attendant
provides end users with a
24-hour
automated call answering and routing capability that enables the
enterprise to direct callers to appropriate individuals,
workgroups or messages.
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Workgroup.
Workgroup is an entry-level contact
center application that provides real-time handling of incoming
calls to enterprises, with call routing, queuing and reporting
tools.
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ShoreWare system management.
Our browser-based
system management applications consist of ShoreWare Director and
ShoreWare System Monitor.
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ShoreWare Director.
ShoreWare Director
provides enterprises with a single point of system management,
enabling IT administrators to view and manage the entire
telecommunications system of the enterprise from any location
using a single application. A new end users extension,
mailbox and automated attendant profile can be added from a
single management screen, avoiding the additional work required
with most PBXs, voice mail systems and automated attendants.
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ShoreWare System Monitor.
ShoreWare System
Monitor is an IP voice management tool that is designed to
continuously measure the performance of every link in the
network, enabling an enterprise to identify and address voice
quality issues.
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Additional business applications.
We offer
other business applications, such as ShoreTel Contact Center,
ShoreTel Converged Conferencing and salesforce.com integration.
ShoreTel Contact Center allows enterprises to efficiently manage
significant inbound or outbound call activities. ShoreTel
Converged Conferencing enables enterprises to conduct large
audio conferences and provides collaboration tools for
application sharing, desktop sharing, instant messaging and end
user availability information. Our salesforce.com integration
application is designed to improve the productivity of end users
that use salesforce.com by seamlessly integrating voice
communications capabilities into their data driven workflow.
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ShoreTel
Global Services
We complement our product offerings with a broad range of
services that help us maintain and expand our relationships with
enterprise customers and channel partners and, in the case of
post-contractual support, provide us with recurring revenue.
Typically, our channel partners provide many of these services,
although we provide back up and escalation support as needed, or
if requested by the enterprise customer, we provide these
services directly.
The ShoreTel Global Services include post-contractual support,
training, system design and installation, and professional
services.
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Post-contractual support services include web-based access
support services and tools, access to technical support
engineers, hardware replacement and software updates. These
services are typically offered under support contracts with
terms of up to five years.
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Training services include certification programs for channel
partners, training programs at enterprise customer or channel
partner locations and self-paced, desktop training programs.
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System design and installation services include the assessment
of the telecommunications requirements of a particular
enterprise, the configuration of a system to maximize its
efficiency, the management of the installation, and the
subsequent testing and implementation of our systems.
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Professional services include software development to improve
system performance, enable integration of our systems with third
party applications or legacy systems, streamline business
processes and address enterprise customer-specific business
opportunities.
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Technology
Our systems are based on a combination of our proprietary
software, industry-standard interfaces and protocols, and
customized and
off-the-shelf
hardware components. We have developed proprietary technologies
that are critical to the operation of the servers and ShoreGear
switches within our systems and provide our systems with the
properties that distinguish them from alternative IP systems.
The key elements of our distributed software architecture are:
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software that enables calling between switches and allows calls
to be distributed among switches instead of using a single
centralized switch;
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software that enables ShoreGear switches to obtain call routing
information;
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software that monitors the bandwidth consumed on each WAN
segment and prevents the system from exceeding bandwidth
limitations;
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software that monitors all call activity on ShoreGear switches,
and enables integration of ShoreTel and third-party applications;
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software that coordinates the functions of all servers on the
system, allowing them to perform as a single, virtual server;
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software that enables remote ShoreTel and third-party
applications to access and modify our systems;
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software that enables the switch to communicate with the
application server, and receive system configuration information;
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software that allows each switch to maintain a comprehensive
view of the system; and
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software that provides a graphical user interface for our phones.
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Our switch-based software also uses industry-standard Media
Gateway Control Protocol, or MGCP, and Session Initiation
Protocol, or SIP, for setting up calls.
ShoreGear switches are comprised of
off-the-shelf,
embedded microprocessors and networking components, such as
Ethernet controllers, and customized integrated circuits. These
switches run on Wind River VxWorks, a
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widely-used embedded operating system, and use random access
memory and flash memory and our switch call management software
for application processing. ShorePhone IP phones are comprised
of enterprise IP phone chips manufactured by Broadcom
Corporation and customized LCD displays, microphones and speaker
circuitry.
Enterprise
Customers
Our enterprise customers include small, medium and large
companies and public institutions in a wide range of vertical
markets, including the financial services, government,
education, health care, manufacturing, non-profit organization,
professional services and technology industries. As of
March 31, 2007, we had sold our IP tele-communications
systems to approximately 4,500 enterprise customers, including
CNET Networks, Robert Half International and the City of
Oakland, California. Our broad enterprise customer base reflects
our historical strength in the small and medium-sized business
and public institution sectors.
We believe that maintaining the highest possible levels of
customer satisfaction is critical to our ability to retain
existing and gain new enterprise customers. We believe that
satisfied enterprise customers will purchase more of our
products and serve as advocates for our systems, and we work
closely with them as they deploy and use our systems. We follow
every implementation with a formal review with the enterprise
customer that involves contacts with our internal staff and
third-party technical personnel, and take prompt action to
resolve any issues that might have been identified. We also have
frequent follow-up contacts with our enterprise customers to
promptly resolve issues and to ensure that they are fully
satisfied with their system. We also survey enterprise customers
that use technical support services to ensure that high-quality
support services are being provided. Through this process, we
gain valuable insights into the existing and future requirements
of our enterprise customers activities and this helps us
develop product enhancements that address the evolving
requirements of enterprises.
Additionally, to promote high-quality support throughout our
services organization, we measure key performance indicators and
operational metrics of our services organization, including call
answer times, call abandon rates, customer satisfaction with
technical support, time to issue resolution, call interaction
quality, as well as customer satisfaction with system
implementation, training services and technical support, and use
the results to direct the management of our services
organization.
We also monitor our enterprise customers satisfaction with
our channel partners by surveying our enterprise customers after
the system is installed. We actively encourage our channel
partners to maintain and improve our enterprise customers
levels of satisfaction. We also monitor our channel
partners satisfaction with ShoreTel, as their satisfaction
with and advocacy of ShoreTel is also very important to our
success.
Sales and
Marketing
We sell our products and services primarily through an extensive
network of channel partners. As of March 31, 2007, we had
more than 400 channel partners in our network. These channel
partners range in size from single-site, regional firms with
specialized products and services to multi-national firms that
provide a full range of IT products and services. Our channel
partners market and sell our products into both the large
enterprise and
small-to-medium
enterprise markets. We maintain a sales organization that
recruits, qualifies and trains new channel partners,
participates in sales presentations to potential enterprise
customers and assesses customer feedback to assist in developing
product roadmaps. As part of our increased focus on sales to
large accounts, we have also implemented a major accounts
program whereby senior sales executives assist our channel
partners in selling to and providing support for large
enterprise customer accounts. No single channel partner
accounted for 10% or more of our total revenue in fiscal 2006 or
the nine-month period ended March 31, 2007. As of
March 31, 2007, we had 87 personnel in sales and marketing
activities.
We believe our channel partner network allows us to effectively
sell our systems without the need to build large dedicated
in-house sales and service capabilities. We continue to work
with existing channel partners to expand their sales of our
systems and to recruit new channel partners with a focus on
increasing market coverage.
Our internal marketing team focuses on increasing brand
awareness, communicating product advantages and generating
qualified leads for our sales force and channel partners. In
addition to providing marketing materials, we
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communicate product and service offerings through our installed
base and news letters, direct mail campaigns, web postings,
press releases and web-based training.
Research
and Development
We believe that our ability to enhance our current products,
develop and introduce new products on a timely basis, maintain
technological competitiveness and meet enterprise customer
requirements is essential to our success. To this end, we have
assembled a team of engineers with expertise in various fields,
including voice and IP communications, telecommunications
network design, data networking and software engineering. Our
principal research and development activities are conducted in
Sunnyvale, California. We have invested significant time and
financial resources into the development of our architecture,
including our switches and related software. We intend to
continue to expand our product offerings, improve the features
available on our products and integrate our systems with
third-party enterprise applications. As of March 31, 2007,
we had a total of 81 personnel in research and development and
related technical service and support functions. Research and
development expenses were $5.5 million, $7.0 million,
$9.7 million and $11.5 million in fiscal 2004, 2005
and 2006 and the nine-month period ended March 31, 2007,
respectively.
Manufacturing
and Suppliers
We outsource the manufacturing of our hardware products. This
outsourcing allows us to:
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avoid costly capital expenditures for the establishment of
manufacturing operations;
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focus on the design, development, sales and support of our
hardware products; and
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leverage the scale, expertise and purchasing power of
specialized contract manufacturers.
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Currently, we have arrangements for the production of our
switches with Jabil Circuit, Inc., a contract manufacturer in
California, and we have arrangements for the production of our
phones with Giant Electronics Ltd., a contract manufacturer
located in China. Our contract manufacturers provide us with a
range of operational and manufacturing services, including
component procurement and performing final testing and assembly
of our products. We depend on our contract manufacturers to
procure components and to maintain adequate manufacturing
capacity. We typically fulfill product orders out of our
Sunnyvale, California offices.
We regularly provide forecasts for orders, and we order products
from our contract manufacturers based on our projected sales
levels. However, enterprise customers may generally cancel or
reschedule orders without penalty, and delivery schedules
requested by enterprise customers in these orders frequently
vary based upon each enterprise customers particular needs.
We also rely on sole or limited numbers of suppliers for several
key components utilized in the assembly of our products. For
example, our contract manufacturers purchase semiconductors that
are essential to the production of our phones from a single
source supplier, and we have not identified any alternative
suppliers for these components. This reliance is amplified by
the fact that we and our contract manufacturers maintain
relatively low inventories and acquire components only as
needed. As a result, our ability to respond to enterprise
customer orders efficiently may be constrained by the
then-current availability or terms and pricing of these
components. We cannot assure you that we will be able to obtain
a sufficient quantity of these components in a timely manner to
meet the demands of our enterprise customers or that prices of
these components will not increase. These delays or any
disruption of the supply of these components could also
materially and adversely affect our operating results.
Competition
The market for enterprise IP telecommunications systems is
quickly evolving, highly competitive and subject to rapid
technological change. As a result of the convergence of voice
and data networking technologies that
64
characterize IP enterprise telecommunications systems, we
compete with providers of enterprise voice communications
systems, such as:
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Providers of IP systems, including 3Com and Cisco
Systems; and
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Providers of hybrid systems, including Alcatel-Lucent, Avaya,
Inter-Tel, Mitel Networks (which recently announced plans to
acquire Inter-Tel) and Nortel Networks.
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In addition, because the market for our products is subject to
rapid technological change, as the market evolves we may face
competition in the future from companies that do not currently
compete in the enterprise communications market, including
companies that currently compete in other sectors of the
information technology, communications and software industries
or communications companies that serve residential rather than
enterprise customers. In particular, as more enterprises
converge their voice and data networks, the business information
technology and communication applications deployed on converged
networks become more integrated. We may face increased
competition from current leaders in information technology
infrastructure, information technology, personal and business
applications and the software that connects the network
infrastructure to those applications, such as Microsoft. We
could also face competition from new market entrants, whether
from new ventures or from established companies moving into the
market. Competition from these and other potential market
entrants may take many forms, including offering products and
applications similar to those we offer as part of a larger,
bundled offering. In addition, technological developments and
consolidation within the communications industry result in
frequent changes to our group of competitors. Many of our
current and potential competitors are substantially larger than
we are and have significantly greater financial, sales,
marketing, distribution, technical, manufacturing and other
resources.
We believe that we compete favorably with regard to the
principal competitive factors applicable to our products, which
include:
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price of products and services and total cost of ownership;
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system reliability;
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voice quality and product features;
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ease of administration and installation, including system
scalability;
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customer service and technical support;
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relationships with buyers and decision makers and brand
recognition;
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an installed base of similar or related products;
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the ability to integrate various products into an enterprise
customers existing networks, including the ability of a
providers products to interoperate with other
providers communications products; and
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size and financial stability of our operations compared to those
of our competitors.
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For more information concerning competition, please see
Risks Related To Our Business The market in
which we operate is intensely competitive, and many of our
competitors are larger, more established and better capitalized
than we are and As voice and data
networks converge, we are likely to face increased competition
from companies in the information technology, personal and
business applications and software industries.
Intellectual
Property
Our success as a company depends upon our ability to protect our
core technology and intellectual property. To accomplish this,
we rely on a combination of intellectual property rights,
including patents, trade secrets, copyrights and trademarks, as
well as customary contractual protections.
We have three patents issued in the United States, which expire
in 2019, 2023 and 2023, and have eleven patent applications in
the United States. We also have one foreign patent application
relating to one of our U.S. patents. We intend to file
other counterparts for these patents and patent applications in
foreign jurisdictions around the world.
65
ShoreTel, our logo, ShorePhone, ShoreGear and ShoreWare are
registered trademarks of ShoreTel.
The steps we have taken to protect our intellectual property
rights may not be adequate. Third parties may infringe or
misappropriate our intellectual property rights and may
challenge our issued patents. In addition, other parties may
independently develop similar or competing technologies designed
around any patents that are or may be issued to us. We intend to
enforce our intellectual property rights vigorously, and from
time to time, we may initiate claims against third parties that
we believe are infringing on our intellectual property rights if
we are unable to resolve matters satisfactorily through
negotiation. If we fail to protect our proprietary rights
adequately, our competitors could offer similar products,
potentially significantly harming our competitive position and
decreasing our revenue.
Employees
As of March 31, 2007, we had 250 employees in North
America, Europe and Australia, of which 87 were in sales and
marketing, 81 were in engineering, 44 were in Global Support
Services, 24 were in general and administrative functions and 14
were in operations. None of our employees are represented by
labor unions, and we consider current employee relations to be
good.
Facilities
Our headquarters is located in Sunnyvale, California in a
63,781 square foot facility that we lease through
October 2009. We also maintain leased sales offices in
Europe and Australia.
We do not maintain a dedicated warehouse facility for our
inventory, rather we rent space as needed at a
third-party
warehouse. In May 2007, we entered into a lease for a
shipping and receiving facility with warehouse capacity. After
we occupy this facility in July 2007, our inventory is
expected to be kept at our facility and at the third party
facility.
We believe that our current facilities are suitable and adequate
to meet our current needs, and we intend to add new facilities
or expand existing facilities as we add employees. We believe
that suitable additional or substitute space will be available
on commercially reasonable terms as needed to accommodate our
operations.
Legal
Proceedings
We are not a party to any legal proceedings. We could become
involved in litigation from time to time relating to claims
arising out of our ordinary course of business or otherwise.
66
MANAGEMENT
Executive
Officers and Directors
The following table sets forth information about our executive
officers and directors as of May 25, 2007:
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Name
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Age
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Position
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John W. Combs
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59
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Chairman, President and Chief
Executive Officer
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Edwin J. Basart
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58
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Founder, Chief Technology Officer
and Director
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John Finegan
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57
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Vice President, Finance
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Michael E. Healy
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45
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Chief Financial Officer
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Pedro E. Rump
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51
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Vice President, Engineering and
Operations
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Stephen G. Timmerman
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48
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Vice President, Marketing
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Joseph A. Vitalone
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45
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Vice President, Sales
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Walter Weisner
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51
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Vice President, Global Support
Services
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Mark F. Bregman(3)
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49
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Director
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Gary J. Daichendt(2)(3)
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55
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Director
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Kenneth D. Denman(1)(2)
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48
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Director
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Charles D. Kissner*(1)(3)
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59
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Director
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Thomas van Overbeek(2)
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57
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Director
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Edward F. Thompson(1)
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68
|
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Director
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*
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Lead independent director.
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(1)
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Member of our audit committee.
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(2)
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Member of our compensation committee.
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(3)
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Member of our corporate governance and nominating committee.
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John W. Combs
has served as our President and Chief
Executive Officer and as a director since July 2004 and as our
Chairman since February 2007. From July 2002 to May 2004,
Mr. Combs served as Chairman and Chief Executive Officer of
Littlefeet Inc., a wireless infrastructure supplier. From
September 1999 to July 2002, Mr. Combs served as Chief
Executive Officer of InternetConnect Inc., a broadband
networking solutions provider. Mr. Combs has also held
senior management positions at Nextel Communications, Inc., a
wireless digital communications system provider, L.A. Cellular,
a wireless network operator, Mitel Inc., a manufacturer of
private branch exchanges and Fujitsu Business Communication
Systems, Inc., a provider of telecommunications products.
Mr. Combs holds a B.S. in engineering from California
Polytechnic State University, San Luis Obispo.
Edwin J. Basart
co-founded ShoreTel in 1996 and has
served as our Chief Technology Officer and as a director since
inception. Prior to co-founding ShoreTel, Mr. Basart
co-founded Network Computing Devices, Inc., a provider of thin
client computing hardware and software, where he served as Vice
President of Engineering, and Ridge Computers, Inc. where he
served as Vice President of Software. Mr. Basart began his
career as a software engineer at Hewlett Packard.
Mr. Basart holds a B.S. in English from Iowa State
University and an M.S. in electrical engineering from Stanford
University.
John Finegan
has served as our Vice President of Finance
since May 2007. From April 2003 to May 2007, Mr. Finegan
served as our Chief Financial Officer. From July 1989 to March
2003, Mr. Finegan served as Chief Financial Officer of
ActionPoint, Inc. (previously named Cornerstone Imaging, Inc.),
an enterprise software company that later merged with Captiva
Software Corporation. Prior to joining Cornerstone Imaging,
Mr. Finegan served as Vice President of Finance and
Administration of Faraday Electronics Inc., a fabless
semiconductor company, and held senior management positions at
ECS Microsystems Inc., a computer terminal company and Beckman
Instruments Inc., a scientific instruments company.
Mr. Finegan holds a B.S. in engineering from Tufts
University and an M.B.A. from the University of Massachusetts.
67
Michael E. Healy
has served as our Chief Financial
Officer since May 2007. From February 2004 to May 2007, he
served as Chief Financial Officer and Senior Vice President of
Finance of Genesis Microchip Inc., a supplier of display image
processors. From November 2002 to February 2004, Mr. Healy
served as Chief Financial Officer of Jamcracker, Inc., a
software and application service provider. From September 1997
to June 2002, Mr. Healy held senior level finance positions
at Exodus Communications, Inc., an Internet infrastructure
outsourcing services provider (Exodus Communications sold
substantially all of its assets in January 2002 and changed its
name to EXDS, Inc. in February 2002), including as Senior Vice
President of Finance prior to February 2002, and as its Chief
Financial Officer and Corporate Treasurer from February 2002 to
June 2002. From 1987 to 1997, Mr. Healy held various
financial management positions at Apple Computer, Inc., and was
an auditor at Deloitte & Touche LLP from 1983 to 1987.
Mr. Healy holds a B.S. in accounting from Santa Clara
University and is a Certified Public Accountant. Mr. Healy
is a member of the American Institute of Certified Public
Accountants and the California Society of Certified Public
Accountants.
Pedro E. Rump
has served as our Vice President of
Engineering and Operations since January 2006. From July 2004 to
January 2006, Mr. Rump served as Vice President of
Engineering and Operations at Dust Networks, Inc., a developer
of embedded wireless sensor networking products. From January
2004 to July 2004, Mr. Rump served as Vice President of
Engineering at Sonim Technologies, Inc., a provider of voice
over IP applications. From January 2003 to January 2004,
Mr. Rump served as Vice President of Engineering at
Littlefeet Inc. From January 2002 to October 2002, Mr. Rump
served as Vice President of Inviso, a developer of signal
transport and display solutions for television and
telecommunications. Mr. Rump holds a B.S. and M.S. in
electrical engineering from the Swiss Federal Institute of
Technology.
Stephen G. Timmerman
has served as our Vice President of
Marketing since January 2005. From February 2004 to December
2004, Mr. Timmerman was an independent marketing and
business consultant. From February 2003 to January 2004, he
served as Vice President for Bermai, Inc., a provider of
chipsets for wireless applications. From February 2002 to
November 2002, Mr. Timmerman served as Vice President of
Marketing for Proxim Wireless Corporation, a developer of
broadband wireless networking systems. Prior to joining Proxim,
Mr. Timmerman held management positions at Octel
Communications Corporation, a supplier of voicemail systems, and
at McKinsey & Company, a consulting firm.
Mr. Timmerman holds a B.S. in mechanical and aerospace
engineering from Princeton University and an M.B.A. from Harvard
University.
Joseph A. Vitalone
has served as our Vice President of
Sales since October 2005. From February 2003 to October 2005,
Mr. Vitalone served as Vice President of Worldwide Sales
for CoVI Technologies, Inc., a provider of digital surveillance
solutions. From June 2001 to July 2003, Mr. Vitalone served
as Senior Vice President of Sales for Wire One Communications,
Inc., a video conferencing solutions provider. Prior to joining
Wire One Communications, Mr. Vitalone served as Vice
President of Sales for Polycom, Inc., a provider of broadband
communications solutions, and held sales positions at ViaVideo
Communications, Inc., a developer of group video communications
systems, Mitel, PictureTel Corporation, a video conferencing
solutions provider, Siemens A.G., and AT&T Wireless
Services, Inc. Mr. Vitalone holds a B.A. in business and
public relations from Western Kentucky University.
Walter Weisner
has served as our Vice President of Global
Support Services since July 2005. From April 2002 to June 2005,
Mr. Weisner served as Vice President, Global Support
Services for Webex Communications, Inc., a web communications
services provider. From October 1999 to March 2002,
Mr. Weisner served as Executive Vice President of
Operations and Support for InternetConnect. Prior to joining
InternetConnect, Mr. Weisner served as Senior Director of
Customer Operations and Support for Nextel Communications,
Southwest region, and also held positions in product management
and product development with Nextel. Mr. Weisner holds a
B.A. in business administration from Cleveland State University.
Mark F. Bregman
has served as a director of ShoreTel
since May 2007. Dr. Bregman has served as Executive Vice
President and Chief Technology Officer of Symantec Corporation,
an infrastructure software company, since it acquired VERITAS
Software Corporation, a provider of software and services to
enable storage and backup, in July 2005. Prior to the
acquisition of VERITAS Software, Dr. Bregman served as that
companys Executive Vice President, Chief Technology
Officer and acting manager of the Application and Service
Management Group from September 2004 to July 2005, and as its
Executive Vice President, Product Operations from February 2002
to
68
September 2004. From August 2000 to October 2001,
Dr. Bregman served as the Chief Executive Officer of
AirMedia, Inc., a wireless Internet company. Prior to joining
AirMedia, Dr. Bregman served a
16-year
career with International Business Machines Corporation, most
recently as general manager of IBMs RS/6000 and pervasive
computing divisions from 1995 to August 2000. Dr. Bregman
holds a B.S. in physics from Harvard College and a Ph.D. in
physics from Columbia University.
Gary J. Daichendt
has served as a director of ShoreTel
since April 2007. Mr. Daichendt has been principally occupied as
a private investor since June 2005 and has been a managing
member of TheoryR Properties LLC, a commercial real estate firm,
since October 2002. He served as President and Chief Operating
Officer of Nortel Networks Corporation, a supplier of
communication equipment, from March 2005 to June 2005. Prior to
joining Nortel Networks, from 1994 until his retirement in
December 2000, Mr. Daichendt served in a number of
positions at Cisco Systems, Inc., a manufacturer of
communications and information technology networking products,
including most recently as Executive Vice President, Worldwide
Operations from August 1998 to December 2000, and as Senior Vice
President, Worldwide Operations from September 1996 to August
1998. Mr. Daichendt is a member of the board of directors
of NCR Corporation. Mr. Daichendt holds a B.A. in
mathematics from Youngstown State University and M.S. in
mathematics from The Ohio State University.
Kenneth D. Denman
has served as a director of ShoreTel
since May 2007. Mr. Denman has served as Chairman of iPass,
Inc. a platform-based enterprise mobility services company since
January 2003, as director since December 2001 and as President
and Chief Executive Officer since October 2001. From January
2000 to March 2001, Mr. Denman served as President and
Chief Executive Officer of AuraServ Communications Inc., a
managed service provider of broadband voice and data
applications that ceased operations in March 2001. From August
1998 to May 2000, Mr. Denman served as Senior Vice
President, National Markets Group of MediaOne, Inc., a broadband
cable and communications company. From June 1996 to August 1998,
Mr. Denman served as Chief Operating Officer, Wireless, at
MediaOne International, a broadband and wireless company.
Mr. Denman also serves on the board of Openwave Systems,
Inc., a provider of open standards software products and
services for the telecommunications industry. Mr. Denman
holds a B.S. in accounting from Central Washington University
and an M.B.A. in finance and international business from the
University of Washington.
Charles D. Kissner
has served as our lead independent
director since April 2007 and as a director of ShoreTel since
April 2006. Mr. Kissner is Chairman of Harris Stratex
Networks, Inc., formerly Stratex Networks, a provider of
wireless transmission systems. He previously served as Chairman
of Stratex Networks from July 1995 to January 2007 and as its
President and Chief Executive Officer from July 1995 to May 2000
as well as from October 2001 to May 2006. Prior to joining
Stratex Networks, Mr. Kissner served as Vice President and
General Manager of M/A-Com, Inc., a manufacturer of radio and
microwave communications products, as Executive Vice President
of Fujitsu Network Switching of America, Inc., a switch
manufacturer and as President and Chief Executive Officer of
Aristacom International, Inc., a provider of computer/telephony
integration solutions. Mr. Kissner also previously held
several executive positions at AT&T for over thirteen
years. He also serves on the board of directors of SonicWALL,
Inc., a provider of Internet security products. Mr. Kissner
is a member of the Advisory Board of Santa Clara
Universitys Leavey School of Business and holds a B.S. in
industrial management and engineering from California State
Polytechnic University and an M.B.A. from Santa Clara
University.
Thomas van Overbeek
has served as a director of ShoreTel
since February 2002. Mr. van Overbeek served as Chief
Executive Officer and President of ShoreTel from February 2002
until he retired in July 2004. He also served as a consultant to
ShoreTel from December 2001 to February 2002. Prior to joining
ShoreTel, Mr. van Overbeek served as President and Chief
Executive Officer of WavTrace Inc., a developer of broadband
wireless technology. Prior to joining WavTrace, Mr. van
Overbeek served as President and Chief Executive Officer of
Cornerstone Imaging.
Edward F. Thompson
has served as a director of ShoreTel
since January 2006. Mr. Thompson has served as a senior
advisor to Fujitsu Limited and as a director of several Fujitsu
subsidiaries or portfolio companies since 1995. From 1976
to 1994, Mr. Thompson held a series of management positions
with Amdahl Corporation including Chief Financial Officer and
Secretary from August 1983 to June 1994, and Chief Executive
Officer of Amdahl Capital Corporation from October 1985 to
June 1994. Mr. Thompson is a member of the board of
directors of Harris Stratex Networks, Inc. (formerly
Stratex Networks) and SonicWALL Inc., and also serves as
69
audit committee chair of those companies. He is also a member of
the Advisory Board of Santa Clara Universitys Leavey
School of Business. Mr. Thompson holds a B.S. in
aeronautical engineering from the University of Illinois, and an
M.B.A. with an emphasis in operations research from Santa Clara
University.
There are no family relationships between any of our directors
or executive officers.
Board
Composition
Our board currently consists of eight members. Each director is
elected at a meeting of stockholders and serves until our next
annual meeting or until his successor is duly elected and
qualified or until his earlier death, resignation or removal.
Any vacancy on our board, except for a vacancy created by the
removal of a director without cause, shall be filled by a person
selected by a majority of the remaining directors then in
office, or by a sole remaining director, unless the board of
directors determines that the particular vacancy will be filled
by the vote of the stockholders. Pursuant to a voting agreement
among us and our stockholders, certain of our investors have the
right to designate representatives to serve on our board of
directors, although none of our current directors is a designee
of those stockholders. Upon the completion of this offering,
this voting agreement will terminate, and no stockholders will
have any contractual rights with us regarding the election of
our directors.
Effective upon the completion of this offering, our board of
directors will be divided into three classes of directors who
will serve in staggered three-year terms. Our directors will be
assigned to a class prior to the completion of this offering.
Effective upon completion of this offering, our certificate of
incorporation will provide that the authorized number of
directors may be changed only by resolution of the board of
directors. Any additional directorships resulting from an
increase in the number of directors will be distributed among
the three classes with three-year terms so that, as nearly as
possible, each class will consist of one-third of the directors.
At each annual meeting of stockholders, the successors to
directors whose terms then expire will be elected to serve from
the time of election and qualification until the third annual
meeting following election. As a result, only one class of
directors will be elected at each annual meeting of our
stockholders, with the other classes continuing for the
remainder of their respective three-year terms. The division of
our board of directors into these three classes may delay or
prevent a change of our management or a change in control. See
Description of Capital Stock Anti-takeover
Provisions.
Director
Independence
Upon the completion of this offering, our common stock will be
listed on the NASDAQ Global Market. The rules of the NASDAQ
Stock Market require that a majority of the members of our board
of directors be independent within specified periods following
the completion of this offering. Prior to completion of this
offering, we expect our board of directors will adopt the
definitions, standards and exceptions to the standards for
evaluating director independence provided in the NASDAQ Stock
Market rules, and determine that Mark F. Bregman, Gary J.
Daichendt, Kenneth D. Denman, Charles D. Kissner and Edward F.
Thompson are independent directors as defined under
the rules of the NASDAQ Stock Market. We expect that Mr. van
Overbeek will qualify as an independent director in July 2007
after three years have passed since he was employed as our
President and Chief Executive Officer. In April 2007, our board
of directors designated Mr. Kissner as our lead independent
director.
Board
Committees
Our board of directors has an audit committee, a compensation
committee and a governance and nominating committee. The
composition and responsibilities of each committee are described
below. Members serve on these committees until their resignation
or until otherwise determined by our board.
Audit
Committee
Our audit committee oversees our corporate accounting and
financial reporting process. Among other matters, the audit
committee:
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evaluates the qualifications, independence and performance of
our independent registered public accounting firm;
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70
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determines the engagement of our independent registered public
accounting firm and reviews and approves the scope of the annual
audit and the audit fee;
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discusses with management and our independent registered public
accounting firm the results of the annual audit and the review
of our quarterly financial statements;
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approves the retention of our independent registered public
accounting firm to perform any proposed permissible non-audit
services;
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monitors the rotation of partners of our independent registered
public accounting firm on our engagement team as required by law;
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reviews our critical accounting policies and estimates; and
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annually reviews the audit committee charter and the
committees performance.
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Our audit committee currently consists of Kenneth D. Denman,
Charles D. Kissner and Edward F. Thompson. Upon the completion
of this offering, our audit committee is expected to consist of
three members of our board of directors, each of whom will then
meet the requirements for financial literacy under the
applicable rules and regulations of the SEC and the NASDAQ Stock
Market and will then meet the criteria for independence under
the applicable regulations of the SEC and under the applicable
rules of the NASDAQ Stock Market. At least one of these
individuals will be a financial expert as defined under the
applicable rules of the SEC and therefore will have the
requisite financial sophistication required under the applicable
rules and regulations of the NASDAQ Stock Market. The audit
committee operates under a written charter that satisfies the
applicable standards of the SEC and the NASDAQ Stock Market.
Compensation
Committee
Our compensation committee currently consists of Gary J.
Daichendt, Kenneth D. Denman and Thomas van Overbeek. Our
compensation committee reviews and recommends policy relating to
compensation and benefits of our officers and employees. The
compensation committee reviews and approves corporate goals and
objectives relevant to compensation of our chief executive
officer and other executive officers, evaluates the performance
of these officers in light of those goals and objectives and
sets the compensation of these officers based on such
evaluations. The compensation committee also administers the
issuance of stock options and other awards under our equity
award plans. The compensation committee will review and
evaluate, at least annually, the performance of the compensation
committee and its members, including compliance of the
compensation committee with its charter. Upon the completion of
this offering, our compensation committee is expected to consist
of at least two members of our board of directors, each of whom
will meet the criteria for independence and be an outside
director under the applicable rules and regulations of the
NASDAQ Stock Market and the Internal Revenue Service,
respectively.
Governance
and Nominating Committee
Our governance and nominating committee currently consists of
Mark F. Bregman, Gary J. Daichendt and Charles D.
Kissner. Our governance and nominating committee makes
recommendations to the board of directors regarding candidates
for directorships and the size and composition of the board of
directors and its committees. In addition, the governance
and nominating committee oversees our corporate governance
guidelines and reporting and makes recommendations to the board
of directors concerning governance matters. Upon the completion
of this offering, our governance and nominating committee is
expected to consist of at least two members of our board of
directors, each of whom will then meet the criteria for
independence under the applicable rules of the NASDAQ Stock
Market.
Compensation
Committee Interlocks and Insider Participation
During our 2006 fiscal year, our compensation committee
consisted of Seth D. Neiman, a former director, and Thomas van
Overbeek. None of the members of the compensation committee has
at any time during the last fiscal year ever been an officer or
employee of our company or any of its subsidiaries, and none
have had any relationships with our company of the type that is
required to be disclosed under Item 404 of
Regulation S-K.
None of our
71
executive officers has served as a member of the board of
directors, or as a member of the compensation or similar
committee, of any entity that has one or more executive officers
who served on our board of directors or compensation committee
during our 2006 fiscal year.
Director
Compensation
The following table provides information for our fiscal year
ended June 30, 2006 regarding all plan and non-plan
compensation awarded to, earned by or paid to each person who
served as a non-employee director for some portion or all of
fiscal 2006. Other than as set forth in the table and the
narrative that follows it, to date we have not paid any fees to
or reimbursed any expenses of our directors, made any equity or
non-equity awards to directors, or paid any other compensation
to directors.
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Fees Earned
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Non-Equity
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or Paid
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Option
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Incentive Plan
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All Other
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Name
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in Cash
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Awards(1)
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Compensation
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Compensation
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Total
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Edwin J. Basart
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John W. Combs
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Charles D. Kissner
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(2)
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Thomas van Overbeek
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Edward F. Thompson
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(3)
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(1)
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Under the SFAS 123(R) modified prospective transition
method, we did not record any amounts in our consolidated
financial statements for fiscal 2006 with respect to these
awards.
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(2)
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As of June 30, 2006, Mr. Kissner held an immediately
exercisable stock option to purchase 500,000 shares of our
common stock, with an exercise price of $0.10 per share, that
was granted during fiscal 2006, which option vests as to 25% of
the shares in April 2007 and as to 1/48 of the shares each month
over three years thereafter.
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(3)
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As of June 30, 2006, Mr. Thompson held
500,000 shares of our common stock issued upon early
exercise of a stock option, with an exercise price of $0.08 per
share, that was granted during fiscal 2006, which shares vest as
to 25% of the shares in January 2007 and as to 1/48 of the
shares each month over three years thereafter.
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Following the completion of this offering, we intend to
compensate independent directors with a combination of cash and
equity.
Cash Compensation.
Each independent director
will receive an annual retainer of $35,000. In addition, each
independent director who is not a committee chair will receive
an annual retainer for each standing committee of our board of
directors on which he serves equal to $3,000, or $5,000 in the
case of audit committee service. Our lead independent director
will receive an additional annual retainer of $10,000 per year
for his service in that capacity, and each chair of a standing
committee of our board of directors will receive an annual
retainer of $5,000 , or $10,000 in the case of the audit
committee chair, for his service in that capacity.
In general, we do not pay fees to independent directors for
attendance at meetings of our board of directors and its
committees. In extraordinary and limited circumstances, we may
pay a fee $500 for each telephonic meeting and $1,000 for each
in-person meeting so long as two-thirds of the directors in
attendance and not abstaining approve the payment thereof,
assuming a quorum is present at the meeting.
Option Grants.
Each independent director who
becomes a member of our board of directors after this offering
will be granted an initial option to purchase
500,000 shares of our common stock upon appointment or
election to our board of directors. An additional option to
purchase shares of common stock will be granted to each
independent director on the fourth anniversary of the date on
which he commenced serving on our board of directors or the date
of this prospectus, whichever is later, and on each anniversary
thereafter, provided he has served continuously as a member of
our board of directors through the four-year or one-year period,
as the case may be. Although we expect to grant options to
purchase 52,000 shares in connection with the first
four-year anniversary option grant, this number may change in
the future based on market conditions and compensatory standards
in our industry at the time of grant. Each option granted to an
independent director will have a ten-year term and terminate
three months following the date the director ceases to be one of
our directors, or 12 months afterwards if termination is
due to death or disability. Each initial option grant vests and
becomes exercisable as to 1/48th of the shares each
72
month after the grant date over four years. Each four-year
anniversary option grant and subsequent annual grant vests as to
1/12
th
of the shares each month after the grant date over one year. The
vesting of stock options granted to our independent directors
will accelerate in full in connection with a change of control
of ShoreTel. In addition, independent directors are eligible to
receive discretionary awards under the 2007 equity incentive
plan. In connection with Mr. Daichendts appointment
as a member of our board of directors in April 2007 and Dr.
Bregmans and Mr. Denmans appointment as members of
our board of directors in May 2007, we granted each of them an
option to purchase 500,000 shares of our common stock, with
an exercise price equal to $1.13 per share for Mr.
Daichendts grant and $1.14 per share for Dr.
Bregmans and Mr. Denmans grants, which shares vest
and become exercisable as to
1/48
th
of the shares each month after the grant date over four years.
Thomas van Overbeek served as our Chief Executive Officer from
February 2002 until he retired in July 2004. He has continued to
serve on our board of directors since that time. Mr. van
Overbeek received salary, bonuses and stock options in his
capacity as Chief Executive Officer. In July 2004, we entered
into a separation agreement with Mr. van Overbeek that
provides for the continued vesting of his outstanding stock
options and other equity so long as he continues to serve on our
board of directors. While Mr. van Overbeek was employed as our
Chief Executive Officer, he was granted stock options to
purchase a total of 13,596,299 shares of our common stock under
our 1997 stock option plan, with a weighted average exercise
price of $0.04 per share, of which options to purchase
13,440,049 shares are currently outstanding and options to
purchase 52,083 shares are exercisable. In addition, the
separation agreement provides that we will use commercially
reasonable efforts to continue his health coverage as an active
employee under our group health plan so long as Mr. van
Overbeek continues to serve on the board of directors, and if we
are unable to do so, that we will reimburse COBRA premiums for
Mr. van Overbeek and his spouse.
73
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
Our executive compensation program is designed to attract, as
needed, individuals with the skills necessary for us to achieve
our business plan, to reward those individuals fairly over time,
to retain those individuals who continue to perform at or above
the levels that we expect and to closely align the compensation
of those individuals with the performance of our company on both
a short-term and long-term basis. To that end, our executive
officers compensation has three primary
components base compensation or salary, cash
performance bonuses and stock option awards. In addition, we
provide our executive officers a variety of benefits that in
most cases are available generally to all salaried employees.
General.
We view the components of
compensation as related but distinct. Although our compensation
committee reviews total compensation of our executive officers,
we do not believe that significant compensation derived from one
component of compensation should negate or reduce compensation
from other components. We determine the appropriate level for
each compensation component based in part, but not exclusively,
on competitive benchmarking consistent with our recruiting and
retention goals, our view of internal equity and consistency,
overall company performance and other considerations we deem
relevant. To this end, we review executive compensation surveys
of high technology companies located in the Silicon Valley area
when making a crucial executive officer hiring decision and
annually when we review executive compensation. Except as
described below, our compensation committee has not adopted any
formal or informal policies or guidelines for allocating
compensation between long-term and currently paid out
compensation, between cash and non-cash compensation or among
different forms of non-cash compensation. However, our
philosophy is to make a greater percentage of an employees
compensation performance-based and to keep cash compensation to
a competitive level while providing the opportunity to be well
rewarded through equity if the company performs well over time.
We also believe that for technology companies stock-based
compensation is the primary motivator in attracting employees,
rather than base salary or cash bonuses.
Our current intent is to perform at least annually a strategic
review of our executive officers overall compensation
packages to determine whether they provide adequate incentives
and motivation and whether they adequately compensate our
executive officers relative to comparable officers in other
companies with which we compete for executives. The most recent
overall compensation review occurred in October 2006. Board
meetings typically have included, for all or a portion of each
meeting, not only the compensation committee and board members
but also our chief executive officer. For compensation
decisions, including decisions regarding the grant of equity
compensation, relating to executive officers other than to our
chief executive officer, the board considers recommendations
from the compensation committee and also typically considers
recommendations from the chief executive officer.
At its October 2006 meeting, our board decided to set executive
officers total overall cash compensation at a level that
was at or near the
50
th
to
60
th
percentile
of salaries of executives with similar roles at comparable
pre-public companies, with incentive compensation targeted at
the
50
th
to
60
th
percentile
and base salary targeted at the
45
th
to
50
th
percentile.
Equity compensation was also targeted at the
50
th
percentile
of comparable companies. These allocations were consistent with
our goal of attracting and retaining superior employees, while
also aligning their interests with our performance. We realize
that using a benchmark may not always be appropriate but believe
that it is the best alternative at this point in the life cycle
of our company. In instances where an executive officer is
uniquely key to our success, our board may provide compensation
in excess of these percentiles. Our boards judgments with
regard to market levels of base compensation and aggregate
equity holdings were based on reports from an independent
consultant specializing in executive compensation, which was
engaged by our board to assist in the adjustment of the
compensation to our executives. The report compared our
executive compensation with the executive compensation at a
number of similarly situated private companies. Our choice of
the foregoing percentiles to apply to the data in the report
reflected consideration of our stockholders interests in
paying what was necessary, but not significantly more than
necessary, to achieve our corporate goals, while conserving cash
and equity as much as practicable. At its October 2006 meeting,
based on these benchmarks, our compensation committee
recommended and our board of directors subsequently approved
salary increases and additional option
74
grants to our executive officers. The numbers of shares subject
to the options granted in October 2006 to these officers are
reflected in the 2006 Grants of Plan-Based Awards
table below.
We account for equity compensation paid to our employees under
SFAS 123(R), which requires us to estimate and record an
expense over the service period of the award. Our cash
compensation is recorded as an expense at the time the
obligation is accrued. We receive a tax deduction for the
compensation expense. We structure cash bonus compensation so
that it is taxable to our executives at the time it becomes
available to them. We currently intend that all cash
compensation paid will be tax deductible for us. However, with
respect to equity compensation awards, while any gain recognized
by employees from nonqualified options granted at fair market
value should be deductible, to the extent that an option
constitutes an incentive stock option gain recognized by the
optionee will not be deductible if there is no disqualifying
disposition by the optionee. In addition, if we grant restricted
stock or restricted stock unit awards that are not subject to
performance vesting, they may not be fully deductible by us at
the time the award is otherwise taxable to employees.
Base compensation.
The salaries of
Messrs. Combs, Finegan, Weisner, Basart and Vitalone were
set at $275,000, $200,000, $225,000, $200,000 and $200,000 for
the fiscal year ended June 30, 2006. These were established
as part of our normal annual salary review process and reflect
our compensation committees review of the compensation
levels of similar positions at comparable companies. The
compensation committee increased the base salary of John Combs
effective in April 2006 to $325,000 per year, due to our
achieving positive cash flow, as specified under the terms of
his offer letter from July 2004.
Our board of directors approved, effective February 1,
2007, increases to the annual base salaries of our employees,
including our named executive officers, which generally ranged
from 3% to 5%. In addition, on April 13, 2007,
Mr. Basarts annual base salary was raised from
$206,000 to $216,000.
Cash bonuses.
We utilize cash bonuses to
reward performance achievements. Bonus targets are established
every six months and are paid following each six month period.
These bonus targets are determined by our compensation committee
as a percentage of each executive officers base salary.
Our board also determines the performance measures and other
terms and conditions of these cash bonuses for executive
officers. For fiscal 2006, the bonus target for our chief
executive officer was 65% of his base salary, as provided in his
employment offer letter. The target bonus is 45% of base salary
for other executive officers. The bonus targets for each
executive officer is a pre-determined percentage of base salary
that is intended to provide a competitive level of compensation
if the executive officer achieves his or her performance
objectives as approved by our compensation committee. The bonus
criteria consist of: (1) company targets, which consist of
50% weighting for revenue, 25% weighting for profitability and
25% weighting for overall customer satisfaction,
(2) individual targets established by our chief executive
officer for the particular employee, and (3) a multiplier
ranging from 0 to 1.5 based on the executives overall
performance rating. The actual bonus award is determined
according to our companys and each executive
officers level of achievement against these performance
objectives. If the company objectives are within a specified
range, from 50% to 150% of the particular target could be
payable to the executives. The bonus for fiscal 2006 for our
chief executive officer was based on the boards review of
company performance targets, consisting of revenue,
profitability, customer satisfaction and its assessment of his
performance. In fiscal 2006 and in the first half of fiscal
2007, the individual performance targets of executives who
performed sales functions were based at least in part on an
individualized sales commission plan that is directly related to
the amount of products sold and that persons role in the
sale, although all executive officer bonuses are currently
determined under the criteria described above. The compensation
committee chose revenue and profitability level because it
believed that, as a growth company, we should reward
revenue growth, but only if that revenue growth is achieved cost
effectively. Customer satisfaction was also selected as a
company target because of our belief that customer satisfaction
is critical to the success of our business. The performance
level multiplier was added based on our belief that employees
that might otherwise reach various targets, may be contributing
or not contributing to the overall success of our company in a
manner that promotes the long-term growth and success of our
company. Thus, we considered the chosen metrics to be the best
indicators of financial success and stockholder value creation.
We do not have a formal policy regarding adjustment or recovery
of awards or payments if the relevant performance measures upon
which they are based are restated or otherwise adjusted in a
manner that would reduce the size of the award or payment.
75
For fiscal 2006, Messrs. Combs, Finegan, Weisner, Basart
and Vitalone earned bonuses equal to $188,162, $55,000, $80,000,
$65,000 and $60,000, respectively. These were paid in August
2006 as a result of having achieved, and in some cases exceeded,
the bonus targets specified for the second six months of fiscal
2006. In addition, Mr. Vitalone earned sales commissions of
$74,767 during fiscal year 2006. No bonuses were paid to the
named executive officers with respect to the first half of 2006,
as the performance targets were not met.
Our board of directors approved bonus plans for the first and
last six months of fiscal 2007 in October 2006 and December
2006, respectively. These target bonuses are based on the
overall metrics and formulas used for fiscal 2006, with
adjustments in the target company financial performance goals to
reflect our growth. The bonus target for our chief executive
officer is 75% of base salary, pursuant to the terms of his
employment offer letter, and the target bonuses remain at 45% of
base salary for our other executive officers. For the first half
of fiscal 2007, Messrs. Combs, Finegan, Weisner and Basart
earned bonuses equal to $126,000, $50,000, $65,000 and $50,000,
respectively as a result of having achieved, and in some cases
exceeded, the bonus targets specified for the first six months
of fiscal 2007. Bonuses for executive officers other than
Mr. Combs were paid in March 2007. Mr. Combs
bonus is expected to be paid before the completion of this
offering. In addition, Mr. Vitalone earned sales
commissions of $53,400 during the first half of fiscal year
2007. In April 2007, our board of directors approved changes to
Mr. Vitalones bonus arrangement, effective for the
second half of fiscal 2007. Under his new arrangement, his
annual bonus target was raised from $100,000 to $140,000 and any
bonus he receives will be earned through his participation under
our bonus plan for the second half of fiscal 2007, rather than
from the achievement of individualized sales commission
performance goals.
In addition, our former chief financial officer is entitled to a
performance bonus that provides for a payout at the 150% level
under the bonus plan for the second half of fiscal 2007 so long
as he remains employed with our company at June 30, 2007
and has met his performance goals. He will also be entitled to
receive a similar bonus if he is employed by us at
December 31, 2007.
Stock options and equity awards.
We utilize
stock options to ensure that our executive officers have a
continuing stake in our long-term success. Because our executive
officers are awarded stock options with an exercise price equal
to the fair market value of our common stock on the date of
grant, the determination of which is discussed below, these
options will have value to our executive officers only if the
market price of our common stock increases after the date of
grant. Typically, our stock options vest at a rate of 25% of the
shares subject to the option on the first anniversary of the
grant date, and with respect to approximately 2.1% of the shares
each month thereafter. The stock options that we have granted
under our 1997 stock option plan to executive officers may be
exercised by the recipient at any time, however, any shares
purchased are subject to a lapsing right of repurchase in our
favor. This repurchase right lapses on the same schedule as the
vesting of the option.
Authority to make stock option grants to executive officers has
historically rested with our board of directors, and we expect
our board of directors will delegate that authority to our
compensation committee in the future. In determining the size of
stock option grants to executive officers, our board of
directors considers our performance against the strategic plan,
individual performance against the individuals objectives,
comparative share ownership data from compensation surveys of
high technology companies in our area, the extent to which
shares subject to previously granted options are vested and the
recommendations of our chief executive officer and other members
of management.
In the first half of fiscal 2006, our board of directors based
its determination of the value of our common stock on its
assessment of our financial performance and prospects and the
likelihood of a liquidity event. Since the likelihood of an
initial public offering of our common stock was remote during
this period, our board of directors heavily weighted the value
of the liquidation preferences and participation rights of the
shares of our preferred stock in its assessment, and discounted
the per share value it determined based on its assessment of the
lack of marketability of our common stock. Since January 2006,
our board of directors determined the value of our common stock
based on the methodologies and other relevant factors discussed
under Managements Discussion and Analysis of
Financial Condition and Results of Operations
Critical Accounting Policies and Estimates Valuation
of Common Stock.
We do not have any program, plan or obligation that requires us
to grant equity compensation on specified dates and, because we
have not been a public company, we have not made equity grants
in connection with the
76
release or withholding of material non-public information.
However, we intend to implement policies to ensure that equity
awards are granted at fair market value on the date that the
grant action occurs.
During fiscal 2006, we granted to Mr. Weisner a stock option to
purchase 1,800,000 shares of common stock in connection
with his joining our company in April 2005. We believed that
this grant was consistent with our overall approach of remaining
competitive in the marketplace, and was also necessary in order
to retain the services of Mr. Weisner. We also made an
additional grant of 200,000 shares of our common stock to
Mr. Weisner in January 2006, in order to reward him
commensurate with his contribution to the company. We also
granted an option to purchase 2,655,000 shares of our
common stock to Mr. Vitalone. The size of the grant to
Mr. Vitalone was determined pursuant to the offer letter we
negotiated with him in October 2005 when he joined our company.
We believed that this grant was consistent with our overall
approach of remaining competitive in the marketplace, and was
also necessary in order to retain the services of
Mr. Vitalone.
In October 2006, we granted Mr. Weisner an option to
purchase 400,000 shares of common stock, Mr. Basart an
option to purchase 450,000 shares of common stock, and
Mr. Vitalone an option to purchase 500,000 shares of
common stock, each at an exercise price of $0.32 per share. In
April 2007, we granted Mr. Basart a stock option to
purchase 500,000 shares and Mr. Vitalone a stock
option to purchase 400,000 shares, each at an exercise
price equal to $1.13 per share. Each of these stock options
vests as to 50% of the shares on the two-year anniversary of the
date of grant, and as to 1/24th of the shares each month over
the following two years. Each of the stock options granted in
October 2006 is immediately exercisable in full; however, any
unvested shares issued upon exercise will be a subject to a
right of repurchase by us upon termination of employment, which
right lapses in accordance with the vesting schedule described
above. Each of the stock options granted in April 2007 become
exercisable as they vest. These grants were made by our board of
directors as part of our process of reviewing the equity
positions of our employees, and the board determined that, in
light of the individuals performances, equity ownership
and level of vesting, it was appropriate to provide additional
incentive for each of these personnel, particularly in order to
retain these individuals through and following the initial
public offering process, and to incentivize them to help our
company achieve the growth targets it has set.
In general, our stock option grants through January 2007 were
made under our 1997 stock option plan. In February 2007, we
adopted a new equity incentive plan and a new employee stock
purchase plan. The 2007 equity incentive plan replaces our 1997
stock option plan and affords greater flexibility in making a
wide variety of equity awards, including stock options, shares
of restricted stock and stock appreciation rights, to executive
officers and our other employees. The 2007 employee stock
purchase plan will enable eligible employees to periodically
purchase shares of our common stock at a discount during periods
following this offering. Participation in the 2007 employee
stock purchase plan will be available to all executive officers
following this offering on the same basis as our other
employees. See Executive Compensation Equity
Incentive Plans for further descriptions of our 1997 stock
option plan, 2007 equity incentive plan and 2007 employee stock
purchase plan.
Other than the equity plans described above, we do not have any
equity security ownership guidelines or requirements for our
executive officers.
Severance and change of control payments.
Each
of our named executive officers (as defined in the Summary
Compensation Table below) is entitled to receive acceleration of
vesting of stock options in amounts ranging from
12 months vesting to 100% of the then-unvested shares
in the event such officer is terminated following a change of
control of ShoreTel. Mr. Combs earns his vesting
acceleration so long as he does not voluntarily terminate his
employment with an acquiring company for six months following a
change of control, and Mr. Finegan receives his vesting
acceleration automatically upon a change of control. We believe
these change of control arrangements, the value of which are
contingent on the value obtained in a change of control
transaction, effectively create incentives for our executive
team to build shareholder value and to obtain the highest value
possible should the company be acquired in the future, despite
the risk of losing employment and potentially not having the
opportunity to otherwise vest in equity awards which comprise a
significant component of each executives compensation.
These arrangements are intended to attract and retain qualified
executives that could have other job alternatives that may
appear to them to be less risky absent these arrangements,
particularly given the significant level of acquisition activity
in the technology sector. All of our change of control
arrangements are double trigger, meaning that
acceleration of stock option vesting is not awarded upon a
change of control unless the executive option holders
employment is terminated within
77
a specified period of time following the transaction. We believe
this structure strikes a balance between the incentives and the
executive hiring and retention effects described above, without
providing these benefits to executives who continue to enjoy
employment with an acquiring company in the event of a change of
control transaction. We also believe this structure is more
attractive to potential acquiring companies, who may place
significant value on retaining members of our executive team and
who may perceive this goal to be undermined if executives
receive significant acceleration payments in connection with
such a transaction and are no longer required to continue
employment to earn the remainder of their equity awards.
In addition, our chief executive officer is entitled to receive
a severance payment equal to one years base salary
(payable over 12 months) and acceleration of stock option
vesting by one year in the event his employment is terminated
involuntarily or he is constructively terminated. We agreed to
this provision as part of the negotiation of our chief executive
officers compensation package when he joined us, and we
believed it was necessary to agree to such a provision in order
to retain his services.
For a description and quantification of these severance and
change of control benefits, please see Executive
Compensation Employment, Severance and Change of
Control Arrangements.
Other benefits.
Executive officers are
eligible to participate in all of our employee benefit plans,
such as medical, dental, vision, group life, disability, and
accidental death and dismemberment insurance and our 401(k)
plan, in each case on the same basis as other employees, subject
to applicable law. We also provide vacation and other paid
holidays to all employees, including our executive officers,
which are comparable to those provided at peer companies. In
fiscal 2006, Messrs. Combs and Weisner received
reimbursement for commuting expenses from their permanent homes
to the San Francisco Bay Area. Messrs. Combs and
Weisner also received a housing allowance. We agreed to pay
these amounts to these executives as the Compensation Committee
believed that it was necessary to attract and retain these
executives who would not relocate to the San Francisco Bay
Area on a full time basis.
For a description of the compensation arrangements with our
current Chief Financial Officer, Michael E. Healy, who was
hired after June 30, 2006, please see Executive
Compensation Employment, Severance and Change of
Control Arrangements.
Executive
compensation tables
The following table presents compensation information for our
fiscal year ended June 30, 2006 paid to or accrued for our
Chief Executive Officer, Chief Financial Officer and each of our
three other most highly compensated executive officers whose
aggregate salary and bonus was more than $100,000. We refer to
these executive officers as our named executive
officers elsewhere in this prospectus.
Summary
Compensation Table
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Non-Equity
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Option
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Incentive Plan
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All Other
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Name and Principal Position
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Salary(1)
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Bonus
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Awards(2)
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Compensation(3)
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Compensation
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Total
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John W. Combs
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$
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287,500
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$
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188,162
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$
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25,868
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(4)
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$
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501,530
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President and
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Chief Executive
Officer
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John Finegan
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200,000
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55,000
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255,000
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Former Chief Financial
Officer(5)
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Walter Weisner
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214,038
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80,000
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39,211
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(4)
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333,249
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Vice President,
Global Support Services
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Joseph A. Vitalone
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155,000
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134,767
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(6)
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289,767
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Vice President, Sales
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Edwin J. Basart
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200,000
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|
|
|
|
|
|
|
|
|
|
65,000
|
|
|
|
|
|
|
|
265,000
|
|
Chief Technology
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The amounts in this column include payments by us in respect of
accrued vacation, holidays, and sick days, as well as any salary
contributed by the named executive officer to our 401(k) plan.
|
78
|
|
|
(2)
|
|
Under the SFAS 123(R) modified prospective transition
method, we did not record any amounts in our consolidated
financial statements for fiscal year 2006 with respect to option
awards.
|
|
|
|
(3)
|
|
Except as otherwise noted below, all non-equity incentive plan
compensation were paid pursuant to the ShoreTel Executive Bonus
Incentive Plan for the second half of fiscal 2006. For a
description of this plan, see Executive
Compensation Compensation discussion and
analysis Cash bonuses.
|
|
|
|
(4)
|
|
Represents travel expenses and rent.
|
|
|
|
(5)
|
|
Mr. Finegan ceased serving as our Chief Financial Officer in May
2007.
|
|
|
|
(6)
|
|
Also includes $74,767 in sales commissions.
|
We entered into an offer letter with our current Chief Financial
Officer, Michael E. Healy, in May 2007. The offer letter
established Mr. Healys starting annual base salary at
$250,000. In addition, Mr. Healy is eligible to participate
in our executive bonus plan as in effect from time to time, at a
bonus target of 45% of his annual salary. Mr. Healy also
will receive a prepaid bonus of $30,000 within 30 days of
the commencement of his employment, which is forfeitable on a
prorated basis should Mr. Healy voluntarily terminate his
employment with us or be terminated for cause within the first
12 months of his employment. Pursuant to the offer letter,
Mr. Healy was granted an option to purchase
3,250,000 shares of common stock with an exercise price
equal to $1.14 per share. The option vests as to 25% of the
shares in May 2008, and vests as to 1/48 of the shares each
month over the three years thereafter. For a description of the
material terms of offer letters for the named executive officers
in the above table and Mr. Healy, please see the section
entitled Employment, Severance and Change of
Control Arrangements below.
Our board of directors approved general increases of 3% to 5% to
the annual base salaries of our employees, including our named
executive officers, effective February 1, 2007. In
addition, on April 13, 2007, Mr. Basarts annual
base salary was raised from $206,000 to $216,000 and Mr.
Vitalones annual target bonus was raised from $100,000 to
$140,000 effective for the second half of fiscal 2007.
Additionally, any bonus Mr. Vitalone receives will be
earned through his participation under our bonus plan for the
second half of fiscal 2007, rather than from the achievement of
individualized sales commission performance goals. Also, since
June 30, 2006, Messrs. Combs, Finegan, Weisner, Basart
and Vitalone have earned bonuses and have been granted stock
options. See Grants of Plan-Based Awards During the
2006 Fiscal Year below.
Grants of
Plan-Based Awards During the 2006 Fiscal Year
The following table provides information with regard to each
stock option granted to each named executive officer during our
fiscal year ended June 30, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts
|
|
|
Number of
|
|
|
Exercise
|
|
|
|
|
|
|
Under Non-Equity
|
|
|
Securities
|
|
|
Price of
|
|
|
|
Grant
|
|
|
Incentive Plan Awards(1)
|
|
|
Underlying
|
|
|
Option
|
|
Name
|
|
Date
|
|
|
Target
|
|
|
Maximum
|
|
|
Options(2)
|
|
|
Awards(3)
|
|
|
John W. Combs
|
|
|
|
|
|
$
|
105,625
|
|
|
$
|
237,656
|
|
|
|
|
|
|
|
|
|
John Finegan
|
|
|
|
|
|
|
45,000
|
|
|
|
101,250
|
|
|
|
|
|
|
|
|
|
Walter Weisner
|
|
|
9/8/2005
|
|
|
|
|
|
|
|
|
|
|
|
1,800,000
|
(4)
|
|
$
|
0.04
|
|
|
|
|
1/12/2006
|
|
|
|
|
|
|
|
|
|
|
|
200,000
|
(5)
|
|
|
0.08
|
|
|
|
|
|
|
|
|
50,625
|
|
|
|
113,906
|
|
|
|
|
|
|
|
|
|
Joseph A. Vitalone
|
|
|
10/3/2005
|
|
|
|
|
|
|
|
|
|
|
|
2,655,000
|
(6)
|
|
|
0.04
|
|
|
|
|
|
|
|
|
45,000
|
|
|
|
101,250
|
|
|
|
|
|
|
|
|
|
Edwin J. Basart
|
|
|
|
|
|
|
45,000
|
|
|
|
101,250
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Represents bonuses payable pursuant to the ShoreTel Executive
Bonus Incentive Plan for the second half of fiscal 2006. For a
description of this plan, see Executive
Compensation Additional Employee Benefit
Plans Executive Bonus Plans.
|
|
(2)
|
|
Each stock option was granted pursuant to our 1997 Stock Option
Plan.
|
79
|
|
|
(3)
|
|
Represents the fair market value of a share of our common stock
on the grant date of the option, as determined by our board of
directors.
|
|
(4)
|
|
An immediately exercisable stock option that vested as to 25% of
the shares in July 2006, and vests as to 1/48 of the shares each
month over the next three years thereafter.
|
|
(5)
|
|
An immediately exercisable stock option that vests as to 1/48 of
the shares each month over four years.
|
|
(6)
|
|
An immediately exercisable stock option that vested as to 25% of
the shares in October 2006, and vests as to
1/48
of the
shares each month over the next three years thereafter.
|
Each of the stock options in the above table is immediately
exercisable in full; however, unvested shares issued upon
exercise are subject to a right to repurchase by us upon
termination of employment, which right lapses in accordance with
the vesting schedule described above. Each of these stock
options expires 10 years from the date of grant. These
stock options are also subject to accelerated vesting upon
involuntary termination or constructive termination following a
change of control of ShoreTel, as discussed below in
Executive Compensation Employment, Severance
and Change of Control Arrangements.
In October 2006, we granted Mr. Weisner a stock option to
purchase 400,000 shares, Mr. Basart a stock option to
purchase 450,000 shares, and Mr. Vitalone a stock
option to purchase 500,000 shares, each at an exercise
price of $0.32 per share. In April 2007, we granted
Mr. Basart a stock option to purchase 500,000 shares
and Mr. Vitalone a stock option to purchase
400,000 shares, each at an exercise price the equal to
$1.13 per share. Each of these stock options vests as to
50% of the shares on the two-year anniversary of the date of
grant, and as to 1/24 of the shares each month over the
following two years. Each of the stock options granted in
October 2006 is immediately exercisable in full; however, any
unvested shares issued upon exercise will be a subject to a
right of repurchase by us upon termination of employment, which
right lapses in accordance with the vesting schedule described
above. Stock options granted in April 2007 become exercisable as
they vest.
Messrs. Combs, Finegan, Weisner and Basart earned bonuses
equal to $126,000, $50,000, $65,000 and $50,000, respectively,
under the bonus plan for the first six months of fiscal 2007 as
a result of having achieved, and in some cases exceeded, the
bonus targets specified for the first six months of fiscal 2007.
Bonuses for executive officers other than Mr. Combs were
paid in March 2007. Mr. Combs bonus is expected to be paid
before the completion of this offering. Mr. Vitalone earned
sales commissions of $53,400 during the first half of fiscal
year 2007.
80
Outstanding
Option Awards at June 30, 2006
The following table presents the outstanding option awards held
as of June 30, 2006 by each named executive officer:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option
|
|
|
Option
|
|
|
|
Number of Securities Underlying Unexercised Options(1)
|
|
|
Exercise
|
|
|
Expiration
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Price(2)
|
|
|
Date
|
|
|
John W. Combs(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Finegan
|
|
|
598,125
|
(4)
|
|
|
|
|
|
$
|
0.01
|
|
|
|
5/7/2013
|
|
|
|
|
47,917
|
(5)
|
|
|
|
|
|
|
0.03
|
|
|
|
3/2/2014
|
|
|
|
|
60,000
|
(6)
|
|
|
|
|
|
|
0.04
|
|
|
|
3/14/2015
|
|
Walter Weisner
|
|
|
1,600,000
|
(7)
|
|
|
|
|
|
|
0.04
|
|
|
|
9/8/2015
|
|
Joseph A. Vitalone
|
|
|
1,327,500
|
(8)
|
|
|
|
|
|
|
0.04
|
|
|
|
10/3/2015
|
|
Edwin J. Basart
|
|
|
825,000
|
(9)
|
|
|
|
|
|
|
0.10
|
|
|
|
8/1/2011
|
|
|
|
|
23,100
|
(9)
|
|
|
|
|
|
|
0.01
|
|
|
|
1/7/2013
|
|
|
|
|
1,235,000
|
(10)
|
|
|
|
|
|
|
0.01
|
|
|
|
1/7/2013
|
|
|
|
|
1,430,000
|
(11)
|
|
|
|
|
|
|
0.03
|
|
|
|
3/2/2014
|
|
|
|
|
200,000
|
(12)
|
|
|
|
|
|
|
0.04
|
|
|
|
3/14/2015
|
|
|
|
|
(1)
|
|
Each stock option was granted pursuant to our 1997 Stock Option
Plan. The vesting and exercisability of each stock option is
described in the footnotes below for each option. Each of these
stock options expires 10 years from the date of grant.
These stock options are also subject to accelerated vesting upon
involuntary termination or constructive termination following a
change of control of ShoreTel, as discussed below in
Executive compensation Employment, Severance
and Change of Control Arrangements.
|
|
|
|
(2)
|
|
Represents the fair market value of a share of our common stock
on the options grant date, as determined by our board of
directors.
|
|
(3)
|
|
Mr. Combs early-exercised in full a stock option to
purchase 20,817,795 shares during fiscal 2005 and 2006, as
indicated in the table below. This option/shares vested as to
12.5% of the shares in January 2005, and vests as to 1/42 of the
shares each month thereafter.
|
|
(4)
|
|
Represents shares remaining subject to an immediately
exercisable stock option. Mr. Finegan has early-exercised
the remaining 2,011,875 shares subject to this option, as
indicated in the table below. The option/shares vested as to 25%
of the shares in March 2004, and vests as to 1/48 of the shares
each month thereafter.
|
|
(5)
|
|
Represents shares remaining subject to an outstanding stock
option. Mr. Finegan has exercised 52,083 shares
subject to this option, as indicated in the table below. The
option vests as to 1/48 of the shares each month over four years
from the date of grant.
|
|
(6)
|
|
Represents shares remaining subject to an outstanding stock
option. Mr. Finegan has exercised 20,000 shares
subject to this option, as indicated in the table below. The
option vested as to 25% of the shares in March 2006, and vests
as to 1/48 of the shares each month over three years thereafter.
|
|
(7)
|
|
Represents shares remaining subject to an immediately
exercisable stock option to purchase 1,800,000 shares that was
partially exercised. Mr. Weisner has early-exercised
200,000 shares subject to this option, as indicated in the
table below. The option/shares vested as to 25% of the shares in
July 2006, and vests as to 1/48 of the shares each month over
three years thereafter.
|
|
|
|
Mr. Weisner also early-exercised in full an
immediately-exercisable stock option to purchase
200,000 shares during fiscal 2006, as indicated in the
table below. This option/shares vests as to 1/48 of the shares
each month over four years from the date of grant.
|
|
(8)
|
|
Represents shares remaining subject to an immediately
exercisable stock option to purchase 2,655,000 shares that was
partially exercised. Mr. Vitalone has early-exercised
1,327,500 shares subject to this option, as indicated in
the table below. The option/shares vested as to 25% of the
shares in October 2006, and vests as to 1/48 of the shares each
month over three years thereafter.
|
(footnotes continued on next page)
81
|
|
|
(9)
|
|
This stock option is fully vested.
|
|
(10)
|
|
Represents shares remaining subject to an immediately
exercisable stock option. Mr. Basart has early-exercised
the remaining 2,000,000 shares subject to this option as
indicated in the table below. These shares are fully vested.
|
|
(11)
|
|
Represents shares subject to an outstanding exercisable stock
option. This option vested as to 25% of the shares in October
2003, and vests as to 1/48 of the shares each month over the
next three years thereafter.
|
|
(12)
|
|
Represents shares subject to an outstanding exercisable stock
option. This option vested as to 25% of the shares in March
2006, and vests as to 1/48 of the shares each month over three
years thereafter.
|
Option
Exercises During the 2006 Fiscal Year
The following table shows the number of shares acquired pursuant
to the exercise of options by each named executive officer
during our fiscal year ended June 30, 2006 and the
aggregate dollar amount realized by the named executive officer
upon exercise of the option:
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
Value Realized
|
|
Name
|
|
Acquired on Exercise
|
|
|
on Exercise(1)
|
|
|
John W. Combs
|
|
|
20,817,795
|
(2)
|
|
$
|
|
|
John Finegan
|
|
|
2,083,958
|
(3)
|
|
|
|
|
Walter Weisner
|
|
|
400,000
|
(4)
|
|
|
|
|
Joseph A. Vitalone
|
|
|
1,327,500
|
(5)
|
|
|
|
|
Edwin J. Basart
|
|
|
2,000,000
|
(6)
|
|
|
|
|
|
|
|
(1)
|
|
The aggregate dollar amount realized upon the exercise of an
option represents the difference between the aggregate market
price of the shares of our common stock underlying that option
on the date of exercise (assumed to be the midpoint of the price
range set forth on the cover page of this prospectus) and the
aggregate exercise price of the option.
|
|
(2)
|
|
Represents the exercise of an immediately exercisable stock
option that continued to be subject to vesting, as described in
footnote 3 to the Outstanding Option Awards at
June 30, 2006 table above. Of these shares, 5,204,448
became vested during fiscal year 2006.
|
|
(3)
|
|
Represents the exercise of immediately exercisable stock options
that continued to be subject to vesting, as described in
footnotes 4-6 to the Outstanding Option Awards at
June 30, 2006 table above. Of these shares, 702,500
became vested during fiscal year 2006.
|
|
(4)
|
|
Represents the exercise of immediately exercisable stock options
that continued to be subject to vesting, as described in
footnote 7 to the Outstanding Option Awards at
June 30, 2006 table above. Of these shares, 20,833
became vested during fiscal year 2006.
|
|
(5)
|
|
Represents the exercise of an immediately exercisable stock
option that continued to be subject to vesting, as described in
footnote 8 to the Outstanding Option Awards at
June 30, 2006 table above. None of these shares
vested during fiscal year 2006.
|
|
(6)
|
|
Represents the exercise of an immediately exercisable stock
option that continued to be subject to vesting, as described in
footnote 10 to the Outstanding Option Awards at
June 30, 2006 table above. Of these shares, 808,750
became vested during fiscal year 2006.
|
Employment,
Severance and Change of Control Arrangements
John W. Combs, our president and chief executive officer,
executed an offer letter in July 2004. The offer letter provides
for at-will employment without any specific term. The offer
letter established his starting annual base salary at $275,000,
subject to annual review by the compensation committee of the
Board and further subject to an increase to $325,000 following
two consecutive quarters of cash flow positive operations. His
annual base salary was increased to $325,000 in April 2006 as a
result of this milestone having been satisfied. In addition, the
offer letter entitles Mr. Combs to an incentive bonus, as
determined by the board, of up to 85% of his then-current base
82
salary. Pursuant to the offer letter, Mr. Combs received a
stock option grant of 20,817,795 shares of common stock
with an exercise price equal to the fair market value of our
common stock on the date of grant. In the event his employment
is terminated by us without cause, or Mr. Combs resigns for
good reason, as such terms are defined in the offer letter,
Mr. Combs will be entitled to receive monthly continuation
of his then-current base salary for a period of 12 months
and acceleration of his unvested stock options in an amount
equal to the number of shares that would have vested had his
employment continued for an additional 12 months. If his
employment is terminated without cause within six months of
a change of control, as such terms are defined in the offer
letter, Mr. Combs will receive accelerated vesting of 100%
of any then unvested shares, options and other equity he holds
at the time.
In addition, we entered into a change of control agreement with
Mr. Combs effective as of August 5, 2004. This
agreement augments the terms provided for by his offer letter.
The agreement provides that, in the event of a change of control
of ShoreTel, so long as Mr. Combs either remains employed
with the company or its successor for six months following the
change of control, or if Mr. Combs is terminated without
cause or resigns for good reason during the six months following
such change of control, then Mr. Combs will receive
accelerated vesting of 100% of his initial stock option grant.
John Finegan, our former chief financial officer, executed an
offer letter in March 2003. The offer letter provides for
at-will employment without any specific term. The offer letter
established Mr. Finegans starting annual base salary
at $200,000. In addition, Mr. Finegan is eligible for an
annual incentive bonus. Pursuant to the offer letter,
Mr. Finegan received a stock option grant of
2,610,000 shares of common stock with an exercise price
equal to the fair market value of our common stock on the date
of grant. In the event Mr. Finegans employment is
involuntarily terminated without cause or constructively
terminated, in either case within 12 months following a
change of control, as such terms are defined in the offer
letter, Mr. Finegan will receive accelerated vesting of
100% of any then unvested shares, options, and other equity he
holds at the time.
In addition, we entered into a change of control agreement with
Mr. Finegan effective as of May 7, 2003. This
agreement augments the terms provided for by
Mr. Finegans offer letter. The agreement provides
that, in the event of a change of control of ShoreTel,
Mr. Finegans stock option to purchase
2,610,000 shares will immediately become exercisable as to
that number of shares that would have vested if Mr. Finegan
had remained continuously employed by ShoreTel for a period of
12 months following the change of control. In addition, if
this benefit would result in excise tax as a parachute
payment, Mr. Finegan would be entitled to receive
either his vesting acceleration benefit, or such portion of his
vesting acceleration benefit as would result in no excise tax,
depending on which would result in a greater net benefit.
In February 2007, we entered into a retention arrangement with
Mr. Finegan that provides for a bonus payout at the 150%
level under the bonus plan for the second half of fiscal 2007 so
long as he either remains employed with the company during that
period or if his employment is terminated prior to the end of
that period. This retention arrangement will remain in place for
the first half of fiscal 2008 if Mr. Finegan is requested
to remain with the company during that period.
Michael E. Healy, our Chief Financial Officer, executed an offer
letter in May 2007. The offer letter provides for at-will
employment without any specific term. The offer letter
established Mr. Healys starting annual base salary at
$250,000. In addition, Mr. Healy is eligible to participate
in our executive bonus plan as in effect from time to time, at a
bonus target of 45% of his annual salary. Mr. Healy also
will receive a prepaid bonus of $30,000 within 30 days of
the commencement of his employment, which is forfeitable on a
prorated basis should Mr. Healy voluntarily terminate his
employment with us or be terminated for cause within the first
12 months of his employment. Pursuant to the offer letter,
Mr. Healy was granted an option to purchase
3,250,000 shares of common stock with an exercise price
equal to the fair market value of our common stock on the date
of grant. In the event Mr. Healys employment is
involuntarily terminated without cause or constructively
terminated, in either case within 12 months following a
change of control, as such terms are defined in the offer
letter, Mr. Healy will receive a lump-sum payment equal to
12 months of his then-current salary plus his then-current
targeted annual bonus, reimbursement of premiums paid for
continued medical, dental and vision plan coverage of him and
any of his eligible dependents through COBRA for up to
12 months at our expense, and accelerated vesting of 75% of
any then-unvested options or shares he holds at the time.
Mr. Healys offer letter also provides that if we
terminate him within 24 months of the commencement of his
employment, for any reason other than cause, as such term is
defined
83
in the offer letter, he will receive a severance package that
includes six months of his then-current salary, our payment of
six months of premiums for continued medical, dental and vision
plan coverage of him and any of his eligible dependents through
COBRA, payment of a prorated bonus and equity vesting prorated
for his term of employment with us plus an additional six months
of vesting.
Walter Weisner, our vice president of global support services,
executed an offer letter in April 2005 with a start date in July
2005. The offer letter provides for at-will employment without
any specific term. The offer letter established
Mr. Weisners starting annual base salary at $225,000.
In addition, Mr. Weisner is eligible for an annual
incentive bonus. In connection with his joining our company in
April 2005, Mr. Weisner received a stock option grant of
1,800,000 shares of common stock with an exercise price
equal to the fair market value of our common stock on the date
of such grant. In the event Mr. Weisners employment
is involuntarily terminated without cause or constructively
terminated, in either case within 12 months following a
change of control, as such terms are defined in the offer
letter, Mr. Weisner will receive accelerated vesting of 50%
of any then unvested shares, options and other equity he holds
at the time.
We entered into a change of control agreement with Edwin J.
Basart, our founder and Chief Technology Officer, effective
August 1, 2001. The agreement provides that, in the event
of a change of control of ShoreTel, Mr. Basarts stock
option to purchase 825,000 shares will immediately become
exercisable as to that number of shares that would have vested
if Mr. Basart had remained continuously employed by
ShoreTel for a period of 12 months following the change of
control. In addition, if this benefit would result in excise tax
as a parachute payment, Mr. Basart would be
entitled to receive either his vesting acceleration benefit, or
such portion of his vesting acceleration benefit as would result
in no excise tax, depending on which would result in a greater
net benefit.
Joseph A. Vitalone, our vice president of sales, executed an
offer letter in September 2005 with a start date in October
2005. The offer letter provides for at-will employment without
any specific term. The offer letter established
Mr. Vitalones starting annual base salary at
$200,000. In addition, Mr. Vitalone is eligible for an
annual incentive bonus and participates in the executive
management bonus program. Pursuant to the offer letter,
Mr. Vitalone received a stock option grant of
2,655,000 shares of common stock with an exercise price
equal to the fair market value of our common stock on the date
of such grant. In the event Mr. Vitalones employment
is involuntarily terminated without cause or constructively
terminated, in either case within 12 months following a
change of control, as such terms are defined in the offer
letter, Mr. Vitalone will receive accelerated vesting of
50% of any then unvested shares, options and other equity he
holds at the time.
The following table summarizes the benefits payable to each
named executive officer pursuant to the arrangements described
above:
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Termination
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|
|
Change of Control
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|
|
|
|
|
|
Acceleration of
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|
|
|
Acceleration of
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Name
|
|
Salary
|
|
|
Equity Vesting(1)
|
|
|
Salary
|
|
|
Equity Vesting(1)
|
|
|
John W. Combs
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$
|
325,000
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(2)
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(3)
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|
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(4
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)
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John Finegan
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(3
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)
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Walter Weisner
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|
|
|
|
|
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(5
|
)
|
Joseph A. Vitalone
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|
|
|
|
|
|
|
|
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|
|
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(5
|
)
|
Edwin J. Basart
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|
|
|
|
|
|
|
|
|
|
|
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(4
|
)
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|
(1)
|
|
Calculated based on the termination or change of control taking
place as of June 30, 2006, the last day of our most recent
fiscal year, and based on assumed initial public offering price
of $ per share, the midpoint
of the range set forth on the cover page of this prospectus.
|
|
(2)
|
|
Reflects continued base salary for 12 months following
termination.
|
|
(3)
|
|
Reflects accelerated vesting as if the officer had continued to
be employed for an additional 12 months.
|
|
(4)
|
|
Reflects acceleration of vesting as to 100% of the shares.
|
|
(5)
|
|
Reflects acceleration of vesting as to 50% of the shares.
|
84
Equity
Incentive Plans
This section contains a summary of our equity incentive plans.
To date, substantially all options to purchase shares of our
common stock have been granted under our 1997 stock option plan.
Our 1997 stock option plan has terminated, and we now grant
options to purchase shares of our common stock only from our
2007 equity incentive plan. The following descriptions are
qualified by the terms of the actual plans filed as exhibits to
the registration statement, of which this prospectus is a part.
2007
Equity Incentive Plan
Background.
The 2007 equity incentive plan
serves as the successor equity compensation plan to our 1997
stock option plan. Our board of directors adopted our 2007
equity incentive plan in February 2007. This plan became
effective upon adoption and will terminate in February 2017. The
2007 equity incentive plan provides for the grant of incentive
stock options, nonqualified stock options, restricted stock
awards, stock appreciation rights, restricted stock units and
stock bonuses.
Administration.
The 2007 equity incentive plan
is administered by our compensation committee. This committee
acts as the plan administrator and determines which individuals
are eligible to receive awards under the plan, the time or times
when such awards are to be made, the number of shares subject to
each such award, the status of any granted option as either an
incentive stock option or a nonqualified stock option under
United States federal tax laws, the vesting schedule applicable
to an award and the maximum term for which any award is to
remain outstanding (subject to the limits set forth in the 2007
equity incentive plan). The committee also determines the
exercise price of options granted, the purchase price for rights
to purchase restricted stock and, if applicable, restricted
units and the strike price for stock appreciation rights. Unless
the committee provides otherwise, the plan does not allow for
the transfer of awards and only the recipient of an award may
exercise an award during his or her lifetime.
Share Reserve.
We have reserved
50,000,000 shares of our common stock for issuance under
the 2007 equity incentive plan. Additionally, our 2007 equity
incentive plan provides for automatic increases in the number of
shares available for issuance under it as follows:
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|
|
on the first day of each January from 2008 through 2017, the
number of shares of our common stock will be increased by 5% of
the number of shares of our common stock issued and outstanding
on the preceding
December 31
st
; or
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|
|
|
a lesser number of shares of our common stock as determined by
our board of directors.
|
As of March 31, 2007, no options to purchase shares of our
common stock were outstanding under the 2007 equity incentive
plan, although our board of directors has granted options to
purchase 13,020,500 shares of our common stock under this
plan since that date.
Equity Awards.
Our 2007 equity incentive plan
permits us to grant the following types of awards:
Stock Options.
The 2007 equity incentive plan
provides for the grant of incentive stock options (commonly
referred to as ISOs), and nonqualified stock options (commonly
referred to as NSOs), to employees, directors and consultants.
ISOs may only be granted to employees. Options may be granted
with terms determined by the committee, provided that ISOs are
subject to statutory limitations. The committee determines the
exercise price for a stock option, within the terms and
conditions of the plan and applicable law, provided that the
exercise price of an ISO may not be less than 100% (or higher in
the case of ISOs granted to certain types of recipients) of the
fair market value of our common stock on the date of grant. No
more than 450,000,000 shares may be issued pursuant to the
exercise of ISOs granted under the plan.
Options granted under the 2007 equity incentive plan will vest
at the rate specified by the committee and such vesting schedule
will be set forth in the stock option agreement pursuant to
which such stock option grant relates. Generally, the committee
determines the term of stock options granted under the plan, up
to a term of
85
ten years, except in the case of certain incentive stock options
for which the term can be no more than five years.
After termination of an optionee, he or she may exercise his or
her vested option for the period of time stated in the stock
option agreement to which such option relates. Generally, if
termination is due to death or disability, the vested option
will remain exercisable for 12 months. In all other cases,
the vested option will generally remain exercisable for three
months. However, an option may not be exercised later than its
expiration date. Notwithstanding the foregoing, if an optionee
is terminated for cause (as defined in our 2007 equity incentive
plan), then the optionees options shall expire on the
optionees termination date or at such later time and on
such conditions as determined by our compensation committee.
Restricted Stock.
A restricted stock award is
an offer by us to sell shares of our common stock subject to
restrictions that the committee may impose. These restrictions
may be based on completion of a specified period of service with
us or upon the completion of performance goals during a
performance period (or a combination of the foregoing). The
price of a restricted stock award will be determined by the
committee. Unless otherwise determined by the committee at the
time of award, vesting ceases on the date the participant no
longer provides services to us and unvested shares are forfeited
to us or subject to repurchase by us.
Stock Appreciation Rights.
Stock appreciation
rights provide for a payment, or payments, in cash or shares of
common stock, to the holder based upon the difference between
the fair market value of our common stock on the date of
exercise over the stated exercise price. Stock appreciation
rights may vest based on time or achievement of performance
conditions (or a combination of the foregoing).
Restricted Stock Units.
Restricted stock units
represent the right to receive shares of our common stock at a
specified date in the future, subject to forfeiture of such
right due to termination of employment
and/or
failure to achieve specified performance conditions. If the
restricted stock unit has not been forfeited, then on the date
specified in the restricted stock unit agreement, we will
deliver to the holder of the restricted stock unit whole shares
of our common stock, cash or a combination of our common stock
and cash.
Stock Bonuses.
Stock bonuses are granted as
additional compensation for performance, and therefore, are not
issued in exchange for cash.
Change of Control.
In the event of a
liquidation, dissolution or change in control transaction,
outstanding awards may be assumed or replaced by the successor
company (if any). Outstanding awards that are not assumed or
replaced by the successor company (if any) will expire on the
consummation of the liquidation, dissolution or change in
control transaction at such time and on such conditions as our
board of directors determines (including, without limitation,
full or partial vesting and exercisability of any or all
outstanding awards issued under our 2007 equity incentive plan).
Transferability of Awards.
Generally, a
participant may not transfer an award other than by will or the
laws of descent and distribution unless, in the case of awards
other than ISOs, the committee permits the transfer of an award
to certain authorized transferees (as set forth in our 2007
equity incentive plan).
Eligibility.
The individuals eligible to
participate in our 2007 equity incentive plan include our
officers and other employees, our non-employee board of
directors members and any consultants.
Payment for Purchase of Shares of our Common
Stock.
Payment for shares of our common stock
purchased pursuant to the 2007 equity incentive plan may be made
by any of the following methods (provided such method is
permitted in the applicable award agreement to which such shares
relate): (i) cash (including by check),
(ii) cancellation of indebtedness, (iii) surrender of
shares, (iv) waiver of compensation due or accrued for
services rendered; (v) through a same day sale
program or through a margin commitment or
(vi) by another other method approved by our board of
directors.
Limit on Awards.
Under our 2007 equity
incentive plan, during any calendar year, no participant will be
eligible to receive more than 25,000,000 shares of our
common stock.
86
Amendment and Termination.
Our board of
directors may amend or terminate the 2007 equity incentive plan
at any time. Notwithstanding the foregoing, neither the board of
directors nor the committee shall, without stockholder approval,
amend the plan in any manner that requires stockholder approval.
In addition, no amendment that is detrimental to a plan
participant may be made to an outstanding option without the
consent of the affected participant.
1997
Stock Option Plan
Our board of directors adopted and our shareholders approved our
1997 stock option plan in January 1997. As of March 31,
2007, options to purchase 31,244,685 shares of our common
stock were outstanding under our 1997 stock option plan. This
plan terminated in January 2007, and no additional options may
be granted under this plan. However, all stock options
outstanding on the termination of the 1997 stock option plan
will continue to be governed by the terms and conditions of the
1997 stock option plan. Options granted under the 1997 stock
option plan are subject to terms substantially similar to those
described above with respect to options granted under the 2007
equity incentive plan.
2007
Employee Stock Purchase Plan
Background.
Our 2007 employee stock purchase
plan is designed to enable eligible employees to periodically
purchase shares of our common stock at a discount. Purchases are
accomplished through participation in discrete offering periods.
Our 2007 employee stock purchase plan is intended to qualify as
an employee stock purchase plan under Section 423 of the
Internal Revenue Code. Our board of directors adopted our 2007
employee stock purchase plan in February 2007 and our
stockholders are expected to approve the plan before the
completion of this offering.
Share Reserve.
We have initially reserved
5,000,000 shares of our common stock for issuance under our
2007 employee stock purchase plan. The number of shares reserved
for issuance under our 2007 employee stock purchase plan will
increase automatically on the first day of each January,
starting with January 1, 2008, by the number of shares
equal to 1% of our total outstanding shares as of the
immediately preceding
December 31
st
(rounded to the nearest whole share). Our board of directors or
compensation committee may reduce the amount of the increase in
any particular year. No more than 50,000,000 shares of our
common stock may be issued under our 2007 employee stock
purchase plan and no other shares may be added to this plan
without the approval of our stockholders.
Administration.
Our compensation committee
will administer our 2007 employee stock purchase plan.
Participation is limited to our employees. Our employees
generally are eligible to participate in our 2007 employee stock
purchase plan if they are employed by us, or a subsidiary of
ours that we designate, for more than 20 hours per week and
more than five months in a calendar year. Employees who are 5%
stockholders, or would become 5% stockholders as a result of
their participation in our 2007 employee stock purchase plan,
are ineligible to participate in our 2007 employee stock
purchase plan. We may impose additional restrictions on
eligibility as well. Under our 2007 employee stock purchase
plan, eligible employees may acquire shares of our common stock
by accumulating funds through payroll deductions. Our eligible
employees may select a rate of payroll deduction between 1% and
15% of their cash compensation. We also have the right to amend
or terminate our 2007 employee stock purchase plan and offering
periods thereunder. Our 2007 employee stock purchase plan will
terminate on the tenth anniversary of the first offering date,
unless it is terminated earlier by our board of directors.
Purchase Rights.
When an offering period
commences, our employees who meet the eligibility requirements
for participation in that offering period are automatically
granted a non-transferable option to purchase shares in that
offering period. Each offering period may run for no more than
24 months. An employees participation automatically
ends upon termination of employment for any reason.
Except for the first offering period, each offering period will
be for six months (commencing with the first February 15 or
August 15 to occur on or after the date that is six months
following the date of this prospectus) and will run February 15
to August 14 or August 15 to February 14, as the case may
be. The first offering period will
87
begin upon the date of this prospectus and will end on the first
February 14 or August 14 to occur on or after the date that is
six months following the date of this prospectus.
No participant will have the right to purchase our shares at a
rate which, when aggregated with purchase rights under all our
employee stock purchase plans that are also outstanding in the
same calendar year(s), have a fair market value of more than
$25,000, determined as of the first day of the applicable
offering period, for each calendar year in which such right is
outstanding. The purchase price for shares of our common stock
purchased under our 2007 employee stock purchase plan will be
90% of the lesser of the fair market value of our common stock
on (i) the first trading day of the applicable offering
period and (ii) the last trading day of the applicable
offering period.
Change in Control.
In the event of a change in
control transaction, our 2007 employee stock purchase plan and
any offering periods that commenced prior to the completion of
the proposed transaction may terminate on the completion of the
proposed transaction and the final purchase of shares will occur
on that date, but our compensation committee may instead
terminate any such offering period at a different date.
Additional
Employee Benefit Plans
Executive
Bonus Plans
In January 2006, our board of directors approved a bonus plan
for the second six months of fiscal 2006. The plan specified a
bonus target for our chief executive officer equal to 65% of his
base salary, and 45% of base salary for other executive
officers. The bonus criteria consist of: (1) company
targets, which consist of 50% weighting for revenue, 25%
weighting for profitability and 25% weighting for overall
customer satisfaction, (2) individual targets established
by our chief executive officer for the particular employee, and
(3) a multiplier ranging from 0 to 1.5 based on the
executives overall performance rating. The actual bonus
award is determined according to our companys and each
executive officers level of achievement against these
performance objectives. If the company objectives are within a
specified range, from 50% to 150% of the particular target could
be payable. The bonus for fiscal 2006 for our chief executive
officer was based entirely on company performance targets,
consisting of revenue, profitability and customer satisfaction.
For those executives that perform sales functions, the
individual targets will typically be based at least in part on
an individualized sales commission plan that is directly related
to the amount of products sold and that persons role in
the sale.
Our board of directors approved bonus plans for the first and
last six months of fiscal 2007 in October 2006 and December
2006, respectively. These target bonuses are based on the
overall metrics and formulas used for fiscal 2006, with
adjustments in the target company financial performance goals to
reflect our growth. The bonus target for our chief executive
officer increased to 75% of base salary and the target bonuses
remain at 45% of base salary for our other executive officers.
Messrs. Combs, Finegan, Weisner and Basart earned bonuses
equal to $126,000, $50,000, $65,000 and $50,000, respectively,
under the bonus plan for the first six months of fiscal 2007 as
a result of having achieved, and in some cases exceeded, the
bonus targets specified for the first six months of fiscal 2007.
Bonuses for executive officers other than Mr. Combs were
paid in March 2007. Mr. Combs bonus is expected to be paid
before the completion of this offering.
401(k)
Plan
We offer a 401(k) plan to all employees who meet specified
eligibility requirements. The plan provides for voluntary tax
deferred contributions of 1 to 20% of gross compensation subject
to certain IRS limitations. Based on approval by our board of
directors, we may make matching contributions to the plan. No
matching contributions had been made as of March 31, 2007.
Indemnification
of Directors and Executive Officers and Limitation of
Liability
Our restated certificate of incorporation and bylaws to be in
effect upon the completion of this offering will provide that we
will indemnify our directors and officers to the fullest extent
permitted by Delaware law, as it now
88
exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with their service
for or on our behalf. Our bylaws provide that we will advance
the expenses incurred by a director or officer in advance of the
final disposition of an action or proceeding, and permit us to
secure insurance on behalf of any officer, director, employee or
other agent for any liability arising out of his or her action
in that capacity, regardless of whether Delaware law would
otherwise permit indemnification. In addition, the restated
certificate of incorporation provides that our directors will
not be personally liable for monetary damages to us for breaches
of their fiduciary duty as directors, unless they violate their
duty of loyalty to us or our stockholders, act in bad faith,
knowingly or intentionally violate the law, authorize illegal
dividends or redemptions or derive an improper personal benefit
from their action as directors.
We have entered into indemnification agreements with each of our
directors and officers. These agreements provide for
indemnification for related expenses including attorneys
fees, judgments, fines and settlement amounts incurred by any of
these individuals in any action or proceeding, and obligate us
to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified. At present,
we are not aware of any pending or threatened litigation or
proceeding involving any of our directors, officers, employees
or agents in which indemnification would be required or
permitted. We believe provisions in our restated certificate of
incorporation and indemnification agreements are necessary to
attract and retain qualified persons as directors and officers.
In addition, we maintain liability insurance which insures our
directors and officers against certain losses under certain
circumstances.
The limitation of liability and indemnification provisions in
our restated certificate of incorporation and bylaws may
discourage stockholders from bringing a lawsuit against our
directors for breach of their fiduciary duty. They may also
reduce the likelihood of derivative litigation against our
directors and officers, even though an action, if successful,
might benefit us and other stockholders. Furthermore, a
stockholders investment may be adversely affected to the
extent that we pay the costs of settlement and damage awards
against directors and officers as required by these
indemnification provisions. At present, we are not aware of any
pending litigation or proceeding involving any of our directors,
officers or employees for which indemnification is sought, and
we are not aware of any threatened litigation that may result in
claims for indemnification.
89
RELATED
PARTY TRANSACTIONS
In addition to the executive and director compensation
arrangements discussed above under Executive
Compensation, the following is a description of
transactions since July 1, 2003 to which we have been a
party, in which the amount involved in the transaction exceeds
or will exceeds $120,000, and in which any of our directors,
executive officers or beneficial holders of more than 5% of our
capital stock, or any immediate family member of, or person
sharing the household with, any of these individuals, had or
will have a direct or indirect material interest.
Sales of
our Series G preferred stock
In March 2004, we sold an aggregate of 20,114,943 shares of
our Series G preferred stock at $0.174 per share for
an aggregate purchase price of approximately $3.5 million.
Each share of Series G preferred will convert automatically
into one share of our common stock upon the completion of this
offering. The following table identifies the number of shares of
Series G preferred stock purchased by current holders of
more than 5% of our outstanding stock. None of our executive
officers or directors purchased Series G preferred stock,
although certain of our executive officers or directors may
currently be considered to beneficially own shares held by
entities with which they are affiliated. Please see
Principal Stockholders. The terms of these purchases
were the same as those made available to unaffiliated purchasers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Series G
|
|
|
Aggregate
|
|
|
Percentage of
|
|
Investor
|
|
Preferred Stock
|
|
|
Purchase Price
|
|
|
Total Issued
|
|
|
Entities affiliated with
Crosspoint Venture Partners(1)
|
|
|
7,063,793
|
|
|
$
|
1,229,099.98
|
|
|
|
35.1
|
%
|
Entities affiliated with Lehman
Brothers Venture Partners(2)
|
|
|
6,074,258
|
|
|
|
1,056,920.89
|
|
|
|
30.2
|
|
Entities affiliated with
Foundation Capital(3)
|
|
|
5,042,233
|
|
|
|
877,348.54
|
|
|
|
25.1
|
|
Entities affiliated with
J.P. Morgan Direct Venture Capital(4)
|
|
|
1,329,301
|
|
|
|
231,298.37
|
|
|
|
6.6
|
|
|
|
|
(1)
|
|
Represents 6,338,547 shares held by Crosspoint Venture
Partners 2000 Q L.P. and 725,246 shares held by Crosspoint
Venture Partners 2000 L.P.
|
|
|
|
(2)
|
|
Represents 3,515,706 shares held by LB I Group, Inc.;
1,162,613 shares held by Lehman Brothers P.A LLC;
736,274 shares held by Lehman Brothers Venture Capital
Partners II, L.P.; 523,814 shares held by Lehman
Brothers Partnership Account 2000/2001, L.P.; and
135,851 shares held by Lehman Brothers Offshore Partnership
Account 2000/2001, L.P.
|
|
|
|
(3)
|
|
Represents 4,911,135 shares held by Foundation Capital
Leadership Fund, L.P. and 131,098 shares held by Foundation
Capital Leadership Principals Fund, LLC.
|
|
(4)
|
|
Represents 1,167,115 shares held by JP Morgan Direct
Venture Capital Institutional Investors LLC; 155,540 shares
held by J.P. Morgan Direct Venture Capital Private
Investors LLC and 6,646 shares held by 522 Fifth Avenue
Fund, L.P.
|
Sales of
our Series H Preferred Stock
In October 2004, we sold an aggregate of 47,169,812 shares
of our Series H preferred stock at $0.212 per share
for an aggregate purchase price of approximately
$10.0 million. Each share of preferred will convert
automatically into one share of our common stock upon the
completion of this offering. The following table identifies the
number of shares of Series H preferred stock purchased by
current holders of more than 5% of our outstanding stock. None
of our executive officers or directors purchased Series H
preferred stock, although certain of our executive officers or
directors may currently be considered to beneficially own shares
held by entities with which they are affiliated.
90
Please see Principal Stockholders. The terms of
these purchases were the same as those made available to
unaffiliated purchasers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Series H
|
|
|
Aggregate
|
|
|
Percentage of
|
|
Investor
|
|
Preferred Stock
|
|
|
Purchase Price
|
|
|
Total Issued
|
|
|
Entities affiliated with
Crosspoint Venture Partners(1)
|
|
|
17,295,753
|
|
|
$
|
3,666,699.64
|
|
|
|
36.7
|
%
|
Entities affiliated with Lehman
Brothers Venture Partners(2)
|
|
|
14,244,101
|
|
|
|
3,019,749.41
|
|
|
|
30.2
|
|
Entities affiliated with
Foundation Capital(3)
|
|
|
12,345,945
|
|
|
|
2,617,340.34
|
|
|
|
26.2
|
|
Entities affiliated with
J.P. Morgan Direct Venture Capital(4)
|
|
|
3,254,805
|
|
|
|
690,018.66
|
|
|
|
6.9
|
|
|
|
|
(1)
|
|
Represents 15,519,982 shares held by Crosspoint Venture
Partners 2000 Q L.P. and 1,755,771 shares held by
Crosspoint Venture Partners 2000 L.P.
|
|
|
|
(2)
|
|
Represents 8,244,311 shares held by LB I Group, Inc.;
2,726,321 shares held by Lehman Brothers P.A LLC;
1,726,558 shares held by Lehman Brothers venture capital
Partners II, L.P.; 1,228,341 shares held by Lehman
Brothers partnership Account 2000/2001, L.P.; and
318,570 shares held by Lehman Brothers Offshore Partnership
Account 2000.2001, L.P.
|
|
|
|
(3)
|
|
Represents 12,025,272 shares held by Foundation Capital
Leadership Fund, L.P. and 320,673 shares held by Foundation
Capital Leadership Principals Fund, LLC.
|
|
(4)
|
|
Represents 2,857,691 shares held by JP Morgan Direct
Venture Capital Institutional Investors LLC; 380,841 shares
held by J.P. Morgan Direct Venture Capital Private
Investors LLC and 16,273 shares held by 522 Fifth Avenue
Fund, L.P.
|
Stockholder
and other agreements
In connection with the sale of our Series G and
Series H Preferred Stock, we entered into agreements that
grant customary preferred stock rights to all of our major
preferred stock investors, including holders of more than 5% of
our outstanding stock. These rights include registration rights,
rights of first refusal, information rights, co-sale rights with
respect to stock transfers, a voting agreement providing for the
election of investor designees to the board of directors,
information rights and other similar rights. The Seventh Amended
and Restated Rights Agreement, which contains the registration
rights and many of the other rights described above, is filed as
an exhibit to the registration statement of which this
prospectus is a part. All of these rights, other than the
registration rights, will terminate upon the completion of this
offering. For a description of the registration rights, please
see the section entitled Description of Capital
Stock Registration Rights.
Underwriters
Lehman Brothers Inc. and J.P. Morgan Securities Inc. are
acting as underwriters of this offering, and we will enter into
an underwriting agreement with them. For a description of the
terms of the underwriting agreement, see the section entitled
Underwriting. Entities affiliated with Lehman
Brothers Inc. and J.P. Morgan Securities Inc. beneficially
own approximately 22.7% and 5.3%, respectively, of our
outstanding capital stock as of March 31, 2007.
91
PRINCIPAL
STOCKHOLDERS
The following table presents information as to the beneficial
ownership of our common stock as of March 31, 2007, as
adjusted to reflect the sale of common stock offered by us in
this offering, by:
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each of the executive officers listed in the summary
compensation table;
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each of our directors;
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all of our directors and executive officers as a group; and
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each stockholder known by us to be the beneficial owner of more
than 5% of our common stock.
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We have determined beneficial ownership in accordance with the
rules of the SEC. Unless otherwise indicated below, to our
knowledge, the persons and entities named in the table have sole
voting and sole investment power with respect to all shares
beneficially owned, subject to applicable community property
laws. Shares of our common stock subject to options that are
currently exercisable or exercisable within 60 days of
March 31, 2007 are deemed to be outstanding and to be
beneficially owned by the person holding the options for the
purpose of computing the percentage ownership of that person but
are not treated as outstanding for the purpose of computing the
percentage ownership of any other person.
The number of shares beneficially owned and percentage of our
common stock outstanding before the offering is based on
333,560,256 shares of our common stock outstanding on
March 31, 2007, assuming the conversion of all outstanding
shares of our preferred stock into 233,164,369 shares of
common stock immediately prior to the completion of this
offering. The number of shares of common stock outstanding after
this offering includes the shares of common stock offered under
this prospectus. Except as otherwise noted below, the address
for each person or entity listed in the table is
c/o ShoreTel, Inc., 960 Stewart Drive, Sunnyvale, CA 94085.
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Number of
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Percentage of Shares
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Shares
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Beneficially Owned
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Beneficially
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Before
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After
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Name of Beneficial Owner
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Owned
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Offering
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Offering
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Directors and Named Executive
Officers
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John W. Combs(1)
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20,817,795
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6.2
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%
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John Finegan(2)
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2,732,500
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*
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Walter Weisner(3)
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2,400,000
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*
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Joseph A. Vitalone(4)
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3,155,000
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*
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Edwin J. Basart(5)
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7,766,433
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2.3
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Mark F. Bregman
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*
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Gary J. Daichendt
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*
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Kenneth D. Denman
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*
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Charles D. Kissner(6)
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500,000
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*
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Thomas van Overbeek(7)
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13,492,132
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4.0
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Edward F. Thompson(8)
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500,000
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*
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All directors and executive
officers as a group (14 persons)(9)
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56,718,860
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16.4
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5% Stockholders
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Entities affiliated with
Crosspoint Venture Partners(10)
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93,215,530
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27.9
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Entities affiliated with
Foundation Capital(11)
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68,156,860
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20.4
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Entities affiliated with
J.P. Morgan Direct Venture Capital(12)
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17,605,608
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5.3
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Entities affiliated with Lehman
Brothers Venture Partners(13)
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75,688,402
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22.7
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(1)
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Consists of shares issued upon early exercise of a stock option,
a portion of which shares remain subject to vesting. The vesting
schedule for these shares is described in footnote 3 to the
Outstanding Option Awards at June 30, 2006
table under Executive Compensation.
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(footnotes continued on next page)
92
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(2)
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Consists of 2,083,958 shares issued upon early exercise of
stock options, a portion of which shares remain subject to
vesting, and 637,291 shares subject to outstanding stock
options, which options are immediately exercisable subject to
our lapsing right of repurchase. The vesting schedules for these
shares and stock options are described in footnotes 4-6 to
the Outstanding Option Awards at June 30, 2006
table under Executive Compensation. Mr. Finegan
ceased serving as our Chief Financial Officer in May 2007.
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(3)
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Consists of 400,000 shares issued upon early exercise of a
stock option, a portion of which shares remain subject to
vesting, and 2,000,000 shares subject to immediately
exercisable stock options subject to our lapsing right of
repurchase. The vesting schedules for these shares and stock
option are described in footnote 7 to the Outstanding
Option Awards at June 30, 2006 table under
Executive Compensation.
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(4)
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Consists of 1,327,500 shares issued upon early exercise of
a stock option, a portion of which shares remain subject to
vesting, and 1,827,500 shares subject to outstanding stock
options, which options are immediately exercisable subject to
our lapsing right of repurchase. The vesting schedules for these
shares and stock option are described in footnote 8 to the
Outstanding Option Awards at June 30, 2006
table under Executive Compensation.
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(5)
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Consists of 3,695,000 shares held by Mr. Basart, and
4,058,933 shares subject to outstanding stock options,
which options are immediately exercisable subject to our lapsing
right of repurchase. The vesting schedules for these stock
options are described in footnotes 9-12 to the
Outstanding Option Awards at June 30, 2006
table under Executive Compensation.
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(6)
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Consists of shares issued upon early exercise of a stock option,
all of which shares remain subject to vesting in accordance with
the vesting schedule described in footnote 2 to the
Director Compensation table under Management
Director Compensation.
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(7)
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Consists of 13,440,049 shares held by Mr. van Overbeek
and 52,083 shares issuable upon exercise of outstanding
stock options, all except 104,167 of which shares will be fully
vested within 60 days of March 31, 2007.
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(8)
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Consists of shares issued upon early exercise of a stock option,
of which 500,000 shares remain subject to vesting in
accordance with the vesting schedule described in
footnote 3 to the Director Compensation table.
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(9)
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Includes 1,929,582 shares subject to options that are
immediately exercisable, and remain subject to vesting, and
11,394,124 shares which were issued pursuant to immediately
exercisable stock options, a portion of which remain subject to
our right of repurchase upon termination of employment, which
rights lapse according to the vesting schedule of the original
options.
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(10)
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Consists of 71,323,739 shares held by Crosspoint Venture
Partners 2000 Q, L.P., 8,160,746 shares held by Crosspoint
Venture Partners 2000, L.P., 8,123,143 shares held by
Crosspoint Venture Partners 1996, L.P., and
5,607,902 shares held by Crosspoint Venture Partners LS
2000, L.P. Crosspoint Associates 2000, L.L.C. is the general
partner of Crosspoint Venture Partners 2000 Q, L.P., Crosspoint
Venture Partners 2000, L.P. and Crosspoint Venture Partners LS
2000, L.P. Crosspoint Associates 1996, L.L.C. is the general
partner of Crosspoint Venture Partners 1996, L.P. Seth D.
Neiman, a managing member of Crosspoint Associates 2000, L.L.C.
and Crosspoint Associates 1996, L.L.C., has voting and
investment authority over the shares held by Crosspoint Venture
Partners 2000 Q, L.P., Crosspoint Venture Partners 2000, L.P.,
Crosspoint Venture Partners 1996, L.P. and Crosspoint Venture
Partners LS 2000, L.P. The address of Crosspoint Venture
Partners is 2925 Woodside Road, Woodside, CA 94062.
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(11)
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Consists of 40,983,958 shares held by Foundation Capital,
L.P., 22,031 shares held by Foundation Capital Leadership
Fund, L.P., 4,553,770 shares held by Foundation Capital
Entrepreneurs Fund, L.L.C. and 587,640 shares held by
Foundation Capital Leadership Principals Fund, L.L.C. Foundation
Capital Management, L.L.C. is the general partner of Foundation
Capital, L.P. and managing member of Foundation Capital
Entrepreneurs, L.L.C. Jim Anderson, William Elmore, Kathryn
Gould and Paul Koontz are the managing members of Foundation
Capital Management, L.L.C. and share voting and investment
control over the shares. The managing members of Foundation
Capital Management, L.L.C. disclaim beneficial ownership of the
shares, except to the extent of their direct pecuniary interest
in the shares. Foundation Capital Leadership Management Company,
L.L.C. is the general partner of Foundation Capital Leadership
Fund, L.P. and managing member of Foundation Capital Leadership
Principals Fund, L.L.C. William Elmore, Kathryn
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(footnotes continued on next page)
93
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Gould, Adam Grosser, Paul Koontz, and Mike Schuh are the
managing members of Foundation Capital Leadership Management
Company, L.L.C. and share voting and investment power of the
shares. The managing members of Foundation Capital Leadership
Management Company, L.L.C. disclaim beneficial ownership of the
shares, except to the extent of their direct pecuniary interest
in the shares. Each of these entities is affiliated with
Foundation Capital. The address of Foundation Capital is 70
Willow Road, Suite 200, Menlo Park, CA 94025.
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(12)
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Consists of 15,318,977 shares held by J.P. Morgan Direct
Venture Capital Institutional Investors LLC,
1,929,900 shares held by J.P. Morgan Direct Venture Capital
Private Investors LLC and 356,731 shares held by 522 Fifth
Avenue Fund, L.P. JPMorgan Chase Bank, N.A. serves as investment
advisor of J.P. Morgan Direct Venture Capital Institutional
Investors LLC. J.P. Morgan Investment Management Inc. serves as
investment advisor of J.P. Morgan Direct Venture Capital Private
Investors LLC. J.P. Morgan Investment Management Inc. serves as
investment advisor of 522 Fifth Avenue Fund, L.P. Jarrod Fong
and Lawrence Unrein, portfolio managers for J.P. Morgan Direct
Venture Capital Institutional Investors LLC, J.P. Morgan Direct
Venture Capital Private Investors LLC and 522 Fifth Avenue Fund,
L.P., share voting and investment control over the shares held
by these entities. The address of J.P. Morgan Direct Venture
Capital is 245 Park Avenue, New York, NY 10167. These
stockholders are affiliated with J.P. Morgan Securities Inc.,
which is acting as an underwriter of this offering.
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(13)
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Consists of 32,035,934 shares held by Lehman Brothers VC
Partners 2002 L.P., 14,482,932 shares held by Lehman
Brothers P.A. LLC, 11,760,017 shares held by LB I Group
Inc., 9,171,928 shares held by Lehman Brothers Venture
Capital Partners II, L.P., 6,525,266 shares held by Lehman
Brothers Partnership Account 2000/2001, L.P. and
1,692,325 shares held by Lehman Brothers Offshore
Partnership Account 2000/2001, L.P. Lehman Brothers Holdings
Inc., a reporting company under the Securities Exchange Act of
1934, has voting and investment control over the shares held by
these entities. The address of Lehman Brothers Venture Partners
is 3000 Sand Hill Road, Building 3, Suite 190, Menlo Park,
CA 94025. These stockholders are affiliated with Lehman Brothers
Inc., which is acting as an underwriter of this offering.
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94
DESCRIPTION
OF CAPITAL STOCK
Upon consummation of this offering, our authorized capital stock
will consist of 500,000,000 shares of common stock,
$0.001 par value per share, and 5,000,000 shares of
preferred stock, $0.001 par value per share. A description
of the material terms and provisions of our certificate of
incorporation and bylaws affecting the rights of holders of our
capital stock is set forth below. The description is intended as
a summary, and is qualified in its entirety by reference to the
form of our restated certificate of incorporation and the form
of our bylaws to be adopted prior to the completion of this
offering that will be filed with the registration statement of
which this prospectus is a part.
As of March 31, 2007, and after giving effect to the
automatic conversion of all of our outstanding preferred stock
into common stock upon completion of this offering, there were
outstanding:
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333,560,256 shares of our common stock held by
approximately 208 stockholders;
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32,494,685 shares issuable upon exercise of outstanding
stock options; and
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708,851 shares issuable upon exercise of outstanding
warrants.
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Common
Stock
Dividend Rights.
Subject to preferences that
may apply to shares of preferred stock outstanding at the time,
the holders of outstanding shares of our common stock are
entitled to receive dividends out of funds legally available if
our board of directors, in its discretion, determines to issue
dividends and only then at the times and in the amounts that our
board of directors may determine.
Voting Rights.
Each holder of common stock is
entitled to one vote for each share of common stock held on all
matters submitted to a vote of stockholders. Our certificate of
incorporation eliminates the right of stockholders to cumulate
votes for the election of directors. Our certificate of
incorporation establishes a classified board of directors, to be
divided into three classes with staggered three-year terms. Only
one class of directors will be elected at each annual meeting of
our stockholders, with the other classes continuing for the
remainder of their respective three-year terms.
No Preemptive or Similar Rights.
Our common
stock is not entitled to preemptive rights and is not subject to
conversion, redemption or sinking fund provisions.
Right to Receive Liquidation
Distributions.
Upon our dissolution, liquidation
or
winding-up,
the assets legally available for distribution to our
shareholders are distributable ratably among the holders of our
common stock, subject to prior satisfaction of all outstanding
debt and liabilities and the preferential rights and payment of
liquidation preferences, if any, on any outstanding shares of
preferred stock.
Preferred
Stock
Upon the completion of this offering, each outstanding share of
preferred stock will be converted into common stock.
Following this offering, we will be authorized, subject to
limitations prescribed by Delaware law, to issue preferred stock
in one or more series, to establish from time to time the number
of shares to be included in each series and to fix the
designation, powers, preferences and rights of the shares of
each series and any of its qualifications, limitations or
restrictions. Our board of directors can also increase or
decrease the number of shares of any series, but not below the
number of shares of that series then outstanding, without any
further vote or action by our stockholders. Our board of
directors may authorize the issuance of preferred stock with
voting or conversion rights that could adversely affect the
voting power or other rights of the holders of the common stock.
The issuance of preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate
purposes, could, among other things, have the effect of
delaying, deferring or preventing a change in control of our
company and may adversely affect the market price of our common
stock and the voting and other rights of the holders of common
stock. We have no current plan to issue any shares of preferred
stock.
95
Options
As of March 31, 2007, we had outstanding options to
purchase 32,494,685 shares of our common stock under our
1997 stock option plan and a non-plan stock option.
Warrants
As of March 31, 2007, we had outstanding four warrants to
purchase an aggregate of 708,851 shares of our common stock
or preferred stock, at a weighted average exercise price of
$0.28 per share, of which 623,675 shares are issuable upon
exercise of warrants to purchase shares of Series F
preferred stock and 53,362 shares are issuable upon
exercise of warrants to purchase Series E preferred stock,
which will become exercisable for shares of our common stock
upon the completion of this offering. The exercise price of each
warrant may be paid either in cash or by surrendering the right
to receive shares of common stock having a value equal to the
exercise price. The largest of the four warrants is a warrant to
purchase 623,675 shares that expires in 2013.
Registration
Rights
Following this offering, certain holders of shares of our common
stock and common stock issued upon conversion of our preferred
stock and warrants will be entitled to rights with respect to
the registration of a total of 274,053,117 shares under the
Securities Act, as described below.
Demand registration rights.
At any time
beginning six months after the completion of this offering, upon
the request of holders of at least a majority of the shares
having registration rights, or of holders requesting
registration of shares having an aggregate value of at least
$20 million, we will be obligated to use our best efforts
to register such shares. We are required to file no more than
two registration statements upon exercise of these demand
registration rights. We may postpone the filing of a
registration statement for up to 90 days once in a
12-month
period if we determine that the filing would be seriously
detrimental to us and our stockholders.
Piggyback registration rights.
If we register
any of our securities for public sale, the stockholders with
registration rights will have the right to include their shares
in the registration statement. However, this right does not
apply to a registration relating to any of our employee benefit
plans or a corporate reorganization. The managing underwriter of
any underwritten offering will have the right to limit, due to
marketing reasons, the number of shares registered by these
holders to 25% of the total shares covered by the registration
statement.
Form S-3
registration rights.
If we register any
securities for public sale, the holders of at least 20% of the
shares having registration rights can request that we register
all or a portion of their shares on
Form S-3
if we are eligible to file a registration statement on
Form S-3
and the aggregate price to the public of the shares offered is
at least $1.0 million. We are required to file no more than
two registration statements on
Form S-3
upon exercise of these rights 3 per
12-month
period. We may postpone the filing of a registration statement
on
Form S-3
for up to 90 days once in a
12-month
period if we determine that the filing would be seriously
detrimental to us and our stockholders.
Registration expenses.
We will pay all
expenses incurred in connection with each of the registrations
described above, except for underwriters and brokers
discounts and commissions. However, we will not pay for any
expenses of any demand registration if the request is
subsequently withdrawn by a majority of the holders requesting
that we file such a registration statement, subject to limited
exceptions.
Expiration of registration rights.
The
registration rights described above will expire five years after
this offering is completed. The registration rights will
terminate earlier with respect to a particular stockholder to
the extent the shares held by and issuable to such holder may be
sold under Rule 144 of the Securities Act in any
90 day period.
Holders of substantially all of our shares with these
registration rights have signed agreements with the underwriters
prohibiting the exercise of their registration rights for
180 days, subject to a possible extension of up to 34
additional days beyond the end of such
180-day
period, following the date of this prospectus. These agreements
are described below under the section entitled
Underwriting.
96
Anti-takeover
Provisions
Some of the provisions of Delaware law, our restated certificate
of incorporation and our bylaws may have the effect of delaying,
deferring or discouraging another person from acquiring control
of our company.
Delaware
Law
After we reincorporate in Delaware, we will be subject to the
provisions of Section 203 of the Delaware General
Corporation Law regulating corporate takeovers. This section
prevents some Delaware corporations from engaging, under some
circumstances, in a business combination, which includes a
merger or sale of at least 10% of the corporations assets
with any interested stockholder, meaning a stockholder who,
together with affiliates and associates, owns or, within three
years prior to the determination of interested stockholder
status, did own 15% or more of the corporations
outstanding voting stock, unless:
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the transaction is approved by the board of directors prior to
the time that the interested stockholder became an interested
stockholder;
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upon consummation of the transaction which resulted in the
stockholders becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction
commenced; or
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at or subsequent to such time that the stockholder became an
interested stockholder the business combination is approved by
the board of directors and authorized at an annual or special
meeting of stockholders by at least two-thirds of the
outstanding voting stock which is not owned by the interested
stockholder.
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A Delaware corporation may opt out of these
provisions with an express provision in its original certificate
of incorporation or an express provision in its certificate or
incorporation or bylaws resulting from a stockholders
amendment approved by at least a majority of the outstanding
voting shares. We do not plan to opt out of these
provisions. The statute could prohibit or delay mergers or other
takeover or change in control attempts and, accordingly, may
discourage attempts to acquire us.
Charter
and Bylaw Provisions
After we reincorporate in Delaware, we expect that our restated
certificate of incorporation or bylaws will provide that:
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following the completion of this offering, no action shall be
taken by our stockholders except at an annual or special meeting
of our stockholders called in accordance with our bylaws and
that our stockholders may not act by written consent;
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our stockholders may not call special meetings of our
stockholders or fill vacancies on our board of directors;
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our board of directors is divided into three classes and the
directors in each class will serve for a three-year term, with
our stockholders electing one class each year;
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our board of directors may designate the terms of and issue a
new series of preferred stock with voting or other rights
without stockholder approval;
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the approval of holders of two-thirds of the shares entitled to
vote at an election of directors will be required to adopt,
amend or repeal our bylaws or amend or repeal the provisions of
our bylaws or repeal the provisions of our certificate of
incorporation regarding the fixing of the authorized number of
directors, the election and removal of directors the
classification of our board of directors into three classes,
indemnification of directors and the ability of stockholders to
take action or call special meetings of stockholders;
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a majority of the authorized number of directors will have the
power to adopt, amend or repeal our bylaws without stockholder
approval
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97
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our stockholders may not cumulate votes in the election of
directors;
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directors can only be removed for cause by the holders of at
least two-thirds of the shares entitled to vote at an election
of directors;
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we will indemnify directors and officers against losses that
they may incur in investigations and legal proceedings resulting
from their services to us, which may include services in
connection with takeover defense measures.
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These provisions of our restated certificate of incorporation or
bylaws may have the effect of delaying, deferring or
discouraging another person or entity from acquiring control of
us.
NASDAQ
Global Market Listing
We have applied to list our common stock on the NASDAQ Global
Market under the trading symbol SHOR.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock
is .
98
SHARES ELIGIBLE
FOR FUTURE SALE
Prior to this offering, there has been no public market for our
common stock, and we cannot predict the effect, if any, that
market sales of shares of our common stock or the availability
of shares of our common stock for sale will have on the market
price of our common stock prevailing from time to time.
Nevertheless, sales of substantial amounts of our common stock,
including shares issued upon exercise of outstanding options and
warrants, in the public market after this offering could
adversely affect market prices prevailing from time to time and
could impair our ability to raise capital through the sale of
our equity securities.
Upon the completion of this offering, based on the number of
shares outstanding as of December 31, 2006, and after
giving effect to the automatic conversion of all outstanding
shares of our preferred stock into common stock immediately
prior to completion of this offering, we will
have shares
of common stock outstanding, assuming no exercise of the
underwriters option to purchase additional shares and no
exercise of outstanding options and warrants. All of the shares
sold in this offering will be freely tradable, except that any
shares held by our affiliates (as that term is defined in
Rule 144 under the Securities Act) may only be sold in
compliance with the limitations described below.
Sales of
Restricted Securities
The remaining 333,560,256 shares of common stock will be
deemed restricted securities as defined under Rule 144.
Restricted securities may be sold in the public market only if
registered or if they qualify for an exemption from registration
under Rules 144, 144(k) or 701 promulgated under the
Securities Act, which rules are summarized below. In addition,
as a result of the
lock-up
agreements described below and the provisions of Rule 144
and Rule 701 (subject in some cases to a right of
repurchase by us), these shares of our common stock (excluding
the shares sold in this offering) will be available for sale in
the public market as follows (subject in some cases to volume
limitations under Rule 144):
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no shares will be eligible for sale on the date of this
prospectus;
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328,792,276 shares will be eligible for sale upon the
expiration of
lock-up
agreements, as described below under Underwriters,
beginning on the 181st day (subject to a possible extension
of up to 34 additional days), after the date of this prospectus,
subject to early release by Lehman Brothers Inc. and
J.P. Morgan Securities Inc., in their sole discretion and
subject in some cases to the provisions of Rule 144 under
the Securities Act of 1933; and
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the remainder of the shares will be eligible for sale in the
public market from time to time thereafter upon the lapse of our
right of repurchase with respect to any unvested shares.
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Lock-up
Agreements
We will enter into a
lock-up
agreement with the underwriters, and all of our directors and
officers and the holders of substantially all of our outstanding
shares, stock options and warrants have entered into or will
enter into
lock-up
agreements with the underwriters. Under the agreement, we may
not issue any new shares of common stock or any securities
convertible into or exercisable or exchangeable for shares of
common stock, and the holders of common stock, options and
warrants may not sell, transfer or dispose of, directly or
indirectly, any shares of our common stock or any securities
convertible into or exercisable or exchangeable for shares of
our common stock without the prior written consent of Lehman
Brothers Inc. and J.P. Morgan Securities Inc. for a period
of 180-days, subject to specified exceptions and a possible
extension of up to 34 additional days beyond the end of such
180 day period, after the date of this prospectus. These
agreements are described below under the section entitled
Underwriting.
Rule 144
In general, under Rule 144 promulgated under the Securities
Act as currently in effect, a person, or group of persons whose
shares are required to be aggregated, who has beneficially owned
shares that are restricted securities
99
as defined in Rule 144 for at least one year is entitled to
sell, within any three-month period commencing 90 days
after the date of this prospectus, a number of shares that does
not exceed the greater of:
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1% of the then outstanding shares of our common stock, which
will be
approximately shares
immediately after this offering; or
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the average weekly trading volume in our common stock on the
NASDAQ Global Market during the four calendar weeks preceding
the filing of a notice on Form 144 with respect to such
sale.
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In addition, a person who is not deemed to have been an
affiliate at any time during the three months preceding a sale
and who has beneficially owned the shares proposed to be sold
for at least two years would be entitled to sell these shares
under Rule 144(k) without regard to the requirements
described above. To the extent that shares were acquired from
one of our affiliates, a persons holding period for the
purpose of effecting a sale under Rule 144 would commence
on the date of transfer from the affiliate.
Rule 701
In general, under Rule 701 of the Securities Act, any of
our employees, directors, officers, consultants or advisors who
purchased shares from us in connection with a compensatory stock
or option plan or other written agreement is eligible to resell
those shares in reliance on Rule 144, but without
compliance with specified restrictions, including the holding
period contained in Rule 144. However, all shares issued
under Rule 701 are subject to 180-day
lock-up
agreements and will only become eligible for sale at the
expiration of such agreements.
Registration
Rights
Following this offering, certain holders of shares of our common
stock and common stock issued upon conversion of our preferred
stock and warrants, or their transferees, will be entitled to
rights with respect to the registration of a total of
274,053,117 shares under the Securities Act, as described
above. For a description of these registration rights, please
see Description of Capital Stock Registration
Rights. After these shares are registered, they will be
freely tradable without restriction under the Securities Act.
Stock
Options
As of March 31, 2007, options to purchase a total of
32,494,685 shares of our common stock were outstanding. We
intend to file a registration statement on
Form S-8
under the Securities Act to register all shares of our common
stock subject to outstanding options, all shares of our common
stock issued upon exercise of stock options and all shares of
our common stock issuable under our equity incentive and
employee stock purchase plans. Accordingly, shares of our common
stock issued under these plans will be eligible for sale in the
public markets, subject to vesting restrictions and the
lock-up
agreements described above.
100
UNDERWRITING
Lehman Brothers Inc. and J.P. Morgan Securities Inc. are
acting as the representatives of the underwriters and the joint
book-running managers of this offering. Subject to the terms and
conditions of an underwriting agreement, each of the
underwriters named below has severally agreed to purchase from
us the respective number of common stock shown opposite its name
below:
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Underwriters
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Number of Shares
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Lehman Brothers Inc.
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J.P. Morgan Securities Inc.
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Piper Jaffray & Co.
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JMP Securities LLC
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Wedbush Morgan Securities
Inc.
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Total
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The underwriters are committed to purchase all the shares of
common stock offered by us if they purchase any shares. The
underwriting agreement also provides that if an underwriter
defaults, the purchase commitments of non-defaulting
underwriters may also be increased or the offering may be
terminated.
The underwriting agreement provides that the underwriters
obligation to purchase shares of common stock depends on the
satisfaction of the conditions contained in the underwriting
agreement including:
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the representations and warranties made by us to the
underwriters are true;
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there is no material change in our business or the financial
markets; and
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we deliver customary closing documents to the underwriters.
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Commissions
and Expenses
The following table summarizes the underwriting discounts and
commissions we will pay to the underwriters. These amounts are
shown assuming both no exercise and full exercise of the
underwriters option to purchase additional shares. The
underwriting fee is the difference between the initial price to
the public and the amount the underwriters pay to us for the
shares.
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No Exercise
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Full Exercise
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Per share
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$
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$
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Total
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$
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$
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The representatives of the underwriters have advised us that the
underwriters propose to offer the shares of common stock
directly to the public at the public offering price on the cover
of this prospectus and to selected dealers, which may include
the underwriters, at such offering price less a selling
concession not in excess of $ per
share. After the completion of the initial public distribution,
the representatives may change the offering price and other
selling terms.
The expenses of the offering that are payable by us are
estimated to be $ (excluding
underwriting discounts and commissions).
Option to
Purchase Additional Shares
We have granted the underwriters an option exercisable for
30 days after the date of this prospectus, to purchase,
from time to time, in whole or in part, up to an aggregate
of shares
at the public offering price less underwriting discounts and
commissions. This option may be exercised if the underwriters
sell more
than shares
in connection with this offering. To the extent that this option
is exercised, each underwriter will be obligated, subject to
certain conditions, to purchase its pro rata portion of these
additional shares based on the underwriters underwriting
commitment in the offering as indicated in the table at the
beginning of this Underwriting Section.
101
Lock-Up
Agreements
We, our executive officers and directors, and substantially all
of our securityholders have agreed that, subject to certain
exceptions, without the prior written consent of each of Lehman
Brothers Inc. and J.P. Morgan Securities Inc., we and they
will not directly or indirectly, (1) offer for sale, sell,
contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right
or warrant to purchase, pledge, or otherwise transfer or dispose
of (or enter into any transaction or device that is designed to,
or could be expected to, result in the disposition by any person
at any time in the future of) any shares of common stock
(including, without limitation, shares of common stock that may
be deemed to be beneficially owned by us or them in accordance
with the rules and regulations of the Securities and Exchange
Commission and shares of common stock that may be issued upon
exercise of any options or warrants) or securities convertible
into or exercisable or exchangeable for common stock,
(2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the
economic consequences of ownership of the common stock,
(3) make any demand for or exercise any right or file or
cause to be filed a registration statement, including any
amendments thereto, with respect to the registration of any
shares of common stock or securities convertible, exercisable or
exchangeable into common stock or any of our other securities,
or (4) publicly disclose the intention to do any of the
foregoing for a period of 180 days after the date of this
prospectus.
The
180-day
restricted period described in the preceding paragraph will be
extended if:
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during the last 17 days of the
180-day
restricted period we issue an earnings release or material news
or a material event relating to us occurs; or
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prior to the expiration of the
180-day
restricted period, we announce that we will release earnings
results during the
16-day
period beginning on the last day of the
180-day
period,
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in which case the restrictions described in the preceding
paragraph will continue to apply until the expiration of the
18-day
period beginning on and including the date of the issuance of
the earnings release or the announcement of the material news or
occurrence of a material event, unless such extension is waived
in writing by Lehman Brothers Inc. and J.P. Morgan
Securities Inc.
Offering
Price Determination
Prior to this offering, there has been no public market for our
common stock. The initial public offering price will be
negotiated between the representatives and us. In determining
the initial public offering price of our common stock, the
representatives will consider:
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the history and prospects for the industry in which we compete;
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our financial information;
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the ability of our management and our business potential and
earning prospects;
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the prevailing securities markets at the time of this
offering; and
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the recent market prices of, and the demand for, publicly traded
shares of generally comparable companies.
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We have applied to list our common stock on the NASDAQ Global
Market under the trading symbol SHOR.
Neither we nor the underwriters can assure investors that an
active trading market will develop for our common stock, or that
the shares will trade in the public market at or above the
initial public offering price.
Indemnification
We have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act, and
to contribute to payments that the underwriters may be required
to make for these liabilities.
102
Stabilization,
Short Positions and Penalty Bids
The representatives may engage in stabilizing transactions,
short sales and purchases to cover positions created by short
sales, and penalty bids or purchases for the purpose of pegging,
fixing or maintaining the price of the common stock, in
accordance with Regulation M under the Securities Exchange
Act of 1934:
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
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A short position involves a sale by the underwriters of shares
in excess of the number of shares the underwriters are obligated
to purchase in the offering, which creates the syndicate short
position. This short position may be either a covered short
position or a naked short position. In a covered short position,
the number of shares involved in the sales made by the
underwriters in excess of the number of shares they are
obligated to purchase is not greater than the number of shares
that they may purchase by exercising their option to purchase
additional shares. In a naked short position, the number of
shares involved is greater than the number of shares in their
option to purchase additional shares. The underwriters may close
out any short position by either exercising their option to
purchase additional shares
and/or
purchasing shares in the open market. In determining the source
of shares to close out the short position, the underwriters will
consider, among other things, the price of shares available for
purchase in the open market as compared to the price at which
they may purchase shares through their option to purchase
additional shares. A naked short position is more likely to be
created if the underwriters are concerned that there could be
downward pressure on the price of the shares in the open market
after pricing that could adversely affect investors who purchase
in the offering.
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Syndicate covering transactions involve purchases of the common
stock in the open market after the distribution has been
completed in order to cover syndicate short positions.
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Penalty bids permit the representatives to reclaim a selling
concession from a syndicate member when the common stock
originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
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These stabilizing transactions, syndicate covering transactions
and penalty bids may have the effect of raising or maintaining
the market price of our common stock or preventing or retarding
a decline in the market price of the common stock. As a result,
the price of the common stock may be higher than the price that
might otherwise exist in the open market. These transactions may
be effected on the NASDAQ Global Market or otherwise and, if
commenced, may be discontinued at any time.
Neither we nor any of the underwriters make any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the common stock. In addition, neither we nor any of the
underwriters make any representation that the representatives
will engage in these stabilizing transactions or that any
transaction, once commenced, will not be discontinued without
notice.
Electronic
Distribution
A prospectus in electronic format may be made available on the
Internet sites or through other online services maintained by
one or more of the underwriters
and/or
selling group members participating in this offering, or by
their affiliates. In those cases, prospective investors may view
offering terms online and, depending upon the particular
underwriter or selling group member, prospective investors may
be allowed to place orders online. The underwriters may agree
with us to allocate a specific number of shares for sale to
online brokerage account holders. Any such allocation for online
distributions will be made by the representatives on the same
basis as other allocations.
Other than the prospectus in electronic format, the information
on any underwriters or selling group members web
site and any information contained in any other web site
maintained by an underwriter or selling group member is not part
of the prospectus or the registration statement of which this
prospectus forms a part, has not been approved
and/or
endorsed by us or any underwriter or selling group member in its
capacity as underwriter or selling group member and should not
be relied upon by investors.
103
Discretionary
Sales
The underwriters have informed us that they do not intend to
confirm sales to discretionary accounts that exceed 5% of the
total number of shares offered by them or without the prior
specific written approval of the customer.
Stamp
Taxes
If you purchase shares of common stock offered in this
prospectus, you may be required to pay stamp taxes and other
charges under the laws and practices of the country of purchase,
in addition to the offering price listed on the cover page of
this prospectus.
Relationships/NASD
Conduct Rules
Certain of the underwriters and their affiliates may provide
from time to time in the future certain commercial banking,
financial advisory, investment banking and other services for us
in the ordinary course of their business, for which they may
receive customary fees and commissions. In addition, from time
to time, certain of the underwriters and their affiliates may
effect transactions for their own account or the account of
customers, and hold on behalf of themselves or their customers,
long or short positions in our debt or equity securities or
loans.
Immediately prior to the consummation of this offering,
affiliates of Lehman Brothers Inc. beneficially owned
approximately 23% of our outstanding voting securities, and
affiliates J.P. Morgan Securities Inc. beneficially owned
approximately 5% of our outstanding voting securities. In
addition, Brian K. Paul, a partner at Lehman Brothers Venture
Partners, which is an affiliate of Lehman Brothers Inc., was a
member of our board of directors until May 2007. Because of
these relationships, this offering is being conducted in
accordance with Rule 2720 of the National Association of
Securities Dealers, Inc., or NASD. This rule requires that the
initial public offering price for our shares cannot be higher
than the price recommended by a qualified independent
underwriter, as defined by the NASD. Piper
Jaffray & Co. is serving as a qualified independent
underwriter and will assume the customary responsibilities of
acting as a qualified independent underwriter in pricing the
offering and conducting due diligence. We have agreed to
indemnify Piper Jaffray & Co. against any liabilities
arising in connection with its role as a qualified independent
underwriter, including liabilities under the Securities Act.
Selling
Restrictions
European
Economic Area
In relation to each member state of the European Economic Area
that has implemented the Prospectus Directive (each, a relevant
member state), with effect from and including the date on which
the Prospectus Directive is implemented in that relevant member
state (the relevant implementation date), an offer of shares
described in this prospectus may not be made to the public in
that relevant member state prior to the publication of a
prospectus in relation to the shares that has been approved by
the competent authority in that relevant member state or, where
appropriate, approved in another relevant member state and
notified to the competent authority in that relevant member
state, all in accordance with the Prospectus Directive, except
that, with effect from and including the relevant implementation
date, an offer of securities may be offered to the public in
that relevant member state at any time:
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to any legal entity that is authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in
securities; or
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to any legal entity that has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts; or
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in any other circumstances that do not require the publication
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
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104
Each purchaser of shares described in this prospectus located
within a relevant member state will be deemed to have
represented, acknowledged and agreed that it is a
qualified investor within the meaning of
Article 2(1)(e) of the Prospectus Directive.
For purposes of this provision, the expression an offer to
the public in any relevant member state means the
communication in any form and by any means of sufficient
information on the terms of the offer and the securities to be
offered so as to enable an investor to decide to purchase or
subscribe the securities, as the expression may be varied in
that member state by any measure implementing the Prospectus
Directive in that member state, and the expression
Prospectus Directive means Directive 2003/71/EC and
includes any relevant implementing measure in each relevant
member state.
The sellers of the shares have not authorized and do not
authorize the making of any offer of shares through any
financial intermediary on their behalf, other than offers made
by the underwriters with a view to the final placement of the
shares as contemplated in this prospectus. Accordingly, no
purchaser of the shares, other than the underwriters, is
authorized to make any further offer of the shares on behalf of
the sellers or the underwriters.
United
Kingdom
This prospectus is only being distributed to, and is only
directed at, persons in the United Kingdom that are qualified
investors within the meaning of Article 2(1)(e) of the
Prospectus Directive (Qualified Investors) that are
also (i) investment professionals falling within
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (the Order) or
(ii) high net worth entities, and other persons to whom it
may lawfully be communicated, falling within
Article 49(2)(a) to (d) of the Order (all such persons
together being referred to as relevant persons).
This prospectus and its contents are confidential and should not
be distributed, published or reproduced (in whole or in part) or
disclosed by recipients to any other persons in the United
Kingdom. Any person in the United Kingdom that is not a relevant
persons should not act or rely on this document or any of its
contents.
France
Neither this prospectus nor any other offering material relating
to the shares described in this prospectus has been submitted to
the clearance procedures of the Autorité des Marchés
Financiers or by the competent authority of another member state
of the European Economic Area and notified to the Autorité
des Marchés Financiers. The shares have not been offered or
sold and will not be offered or sold, directly or indirectly, to
the public in France. Neither this prospectus nor any other
offering material relating to the shares has been or will be:
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released, issued, distributed or caused to be released, issued
or distributed to the public in France; or
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used in connection with any offer for subscription or sale of
the shares to the public in France.
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Such offers, sales and distributions will be made in France only:
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to qualified investors (investisseurs qualifiés)
and/or
to a
restricted circle of investors (cercle restreint
dinvestisseurs), in each case investing for their own
account, all as defined in, and in accordance with,
Article L.411-2,
D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the
French Code monétaire et financier; or
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to investment services providers authorized to engage in
portfolio management on behalf of third parties; or
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in a transaction that, in accordance with article
L.411-2-II-1°-or-2°-or 3°of the French Code
monétaire et financier and
article 211-2
of the General Regulations (Règlement Général) of
the Autorité des Marchés Financiers, does not
constitute a public offer (appel public à
lépargne).
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The shares may be resold directly or indirectly, only in
compliance with
Articles L.411-1,
L.411-2, L.412-1 and L.621-8 through L.621-8-3 of the French
Code monétaire et financier.
105
LEGAL
MATTERS
The validity of the shares of common stock offered hereby will
be passed upon for us by Fenwick & West LLP, Mountain
View, California. Wilson Sonsini Goodrich & Rosati, P.C.,
is acting as counsel to the underwriters.
EXPERTS
The consolidated financial statements of ShoreTel, Inc. and
subsidiaries at June 30, 2005 and 2006, and for each of the
three years in the period ended June 30, 2006, included in
this prospectus have been audited by Deloitte & Touche
LLP, an independent registered public accounting firm, as stated
in their report appearing herein, and are included in reliance
upon the report of such firm given upon their authority as
experts in accounting and auditing.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on
Form S-1
under the Securities Act with respect to the shares of common
stock offered hereby. This prospectus, which constitutes a part
of the registration statement, does not contain all of the
information set forth in the registration statement or the
exhibits and schedules filed therewith. For further information
about us and the common stock offered hereby, we refer you to
the registration statement and the exhibits and schedules filed
thereto. Statements contained in this prospectus regarding the
contents of any contract or any other document that is filed as
an exhibit to the registration statement are not necessarily
complete, and each such statement is qualified in all respects
by reference to the full text of such contract or other document
filed as an exhibit to the registration statement. Upon
completion of this offering, we will be required to file
periodic reports, proxy statements, and other information with
the SEC pursuant to the Securities Exchange Act of 1934. You may
read and copy this information at the Public Reference Room of
the SEC, 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may obtain information on the
operation of the public reference rooms by calling the SEC at
1-800-SEC-0330.
The SEC also maintains an Internet website that contains
reports, proxy statements and other information about issuers,
like us, that file electronically with the SEC. The address of
that site is www.sec.gov.
106
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of
ShoreTel, Inc.
Sunnyvale, California
We have audited the accompanying consolidated balance sheets of
ShoreTel, Inc. and subsidiaries (collectively, the
Company) as of June 30, 2005 and 2006, and the
related consolidated statements of operations, redeemable
convertible preferred stock and shareholders deficit, and
cash flows for each of the three years in the period ended
June 30, 2006. These financial statements are the
responsibility of the Companys management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with the standards 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. The Company is not required to
have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audits included
consideration of internal control over financial reporting as a
basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion
on the effectiveness of the Companys internal control over
financial reporting. Accordingly, we express no such opinion. An
audit also includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present
fairly, in all material respects, the financial position of
ShoreTel, Inc. and subsidiaries as of June 30, 2005 and
2006, and the results of their operations and their cash flows
for each of the three years in the period ended June 30,
2006, in conformity with accounting principles generally
accepted in the United States of America.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
April 30, 2007
F-2
SHORETEL,
INC. AND SUBSIDIARIES
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Pro Forma
|
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June 30,
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March 31,
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March 31,
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|
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2005
|
|
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2006
|
|
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2007
|
|
|
2007
|
|
|
|
|
|
|
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|
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(Unaudited)
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(Dollars in thousands, except per share data)
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ASSETS
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CURRENT ASSETS:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
5,373
|
|
|
$
|
12,333
|
|
|
$
|
16,811
|
|
|
|
|
|
Restricted cash
|
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
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Accounts receivable, net of
allowances of $200, $378 and $256 as of June 30, 2005,
June 30, 2006 and March 31, 2007, respectively
|
|
|
9,334
|
|
|
|
11,479
|
|
|
|
18,790
|
|
|
|
|
|
Inventories
|
|
|
4,663
|
|
|
|
4,656
|
|
|
|
6,783
|
|
|
|
|
|
Prepaid expenses and other current
assets
|
|
|
517
|
|
|
|
852
|
|
|
|
2,179
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total current assets
|
|
|
19,902
|
|
|
|
29,320
|
|
|
|
44,563
|
|
|
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|
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PROPERTY AND EQUIPMENT
Net
|
|
|
1,045
|
|
|
|
1,556
|
|
|
|
2,330
|
|
|
|
|
|
OTHER ASSETS
|
|
|
13
|
|
|
|
9
|
|
|
|
1,219
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
$
|
20,960
|
|
|
$
|
30,885
|
|
|
$
|
48,112
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES, REDEEMABLE
CONVERTIBLE PREFERRED STOCK, AND
SHAREHOLDERS EQUITY
(DEFICIT)
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
3,070
|
|
|
$
|
3,958
|
|
|
$
|
8,087
|
|
|
|
|
|
Accrued liabilities and other
|
|
|
1,185
|
|
|
|
2,272
|
|
|
|
2,513
|
|
|
|
|
|
Accrued employee compensation
|
|
|
1,062
|
|
|
|
2,918
|
|
|
|
3,000
|
|
|
|
|
|
Deferred revenue
|
|
|
3,837
|
|
|
|
3,963
|
|
|
|
8,520
|
|
|
|
|
|
Current portion of capital lease
obligations
|
|
|
7
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
9,161
|
|
|
|
13,112
|
|
|
|
22,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LONG-TERM LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term portion of capital lease
obligations
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock warrant liability
|
|
|
|
|
|
|
|
|
|
|
666
|
|
|
|
|
|
Long-term deferred revenue
|
|
|
1,230
|
|
|
|
2,609
|
|
|
|
3,450
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
1,231
|
|
|
|
2,609
|
|
|
|
4,116
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
10,392
|
|
|
|
15,721
|
|
|
|
26,236
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES
(Note 10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
REDEEMABLE CONVERTIBLE PREFERRED
STOCK, $0.01 par value; authorized,
235,862,612 shares; issued and outstanding
233,164,369 shares as of June 30, 2005, June 30,
2006 and March 31, 2007 (aggregate liquidation preference
of $44,250)
|
|
|
56,281
|
|
|
|
56,332
|
|
|
|
56,329
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHAREHOLDERS EQUITY (DEFICIT):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.01 par value;
authorized, 400,000,000 shares; issued and outstanding,
59,927,915, 92,883,927 and 100,395,887 shares as of
June 30, 2005, June 30, 2006 and March 31, 2007,
respectively, and 333,560,256 shares outstanding pro forma
|
|
|
587
|
|
|
|
958
|
|
|
|
1,113
|
|
|
|
3,445
|
|
Additional paid-in capital
|
|
|
48,989
|
|
|
|
49,319
|
|
|
|
51,409
|
|
|
|
106,072
|
|
Deferred compensation
|
|
|
(36
|
)
|
|
|
(335
|
)
|
|
|
(284
|
)
|
|
|
(284
|
)
|
Notes receivable from shareholders
|
|
|
(372
|
)
|
|
|
(231
|
)
|
|
|
|
|
|
|
|
|
Accumulated deficit
|
|
|
(94,881
|
)
|
|
|
(90,879
|
)
|
|
|
(86,691
|
)
|
|
|
(86,691
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
(deficit)
|
|
|
(45,713
|
)
|
|
|
(41,168
|
)
|
|
|
(34,453
|
)
|
|
$
|
22,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
$
|
20,960
|
|
|
$
|
30,885
|
|
|
$
|
48,112
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements
F-3
SHORETEL,
INC. AND SUBSIDIARIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
|
(Dollars in thousands, except per share amounts)
|
|
|
REVENUE:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
$
|
16,587
|
|
|
$
|
31,970
|
|
|
$
|
55,300
|
|
|
$
|
37,972
|
|
|
$
|
61,473
|
|
Support and services
|
|
|
2,241
|
|
|
|
3,512
|
|
|
|
6,308
|
|
|
|
4,552
|
|
|
|
7,431
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
18,828
|
|
|
|
35,482
|
|
|
|
61,608
|
|
|
|
42,524
|
|
|
|
68,904
|
|
COST OF REVENUE:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
|
7,725
|
|
|
|
13,961
|
|
|
|
21,855
|
|
|
|
15,723
|
|
|
|
21,271
|
|
Support and services
|
|
|
1,660
|
|
|
|
2,907
|
|
|
|
5,425
|
|
|
|
3,942
|
|
|
|
4,853
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
9,385
|
|
|
|
16,868
|
|
|
|
27,280
|
|
|
|
19,665
|
|
|
|
26,124
|
|
GROSS PROFIT
|
|
|
9,443
|
|
|
|
18,614
|
|
|
|
34,328
|
|
|
|
22,859
|
|
|
|
42,780
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OPERATING EXPENSES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
5,517
|
|
|
|
7,034
|
|
|
|
9,720
|
|
|
|
6,520
|
|
|
|
11,450
|
|
Sales and marketing
|
|
|
8,004
|
|
|
|
10,050
|
|
|
|
15,699
|
|
|
|
10,855
|
|
|
|
18,441
|
|
General and administrative
|
|
|
2,166
|
|
|
|
3,045
|
|
|
|
4,936
|
|
|
|
3,108
|
|
|
|
8,383
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
15,687
|
|
|
|
20,129
|
|
|
|
30,355
|
|
|
|
20,483
|
|
|
|
38,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) FROM OPERATIONS
|
|
|
(6,244
|
)
|
|
|
(1,515
|
)
|
|
|
3,973
|
|
|
|
2,376
|
|
|
|
4,506
|
|
OTHER INCOME (EXPENSE):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
9
|
|
|
|
137
|
|
|
|
292
|
|
|
|
140
|
|
|
|
611
|
|
Interest expense
|
|
|
(22
|
)
|
|
|
(21
|
)
|
|
|
(31
|
)
|
|
|
(31
|
)
|
|
|
|
|
Increase in fair value of warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(624
|
)
|
Other
|
|
|
6
|
|
|
|
8
|
|
|
|
(13
|
)
|
|
|
(13
|
)
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other income (expense)
|
|
|
(7
|
)
|
|
|
124
|
|
|
|
248
|
|
|
|
96
|
|
|
|
(7
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE PROVISION FOR
INCOME TAXES
|
|
|
(6,251
|
)
|
|
|
(1,391
|
)
|
|
|
4,221
|
|
|
|
2,472
|
|
|
|
4,499
|
|
INCOME TAX PROVISION
|
|
|
|
|
|
|
(11
|
)
|
|
|
(219
|
)
|
|
|
(140
|
)
|
|
|
(311
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS)
|
|
|
(6,251
|
)
|
|
|
(1,402
|
)
|
|
|
4,002
|
|
|
|
2,332
|
|
|
|
4,188
|
|
ACCRETION OF PREFERRED STOCK
|
|
|
(26
|
)
|
|
|
(32
|
)
|
|
|
(51
|
)
|
|
|
(38
|
)
|
|
|
(38
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) AVAILABLE TO
COMMON SHAREHOLDERS
|
|
$
|
(6,277
|
)
|
|
$
|
(1,434
|
)
|
|
$
|
3,951
|
|
|
$
|
2,294
|
|
|
$
|
4,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per common share
available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.06
|
|
|
$
|
0.04
|
|
|
$
|
0.05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.05
|
|
|
$
|
0.03
|
|
|
$
|
0.03
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in computing net income
(loss) per share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
66,091,748
|
|
|
|
63,588,435
|
|
|
|
83,415,702
|
|
Diluted
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
84,867,945
|
|
|
|
91,209,085
|
|
|
|
121,763,446
|
|
Unaudited pro forma net income per
common share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unaudited shares used in computing
pro forma net income per share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
299,256,117
|
|
|
|
|
|
|
|
316,580,071
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
318,032,314
|
|
|
|
|
|
|
|
354,927,815
|
|
See notes to consolidated financial statements
F-4
SHORETEL,
INC. AND SUBSIDIARIES
AND SHAREHOLDERS DEFICIT
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Redeemable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes
|
|
|
|
|
|
|
|
|
|
Convertible Preferred
|
|
|
|
|
|
|
|
|
|
Additional
|
|
|
Deferred
|
|
|
Receivable
|
|
|
|
|
|
Total
|
|
|
|
Stock
|
|
|
|
Common Stock
|
|
|
Paid-In
|
|
|
Stock
|
|
|
from
|
|
|
Accumulated
|
|
|
Shareholders
|
|
|
|
Shares
|
|
|
Amount
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Capital
|
|
|
Compensation
|
|
|
Shareholders
|
|
|
Deficit
|
|
|
Deficit
|
|
BALANCES, July 1, 2003
|
|
|
165,879,614
|
|
|
$
|
42,814
|
|
|
|
|
56,416,382
|
|
|
$
|
564
|
|
|
$
|
49,047
|
|
|
$
|
(163
|
)
|
|
$
|
(594
|
)
|
|
$
|
(87,228
|
)
|
|
$
|
(38,374
|
)
|
Issuance of Series G
redeemable convertible preferred stock, net of issuance costs of
$51
|
|
|
20,114,943
|
|
|
|
3,449
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion of preferred stock
|
|
|
|
|
|
|
26
|
|
|
|
|
|
|
|
|
|
|
|
|
(26
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(26
|
)
|
Exercise of common stock options
|
|
|
|
|
|
|
|
|
|
|
|
991,400
|
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
|
|
Warrants on Series F
redeemable convertible preferred stock
|
|
|
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
45
|
|
|
|
|
|
|
|
|
|
|
|
45
|
|
Net loss and comprehensive net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,251
|
)
|
|
|
(6,251
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCE June 30,
2004
|
|
|
185,994,557
|
|
|
|
46,300
|
|
|
|
|
57,407,782
|
|
|
|
574
|
|
|
|
49,021
|
|
|
|
(118
|
)
|
|
|
(594
|
)
|
|
|
(93,479
|
)
|
|
|
(44,596
|
)
|
Issuance of Series H
redeemable convertible preferred stock, net of issuance costs of
$51
|
|
|
47,169,812
|
|
|
|
9,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion of preferred stock
|
|
|
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
|
|
(32
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(32
|
)
|
Exercise of common stock options
|
|
|
|
|
|
|
|
|
|
|
|
2,520,133
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
82
|
|
|
|
|
|
|
|
|
|
|
|
82
|
|
Repayment of shareholder note
receivable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
222
|
|
|
|
|
|
|
|
222
|
|
Net loss and comprehensive net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,402
|
)
|
|
|
(1,402
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCE June 30,
2005
|
|
|
233,164,369
|
|
|
|
56,281
|
|
|
|
|
59,927,915
|
|
|
|
587
|
|
|
|
48,989
|
|
|
|
(36
|
)
|
|
|
(372
|
)
|
|
|
(94,881
|
)
|
|
|
(45,713
|
)
|
Accretion of preferred stock
|
|
|
|
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
|
|
(51
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(51
|
)
|
Exercise of common stock options
|
|
|
|
|
|
|
|
|
|
|
|
34,286,679
|
|
|
|
521
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
521
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
381
|
|
|
|
(299
|
)
|
|
|
|
|
|
|
|
|
|
|
82
|
|
Repurchase of shares exercised
under note receivable
|
|
|
|
|
|
|
|
|
|
|
|
(460,000
|
)
|
|
|
(141
|
)
|
|
|
|
|
|
|
|
|
|
|
141
|
|
|
|
|
|
|
|
|
|
Repurchase of shares early exercised
|
|
|
|
|
|
|
|
|
|
|
|
(870,667
|
)
|
|
|
(9
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9
|
)
|
Net income and comprehensive net
income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,002
|
|
|
|
4,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCE June 30,
2006
|
|
|
233,164,369
|
|
|
|
56,332
|
|
|
|
|
92,883,927
|
|
|
|
958
|
|
|
|
49,319
|
|
|
|
(335
|
)
|
|
|
(231
|
)
|
|
|
(90,879
|
)
|
|
|
(41,168
|
)
|
Accretion of preferred stock*
|
|
|
|
|
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
(38
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(38
|
)
|
Exercise of common stock options*
|
|
|
|
|
|
|
|
|
|
|
|
8,088,666
|
|
|
|
534
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
534
|
|
Stock-based compensation expense*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,002
|
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
|
2,053
|
|
Repayment of note receivable from
shareholder*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
|
|
|
|
|
|
|
|
12
|
|
Vesting of accrued early exercised
stock options*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
157
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
157
|
|
Warrants reclassified to
liabilities*
|
|
|
|
|
|
|
(41
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Surrender of common stock for
settlement of notes receivable*
|
|
|
|
|
|
|
|
|
|
|
|
(576,706
|
)
|
|
|
(536
|
)
|
|
|
126
|
|
|
|
|
|
|
|
219
|
|
|
|
|
|
|
|
(191
|
)
|
Net income and comprehensive net
income*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,188
|
|
|
|
4,188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCE March 31,
2007*
|
|
|
233,164,369
|
|
|
$
|
56,329
|
|
|
|
|
100,395,887
|
|
|
$
|
1,113
|
|
|
$
|
51,409
|
|
|
$
|
(284
|
)
|
|
$
|
|
|
|
$
|
(86,691
|
)
|
|
$
|
(34,453
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements
F-5
SHORETEL,
INC. AND SUBSIDIARIES
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended June 30,
|
|
|
Nine Months Ended March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
CASH FLOWS FROM OPERATING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(6,251
|
)
|
|
$
|
(1,402
|
)
|
|
$
|
4,002
|
|
|
$
|
2,332
|
|
|
$
|
4,188
|
|
Adjustments to reconcile net income
(loss) to net cash provided by (used in) operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
721
|
|
|
|
592
|
|
|
|
716
|
|
|
|
499
|
|
|
|
651
|
|
Stock-based compensation expense
|
|
|
45
|
|
|
|
82
|
|
|
|
82
|
|
|
|
46
|
|
|
|
2,053
|
|
Loss on disposal of property and
equipment
|
|
|
|
|
|
|
|
|
|
|
160
|
|
|
|
|
|
|
|
31
|
|
Interest expense on warrants
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in fair value of warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
624
|
|
Recovery from settlement of note
receivable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(191
|
)
|
Changes in assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(2,788
|
)
|
|
|
(4,486
|
)
|
|
|
(2,145
|
)
|
|
|
(685
|
)
|
|
|
(7,311
|
)
|
Inventories
|
|
|
(80
|
)
|
|
|
(3,537
|
)
|
|
|
7
|
|
|
|
1,357
|
|
|
|
(2,127
|
)
|
Prepaid expenses and other current
assets
|
|
|
352
|
|
|
|
(338
|
)
|
|
|
(335
|
)
|
|
|
(222
|
)
|
|
|
(1,327
|
)
|
Other assets
|
|
|
11
|
|
|
|
39
|
|
|
|
4
|
|
|
|
(1
|
)
|
|
|
(1,210
|
)
|
Accounts payable
|
|
|
1,199
|
|
|
|
1,020
|
|
|
|
809
|
|
|
|
(1,066
|
)
|
|
|
3,780
|
|
Accrued liabilities and other
|
|
|
(103
|
)
|
|
|
198
|
|
|
|
605
|
|
|
|
442
|
|
|
|
398
|
|
Accrued employee compensation
|
|
|
324
|
|
|
|
34
|
|
|
|
1,856
|
|
|
|
886
|
|
|
|
82
|
|
Deferred revenue
|
|
|
1,167
|
|
|
|
2,841
|
|
|
|
1,505
|
|
|
|
937
|
|
|
|
5,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities
|
|
|
(5,392
|
)
|
|
|
(4,957
|
)
|
|
|
7,266
|
|
|
|
4,525
|
|
|
|
5,039
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
(653
|
)
|
|
|
(590
|
)
|
|
|
(1,308
|
)
|
|
|
(749
|
)
|
|
|
(1,106
|
)
|
Decrease in restricted cash
|
|
|
|
|
|
|
|
|
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing
activities
|
|
|
(653
|
)
|
|
|
(590
|
)
|
|
|
(1,293
|
)
|
|
|
(749
|
)
|
|
|
(1,106
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings under line of credit
agreement
|
|
|
|
|
|
|
6,000
|
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
|
|
Repayments under line of credit
agreement
|
|
|
|
|
|
|
(6,000
|
)
|
|
|
(1,000
|
)
|
|
|
(1,000
|
)
|
|
|
|
|
Repayment of capital leases
|
|
|
(142
|
)
|
|
|
(26
|
)
|
|
|
(7
|
)
|
|
|
(5
|
)
|
|
|
(1
|
)
|
Net proceeds from issuance of
redeemable convertible preferred stock
|
|
|
3,449
|
|
|
|
9,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise of common stock options
(including proceeds from unvested shares)
|
|
|
10
|
|
|
|
52
|
|
|
|
1,003
|
|
|
|
879
|
|
|
|
534
|
|
Repurchase of shares early exercised
|
|
|
|
|
|
|
|
|
|
|
(9
|
)
|
|
|
(9
|
)
|
|
|
|
|
Repayment of shareholder notes
issued in connection with stock option exercises
|
|
|
|
|
|
|
222
|
|
|
|
|
|
|
|
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing
activities
|
|
|
3,317
|
|
|
|
10,197
|
|
|
|
987
|
|
|
|
865
|
|
|
|
545
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS
|
|
|
(2,728
|
)
|
|
|
4,650
|
|
|
|
6,960
|
|
|
|
4,641
|
|
|
|
4,478
|
|
CASH AND CASH
EQUIVALENTS Beginning of period
|
|
|
3,451
|
|
|
|
723
|
|
|
|
5,373
|
|
|
|
5,373
|
|
|
|
12,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH AND CASH
EQUIVALENTS End of period
|
|
$
|
723
|
|
|
$
|
5,373
|
|
|
$
|
12,333
|
|
|
$
|
10,014
|
|
|
$
|
16,811
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the period for
interest
|
|
$
|
9
|
|
|
$
|
21
|
|
|
$
|
31
|
|
|
$
|
31
|
|
|
$
|
|
|
Cash paid during the period for
income taxes
|
|
|
11
|
|
|
|
11
|
|
|
|
82
|
|
|
|
59
|
|
|
|
483
|
|
NONCASH FINANCING AND INVESTING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion of preferred stock
|
|
$
|
26
|
|
|
$
|
32
|
|
|
$
|
51
|
|
|
$
|
38
|
|
|
$
|
38
|
|
Assets acquired under capital leases
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase of shares exercised
under notes receivable
|
|
|
|
|
|
|
|
|
|
|
141
|
|
|
|
141
|
|
|
|
|
|
Surrender of common stock for
settlement of notes receivable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
536
|
|
Purchase of property and equipment
included in period-end accounts payable
|
|
|
3
|
|
|
|
28
|
|
|
|
79
|
|
|
|
53
|
|
|
|
349
|
|
Warrants on Series F preferred
stock
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transfer of loaned inventory from
property and equipment to inventory
|
|
|
387
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants reclassified to liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41
|
|
Vesting of accrued early exercised
stock options
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
157
|
|
See notes to consolidated financial statements
F-6
SHORETEL,
INC. AND SUBSIDIARIES
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
|
|
1.
|
THE
COMPANY AND SIGNIFICANT ACCOUNTING POLICIES
|
The Company
ShoreTel, Inc. was incorporated
in California on September 17, 1996. In April 2004, the
Companys Board of Directors approved the change in the
Companys name from Shoreline Communications, Inc to
ShoreTel, Inc. ShoreTel, Inc. and its subsidiaries
(collectively, the Company) provide enterprise
internet protocol (IP) telecommunications systems.
The Company sells systems that generally include hardware,
software licenses, post-contractual customer support and, in
some cases, additional elements, such as training, installation
and other professional services.
Fiscal Year End
The Company operates on a
fiscal year ending June 30.
Consolidation
The accompanying
consolidated financial statements include the accounts of the
Companys wholly owned subsidiaries located in Germany, the
United Kingdom and Australia. All transactions and balances
between the parent and the subsidiaries have been eliminated in
consolidation. The functional currency of the subsidiaries is
the U.S. dollar. Functional currency assets and liabilities
are translated at the rates of exchange on the balance sheet
date, and local currency revenues and expenses are translated at
average rates of exchange during the period.
Use of Estimates
The preparation of financial
statements in conformity with accounting principles generally
accepted in the United States of America requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
Certain Significant Risks and Uncertainties
The Company participates in a dynamic high-technology industry.
Changes in any of the following areas could have a material
adverse effect on the Companys future financial position,
results of operations, or cash flows: reliance on sole-source
suppliers; advances and trends in new technologies; competitive
pressures; changes in the overall demand for its future
products; acceptance of the Companys products; litigation
or claims against the Company based on intellectual property,
patent, regulatory, or other factors; and the Companys
ability to attract and retain employees necessary to support its
growth.
Unaudited Financial Information
The
accompanying interim consolidated financial statements for the
nine months ended March 31, 2006 and 2007 are unaudited. In
the opinion of management, such unaudited interim consolidated
financial statements have been prepared in accordance with
accounting principles generally accepted in the United States of
America, and include all adjustments, consisting only of normal
and recurring adjustments, necessary for the fair presentation
of the Companys results of operations and cash flows for
the nine months ended March 31, 2006 and 2007.
Unaudited Pro Forma Shareholders Equity
In February 2007, the Companys board of directors
authorized the Company to file a Registration Statement with the
Securities and Exchange Commission to permit the Company to
proceed with an initial public offering of its common stock.
Upon consummation of this offering, all of the Companys
outstanding shares of redeemable convertible preferred stock
will convert to an equivalent number of shares of the
Companys common stock. Unaudited pro forma
shareholders equity as of March 31, 2007 as adjusted
for the impact of these conversions, assuming the offering was
consummated on March 31, 2007, is disclosed on the
accompanying consolidated balance sheets.
Concentration of Credit Risk
Financial
instruments, which potentially subject the Company to
concentrations of credit risk, consist principally of cash and
cash equivalents and accounts receivable. The Company places its
cash and cash equivalents in money market accounts with high
credit quality financial institutions. The Company performs
ongoing credit evaluations and collateral is generally not
required for trade receivables. At June 30, 2005,
June 30,
F-7
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
2006 and March 31, 2007, no enterprise customer or channel
partner comprised more than 10% of total accounts receivable.
Fair Value of Financial Instruments
The
estimated fair value of all financial instruments, including
accounts receivable and the line of credit, was not materially
different from the carrying values presented in the balance
sheet as they have short maturities
and/or
interest rates that have not fluctuated significantly.
Dependence on Suppliers
The Company depends
in part upon contractors to manufacture, assemble, and deliver
items in a timely and satisfactory manner. The Company obtains
certain components and subsystems from a single or a limited
number of sources. A significant interruption in the delivery of
such items could have a material adverse effect on the
Companys operations.
Cash and Cash Equivalents and Restricted Cash
For the purposes of the consolidated financial statements, the
Company considers all highly liquid investments with original
maturities of three months or less when acquired to be cash
equivalents. Restricted cash as of June 30, 2005, was
required to secure the Companys account with its merchant
bank card processor.
Accounts Receivable
Accounts receivable is
stated net of allowance for doubtful accounts.
The change in allowance for doubtful accounts is summarized as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
Allowance for doubtful
accounts beginning
|
|
$
|
135
|
|
|
$
|
119
|
|
|
$
|
200
|
|
|
$
|
378
|
|
Current period allowance
|
|
|
|
|
|
|
202
|
|
|
|
250
|
|
|
|
135
|
|
Write-offs charged to allowance
|
|
|
(16
|
)
|
|
|
(121
|
)
|
|
|
(72
|
)
|
|
|
(257
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for doubtful
accounts ending
|
|
$
|
119
|
|
|
$
|
200
|
|
|
$
|
378
|
|
|
$
|
256
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventories
Inventories, which consist
principally of finished goods and inventory in process/transit,
are stated at the lower of cost or market, with cost being
determined under a standard cost method that approximates
first-in,
first-out.
Property and Equipment
Property and equipment
are stated at cost. Depreciation is computed using the
straight-line method over the estimated useful lives of the
assets, which range from two to five years. Leasehold
improvements are amortized over the shorter of the estimated
useful lives of the asset or the lease term.
Long-Lived Assets
The Company periodically
evaluates the carrying value of long-lived assets to be held and
used including intangible assets, when events or circumstances
warrant such a review. The carrying value of a long-lived asset
to be held and used is considered impaired when the anticipated
separately identifiable undiscounted cash flows from such an
asset are less than the carrying value of the asset. In that
event, a loss is recognized based on the amount by which the
carrying value exceeds the fair value of the long-lived asset.
Fair value is determined primarily using the anticipated cash
flows discounted at a rate commensurate with the risk involved.
Revenue Recognition
The Companys
revenue is related to the sale of enterprise IP
telecommunications systems, which include hardware, primarily
phones and voice switches, and software components and may also
include training, installation and post-contractual support for
the products. The Companys business strategy is centered
on selling to enterprise customers through channel partners,
rather than directly. Hence, sales transactions are generally
made to a channel partner. Certain larger enterprise customers
prefer to purchase directly from the Company. Many of these
large account sales are channel partner-assisted and the Company
compensates the channel partner in much the same way as if the
channel partner had made the sale directly. The compensation to
the channel partner is recorded as an offset to the revenues
associated with the direct sale to the enterprise customer.
F-8
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Product Revenue.
The Companys software
is integrated with hardware and is essential to the
functionality of the integrated system product. Revenue is
recognized for these sales in accordance with Statement of
Position (SOP)
No. 97-2,
Software Revenue Recognition
, as amended, and Securities
and Exchange Commission Staff Accounting Bulletin (SAB)
No. 104,
Revenue Recognition
, as applicable,
depending on whether the hardware is sold in a multiple-element
arrangement with software and post-contractual support or on a
stand alone basis if the customer purchases hardware, software,
or post-contractual support separately. At the initial purchase,
the customer generally bundles together the hardware, software
components and up to five years of post-contractual support.
Thereafter, if the enterprise customer increases end users and
functionality, it may add more hardware, software, and related
post-contractual support by purchasing them separately. The
Company has established vendor-specific objective evidence
(VSOE) of fair value for post-contractual support, installation
services and training, and other undelivered elements as noted
below.
Product revenue is recognized when persuasive evidence of an
arrangement exists, product has shipped or delivery has occurred
(depending on when title passes), the sales price is fixed or
determinable and free of contingencies and significant
uncertainties, and collection is probable. The fee is considered
fixed or determinable at the execution of an agreement, based on
specific products and quantities to be delivered at specified
prices. The agreements with customers generally do not include
rights of return or acceptance provisions. To the extent that
the Companys agreements contain acceptance terms, the
Company recognizes revenue upon product acceptance. Even though
contractual agreements do not provide return privileges, there
are circumstances for which the Company will accept a return.
The Company maintains a reserve for such returns based on
historical experience. Payment terms to customers generally
range from net 30 to net 60 days. In the event payment
terms are extended materially from the Companys standard
business practices, the fees are deemed to not be fixed or
determinable and revenue is recognized when the payment becomes
due. The Company assesses the ability to collect from its
customers based on a number of factors, including credit
worthiness and past transaction history of the customer. If the
customer is not deemed credit worthy, the Company defers all
revenue from the arrangement until payment is received and all
other revenue recognition criteria have been met. Shipping
charges billed to customers are included in product revenue and
the related shipping costs are included in cost of product
revenue.
Provisions for return allowances and product warranties are
recorded at the time revenue is recognized based on the
Companys historical experience.
The Company has arrangements with resellers of their products to
reimburse the resellers for cooperative marketing costs meeting
specified criteria. The reimbursements are limited to 50% of the
actual costs charged to the channel partners by third-party
vendors for advertising, trade shows activities and other
related sales and marketing activities for which the Company
receives an identifiable benefit (goods and services that the
Company could have purchased directly from third-party vendors),
subject to a limit of the total cooperative marketing allowance
earned by each channel partner. In accordance with EITF Issue
No. 01-9,
Accounting for Consideration Given by a Vendor to a Customer
(including a Reseller of the Vendors Products)
, the
Company records the reimbursements to the channel partners
meeting such specified criteria within sales and marketing
expenses in the accompanying consolidated statements of
operations. The marketing allowance can also be used by the
resellers to purchase demonstration products from the Company at
a greater than standard discount. Such discounts provided to the
resellers are recorded as a reduction of revenue upon shipment
of the demonstration units.
Post-Contractual Support.
The Companys
support and service revenues are primarily derived from
post-contractual support. The Company accounts for
post-contractual support revenues based on
SOP 97-2,
which states that If an arrangement includes multiple
elements, the fee should be allocated to the various elements
based on vendor-specific objective evidence of fair value,
regardless of any separate prices stated within the contract for
each element. VSOE of fair value is limited to the price
charged when the same element is sold separately. VSOE of fair
F-9
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
value is established for post-contractual support through prior
renewals of post-contractual support from existing customers,
which establishes a price based on a stand alone sale.
The Company offers one, three and five year post-contractual
support contracts. The decision to procure support is elected by
the enterprise customer, but most channel partners and their
enterprise customers desire post-contractual support so an
initial system sale usually includes post-contractual support.
The majority of post-contractual support contracts are sold to
channel partners, under which the channel partner provides first
level support to the enterprise customer and the Company
provides support, as needed, to the channel partner. In a lesser
number of cases, the Company provides support directly to the
enterprise customer.
The Company uses the residual method, as allowed by
SOP 98-9,
Modification of SOP 97-2 Software Revenue Recognition
With Respect to Certain Transactions
, to determine the
amount of product revenue to be recognized. Under the residual
method, the fair value of the undelivered elements, such as
post-contractual support installation services and training, is
deferred and the remaining portion of the sales amount is
recognized as product revenue. The fair value of the
post-contractual support is recognized on a straight-line basis
over the term of the related support period, which is typically
one to five years.
If VSOE of fair value does not exist for commitments to provide
specified upgrades, services or additional products to customers
in the future, all revenue from the arrangement is deferred
until the earlier of the point at which VSOE of fair value does
exist or all such elements from the arrangement have been
delivered.
Installation and Training.
Installation is
sold on an elective basis. As installation is typically
performed by the channel partner or enterprise customer, and it
is not considered essential to the functionality of the
delivered elements. Installation, when performed by the Company,
is by its nature sold only with an accompanying system order.
Installation is generally priced at established rates based on
estimated hours required to install the accompanying system.
Training is also sold on an elective basis both to channel
partners and to their enterprise customers and is purchased both
with system orders and on a standalone basis. VSOE of fair value
is established for training through sales made independent of a
bundled order.
The Company recognizes revenue related to installation services
and training upon delivery of the service.
Warranties
In November 2002, the Financial
Accounting Standard Board (FASB) issued Financial Interpretation
(FIN) No. 45 (FIN 45),
Guarantors
Accounting and Disclosure Requirements for Guarantee, Including
Indirect Guarantees of Indebtedness of Others.
FIN 45
requires a guarantor to include disclosures of certain
obligations, and if applicable, at the inception of the
guarantee, recognize a liability for the fair value of other
obligations undertaken in issuing a guarantee.
The majority of the Companys products are covered by a
one-year limited manufacturers warranty. Estimated
contractual warranty obligations are recorded when related sales
are recognized based on historical experience. The determination
of such provision requires the Company to make estimates of
product return rates and expected costs to repair or replace the
product under warranty. If actual costs differ significantly
from these estimates, additional amounts are recorded when such
costs are probable and can be reasonably estimated.
F-10
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
The change in accrued warranty expense is summarized as follows
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
Accrued warranty
balance beginning
|
|
$
|
70
|
|
|
$
|
112
|
|
|
$
|
100
|
|
|
$
|
206
|
|
Current period accrual
|
|
|
124
|
|
|
|
190
|
|
|
|
646
|
|
|
|
463
|
|
Warranty expenditures charged to
accrual
|
|
|
(82
|
)
|
|
|
(202
|
)
|
|
|
(540
|
)
|
|
|
(372
|
)
|
Adjustment to previous estimates
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(135
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued warranty
balance end
|
|
$
|
112
|
|
|
$
|
100
|
|
|
$
|
206
|
|
|
$
|
162
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and Development Costs
Research and
development expenditures, which include software development
costs, are expensed as incurred. Software development costs
incurred subsequent to the time a products technological
feasibility has been established through the time the product is
available for general release to customers are subject to
capitalization. To date, all software development costs incurred
subsequent to the establishment of technological feasibility
have been immaterial. Accordingly, the Company has not
capitalized any software development costs.
Income Taxes
The Company accounts for income
taxes using the asset and liability method as prescribed by
Statement of Financial Accounting Standards (SFAS) No. 109,
Accounting for Income Taxes.
Deferred income taxes are
recognized by applying enacted statutory tax rates applicable to
future years to differences between the financial statement
carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit
carryforwards. The effect on deferred tax assets and liabilities
of a change in tax rates is recognized in income in the period
that includes the enactment date. The measurement of deferred
tax assets is reduced, if necessary, by a valuation allowance
for any tax benefit of which future realization is uncertain.
Stock-Based Compensation
On July 1,
2006, the Company adopted SFAS No. 123 (revised 2004)
(SFAS 123R),
Share-Based Payment
, which
requires companies to measure the cost of employee services
received in exchange for an award of equity instruments based on
the grant date fair value of the award. The Company has elected
to use the Prospective Transition method such that
SFAS 123R applies to new awards and to awards modified,
repurchased or canceled after the effective date. The Company
has a stock-based employee compensation plan (Option Plan).
Generally, stock options granted to employees vest 25% one year
from the grant date and 1/48 each month thereafter, and have a
term of ten years. The Company recognizes stock-based
compensation expense over the requisite service period of the
individual grants, generally, equal to the vesting period.
Prior to July 1, 2006, the Company accounted for these
plans using the intrinsic value method in accordance with
Accounting Principles Board (APB) Opinion No. 25,
Accounting for Stock Issued to Employees
, and
FIN No. 44,
Accounting for Certain Transactions
involving Stock Compensation an interpretation of
APB Opinion No. 25.
Accordingly, no compensation
expense is recognized for employee stock options granted with
exercise prices greater than or equal to the fair value of the
underlying common stock at date of grant. If the exercise price
is less than the market value at the date of grant, the
difference is recognized as deferred compensation expense, which
is amortized over the vesting period. Compensation costs for the
portion of awards for which the required service period has not
been rendered (such as unvested options) that were outstanding
as of July 1, 2006 shall be recognized as the remaining
required services are rendered.
F-11
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
The following table shows total stock-based compensation expense
included in the accompanying Consolidated Statements of
Operations for the years ended June 30, 2004, 2005 and 2006
and the nine months ended March 31, 2006 and 2007 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
Cost of product revenue
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
7
|
|
Cost of support and services
revenue
|
|
|
|
|
|
|
|
|
|
|
16
|
|
|
|
14
|
|
|
|
55
|
|
Research and development
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
6
|
|
|
|
190
|
|
Sales and marketing
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
|
2
|
|
|
|
331
|
|
General and administrative
|
|
|
45
|
|
|
|
82
|
|
|
|
45
|
|
|
|
24
|
|
|
|
1,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
expense
|
|
$
|
45
|
|
|
$
|
82
|
|
|
$
|
82
|
|
|
$
|
46
|
|
|
$
|
2,053
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
There was no tax benefit associated with stock-based
compensation expense for the years ended June 30, 2004 and
2005, and the nine months ended March 31, 2006. The income
tax benefit associated with stock-based compensation expense for
the year ended June 30, 2006 and the nine months ended
March 31, 2007 was not significant.
Had compensation expense under the Companys stock-based
compensation plans continued to be recorded under APB Opinion
No. 25, the effect on income from continuing operations,
net income and basic and diluted earnings per share for the
nine months ended March 31, 2007, would have been as
follows:
|
|
|
|
a)
|
Income from continuing operations would have been $72,000 higher
for the nine months ended March 31, 2007.
|
|
|
|
|
b)
|
Net income would have been $65,000 higher for the
nine months ended March 31, 2007.
|
|
|
|
|
c)
|
Basic and diluted earnings per share would have been unchanged
for the nine months ended March 31, 2007.
|
The Company accounts for stock issued to nonemployees in
accordance with the provisions of SFAS 123,
Accounting
for Stock Based Compensation
and EITF Issue
No. 96-18,
Accounting for Equity Instruments that are Issued to Other
Than Employees for Acquiring, or in Conjunction with Selling
Goods or Services.
The Company uses the Black-Scholes
option-pricing model to value options granted to nonemployees.
The related expense is recorded over the period in which the
related services are received.
Determining
Fair Value of Stock Compensation
Valuation and amortization method
The Company
estimates the fair value of stock options granted using the
Black-Scholes option-pricing formula and a single option award
approach. This fair value is then amortized on a straight-line
basis over the requisite service periods of the awards, which is
generally the vesting period.
Expected Term
The expected term represents
the period that the Companys stock-based awards are
expected to be outstanding. The Company has elected to use the
simplified method described in SAB 107 to compute expected
term. The Companys stock plan provides for a 10 year
term to expiration. The Company categorizes option grants into
two classes. Class One includes all options issued with standard
four year vesting and no ability to exercise prior to vesting.
Class Two includes options granted that have the same four year
F-12
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
vesting provision but allow for early exercisability. The
options in Class One granted during the nine months ended
March 31, 2007 vest over four years with a one or two year
cliff. Based on the above, the Company computed an expected term
of 6.08 years under the simplified method. The options in
Class Two are early exercisable and vest over 4 years with
a one year cliff. For Class Two, the Company assumed an expected
term of 4 years based, in part, on the history of prior
exercises for this class of optionees.
Expected Volatility
Management estimates
volatility for option grants by evaluating the average
historical volatility of its peer group for the period
immediately preceding the option grant for a term that is
approximately equal to the options expected term. For the
nine months ended March 31, 2007, the Company has
estimated future volatility (based on its peer group) for Class
One option grants to be approximately 71% and for Class Two
option grants to be approximately 55%. Management believes
historical volatility to be the best estimate of future
volatility. Volatility will be analyzed on an annual basis
unless management becomes aware of events that would indicate
more frequent analysis is necessary.
Risk-Free Interest Rate
The risk-free
interest rate used in the Black-Scholes valuation method is
based on the implied yield currently available on
U.S. Treasury zero-coupon issues with an equivalent
remaining term. For the nine months ended March 31,
2007 the rate used was 4.6-4.8%.
Expected Dividend
The Company has not issued
dividends to date and does not anticipate issuing dividends.
Foreign currency translation
The
Companys foreign operations are subject to exchange rate
fluctuations and foreign currency transaction costs, however,
the majority of sales transactions are denominated in
U.S. dollars. Foreign currency denominated sales, costs and
expenses are recorded at the average exchange rates during the
year. Gains or losses resulting from foreign currency
transactions are included in other income (expense) in the
consolidated statements of operations.
Other income (expense)
Other income (expense)
includes net foreign currency transaction (gains) losses of $0,
$2,000 and $19,000 in the years ended June 30, 2004, 2005
and 2006, respectively, and $14,000 and $(26,000) in the nine
months ended March 31, 2006 and 2007, respectively.
Comprehensive Income/Loss
The Company has no
components of other comprehensive income (loss), therefore net
income (loss) equals comprehensive income (loss) for all periods
presented.
Recent
Accounting Pronouncements
In May 2005, the FASB issued SFAS No. 154
(SFAS 154),
Accounting Changes and Error Corrections
that replaces APB No. 20
Accounting Changes
and
SFAS No. 3,
Reporting Accounting Changes in Interim
Financial Statements An Amendment of APB Opinion No
28.
SFAS 154 provides guidance on the accounting for
and reporting of accounting changes and error corrections. It
establishes retrospective application, or the latest practicable
date, as the required method for reporting a change in
accounting principle and the reporting of a correction of an
error. SFAS 154 is effective for accounting changes and
corrections of errors made in fiscal years beginning after
December 15, 2005.
In June 2006, the FASB issued FIN No. 48
(FIN 48),
Accounting for Uncertainty in Income
Taxes
. FIN 48 applies to all tax positions within the
scope of FASB Statement No. 109, applies a more
likely than not threshold for tax benefit recognition,
identifies a defined methodology for measuring benefits and
increases the disclosure requirements for companies. FIN 48
is mandatory for years beginning after December 15, 2006.
The Company is currently in the process of evaluating the
effects of this new accounting standard.
In September 2006, the Securities and Exchange Commission (SEC)
issued SAB 108 regarding the process of quantifying
financial statement misstatements. SAB 108 states that
registrants should use both a balance sheet approach and an
income statement approach when quantifying and evaluating
materiality of a misstatement. The interpretations in
F-13
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
SAB 108 contain guidance under this dual approach as well
as provide transition guidance for adopting SAB 108. This
interpretation does not change the requirements within
SFAS 154 for the correction of an error in financial
statements. SAB 108 is effective for annual financial
statements covering the first fiscal year ending after
November 15, 2006. The Company will be required to adopt
this interpretation in fiscal year 2007.
In September 2006, the FASB issued SFAS No. 157
(SFAS 157),
Fair Value Measurements
. This Statement
defines fair value, establishes a framework for measuring fair
value in generally accepted accounting principles, and expands
disclosures about fair value measurements. This Statement
applies under other accounting pronouncements that require or
permit fair value measurements, the Board having previously
concluded in those accounting pronouncements that fair value is
the relevant measurement attribute. Accordingly, this Statement
does not require any new fair value measurements. This Statement
is effective for financial statements issued for fiscal years
beginning after November 15, 2007, and interim periods
within those fiscal years. The Company does not expect the
adoption of SFAS 157 in fiscal year 2009 to have a material
impact on its results of operations or financial position.
In February 2007, the FASB issued SFAS No. 159,
The
Fair Value Option for Financial Assets and Financial
Liabilities
(SFAS 159). SFAS 159
permits entities to choose, at specified election dates, to
measure eligible items at fair value (or fair value
option) and to report in earnings unrealized gains and
losses on those items for which the fair value option has been
elected. SFAS 159 also requires entities to display the
fair value of those assets and liabilities on the face of the
balance sheet. SFAS 159 establishes presentation and
disclosure requirements designed to facilitate comparisons
between entities that choose different measurement attributes
for similar types of assets and liabilities. SFAS 159 is
effective for the Company as of the first quarter of 2009. The
Company is currently evaluating the impact of this pronouncement
on its financial statements.
|
|
2.
|
NET
INCOME (LOSS) PER COMMON SHARE AND UNAUDITED PRO FORMA NET
INCOME PER COMMON SHARE
|
Basic net income (loss) per share is determined by dividing net
income (loss) by the weighted average number of common shares
outstanding during the period. Diluted income per share is
determined by dividing net income (loss) by the weighted average
number of common shares used in the basic net income (loss) per
share calculation, plus the number of common shares that would
be issued assuming conversion of all potentially dilutive
securities outstanding under the treasury stock method.
Unaudited pro forma basic net income per share allocable to
common shareholders has been computed to give effect to the
assumed conversion of redeemable convertible preferred stock at
March 31, 2007 into common stock upon the closing of the
Companys initial public offering on an if-converted basis
for the year ended June 30, 2006 and the nine months ended
March 31, 2007.
F-14
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
The following table is a reconciliation of the numerators and
denominators used in computing basic and diluted net income
(loss) per share (dollars in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available to
common shareholders
|
|
$
|
(6,277
|
)
|
|
$
|
(1,434
|
)
|
|
$
|
3,951
|
|
|
$
|
2,294
|
|
|
$
|
4,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
outstanding (basic)
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
66,091,748
|
|
|
|
63,588,435
|
|
|
|
83,415,702
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
subject to repurchase
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,456,943
|
|
Common equivalent shares from
options to purchase common stock
|
|
|
|
|
|
|
|
|
|
|
18,152,522
|
|
|
|
26,996,975
|
|
|
|
25,213,764
|
|
Common equivalent shares from
common stock warrants
|
|
|
|
|
|
|
|
|
|
|
623,675
|
|
|
|
623,675
|
|
|
|
677,037
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
outstanding (diluted)
|
|
|
49,345,069
|
|
|
|
53,517,065
|
|
|
|
84,867,945
|
|
|
|
91,209,085
|
|
|
|
121,763,446
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share
available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.06
|
|
|
$
|
0.04
|
|
|
$
|
0.05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
$
|
(0.13
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
0.05
|
|
|
$
|
0.03
|
|
|
$
|
0.03
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma adjustments to reflect
assumed conversion of convertible preferred stock*
|
|
|
|
|
|
|
|
|
|
|
233,164,369
|
|
|
|
|
|
|
|
233,164,369
|
|
Shares used in computing pro forma
income per common share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic*
|
|
|
|
|
|
|
|
|
|
|
299,256,117
|
|
|
|
|
|
|
|
316,580,071
|
|
Diluted*
|
|
|
|
|
|
|
|
|
|
|
318,032,314
|
|
|
|
|
|
|
|
354,927,815
|
|
Pro forma net income per common
share available to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic*
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted*
|
|
|
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anti-dilutive common equivalent shares related to stock options
excluded from the calculation of diluted shares were
approximately 5,591,467, 8,765,140 and 2,990,987 for the years
ended June 30, 2004, 2005 and 2006, respectively, and
6,249,577 and 2,583,305 for the nine months ended March 31,
2006 and 2007, respectively. Anti-
F-15
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
dilutive common equivalent shares from common stock warrants
were approximately 85,176 for the year ended June 30, 2006
and the nine months ended March 31, 2006 and 31,814 for the
nine months ended March 31, 2007.
|
|
3.
|
BALANCE
SHEET COMPONENTS
|
Balance sheet components consist of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
As of June 30,
|
|
|
March 31,
|
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
Inventories:
|
|
|
|
|
|
|
|
|
|
|
|
|
Raw materials
|
|
$
|
256
|
|
|
$
|
|
|
|
$
|
76
|
|
Inventory in process/transit
|
|
|
2,058
|
|
|
|
100
|
|
|
|
2,550
|
|
Finished goods
|
|
|
2,349
|
|
|
|
4,556
|
|
|
|
4,157
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total inventories
|
|
$
|
4,663
|
|
|
$
|
4,656
|
|
|
$
|
6,783
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prepaid expenses and other current
assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Prepaid expenses
|
|
$
|
517
|
|
|
$
|
786
|
|
|
$
|
1,505
|
|
Deferred cost of revenue
|
|
|
|
|
|
|
|
|
|
|
528
|
|
Contract manufacturing receivables
|
|
|
|
|
|
|
66
|
|
|
|
146
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total prepaid expenses and other
current assets
|
|
$
|
517
|
|
|
$
|
852
|
|
|
$
|
2,179
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment:
|
|
|
|
|
|
|
|
|
|
|
|
|
Computer equipment and tooling
|
|
$
|
3,057
|
|
|
$
|
4,143
|
|
|
$
|
3,544
|
|
Software
|
|
|
946
|
|
|
|
1,034
|
|
|
|
1,273
|
|
Furniture and fixtures
|
|
|
283
|
|
|
|
350
|
|
|
|
384
|
|
Construction in progress
|
|
|
220
|
|
|
|
|
|
|
|
|
|
Leasehold improvements
|
|
|
202
|
|
|
|
311
|
|
|
|
310
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property and equipment
|
|
|
4,708
|
|
|
|
5,838
|
|
|
|
5,511
|
|
Less accumulated depreciation and
amortization
|
|
|
3,663
|
|
|
|
4,282
|
|
|
|
3,181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment
net
|
|
$
|
1,045
|
|
|
$
|
1,556
|
|
|
$
|
2,330
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of June 30, 2005, June 30, 2006 and March 31,
2007, computer equipment and tooling included $112,000, $0, and
$104,000, respectively, of inventory items held within various
departments of the Company for testing and development purposes,
net of accumulated depreciation.
As of June 30, 2005, June 30, 2006 and March 31,
2007, computer equipment and tooling also included amounts for
equipment acquired under capital leases of $890,000, $890,000
and $174,000, respectively, with related accumulated
amortization of $879,000, $890,000 and $174,000, respectively.
|
|
4.
|
RELATED-PARTY
TRANSACTIONS
|
Unsecured Promissory Note
In October 1997,
the Company issued an unsecured promissory note in the principal
amount of $350,000 to an officer and shareholder. The note bears
interest at 6.34% per annum. The principal and any accrued
but unpaid interest were due on the earlier of
(a) October 27, 2004 or (b) two years after the
termination of the officers employment, the Companys
initial public offering or a merger or acquisition of the
Company. In January 2002, the officer was terminated and in
connection therewith, the Company forgave $230,000
F-16
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
plus related accrued interest and reserved the remaining
principal balance of $120,000 plus related accrued interest. In
March 2007, the Company entered into a Note Repayment
Agreement whereby the borrower surrendered 576,706 shares
of the Companys common stock (with an estimated fair value
of $536,000) to repay in full the outstanding principal and
interest balances due under this note (resulting in a recovery
of $191,000 recorded as a reduction of general and
administrative expense of $120,000 and interest income of
$71,000 in the accompanying statement of operations for the nine
months ended March 31, 2007) and under notes issued for
stock purchases (see Note 9).
Capital Leases
In August 2003, the Company
entered into a capital equipment lease for $19,000 with payments
due monthly over a
36-month
term. As of June 30, 2005, June 30, 2006 and
March 31, 2007, the Company had a balance of $8,000, $1,000
and $0, respectively, due under the lease.
Bank Agreement
On June 27, 2005, the
Company modified its Loan and Security agreement dated
September 29, 2003, and amended July 30, 2004, with
the bank. For the period commencing June 27, 2005 through
and including June 26, 2006, the debt is not to exceed the
lesser of $8 million or the Companys Borrowing
Base. For the period commencing June 27, 2006 through
and including June 26, 2007, the debt is not to exceed the
lesser of $12 million or the Borrowing Base. The Borrowing
Base equals the sum of (i) 80% of the amount of eligible
accounts plus (ii) 25% of the value of eligible inventory.
Interest will accrue on outstanding borrowings at a rate equal
to the sum of (i) the prime rate in effect plus
(ii) 0.50% per annum, provided, however, that if the
Companys adjusted quick ratio is less than 1.50:1.00, the
foregoing margin over the prime rate shall be increased to
1.50% per annum. The line of credit matures June 26,
2007 and includes two financial covenants. The Company must
(i) maintain a tangible net worth of not less than
$5 million and (ii) shall maintain an adjusted quick
ratio of not less than 1.50:1.00, provided, however, that the
Companys failure to maintain the stated adjusted quick
ratio shall not be considered an event of default under the Loan
Agreement and shall instead be a condition precedent upon which
the satisfaction of certain additional obligations of the
Company shall be effective.
The loan agreement is collateralized by substantially all of the
Companys assets. At March 31, 2007, no balance was
outstanding on the line of credit.
The provision for income taxes consists of the following for the
years ended June 30, 2004, 2005, and 2006, and the
nine-month periods ended March 31, 2006 and 2007 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
|
|
|
$
|
4
|
|
|
$
|
114
|
|
|
$
|
71
|
|
|
$
|
164
|
|
State
|
|
|
|
|
|
|
|
|
|
|
99
|
|
|
|
65
|
|
|
|
131
|
|
Foreign
|
|
|
|
|
|
|
7
|
|
|
|
6
|
|
|
|
4
|
|
|
|
16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
$
|
11
|
|
|
$
|
219
|
|
|
$
|
140
|
|
|
$
|
311
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The tax provision for the nine month periods ended
March 31, 2006 and 2007 is based on the estimated effective
tax rates for the respective fiscal years including the impact
of the change in valuation allowance associated with the
utilization of net operating loss and tax credit carryforwards.
The difference between the income
F-17
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
tax provision and the amount computed by applying the federal
statutory income tax rate to income (loss) before income taxes
is as follows for the years ended June 30 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
Income tax provision (benefit) at
federal statutory rate
|
|
$
|
|
|
|
$
|
(478
|
)
|
|
$
|
1,450
|
|
Federal effect of state deferred
taxes
|
|
|
|
|
|
|
(214
|
)
|
|
|
(242
|
)
|
Credits
|
|
|
|
|
|
|
(284
|
)
|
|
|
(284
|
)
|
State taxes
|
|
|
|
|
|
|
|
|
|
|
99
|
|
Other
|
|
|
|
|
|
|
129
|
|
|
|
327
|
|
Change in valuation allowance
|
|
|
|
|
|
|
858
|
|
|
|
(1,131
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
|
|
|
$
|
11
|
|
|
$
|
219
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Significant components of deferred tax assets consist of the
following as of June 30 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2005
|
|
|
2006
|
|
|
Net operating loss carryforwards
|
|
$
|
32,848
|
|
|
$
|
31,246
|
|
Tax credit carryforwards
|
|
|
3,915
|
|
|
|
4,514
|
|
Other
|
|
|
2,038
|
|
|
|
1,908
|
|
|
|
|
|
|
|
|
|
|
Total deferred tax assets
|
|
|
38,801
|
|
|
|
37,668
|
|
Less valuation allowance
|
|
|
(38,801
|
)
|
|
|
(37,668
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2006, the Company had approximately
$84.4 million and $44.6 million of federal and state
net operating loss carryforwards, respectively. The Company
believes it has had multiple ownership changes as defined by
Section 382 of the Internal Revenue Code (IRC), due to
significant stock transactions in previous years, that may limit
the future realization of its net operating loss carryforwards.
Based on estimates prepared to date, the Company believes
Section 382 could result in the forfeiture of approximately
$72 million of net operating loss carryforwards for federal
income tax purposes. Management believes there could also be an
impact on the Companys ability to utilize California net
operating loss carryforwards as a result of Section 382. As
the Companys analysis is incomplete, these estimates are
uncertain. The net operating loss carryforwards begin to expire
in 2017 and 2007 for federal and California purposes,
respectively.
As of June 30, 2006, the Company had research and
development tax credit carryforwards of approximately
$2.5 million and $2.8 million, which can be used to
reduce future federal and California income taxes, respectively.
Federal research and development tax credit carryforwards will
expire beginning in fiscal 2012 through 2026. California
research and development tax credits will carry forward
indefinitely. In addition, a portion of the federal research tax
credit carryforwards may be subject to forfeiture due to
Section 382 ownership changes under IRC Section 383.
Management is in the process of determining the impact of
Section 383 on the tax credit carryforwards.
As of June 30, 2006, the Company had unused California
manufacturers investment credits of approximately $85,000,
which will expire beginning in fiscal 2007 through 2010. As of
June 30, 2006, the Company also has Alternative Minimum Tax
credits of approximately $107,000 and $19,000 for federal and
for California respectively, which may be carried forward
indefinitely.
The Company has recorded a 100% valuation allowance against its
net deferred tax assets, due to the uncertainty regarding the
magnitude of the Section 382 and 383 limitations as well as
uncertainty concerning future taxable income.
F-18
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
|
|
7.
|
REDEEMABLE
CONVERTIBLE PREFERRED STOCK AND PREFERRED STOCK
WARRANTS
|
Redeemable convertible preferred stock and preferred stock
warrants consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2007
|
|
|
|
Shares
|
|
|
Shares
|
|
|
Carrying
|
|
|
Redemption and
|
|
Series
|
|
Authorized
|
|
|
Outstanding
|
|
|
Value
|
|
|
Liquidation Value
|
|
|
|
(unaudited)
|
|
|
E
|
|
|
33,864,118
|
|
|
|
31,789,550
|
|
|
$
|
29,756,000
|
|
|
$
|
20,000,000
|
|
F
|
|
|
134,713,739
|
|
|
|
134,090,064
|
|
|
|
10,724,000
|
|
|
|
10,750,000
|
|
G
|
|
|
20,114,943
|
|
|
|
20,114,943
|
|
|
|
3,482,000
|
|
|
|
3,500,000
|
|
H
|
|
|
47,169,812
|
|
|
|
47,169,812
|
|
|
|
9,978,000
|
|
|
|
10,000,000
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
2,389,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
235,862,612
|
|
|
|
233,164,369
|
|
|
$
|
56,329,000
|
|
|
$
|
44,250,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2006
|
|
|
|
Shares
|
|
|
Shares
|
|
|
Carrying
|
|
|
Redemption and
|
|
Series
|
|
Authorized
|
|
|
Outstanding
|
|
|
Value
|
|
|
Liquidation Value
|
|
|
E
|
|
|
33,864,118
|
|
|
|
31,789,550
|
|
|
$
|
29,746,000
|
|
|
$
|
20,000,000
|
|
F
|
|
|
134,713,739
|
|
|
|
134,090,064
|
|
|
|
10,712,000
|
|
|
|
10,750,000
|
|
G
|
|
|
20,114,943
|
|
|
|
20,114,943
|
|
|
|
3,475,000
|
|
|
|
3,500,000
|
|
H
|
|
|
47,169,812
|
|
|
|
47,169,812
|
|
|
|
9,969,000
|
|
|
|
10,000,000
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
2,430,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
235,862,612
|
|
|
|
233,164,369
|
|
|
$
|
56,332,000
|
|
|
$
|
44,250,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2005
|
|
|
|
Shares
|
|
|
Shares
|
|
|
Carrying
|
|
|
Redemption and
|
|
Series
|
|
Authorized
|
|
|
Outstanding
|
|
|
Value
|
|
|
Liquidation Value
|
|
|
E
|
|
|
33,864,118
|
|
|
|
31,789,550
|
|
|
$
|
29,732,000
|
|
|
$
|
20,000,000
|
|
F
|
|
|
134,713,739
|
|
|
|
134,090,064
|
|
|
|
10,698,000
|
|
|
|
10,750,000
|
|
G
|
|
|
20,114,943
|
|
|
|
20,114,943
|
|
|
|
3,464,000
|
|
|
|
3,500,000
|
|
H
|
|
|
47,169,812
|
|
|
|
47,169,812
|
|
|
|
9,957,000
|
|
|
|
10,000,000
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
2,430,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
235,862,612
|
|
|
|
233,164,369
|
|
|
$
|
56,281,000
|
|
|
$
|
44,250,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The holders of preferred stock have various rights and
preferences as follows:
Redemption
At any time beginning on
October 14, 2007, each series of preferred stock may make a
written request for redemption of the preferred stock, and upon
consent of a majority of the then-outstanding shares of such
series of preferred stock, with each such series of preferred
stock voting as a single class, the Company must redeem the
specified percentage of Series E, F, G, and H preferred
stock at a price equal to $0.629, $0.080, $0.174, and
$0.212 per share, respectively, plus all declared but
unpaid dividends on such shares. The Company shall effect such
redemption, from any source of funds legally available
therefore, in four equal installments with the first installment
being made 45 days after receiving the redemption request,
and thereafter in three equal installments on each of the
following three anniversaries of the initial redemption date.
F-19
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Voting
Each share of preferred stock has
voting rights equal to the equivalent number of shares of common
stock into which it is convertible and generally votes together
as one class with the common stock.
As long as at least 30,000,000 shares of preferred stock
are outstanding, the holders of the preferred stock, voting
together as a single class shall be entitled to elect three
directors to the Board of Directors. If less than
30,000,000 shares of preferred stock is outstanding,
holders of preferred stock and common stock, voting together as
a single class on an as-converted basis, will be entitled to
elect such directors to the Board.
In addition, so long as at least 30,000,000 shares of
preferred stock remain outstanding, the Company shall not
without first obtaining the approval of the holders of a
majority of the preferred shares then outstanding, voting
together as a single class: (i) repurchase or redeem any
shares of preferred shares; (ii) repurchase any shares of
common stock (other than common stock that are subject to
restricted stock purchase/stock option exercise agreements where
the Company has the option to repurchase the shares);
(iii) authorize, create, or issue any other equity security
having rights or preferences senior to or on par with the
holders of preferred stock; (iv) declare or pay any
dividend with respect to common stock; (v) consummate an
acquisition; (vi) permit a subsidiary to sell shares;
(vii) increase or decrease the number of authorized shares
of preferred stock; (viii) materially and adversely alter
or change any of the rights, preferences, privileges, or
restrictions of any series of preferred stock;
(ix) increase or decrease the authorized number of
directors constituting the board; and (x) liquidate or
dissolve the Company or voluntarily file for bankruptcy.
Dividends
Holders of the preferred stock
shall be entitled to receive noncumulative dividends at the per
annum rate of 8% of the original issue price, when and if
declared by the Board. No dividends were declared by the board
of directors during the years ended June 30, 2004, 2005 and
2006 or the nine months ended March 31, 2006 and 2007.
Liquidation
In the event of any liquidation,
dissolution or winding up of the Company, whether voluntary or
involuntary, the holders of each share of preferred stock then
outstanding shall be entitled to be paid, out of the available
funds and assets, and prior and in preference to any payment or
distribution on any shares of common stock, an amount per share
equal to the original issue price for the applicable series of
preferred stock, plus all declared but unpaid dividends. If,
upon any liquidation, dissolution or winding up of the Company,
the available funds and assets shall be insufficient to permit
the payment to holders of the preferred stock of their full
preferential amounts, then all of the available funds and assets
shall be distributed among the holders of the then outstanding
preferred stock pro rata, on an equal priority, pari passu
basis, according to the respective liquidation preference for
each series as set forth above. The remaining assets, if any,
shall be distributed ratably among the holders of common stock
and the holders of preferred stock on an as-if-converted basis.
Conversion
Each share of preferred stock is
convertible into one share of common stock at the option of the
holder. The conversion ratio into common stock is subject to
certain adjustments to prevent dilution. Each share of preferred
stock automatically converts into the number of shares of common
stock at the then effective conversion ratio upon: (i) the
closing of a public offering of common stock at a price per
share of at least $0.645 and an aggregate gross offering price
to the public of at least $20,000,000; or (ii) the consent
of the majority of holders of preferred stock, voting as a
single class on an as-converted basis.
Each share of preferred stock is convertible into the number of
shares of common stock which results from dividing the original
issue price for such series of preferred stock by the conversion
price for such series of preferred stock that is in effect that
the time of conversion. The initial conversion price for each
series of preferred stock was the original issue price for such
series of preferred stock. The conversion price for each series
of preferred stock is subject to adjustment from time to time.
F-20
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Preferred Stock Warrants
In prior
years, the Company issued warrants to purchase preferred stock.
The Company recorded the fair value of the warrants at the time
of grant using the Black-Scholes option-pricing model. As a
result of the Series F redeemable convertible preferred
stock financing, outstanding warrants for Series C and
Series D preferred stock became exercisable for common
stock as follows:
|
|
|
|
|
Warrants to purchase 6,858 shares of common stock issued
with respect to the equipment lease line signed in June 1998,
exercisable at $2.12 per share.
|
|
|
|
|
|
Warrants to purchase 12,713 shares of common stock issued
with respect to the equipment lease line signed in March 2000,
exercisable at $3.93 per share.
|
|
|
|
|
|
Warrants to purchase 12,243 shares of common stock issued
in February 2001 for consulting services, exercisable at $2.62
per share.
|
The Company also has the following Series E and
Series F redeemable convertible preferred stock warrants
outstanding as of December 31, 2006.
|
|
|
|
|
Warrants to purchase 53,362 shares of Series E redeemable
convertible preferred stock issued with respect to the line of
credit in March 2001, exercisable at $0.94 per share which
shares are convertible to 53,362 shares of common stock.
|
|
|
|
Warrants to purchase 623,675 shares of Series F redeemable
convertible preferred stock issued with respect to the line of
credit in September 2003, exercisable at $0.08 per share
which shares are convertible to 623,675 shares of common
stock.
|
As of March 31, 2007, the Company recorded a liability of
$666,000 for the fair value of the Series E and
Series F redeemable convertible preferred stock warrants,
in accordance with FASB Staff Position
FAS 150-5,
Issuers Accounting under FASB Statement No. 150
for Freestanding Warrants and Other Similar Instruments on
Shares that are Redeemable.
The warrants are subject to
revaluation at each balance sheet date with any change in fair
value recognized as a component of other income (expense), net,
until the earlier of the exercise of the warrants or the
completion of a liquidation event including the consummation of
an initial public offering, at which time the warrant liability
will be reclassified to additional paid-in capital. The increase
in the fair value of the Series E and Series F
preferred stock warrants for the nine months ended
March 31, 2007 totaled $624,000 and was recorded to other
expense. The warrants were valued at March 31, 2007 using
the Black-Scholes option value model based on the estimated fair
value of the underlying Series E and Series F
preferred stock, volatility of 55%, expected term of three
months and a risk free interest rate of 5.05%
At March 31, 2007, 9,535,529 shares of common stock
were subject to repurchase in connection with the early exercise
of incentive stock options under the Companys stock option
plan.
F-21
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Common
Shares Reserved for Issuance
At March 31, 2007, the Company has reserved shares of
common stock for issuance as follows (unaudited):
|
|
|
|
|
Reserved under stock option plan
|
|
|
92,224,179
|
|
Conversion of Series E
redeemable convertible preferred stock
|
|
|
31,789,550
|
|
Conversion of Series F
redeemable convertible preferred stock
|
|
|
134,090,064
|
|
Conversion of Series G
redeemable convertible preferred stock
|
|
|
20,114,943
|
|
Conversion of Series H
redeemable convertible preferred stock
|
|
|
47,169,812
|
|
Reserved for warrants
|
|
|
708,851
|
|
|
|
|
|
|
Total
|
|
|
326,097,399
|
|
|
|
|
|
|
In January 1997, the Board of Directors and shareholders adopted
the 1997 stock option plan (the 1997 Plan) which, as
amended, provides for granting incentive stock options
(ISOs) and nonqualified stock options
(NSOs) for shares of common stock to employees,
directors, and consultants of the Company. In September 2006,
the Companys board of directors increased the number of
shares authorized and reserved for issuance under the 1997 Plan
to 105,133,247 shares of common stock. In accordance with
the 1997 Plan, the stated exercise price shall not be less than
100% and 85% of the estimated fair market value of common stock
on the date of grant for ISOs and NSOs, respectively, as
determined by the Board of Directors. The 1997 Plan provides
that the options shall be exercisable over a period not to
exceed ten years. Options generally vest ratably over four years
from the date of grant. Options granted to certain executive
officers are exercisable immediately and unvested shares issued
upon exercise are subject to repurchase by the Company at the
exercise price. During fiscal year 2006, 870,667 unvested shares
issued upon exercise of options were repurchased under this
provision. There were no repurchases of unvested shares in
fiscal years 2004 or 2005 or in the nine months ended
March 31, 2007. The Companys repurchase right for
such options lapses as the options vest, generally over four
years from the date of grant.
In February 2007, the Company adopted the 2007 Equity Incentive
Plan (the 2007 Plan) which, as amended, provides for
grants of incentive common stock options (ISOs) and
nonqualified common stock options (NSOs) to
employees, directors and consultants of the Company. This plan
serves as the successor to the 1997 Plan, which terminated in
January 2007. Fifty million shares of common stock are reserved
for future issuance in the form of stock options, restricted
stock awards or units, stock appreciation rights and stock
bonuses. In accordance with the 2007 Plan, the stated exercise
price of ISOs and NSOs shall not be less than 100% and 85%,
respectively, of the estimated fair market value of common stock
on the date of grant, as determined by the Board of Directors.
Additionally, the 2007 Plan provides for automatic annual
increases of shares available for issuance of up to 5% of the
number of common shares then outstanding. The 2007 Plan provides
that the options shall be exercisable over a period not to
exceed ten years. As of March 31, 2007 no shares have been
issued under the 2007 Plan.
Class Two options granted to certain executive officers are
exercisable immediately and shares issued upon exercise are
subject to repurchase by the Company at the exercise price, in
the event the employee is terminated such repurchase right
lapses gradually over a four year period. The Company does not
consider the exercise of stock options substantive when the
issued stock is subject to repurchase. Accordingly, the proceeds
from the exercise of such options are accounted for as a deposit
liability until the repurchase right lapses, at which time the
proceeds are reclassified to permanent equity. As of
June 30, 2005, June 30, 2006 and March 31, 2007,
there were 3,973,918, 15,551,186 and 9,535,529 shares,
subject to repurchase respectively, of the Companys common
stock outstanding and $40,000, $522,000 and $365,000,
respectively, of related recorded liability, which is included
in accrued liabilities.
F-22
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
During fiscal years 2006 and 2005, the Company had outstanding
loans to certain executives and employees pursuant to the 1997
Plan for the purchase of stock upon the exercise of incentive
stock options in the aggregate amounts of $231,000 and $372,000,
respectively. The loan agreements allow the Company to
repurchase the unvested shares within 60 days of
termination at a price equal to the original exercise price. The
loans bear interest at rates ranging from 6.4%
8.0% per annum and are due upon the earlier of termination
of employment or four years from the option exercise date. All
loans are due by June 30, 2006. In fiscal 2002, as part of
his termination settlement, the Company repurchased unvested
shares and amended the terms of the remaining notes issued to
the former CEO, such that they are nonrecourse. In March 2003,
the Company amended the terms of the remaining loans, such that
they are nonrecourse. Of the 2,717,900 shares purchased,
1,274,176 were unvested at the time of the note amendments. Due
to the conversion of these full recourse notes to non-recourse,
the deemed new awards will be subject to variable accounting. As
such, additional stock-based compensation expense will be
recorded to the extent the Companys share price
appreciates above the value for which the Company has already
recorded compensation charges. Stock-based compensation expense
recorded for these awards in fiscal 2004, 2005, 2006 and the
nine month periods ended March 31, 2006 and 2007 was
$45,000, $82,000, $54,000, $36,000 and $1,377,000 respectively.
During fiscal 2006, one employee was terminated and the Company
repurchased 460,000 unvested shares issued upon exercise of
options and wrote off the balance of his loan of $141,000 plus
accrued interest of $40,000. During fiscal 2005, one employee
repaid his loan in the amount of $222,000 plus accrued interest
of $40,000. During the nine months ended March 31, 2007,
one employee repaid his loan in the amount of $12,000 plus
accrued interest of $7,000. In March 2007, the Company entered
into a Note Repayment Agreement with the sole remaining
note holder, whereby he agreed to surrender 576,706 shares
of the Companys common stock as full consideration for the
principal and fully-reserved interest balances due on his stock
loans and his promissory note (see Note 4).
F-23
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Transactions under the 1997 Plan are summarized as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
|
Weighted-
|
|
|
|
Shares
|
|
|
Subject to
|
|
|
Average
|
|
|
|
Available
|
|
|
Options
|
|
|
Exercise
|
|
|
|
for Grant
|
|
|
Outstanding
|
|
|
Price
|
|
|
Outstanding
July 1, 2003
|
|
|
15,058,689
|
|
|
|
21,309,657
|
|
|
$
|
0.07
|
|
Adjustment to shares authorized on
issuance of Series F preferred stock
|
|
|
(205,750
|
)
|
|
|
|
|
|
|
|
|
Options granted
Class One (weighted-average fair value of $0.01 per
share)
|
|
|
(4,266,000
|
)
|
|
|
4,266,000
|
|
|
|
0.03
|
|
Options granted
Class Two (weighted-average fair value of $0.01 per share)
|
|
|
(4,780,000
|
)
|
|
|
4,780,000
|
|
|
|
0.03
|
|
Options exercised
|
|
|
|
|
|
|
(991,400
|
)
|
|
|
0.01
|
|
Options canceled
|
|
|
2,628,808
|
|
|
|
(2,628,808
|
)
|
|
|
0.04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
June 30, 2004
|
|
|
8,435,747
|
|
|
|
26,735,449
|
|
|
$
|
0.07
|
|
Shares authorized on issuance of
Series H preferred stock
|
|
|
25,317,795
|
|
|
|
|
|
|
|
|
|
Options granted
Class One (weighted-average fair value of $0.01 per
share)
|
|
|
(4,708,500
|
)
|
|
|
4,708,500
|
|
|
|
0.04
|
|
Options granted
Class Two (weighted-average fair value of $0.01 per share)
|
|
|
(25,097,795
|
)
|
|
|
25,097,795
|
|
|
|
0.03
|
|
Options exercised
|
|
|
|
|
|
|
(2,520,133
|
)
|
|
|
0.09
|
|
Options canceled
|
|
|
662,577
|
|
|
|
(662,577
|
)
|
|
|
0.16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
June 30, 2005
|
|
|
4,609,824
|
|
|
|
53,359,034
|
|
|
$
|
0.04
|
|
Shares authorized
|
|
|
15,000,000
|
|
|
|
|
|
|
|
|
|
Options granted
Class One (weighted-average fair value of $0.06 per
share)
|
|
|
(4,490,500
|
)
|
|
|
4,490,500
|
|
|
|
0.08
|
|
Options granted
Class Two (weighted-average fair value of $0.04 per share)
|
|
|
(8,510,000
|
)
|
|
|
8,510,000
|
|
|
|
0.06
|
|
Options exercised
|
|
|
|
|
|
|
(34,286,679
|
)
|
|
|
0.03
|
|
Options repurchased
|
|
|
1,330,667
|
|
|
|
|
|
|
|
0.11
|
|
Options canceled
|
|
|
1,294,233
|
|
|
|
(1,294,233
|
)
|
|
|
0.05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
June 30, 2006
|
|
|
9,234,224
|
|
|
|
30,778,622
|
|
|
$
|
0.06
|
|
Shares authorized (unaudited)
|
|
|
60,300,000
|
|
|
|
|
|
|
|
|
|
Options granted
Class One (weighted-average fair value of $0.50 per
share) (unaudited)
|
|
|
(5,805,500
|
)
|
|
|
5,805,500
|
|
|
|
0.28
|
|
Options granted
Class Two (weighted-average fair value of $0.50 per share)
(unaudited)
|
|
|
(5,300,000
|
)
|
|
|
5,300,000
|
|
|
|
0.27
|
|
Options exercised (unaudited)
|
|
|
|
|
|
|
(8,088,666
|
)
|
|
|
0.07
|
|
Options canceled (unaudited)
|
|
|
1,300,771
|
|
|
|
(1,300,771
|
)
|
|
|
0.08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
March 31, 2007 (unaudited)
|
|
|
59,729,495
|
|
|
|
32,494,685
|
|
|
$
|
0.13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at
March 31, 2007 (unaudited)
|
|
|
|
|
|
|
21,201,809
|
|
|
$
|
0.11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The total intrinsic value for options exercised in the years
ended June 30, 2005, June 30, 2006 and the nine months
ended March 31, 2007 was $66,000, $2,867,000 and
$6,592,000, respectively, representing the difference
F-24
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
between the estimated fair values of the Companys common
stock underlying these options at the dates of exercise and the
exercise prices paid.
During the nine months ended March 31, 2007, the Company
recorded non-cash stock-based compensation expense of $582,000
under SFAS 123(R). As of March 31, 2007, total
unrecognized compensation cost related to stock-based awards
granted to employees and non-employee directors was $3,524,000,
net of estimated forfeitures of $1,267,000. This cost will be
amortized on a straight-line basis over a weighted-average
vesting period of approximately four years.
The following table summarizes information about outstanding and
exercisable options at the period end shown:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of June 30, 2006
|
|
|
As of March 31, 2007
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
|
|
|
|
Average
|
|
|
Weighted-
|
|
|
|
|
|
Average
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
|
Remaining
|
|
|
Average
|
|
|
|
|
|
Remaining
|
|
|
Average
|
|
|
Aggregate
|
|
|
|
Options
|
|
|
Contractual
|
|
|
Exercise
|
|
|
Options
|
|
|
Contractual
|
|
|
Exercise
|
|
|
Intrinsic
|
|
Exercise Prices
|
|
Outstanding
|
|
|
Life (Years)
|
|
|
Price
|
|
|
Outstanding
|
|
|
Life (Years)
|
|
|
Price
|
|
|
Value
|
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
(Dollars in thousands, except per share data)
|
|
|
$0.01
|
|
|
5,138,657
|
|
|
|
6.62
|
|
|
$
|
0.01
|
|
|
|
3,686,722
|
|
|
|
5.88
|
|
|
$
|
0.01
|
|
|
|
|
|
$0.03
|
|
|
5,385,881
|
|
|
|
7.58
|
|
|
$
|
0.03
|
|
|
|
4,312,945
|
|
|
|
6.97
|
|
|
$
|
0.03
|
|
|
|
|
|
$0.04
|
|
|
9,037,122
|
|
|
|
8.91
|
|
|
$
|
0.04
|
|
|
|
6,857,734
|
|
|
|
8.19
|
|
|
$
|
0.04
|
|
|
|
|
|
$0.08
|
|
|
3,636,667
|
|
|
|
9.53
|
|
|
$
|
0.08
|
|
|
|
3,243,428
|
|
|
|
8.79
|
|
|
$
|
0.08
|
|
|
|
|
|
$0.10
|
|
|
7,014,701
|
|
|
|
7.13
|
|
|
$
|
0.10
|
|
|
|
4,784,885
|
|
|
|
8.24
|
|
|
$
|
0.10
|
|
|
|
|
|
$0.20-0.30
|
|
|
261,345
|
|
|
|
3.39
|
|
|
$
|
0.25
|
|
|
|
1,582,720
|
|
|
|
8.45
|
|
|
$
|
0.25
|
|
|
|
|
|
$0.32
|
|
|
|
|
|
|
.00
|
|
|
$
|
|
|
|
|
6,841,500
|
|
|
|
9.53
|
|
|
$
|
0.32
|
|
|
|
|
|
$0.36
|
|
|
|
|
|
|
.00
|
|
|
$
|
|
|
|
|
900,000
|
|
|
|
9.71
|
|
|
$
|
0.36
|
|
|
|
|
|
$0.60
|
|
|
304,250
|
|
|
|
4.22
|
|
|
$
|
0.60
|
|
|
|
284,750
|
|
|
|
3.46
|
|
|
$
|
0.60
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total outstanding
|
|
|
30,778,623
|
|
|
|
7.87
|
|
|
$
|
0.06
|
|
|
|
32,494,685
|
|
|
|
8.13
|
|
|
$
|
0.13
|
|
|
$
|
32,459
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable
|
|
|
13,100,992
|
|
|
|
6.52
|
|
|
$
|
0.07
|
|
|
|
21,201,809
|
|
|
|
7.72
|
|
|
$
|
0.11
|
|
|
$
|
21,623
|
|
Vested and expected to vest
|
|
|
30,778,623
|
|
|
|
7.36
|
|
|
$
|
0.06
|
|
|
|
28,607,699
|
|
|
|
7.34
|
|
|
$
|
0.12
|
|
|
$
|
28,825
|
|
|
|
10.
|
COMMITMENTS
AND CONTINGENCIES
|
Leases
The Company leases its facilities
under noncancelable operating leases which expire by September
2009. The leases provide for the lessee to pay all cost of
utilities, insurance, and taxes. On October 1, 2005, the
Company renegotiated the lease on its primary facility and
increased the square footage under lease. In May 2007, the
Company executed a new lease for its existing headquarters
facility that extends until October 2009 and entered into a
lease for additional operational space at a location near its
headquarters that terminates in September 2009 (see
Note 13).
Future minimum lease payments under the noncancelable leases as
of March 31, 2007, were as follows (in thousands):
|
|
|
|
|
Years Ending June 30
|
|
|
|
|
2007 (remaining three months)
|
|
$
|
186
|
|
2008
|
|
|
188
|
|
|
|
|
|
|
|
|
$
|
374
|
|
|
|
|
|
|
F-25
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
Lease obligations for the Companys foreign offices are
cited in foreign currencies, which were converted herein to
U.S. dollars at the average exchange rate on June 30,
2006.
Rent expense for the years ended June 30, 2004, 2005 and
2006, was $453,000, $475,000 and $594,000, respectively, and
$443,000 and $562,000 during the nine months ended
March 31, 2006 and 2007, respectively.
Purchase commitments
As of June 30, 2006
and March 31, 2007, the Company had non-cancelable purchase
commitments with contract manufacturers totaling approximately
$7,120,000 and $11,617,000 respectively, for finished goods.
Litigation
On April 2, 2007, a lawsuit
was filed against the Company by Rates Technology Inc. alleging
that the Company has infringed two of Rates Technologys
patents. In May 2007, the Company entered into a Covenant
Not to Sue Agreement with Rates Technology relating to the
infringement claim.
Indemnification
Under the
indemnification provisions of the Companys customer
agreements, the Company agrees to indemnify and defend its
customers against infringement of any patent, trademark, or
copyright of any country or the misappropriation of any trade
secret, arising from the customers legal use of the
Companys services. The exposure to the Company under these
indemnification provisions is generally limited to the total
amount paid by the customers under pertinent agreements.
However, certain indemnification provisions potentially expose
the company to losses in excess of the aggregate amount received
from the customer. To date, there have been no claims against
the Company or its customers pertaining to such indemnification
provisions and no amounts have been recorded.
|
|
11.
|
EMPLOYEE
BENEFIT PLAN
|
The Company adopted a defined contribution retirement plan which
has been determined by the Internal Revenue Service
(IRS) to be qualified as a 401(k) plan (the
Plan). The Plan covers substantially all employees. The
Plan provides for voluntary tax deferred contributions of
1 20% of gross compensation, subject to certain IRS
limitations. Based on approval by the Board of Directors, the
Company may make matching contributions to the Plan. No matching
contributions have been made as of March 31, 2007.
SFAS No. 131 (SFAS 131),
Disclosures About
Segments of an Enterprise and Related Information
,
established standards for reporting information about operating
segments. Operating segments are defined as components of an
enterprise for which separate financial information is available
and evaluated regularly by the chief operating decision-maker,
or decision-making group, in deciding how to allocate resources
and in assessing performance. The Company is organized as, and
operates in, one reportable segment: the development and sale of
IP voice communication systems. The Companys chief
operating decision-maker is its Chief Executive Officer. The
Companys Chief Executive Officer reviews financial
information presented on a consolidated basis, accompanied by
information about revenue by geographic region, for purposes of
evaluating financial performance and allocating resources. The
Company has operations in North America and Europe; however, the
portion of revenues that Europe contributes is less than 10% of
consolidated revenues. As such, it does not meet the requirement
under SFAS 131 to be reported as a separate segment.
Revenue is attributed by geographic location based on the
location of the billing address of the channel partner or
enterprise customer if sold directly to the enterprise customer.
The Companys assets are primarily located in the United
States of America and not allocated to any specific region.
F-26
SHORETEL,
INC. AND SUBSIDIARIES
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(INFORMATION FOR THE NINE MONTHS ENDED
MARCH 31, 2006 AND 2007 IS UNAUDITED)
The following presents total revenue by geographic region (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
|
Year Ended June 30,
|
|
|
March 31,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
North America
|
|
$
|
18,633
|
|
|
$
|
34,863
|
|
|
$
|
60,954
|
|
|
$
|
42,033
|
|
|
$
|
67,195
|
|
Europe
|
|
|
195
|
|
|
|
619
|
|
|
|
654
|
|
|
|
491
|
|
|
|
1,709
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
18,828
|
|
|
$
|
35,482
|
|
|
$
|
61,608
|
|
|
$
|
42,524
|
|
|
$
|
68,904
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In May 2007, the Company executed a new lease for its existing
headquarters facility that extends until October 2009 and
provides for minimum monthly base rent payments of $118,000 for
the period from October 2007 to October 2008, and $124,000 for
the period from October 2008 to October 2009. In addition, in
May 2007 the Company executed a two-year lease for
additional operational space at another location near its
headquarters that terminates in September 2009 and provides for
minimum monthly base rent payments of approximately $5,000.
In April 2007, the Company granted 7,377,500 Class One
options at an exercise price of $1.13 per share. In May 2007,
the Company granted 5,643,000 Class One options at an
exercise price of $1.14 per share.
* * * * * *
F-27
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
ITEM 13.
|
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
|
The following table sets forth the fees and expenses, other than
underwriting discounts and commissions, payable in connection
with the registration of common stock hereunder. All amounts are
estimates except the SEC registration fee, the NASD filing fee
and the NASDAQ Global Market listing fee.
|
|
|
|
|
|
|
Amount to be Paid
|
|
|
SEC Registration Fee
|
|
$
|
9,095
|
|
NASD Filing Fee
|
|
|
9,125
|
|
NASDAQ Global Market Initial
Listing Fee
|
|
|
5,000
|
|
Legal Fees and Expenses
|
|
|
*
|
|
Accounting Fees and Expenses
|
|
|
*
|
|
Printing and Engraving Expenses
|
|
|
*
|
|
Blue Sky Fees and Expenses
|
|
|
*
|
|
Transfer Agent and Registrar Fees
|
|
|
*
|
|
Miscellaneous Expenses
|
|
|
*
|
|
|
|
|
|
|
Total
|
|
$
|
*
|
|
|
|
|
|
|
|
|
|
*
|
|
To be completed by amendment.
|
|
|
ITEM 14.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
|
Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporations board of
directors to grant, indemnity to directors and officers under
certain circumstances and subject to certain limitations. The
terms of Section 145 of the Delaware General Corporation
Law are sufficiently broad to permit indemnification under
certain circumstances for liabilities, including reimbursement
of expenses incurred, arising under the Securities Act of 1933.
As permitted by the Delaware General Corporation Law, the
Registrants certificate of incorporation includes a
provision that eliminates, to the fullest extent permitted by
law, the personal liability of a director for monetary damages
resulting from breach of his fiduciary duty as a director.
As permitted by the Delaware General Corporation Law, the
Registrants bylaws provide that:
|
|
|
|
|
the Registrant is required to indemnify its directors and
officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain limited exceptions;
|
|
|
|
the Registrant may also indemnify its other employees and agents
in its discretion;
|
|
|
|
the Registrant is required to advance expenses, as incurred, to
its directors and officers in connection with a legal proceeding
subject to certain limited exceptions, and to the extent the
Delaware General Corporation Law so requires, such advances may
be conditioned on the director or officers agreement to
repay any such advanced expenses if it is determined that the
director or officer is not entitled to be indemnified under the
Registrants bylaws; and
|
|
|
|
the rights conferred in the bylaws are not exclusive.
|
In addition, the Registrant has entered into indemnity
agreements with each of its current directors and officers.
These agreements provide for the indemnification of directors
and officers for all reasonable expenses and liabilities
incurred in connection with any action or proceeding brought
against them by reason of the fact that they are or were agents
of the Registrant, subject to limited exceptions. Some of the
directors of the Registrant have entered into
II-1
agreements with investment entities with which they are
affiliated that provide for the indemnification of such
directors (entered into in connection with such entities
investments in the Registrant).
The Registrant currently carries liability insurance for its
directors and officers.
The Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement provides for indemnification by the
underwriters of the Registrant and its directors and officers
for certain liabilities under the Securities Act of 1933, or
otherwise.
Reference is made to the following documents filed as exhibits
to this Registration Statement regarding relevant
indemnification provisions described above and elsewhere herein:
|
|
|
|
|
Exhibit Document
|
|
Number
|
|
|
Form of Underwriting Agreement
|
|
|
1.1
|
|
Certificate of Incorporation of
the Registrant
|
|
|
3.1
|
|
Third Restated Certificate of
Incorporation of the Registrant, to be filed upon the completion
of this offering
|
|
|
3.2
|
|
Registrants Bylaws
|
|
|
3.3
|
|
Form of Second Amended and
Restated Bylaws of the Registrant, to be effective following the
completion of this offering
|
|
|
3.4
|
|
Form of Indemnity Agreement
|
|
|
10.1
|
|
|
|
ITEM 15.
|
RECENT
SALES OF UNREGISTERED SECURITIES
|
Since January 1, 2004, the Registrant has issued and sold
the following securities:
1. From January 1, 2004 to May 25, 2007, we
granted stock options to purchase an aggregate of
75,595,795 shares of our common stock at a weighted average
exercise price of $0.26 per share, respectively, to our
employees, consultants, directors and other service providers
under our 1997 Stock Option Plan, 2007 Equity Incentive Plan and
a non-plan stock option.
2. From January 1, 2004 to May 25, 2007, we
issued and sold an aggregate of 45,783,585 shares of our
common stock to employees, consultants, directors and other
service providers at prices ranging from $0.01 to $0.60 per
share under direct issuances or exercises of options granted
under our 1997 Stock Option Plan.
3. On March 1, 2004, we issued 20,114,943 shares
of our Series G Preferred Stock to private investors at a
price of $0.174 per share for an aggregate purchase price
of approximately $3.5 million in reliance on
Section 4(2) of the Securities Act
and/or
Regulation D promulgated under the Securities Act. Each
share of Series G Preferred Stock will convert
automatically into common stock upon the completion of this
offering.
4. On October 20, 2004, we issued
47,169,812 shares of Series H Preferred Stock to
private investors at a price of $0.212 per share for an
aggregate purchase price of approximately $10 million in
reliance on Section 4(2) of the Securities Act
and/or
Regulation D promulgated under the Securities Act. Each
share of Series H Preferred Stock will convert
automatically into common stock upon the completion of this
offering.
All sales of common stock made pursuant to our 1997 Stock Option
Plan or any non-plan stock option, including pursuant to
exercise of stock options, were made in reliance on
Rule 701 under the Securities Act or Section 4(2) of
the Securities Act.
All sales indicated as having been made in reliance on
Section 4(2) of the Securities Act
and/or
Regulation D promulgated under the Securities Act were made
without general solicitation or advertising. Each purchaser was
a sophisticated investor with access to all relevant information
necessary to evaluate the investment and represented to the
Registrant that the shares were being acquired for investment.
II-2
|
|
ITEM 16.
|
EXHIBITS AND
FINANCIAL STATEMENT SCHEDULES.
|
(a)
The following exhibits are filed herewith:
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Exhibit Title
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
3
|
.1**
|
|
Certificate of Incorporation of
the Registrant.
|
|
3
|
.2**
|
|
Third Restated Certificate of
Incorporation of the Registrant, to be filed upon completion of
this offering with the Delaware Secretary of State.
|
|
3
|
.3**
|
|
Bylaws of the Registrant.
|
|
3
|
.4**
|
|
Form of Second Amended and
Restated Bylaws of the Registrant, to be effective upon
completion of this offering.
|
|
4
|
.1*
|
|
Form of Registrants Common
Stock certificate.
|
|
4
|
.2**
|
|
Seventh Amended and Restated
Rights Agreement dated October 20, 2004 by and among the
Registrant and certain of its equityholders.
|
|
5
|
.1*
|
|
Opinion of Fenwick &
West LLP.
|
|
10
|
.1**
|
|
Form of Indemnity Agreement
between the Registrant and each of its directors and executive
officers.
|
|
10
|
.2**
|
|
1997 Stock Option Plan and forms
of stock option agreement and stock option exercise agreement.
|
|
10
|
.3**
|
|
2007 Equity Incentive Plan and
forms of stock option agreement and stock option exercise
agreement.
|
|
10
|
.4**
|
|
2007 Employee Stock Purchase Plan.
|
|
10
|
.5**
|
|
ShoreTel Executive Bonus Incentive
Plan for the second half of fiscal 2006.
|
|
10
|
.6**
|
|
Description of ShoreTel Executive
Bonus Incentive Plan for the first and second half of fiscal
2007.
|
|
10
|
.7**
|
|
Offer Letter, dated as of
July 14, 2004, by the Registrant and John W. Combs.
|
|
10
|
.8**
|
|
Offer Letter, dated as of
March 10, 2003, by the Registrant and John Finegan.
|
|
10
|
.9**
|
|
Offer Letter, dated as of
September 8, 2005, by the Registrant and Joseph A. Vitalone.
|
|
10
|
.10**
|
|
Offer Letter, dated as of
April 13, 2005, by the Registrant and Walter Weisner.
|
|
10
|
.11**
|
|
Change of Control Agreement, dated
as of August 5, 2004, between the Registrant and John W.
Combs.
|
|
10
|
.12**
|
|
Change of Control Agreement, dated
as of May 7, 2003, between the Registrant and John Finegan.
|
|
10
|
.13**
|
|
Change of Control Agreement, dated
as of August 1, 2001, between the Registrant and Edwin J.
Basart.
|
|
10
|
.14**
|
|
Separation Agreement, dated as of
August 9, 2004, between the Registrant and Thomas van
Overbeek.
|
|
10
|
.15**
|
|
Sublease, dated as of October
1998, between Registrant and Applied Materials, Inc., as amended.
|
|
10
|
.16**
|
|
ODM Product Development and
Purchase Agreement, dated as of March 19, 2004, between
Registrant and Giant Electronics Ltd., as amended.
|
|
10
|
.17**
|
|
Manufacturing Services Agreement,
dated October 28, 2005, between Registrant and Jabil
Circuit, Inc.
|
|
10
|
.18
|
|
Office Lease Oakmead West, dated
April 20, 2007, between Registrant and Carr NP Properties,
L.L.C.
|
|
10
|
.19
|
|
Offer Letter, dated April 22,
2007, by the Registrant and Michael E. Healy
|
|
23
|
.1*
|
|
Consent of Fenwick &
West LLP (included in Exhibit 5.1).
|
|
23
|
.2
|
|
Consent of Deloitte &
Touche LLP, independent registered public accounting firm.
|
|
24
|
.1**
|
|
Power of Attorney.
|
II-3
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Exhibit Title
|
|
|
24
|
.2**
|
|
Power of Attorney of Gary J.
Daichendt.
|
|
24
|
.3
|
|
Power of Attorney of Mark F.
Bregman
|
|
24
|
.4
|
|
Power of Attorney of Kenneth D.
Denman
|
|
|
|
*
|
|
To be filed by amendment.
|
|
|
|
|
|
An application for confidential treatment of selected portions
of this agreement has been filed with the Commission.
|
(b)
Financial Statement Schedules.
All schedules have been omitted because they are either
inapplicable or the required information has been given in the
consolidated financial statements or the notes thereto.
The undersigned Registrant hereby undertakes to provide to the
underwriters at the completion specified in the underwriting
agreement certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described under Item 14 above, or otherwise, the Registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or Rule 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Amendment to Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of
California, on May 25, 2007.
SHORETEL, INC.
John W. Combs
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Amendment to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Name
|
|
Title
|
|
Date
|
|
/s/
John
W. Combs
John
W. Combs
|
|
Chairman, President and Chief
Executive Officer (Principal Executive Officer)
|
|
May 25, 2007
|
|
|
|
|
|
/s/
Michael E.
Healy
Michael E.
Healy
|
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
May 25, 2007
|
|
|
|
|
|
*
Edwin J.
Basart
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
/s/
Mark F.
Bregman
Mark F.
Bregman
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
*
Gary
J. Daichendt
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
/s/
Kenneth D.
Denman
Kenneth D.
Denman
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
*
Charles
D. Kissner
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
*
Thomas
van Overbeek
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
*
Edward
F. Thompson
|
|
Director
|
|
May 25, 2007
|
|
|
|
|
|
*By:
/s/
John
Finegan
John
Finegan
|
|
Attorney-in-fact
|
|
May 25, 2007
|
II-5
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Exhibit Title
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
3
|
.1**
|
|
Certificate of Incorporation of
the Registrant.
|
|
3
|
.2**
|
|
Third Restated Certificate of
Incorporation of the Registrant, to be filed upon completion of
this offering with the Delaware Secretary of State.
|
|
3
|
.3**
|
|
Bylaws of the Registrant.
|
|
3
|
.4**
|
|
Form of Second Amended and
Restated Bylaws of the Registrant, to be effective upon
completion of this offering.
|
|
4
|
.1*
|
|
Form of Registrants Common
Stock certificate.
|
|
4
|
.2**
|
|
Seventh Amended and Restated
Rights Agreement dated October 20, 2004 by and among the
Registrant and certain of its equityholders.
|
|
5
|
.1*
|
|
Opinion of Fenwick &
West LLP.
|
|
10
|
.1**
|
|
Form of Indemnity Agreement
between the Registrant and each of its directors and executive
officers.
|
|
10
|
.2**
|
|
1997 Stock Option Plan and forms
of stock option agreement and stock option exercise agreement.
|
|
10
|
.3**
|
|
2007 Equity Incentive Plan and
forms of stock option agreement and stock option exercise
agreement.
|
|
10
|
.4**
|
|
2007 Employee Stock Purchase Plan.
|
|
10
|
.5**
|
|
ShoreTel Executive Bonus Incentive
Plan for the second half of fiscal 2006.
|
|
10
|
.6**
|
|
Description of ShoreTel Executive
Bonus Incentive Plan for the first and second half of fiscal
2007.
|
|
10
|
.7**
|
|
Offer Letter, dated as of
July 14, 2004, by the Registrant and John W. Combs.
|
|
10
|
.8**
|
|
Offer Letter, dated as of
March 10, 2003, by the Registrant and John Finegan.
|
|
10
|
.9**
|
|
Offer Letter, dated as of
September 8, 2005, by the Registrant and Joseph A. Vitalone.
|
|
10
|
.10**
|
|
Offer Letter, dated as of
April 13, 2005, by the Registrant and Walter Weisner.
|
|
10
|
.11**
|
|
Change of Control Agreement, dated
as of August 5, 2004, between the Registrant and John W.
Combs.
|
|
10
|
.12**
|
|
Change of Control Agreement, dated
as of May 7, 2003, between the Registrant and John Finegan.
|
|
10
|
.13**
|
|
Change of Control Agreement, dated
as of August 1, 2001, between the Registrant and Edwin J.
Basart.
|
|
10
|
.14**
|
|
Separation Agreement, dated as of
August 9, 2004, between the Registrant and Thomas van
Overbeek.
|
|
10
|
.15**
|
|
Sublease, dated as of October
1998, between Registrant and Applied Materials, Inc., as amended.
|
|
10
|
.16**
|
|
ODM Product Development and
Purchase Agreement, dated as of March 19, 2004, between
Registrant and Giant Electronics Ltd., as amended.
|
|
10
|
.17**
|
|
Manufacturing Services Agreement,
dated October 28, 2005, between Registrant and Jabil
Circuit, Inc.
|
|
10
|
.18
|
|
Office Lease Oakmead West, dated
April 20, 2007, between Registrant and Carr NP Properties,
L.L.C.
|
|
10
|
.19
|
|
Offer Letter, dated April 22,
2007, by the Registrant and Michael E. Healy
|
|
23
|
.1*
|
|
Consent of Fenwick &
West LLP (included in Exhibit 5.1).
|
|
23
|
.2
|
|
Consent of Deloitte &
Touche LLP, independent registered public accounting firm.
|
|
24
|
.1**
|
|
Power of Attorney.
|
|
24
|
.2**
|
|
Power of Attorney of Gary J.
Daichendt.
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Exhibit Title
|
|
|
24
|
.3
|
|
Power of Attorney of Mark F.
Bregman
|
|
24
|
.4
|
|
Power of Attorney of Kenneth D.
Denman
|
|
|
|
*
|
|
To be filed by amendment.
|
|
|
|
|
|
An application for confidential treatment of selected portions
of this agreement has been filed with the Commission.
|
Exhibit 10.18
OFFICE LEASE
OAKMEAD WEST
Between
CARR NP PROPERTIES, L.L.C.
,
a Delaware limited liability company
,
as Landlord,
and
SHORETEL, INC.
,
a California corporation
,
as Tenant.
OAKMEAD WEST
ShoreTel, Inc.
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS
|
|
|
5
|
|
|
|
|
|
|
ARTICLE 2 LEASE TERM
|
|
|
6
|
|
|
|
|
|
|
ARTICLE 3 BASE RENT
|
|
|
6
|
|
|
|
|
|
|
ARTICLE 4 ADDITIONAL RENT
|
|
|
7
|
|
|
|
|
|
|
ARTICLE 5 USE OF PREMISES
|
|
|
15
|
|
|
|
|
|
|
ARTICLE 6 SERVICES AND UTILITIES
|
|
|
15
|
|
|
|
|
|
|
ARTICLE 7 REPAIRS
|
|
|
16
|
|
|
|
|
|
|
ARTICLE 8 ADDITIONS AND ALTERATIONS
|
|
|
18
|
|
|
|
|
|
|
ARTICLE 9 COVENANT AGAINST LIENS
|
|
|
20
|
|
|
|
|
|
|
ARTICLE 10 INSURANCE
|
|
|
21
|
|
|
|
|
|
|
ARTICLE 11 DAMAGE AND DESTRUCTION
|
|
|
24
|
|
|
|
|
|
|
ARTICLE 12 NONWAIVER
|
|
|
25
|
|
|
|
|
|
|
ARTICLE 13 CONDEMNATION
|
|
|
26
|
|
|
|
|
|
|
ARTICLE 14 ASSIGNMENT AND SUBLETTING
|
|
|
27
|
|
|
|
|
|
|
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF
TRADE FIXTURES AND OTHER PROPERTY
|
|
|
32
|
|
|
|
|
|
|
ARTICLE 16 HOLDING OVER
|
|
|
33
|
|
|
|
|
|
|
ARTICLE 17 ESTOPPEL CERTIFICATES
|
|
|
34
|
|
|
|
|
|
|
ARTICLE 18 SUBORDINATION
|
|
|
34
|
|
|
|
|
|
|
ARTICLE 19 DEFAULTS; REMEDIES
|
|
|
35
|
|
|
|
|
|
|
ARTICLE 20 COVENANT OF QUIET ENJOYMENT
|
|
|
37
|
|
|
|
|
|
|
ARTICLE 21 SECURITY DEPOSIT
|
|
|
38
|
|
|
|
|
|
|
ARTICLE 22 ROOFTOP EQUIPMENT
|
|
|
38
|
|
|
|
|
|
|
ARTICLE 23 SIGNS
|
|
|
40
|
|
OAKMEAD WEST
ShoreTel, Inc.
i
|
|
|
|
|
|
|
Page
|
|
ARTICLE 24 COMPLIANCE WITH LAW; HAZARDOUS SUBSTANCES
|
|
|
40
|
|
|
|
|
|
|
ARTICLE 25 LATE CHARGES
|
|
|
45
|
|
|
|
|
|
|
ARTICLE 26 LANDLORDS RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
|
|
|
46
|
|
|
|
|
|
|
ARTICLE 27 ENTRY BY LANDLORD
|
|
|
46
|
|
|
|
|
|
|
ARTICLE 28 TENANT PARKING
|
|
|
47
|
|
|
|
|
|
|
ARTICLE 29 MISCELLANEOUS PROVISIONS
|
|
|
48
|
|
EXHIBITS
|
|
|
A
|
|
OUTLINE OF PREMISES
|
B
|
|
PROPERTY TO BE REMOVED
|
C
|
|
FORM OF NOTICE OF LEASE TERM DATES
|
D
|
|
RULES AND REGULATIONS
|
D-1
|
|
ROOFTOP RULES AND REGULATIONS
|
E
|
|
FORM OF TENANTS ESTOPPEL CERTIFICATE
|
F
|
|
FORM OF RECOGNITION OF COVENANTS, CONDITIONS AND RESTRICTIONS
|
G
|
|
FORM OF ENVIRONMENTAL QUESTIONNAIRE
|
H
|
|
INVENTORY OF PERSONAL PROPERTY
|
I
|
|
SUBORDINATION AND NON-DISTURBANCE AGREEMENT
|
OAKMEAD WEST
ShoreTel, Inc.
ii
OAKMEAD WEST
INDEX
|
|
|
|
|
|
|
Page(s)
|
|
Additional
Insured Parties
|
|
|
23
|
|
Additional Rent
|
|
|
7
|
|
Alterations
|
|
|
18
|
|
Anti-Terrorism Law
|
|
|
53
|
|
Applicable Requirements
|
|
|
15
|
|
Applied Materials Sublease
|
|
|
5
|
|
Base Rent
|
|
|
6
|
|
Building
|
|
|
5
|
|
Building Systems
|
|
|
16
|
|
Cable Path
|
|
|
39
|
|
CC&Rs
|
|
|
15
|
|
Claims
|
|
|
21
|
|
Common Areas
|
|
|
6
|
|
Communications Equipment
|
|
|
38
|
|
Connections
|
|
|
39
|
|
Contemplated Effective Date
|
|
|
27
|
|
Contemplated Transfer Space
|
|
|
27
|
|
Contemplated Transfer Term
|
|
|
27
|
|
Cost Pools
|
|
|
12
|
|
Current CC&Rs
|
|
|
15
|
|
Direct Expenses
|
|
|
7
|
|
Equipment
|
|
|
39
|
|
Estimate
|
|
|
13
|
|
Estimate Statement
|
|
|
13
|
|
Estimated Direct Expenses
|
|
|
13
|
|
Executive Order No. 13224
|
|
|
53
|
|
Expense Year
|
|
|
7
|
|
Force Majeure
|
|
|
50
|
|
Future CC&Rs
|
|
|
15
|
|
GACC
|
|
|
35
|
|
HVAC
|
|
|
16
|
|
Identification Requirements
|
|
|
56
|
|
Included Capital Items
|
|
|
8
|
|
Interest Rate
|
|
|
45
|
|
Landlord
|
|
|
1
|
|
Landlord Parties
|
|
|
21
|
|
Landlord Repair Notice
|
|
|
24
|
|
Landlords Repair Obligations
|
|
|
17
|
|
Lease
|
|
|
1
|
|
Lease Commencement Date
|
|
|
6
|
|
Lease Expiration Date
|
|
|
6
|
|
OAKMEAD WEST
ShoreTel, Inc.
iii
|
|
|
|
|
|
|
Page(s)
|
|
Lease Term
|
|
|
6
|
|
Lease Year
|
|
|
6
|
|
License
|
|
|
38
|
|
License Area
|
|
|
38
|
|
Lines
|
|
|
56
|
|
Mail
|
|
|
51
|
|
Management Fee
|
|
|
7
|
|
Net Worth
|
|
|
32
|
|
Nine Month Period
|
|
|
30
|
|
Notices
|
|
|
51
|
|
Operating Expenses
|
|
|
8
|
|
Original Improvements
|
|
|
22
|
|
Other Improvements
|
|
|
57
|
|
Permitted Transfer
|
|
|
31
|
|
Permitted Transferee
|
|
|
31
|
|
Permitted Transferees
|
|
|
31
|
|
Premises
|
|
|
5
|
|
Prepaid Rent
|
|
|
7
|
|
Prohibited Person
|
|
|
53
|
|
Project,
|
|
|
5
|
|
Proposition 13
|
|
|
11
|
|
Prorated First Rent Payment
|
|
|
7
|
|
Recoverable Expenses
|
|
|
29
|
|
Remedial Work
|
|
|
42
|
|
Renovations
|
|
|
55
|
|
Roof Repairs
|
|
|
39
|
|
Security Deposit
|
|
|
38
|
|
Security Holder
|
|
|
34
|
|
Signage Standards
|
|
|
40
|
|
SNDA
|
|
|
35
|
|
Statement
|
|
|
12
|
|
Summary
|
|
|
1
|
|
Tax Expenses
|
|
|
11
|
|
Tenant
|
|
|
1
|
|
Tenant Parties
|
|
|
21
|
|
Tenants Repair Obligations
|
|
|
16
|
|
Tenants Share
|
|
|
12
|
|
Tenants Signage Rights
|
|
|
40
|
|
Transfer Notice
|
|
|
27
|
|
Transfer Premium
|
|
|
29
|
|
Transferee
|
|
|
27
|
|
Transferee Financials
|
|
|
27
|
|
Transferor
|
|
|
27
|
|
OAKMEAD WEST
ShoreTel, Inc.
iv
|
|
|
|
|
|
|
Page(s)
|
|
Underlying Documents
|
|
|
8
|
|
USA Patriot Act
|
|
|
53
|
|
OAKMEAD WEST
ShoreTel, Inc.
v
OAKMEAD WEST
OFFICE LEASE
This Office Lease (the
Lease
), dated as of the date set forth in
Section 1
of the
Summary of Basic Lease Information (the
Summary
), below, is made by and between
CARR
NP PROPERTIES, L.L.C.
, a Delaware limited liability company (
Landlord
), and
SHORETEL, INC.
,a California corporation (
Tenant
).
SUMMARY OF BASIC LEASE INFORMATION
|
|
|
|
|
|
|
|
|
TERMS OF LEASE
|
|
|
|
DESCRIPTION
|
|
|
|
|
|
|
|
|
|
1.
|
|
Date:
|
|
|
|
April 20, 2007
|
|
|
|
|
|
|
|
|
|
2.
|
|
Premises/Building
|
|
|
|
|
|
|
(
Article 1
):
|
|
|
|
Approximately 63,781 rentable square feet of space, comprising the entirety of
the building located at 960 Stewart Drive, Sunnyvale, California, as further set forth
as Building G in
Exhibit A
to this Lease
|
|
|
|
|
|
|
|
|
|
3.
|
|
Lease Term
|
|
|
|
|
|
|
(
Article 2
).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.1
|
|
Length of Term:
|
|
|
|
Two (2) years
|
|
|
|
|
|
|
|
|
|
|
|
3.2
|
|
Lease Commencement
Date:
|
|
|
|
October 6, 2007
|
|
|
|
|
|
|
|
|
|
|
|
3.3
|
|
Lease Expiration Date:
|
|
|
|
October 31, 2009
|
OAKMEAD WEST
ShoreTel, Inc.
4.
|
|
Base Rent (
Article 3
):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monthly Base
|
|
|
|
|
|
|
|
Monthly
|
|
|
Rent
|
|
Period During
|
|
Annual
|
|
|
Installment
|
|
|
per Rentable
|
|
Lease
Term
|
|
Base Rent
|
|
|
of Base Rent
|
|
|
Square Foot
|
|
October 6, 2007 October 5, 2008
|
|
$
|
1,415,938.20
|
|
|
$
|
117,994.85
|
|
|
$
|
1.85
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
October 6,
2008 October 31, 2009
|
|
$
|
1,486,735.11
|
|
|
$
|
123,894.59
|
|
|
|
1.9425
|
|
|
|
|
|
|
5.
|
|
Intentionally Omitted
|
|
|
|
|
|
|
|
6.
|
|
Tenants Share
|
|
100% of the Building
|
|
|
(
Article 4
):
|
|
14.97% of the Project
|
|
|
|
|
|
7.
|
|
Permitted Use
|
|
|
|
|
(
Article 5
):
|
|
General office, warehouse, light assembly and manufacturing, research and
development
|
|
|
|
|
|
8.
|
|
Security Deposit
|
|
|
|
|
(
Article 21
):
|
|
$117,994.85
|
|
|
|
|
|
|
|
Prepaid Base Rent
|
|
|
|
|
(
Article 3
):
|
|
$117,994.85
|
|
|
|
|
|
|
|
Prepaid Additional Rent
|
|
|
|
|
(
Article 3
):
|
|
$20,409.92
|
OAKMEAD WEST
ShoreTel, Inc.
2
|
|
|
|
|
9.
|
|
Parking Ratio
|
|
|
|
|
(
Article 28
):
|
|
Two hundred fifty-five (255) parking spaces, of which twelve (12)
spaces shall be designated as ShoreTel Visitor Parking, subject to Applicable
Requirements (as defined in Section 5.2 below), including any applicable transportation
management program applicable to the Project. Such Reserved Spaces shall be designated
by signs or other markings to be installed by Tenant, at Tenants sole cost and
expense, subject to Landlords reasonable approval, and located as part of the parking
stalls immediately in front of the front door of the Premises.
|
|
|
|
|
|
10.
|
|
Address of Tenant
|
|
|
|
|
(
Section 29.18
):
|
|
960 Stewart Drive
|
|
|
|
|
Sunnyvale, California 94085-3912
|
|
|
|
|
Attention: Director of Facilities
|
|
|
|
|
|
with copy to:
|
|
960 Stewart Drive
|
|
|
|
|
Sunnyvale, California 94085-3912
|
|
|
|
|
Attention: CFO
|
|
|
|
|
|
11.
|
|
Address of Landlord
|
|
|
|
|
(
Section 29.18
):
|
|
See
Section 29.18
of the Lease.
|
OAKMEAD WEST
ShoreTel, Inc.
3
|
|
|
|
|
|
|
|
|
|
|
12.
|
|
Rent Payment Address
|
|
|
|
Carr NP Properties, L.L.C.
|
|
|
(
Article 3
):
|
|
|
|
f/b/o German American Capital Corporation as secured party, Collection
Account
|
|
|
|
|
|
|
P.O. Box 642922
|
|
|
|
|
|
|
Pittsburgh, PA 15264-2922
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Or by wire transfer or ACH as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bank:
|
|
PNC Bank, NA
|
|
|
|
|
|
|
Account Name:
|
|
Carr NP Properties, L.L.C.
|
|
|
|
|
|
|
|
|
f/b/o German American Capital
|
|
|
|
|
|
|
|
|
Corporation as secured party,
|
|
|
|
|
|
|
|
|
Collection Account
|
|
|
|
|
|
|
Account No.:
|
|
1019785375
|
|
|
|
|
|
|
|
ABA No.:
|
|
043000096
|
|
|
|
|
|
|
|
Reference:
|
|
642922
|
|
|
|
|
|
|
|
Customer No.:
|
|
TBD
|
|
|
|
|
|
|
|
|
|
|
|
13.
|
|
Tenants Broker
|
|
|
|
The Staubach Company San Diego, Inc.
|
|
|
(
Section 29.24
):
|
|
|
|
|
|
|
|
|
OAKMEAD WEST
ShoreTel, Inc.
4
ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1
Premises, Building, Project and Common Areas
.
1.1.1
The Premises
.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises
set forth in
Section 2.2
of the Summary (the
Premises
and sometimes also herein
referred to as the
Building
). The outline of the Premises is set forth in
Exhibit A
attached hereto. Landlord and Tenant hereby acknowledge and agree that the rentable square
footage of the Premises shall be as set forth in
Section 2.2
of the Summary and that
the same shall not be subject to re-measurement or modification. The parties hereto agree that
the lease of the Premises is upon and subject to the terms, covenants and conditions herein
set forth, and Tenant covenants as a material part of the consideration for this Lease to keep
and perform each and all of such terms, covenants and conditions by it to be kept and
performed and that this Lease is made upon the condition of such performance. The parties
hereto hereby acknowledge that the purpose of
Exhibit A
is to show the approximate
location of the Premises only, and such Exhibit is not meant to constitute an agreement,
representation or warranty as to the construction of the Premises, the precise area thereof or
the specific location of the Common Areas, as that term is defined in
Section 1.1.3
,
below, or the elements thereof or of the accessways to the Premises or the Project, as that
term is defined in
Section 1.1.2
, below.
(b) Tenant acknowledges and agrees that it has been occupying the Premises pursuant to a
Sublease dated as of November 5, 1998, as amended, between Tenant and Applied Materials, Inc.,
a Delaware corporation (
Applied Materials Sublease
), and that its occupancy of the Premises
commencing on the Lease Commencement Date is a continuation of its previous occupancy of the
Premises. Tenant is familiar with the condition of the Premises and agrees to accept the
Premises on and from the Lease Commencement Date in its existing as is condition without any
obligation of Landlord to repair, remodel, improve or alter the Premises, to perform any other
construction or other work of improvement upon the Premises, or to provide Tenant with any
construction or refurbishing allowance whatsoever. Tenant further acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty regarding the
condition of the Premises or the Project or with respect to the suitability of any of the
foregoing for the conduct of Tenants business. Tenants occupancy of the Premises as of the
Lease Commencement Date shall conclusively establish that the Premises were at such time in
good and sanitary order, condition and repair.
1.1.2
The Project
. The Premises are a part of an office project, consisting of
seven (7) buildings, and commonly known as
OAKMEAD
WEST
; and the term
Project
, as used in this Lease,
shall mean (i) those buildings and the Common Areas, (ii) the land (which is improved with
landscaping, above ground and subterranean parking facilities and other improvements) upon
which such buildings and the Common Areas are located, and (iii) at Landlords discretion, any
additional real property, areas, land, buildings or other improvements added thereto outside of
the Project.
OAKMEAD WEST
ShoreTel, Inc.
5
1.1.3
Common Areas
. Tenant shall have the non-exclusive right to use in
common with other tenants in the Project, and subject to the rules and regulations referred to
in
Article 5
of this Lease, those portions of the Project which are provided, from
time to time, for use in common by Landlord, Tenant and any other tenants of the Project (such
areas, together with such other portions of the Project designated by Landlord, in its
discretion, including certain areas designated for the exclusive use of certain tenants, or to
be shared by Landlord and certain tenants, are collectively referred to herein as the
Common
Areas
). The manner in which the Common Areas are maintained and operated shall be at the sole
discretion of Landlord and the use thereof shall be subject to such rules, regulations and
restrictions as Landlord may make from time to time. Landlord reserves the right to close
temporarily, make alterations or additions to, or change the location of elements of the
Project and the Common Areas.
ARTICLE 2
LEASE TERM
The terms and provisions of this Lease shall be effective as of the date of this Lease.
The term of this Lease (the
Lease Term
) shall be as set forth in
Section 3.1
of the
Summary, shall commence on the date set forth in
Section 3.2
of the Summary (the
Lease Commencement Date
), and shall terminate on the date set forth in
Section 3.3
of the Summary (the
Lease Expiration Date
) unless this Lease is sooner terminated as
hereinafter provided. For purposes of this Lease, the term
Lease Year
shall mean each
consecutive twelve (12) month period beginning with the Lease Commencement Date, except that
if the Lease Commencement Date is not the first day of a calendar month, then the first Lease
Year shall be the period from the Lease Commencement Date through the final day of the
calendar month during which the first anniversary of the Lease Commencement Date occurs, and
subsequent Lease Years shall be each succeeding twelve month period during the Term following
the first Lease Year. At any time during the Lease Term, Landlord may deliver to Tenant a
notice in the form as set forth in
Exhibit C
, attached hereto, as a confirmation only
of the information set forth therein, which Tenant shall execute and return to Landlord within
five (5) days of receipt thereof. This Lease shall be a binding contractual obligation
effective upon execution and delivery hereof by Landlord and Tenant, notwithstanding the later
commencement of the Lease Term.
ARTICLE 3
BASE RENT
Tenant shall pay, without prior notice or demand, to Landlord or Landlords agent at the
Rent Payment Address specified in
Section 12
of the Summary, or, at Landlords option,
at such other place as Landlord may from time to time designate in writing, by a check for
currency which, at the time of payment, is legal tender for private or public debts in the
United States of America, base rent (
Base Rent
) as set forth in
Section 4
of the
Summary, payable in equal monthly installments as set forth in
Section 4
of the
Summary in advance on or before the first day of each and every calendar month during the
Lease Term, without any setoff or deduction whatsoever; provided, however, that upon Tenants execution and delivery of this Lease to
Landlord, Tenant shall pay to Landlord the Prepaid Base Rent and Prepaid Additional Rent set
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forth in
Section 7
of the Summary (
Prepaid Rent
), which shall be applied
to the first monthly installment of Base Rent and Tenants Share of Direct Expenses (as
described in Article 4 below) payable by Tenant following the Lease Commencement Date, but if
the Lease Commencement Date is a day other than the first day of a calendar month, then (a)
the Prepaid Rent shall be applied to the Base Rent and Tenants Share of Direct Expenses
payable by Tenant for the partial month in which the Lease Commencement Date occurs and the
next succeeding calendar month and (b) the Prorated First Rent Payment (as defined below)
shall be payable by Tenant on or before the first full calendar month following the Lease
Commencement Date. The
Prorated First Rent Payment
means the remaining amount of Base Rent
and Tenants Share of Direct Expenses payable by Tenant for the first full calendar month
following the Lease Commencement Date, after the Prepaid Rent is applied as provided above.
If any Rent payment date (including the Lease Commencement Date) falls on a day of the month
other than the first day of such month or if any payment of Rent is for a period which is
shorter than one month, the Rent for any fractional month shall accrue on a daily basis for
the period from the date such payment is due to the end of such calendar month or to the end
of the Lease Term on the basis of the actual number of days in the applicable month. All
other payments or adjustments required to be made under the terms of this Lease that require
proration on a time basis shall be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1
General Terms
. In addition to paying the Base Rent specified in
Article
3
of this Lease, Tenant shall pay
Tenants Share
of the annual
Direct Expenses
, as
those terms are defined in
Sections 4.2.1 and 4.2.2
of this Lease, respectively. Such
payments by Tenant, together with any and all other amounts payable by Tenant to Landlord
pursuant to the terms of this Lease, are hereinafter collectively referred to as the
Additional Rent
, and the Base Rent and the Additional Rent are herein collectively referred
to as
Rent
. All amounts due under this
Article 4
as Additional Rent shall be payable
for the same periods and in the same manner as the Base Rent. Without limitation on other
obligations of Tenant which survive the expiration of the Lease Term, the obligations of
Tenant to pay the Additional Rent provided for in this
Article 4
shall survive the
expiration of the Lease Term.
4.2
Definitions of Key Terms Relating to Additional Rent
. As used in this
Article 4
, the following terms shall have the meanings hereinafter set forth:
4.2.1
Direct Expenses
shall mean (a)
Operating Expenses
, (b)
Tax Expenses
and (c) a
management fee (the
Management Fee
) equal to three (3%) of the sum of
Base Rent, Operating Expenses and Taxes for the applicable Expense Year.
4.2.2
Expense Year
shall mean each calendar year in which any portion of the Lease Term
falls, through and including the calendar year in which the Lease Term expires, provided that
Landlord, upon notice to Tenant, may change the Expense Year from time to time to any other
twelve (12) consecutive month period, and, in the event of any such change,
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Tenants Share of Direct Expenses shall be equitably adjusted for any Expense Year
involved in any such change.
4.2.3
Operating Expenses
shall mean all expenses, costs and amounts of every kind and
nature which Landlord pays or accrues during any Expense Year because of or in connection with
the ownership, management, maintenance, security, repair, replacement or operation of the
Project, or any portion thereof. Without limiting the generality of the foregoing, Operating
Expenses shall specifically include any and all of the following: (i) the cost of supplying
all utilities, the cost of operating, repairing, maintaining, and renovating the utility,
telephone, mechanical, sanitary, storm drainage, and elevator systems, and the cost of
maintenance and service contracts in connection therewith; (ii) the cost of licenses,
certificates, permits and inspections and the cost of contesting any governmental enactments
which may affect Operating Expenses, and the costs incurred in connection with a
governmentally mandated transportation system management program or similar program; (iii) the
cost of all insurance carried by Landlord in connection with the Project as reasonably
determined by Landlord, and any deductibles paid under policies of any such insurance not to
exceed $25,000 per occurrence; (iv) the cost of landscaping, relamping, and all supplies, tools, equipment and materials used
in the operation, repair and maintenance of the Project, or any portion thereof; (v) the cost
of parking area operation, repair and maintenance; (vi) fees and other costs of all
contractors and consultants in connection with the operation, maintenance and repair of the
Project; (vii) payments under any equipment rental agreements and the fair rental value of any
management office space; (viii) subject to item (f), below, wages, salaries and other
compensation and benefits, including taxes levied thereon, of all persons engaged in the
operation, maintenance and security of the Project; (ix) costs under any instrument pertaining
to the sharing of costs by the Project; (x) operation, repair, maintenance and replacement of
all systems and equipment and components thereof of the Project; (xi) the cost of janitorial,
alarm, security and other services, maintenance and replacement of curbs and walkways, repair
to roofs and re-roofing; (xii) amortization (including interest on the unamortized cost) over
such period of time as Landlord shall reasonably determine, of the cost of acquiring or the
rental expense of personal property used in the maintenance, operation and repair of the
Project, or any portion thereof; (xiii) except for costs and expenses which are the sole
responsibility of Tenant pursuant to
Section 7.2
below, all costs paid or incurred by
Landlord to perform Landlords Repair Obligations (as defined in pursuant to
Section
7.2.1
below); and (xiv) costs, fees, charges or assessments imposed by, or resulting from
any mandate imposed on Landlord by, any federal, state or local government for fire and police
protection, trash removal, community services, or other services which do not constitute Tax Expenses as that term is defined in
Section
4.2.5
, below, and (xv) payments under any easement, license, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of costs by the
Building, including, without limitation, any covenants, conditions and restrictions affecting
the property, and reciprocal easement agreements affecting the property, any parking licenses,
and any agreements with transit agencies affecting the Property (collectively, and including,
without limitation, any CC&Rs, as defined below, the
Underlying Documents
). Subject to the
provisions of Section 4.2.3(o) below, any Operating Expenses that constitute capital
expenditures (collectively,
Included
Capital Items
) shall be amortized by Landlord
(including interest on the amortized cost) over such period of time as Landlord shall
reasonably determine, and such amortized costs shall be included in Operating Expenses only
for that portion of the useful life of the Included
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Capital Item which falls within the Lease Term, unless the cost of the Included Capital Item
is less than Ten Thousand Dollars ($10,000), in which case it shall be expensed in the year in
which it was incurred.
Notwithstanding the foregoing, for purposes of this Lease, Operating Expenses shall not,
however, include:
(a) costs, including legal fees, space planners fees, advertising and promotional
expenses (except as otherwise set forth above), and brokerage fees incurred in connection with
the original construction or development, or original or future leasing of the Project, and
costs, including permit, license and inspection costs, incurred with respect to the
installation of tenant improvements made for new tenants initially occupying space in the
Project after the Lease Commencement Date or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other occupants of the
Project (excluding, however, such costs relating to any common areas of the Project or parking
facilities);
(b) except as set forth in item (xii) above and except with regard to Included Capital
Items, depreciation, interest and principal payments on mortgages and other debt costs, if
any, penalties and interest;
(c) costs for which the Landlord is reimbursed by any tenant or occupant of the Project
or by insurance by its carrier or any tenants carrier or by anyone else, and electric power
costs for which any tenant directly contracts with the local public service company;
(d) any bad debt loss, rent loss, or reserves for bad debts or rent loss;
(e) costs associated with the operation of the business of the partnership or entity
which constitutes the Landlord, as the same are distinguished from the costs of operation of
the Project (which shall specifically include, but not be limited to, accounting costs
associated with the operation of the Project). Costs associated with the operation of the
business of the partnership or entity which constitutes the Landlord include costs of
partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee
(except as the actions of the Tenant may be in issue), costs of selling, syndicating,
financing, mortgaging or hypothecating any of the Landlords interest in the Project, and costs incurred in
connection with any disputes between Landlord and its employees, between Landlord and Project
management, or between Landlord and other tenants or occupants;
(f) the wages and benefits of any employee who does not devote substantially all of his
or her employed time to the Project unless such wages and benefits are prorated to reflect
time spent on operating and managing the Project vis-a-vis time spent on matters unrelated to
operating and managing the Project; provided, that in no event shall Operating Expenses for
purposes of this Lease include wages and/or benefits attributable to personnel above the level
of Project manager;
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(g) amount paid as ground rental for the Project by the Landlord;
(h) except for the Management Fee, overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of the Landlord for services in the Project to the extent the same
exceeds the costs of such services rendered by qualified, first-class unaffiliated third
parties on a competitive basis;
(i) any compensation paid to clerks, attendants or other persons in commercial
concessions operated by the Landlord (which shall specifically exclude the parking
facilities), provided that any compensation paid to any concierge at the Project shall be
includable as an Operating Expense;
(j) rentals and other related expenses incurred in leasing air conditioning systems,
elevators or other equipment which if purchased the cost of which would be excluded from
Operating Expenses as a capital cost, except equipment not affixed to the Project which is
used in providing janitorial or similar services and, further excepting from this exclusion
such equipment rented or leased to remedy or ameliorate an emergency
condition in the Project;
(k) all items and services for which Tenant or any other tenant in the Project reimburses
Landlord or which Landlord provides selectively to one or more tenants (other than Tenant)
without reimbursement;
(l) any costs expressly excluded from Operating Expenses elsewhere in this Lease;
(m) rent for any office space occupied by Project management personnel to the extent the
size or rental rate of such office space exceeds the size or fair market rental value of
office space occupied by management personnel of the comparable buildings in the vicinity of
the Building, with adjustment where appropriate for the size of the applicable project;
(n) costs arising from the gross negligence or willful misconduct of Landlord or its
agents, employees, vendors, contractors, or providers of materials or services;
(o) the cost of repairs or other work occasioned by any insured fire or other casualty
(as described in Article 11 below), to the extent that Landlord shall receive proceeds of such
insurance (provided that costs of repairing an insured casualty to the extent of the
deductible amount under the applicable insurance policy shall, subject to the provisions of
this Section 4.2.3, constitute an Operating Expense); and
(p) the cost of any repairs, alterations, additions, changes, replacements, and other
items which, under generally accepted accounting principles, are properly classified as
capital expenditures, to the extent they upgrade or improve the Building or Project as opposed
to repair or replace existing items that have worn out, unless such upgrades or improvements
are (i) necessitated by Applicable Requirements first applicable following the date
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of this Lease or (ii) are reasonably intended to reduce Operating Expenses or improve
life/safety conditions.
4.2.4
Taxes
.
4.2.4.1
Tax Expenses
shall mean all federal, state, county, or local governmental or
municipal taxes, fees, charges or other impositions of every kind and nature, whether general,
special, ordinary or extraordinary, (including, without limitation, real estate taxes, general
and special assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
rent, including gross receipts or sales taxes applicable to the receipt of rent, unless
required to be paid by Tenant, personal property taxes imposed upon the fixtures, machinery,
equipment, apparatus, systems and equipment, appurtenances, furniture and other personal
property used in connection with the Project, or any portion thereof), which shall be paid or
accrued during any Expense Year (without regard to any different fiscal year used by such
governmental or municipal authority) because of or in connection with the ownership, leasing
and operation of the Project, or any portion thereof.
4.2.4.2 Tax Expenses shall include, without limitation: (i) Any tax on the rent, right
to rent or other income from the Project, or any portion thereof, or as against the business
of leasing the Project, or any portion thereof; (ii) Any assessment, tax, fee, levy or charge
in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or
charge previously included within the definition of real property tax, it being acknowledged
by Tenant and Landlord that Proposition 13 was adopted by the voters of the State of
California in the June 1978 election (
Proposition 13
) and that assessments, taxes, fees,
levies and charges may be imposed by governmental agencies for such services as fire
protection, street, sidewalk and road maintenance, refuse removal and for other governmental
services formerly provided without charge to property owners or occupants, and, in further
recognition of the decrease in the level and quality of governmental services and amenities as
a result of Proposition 13, Tax Expenses shall also include any governmental or private
assessments or the Projects contribution towards a governmental or private cost-sharing
agreement for the purpose of augmenting or improving the quality of services and amenities
normally provided by governmental agencies; (iii) Any assessment, tax, fee, levy, or charge allocable to or measured by the area of the
Premises or the Rent payable hereunder, including, without limitation, any business or gross
income tax or excise tax with respect to the receipt of such rent, or upon or with respect to
the possession, leasing, operating, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises, or any portion thereof; and (iv) Any assessment, tax,
fee, levy or charge, upon this transaction or any document to which Tenant is a party,
creating or transferring an interest or an estate in the Premises.
4.2.4.3 Any costs and expenses (including, without limitation, reasonable attorneys and
consultants fees) incurred to protest, reduce or minimize Tax Expenses shall be included in
Tax Expenses in the Expense Year such expenses are incurred. Tax refunds shall be credited
against Tax Expenses and refunded to Tenant regardless of when received, based on the Expense
Year to which the refund is applicable, provided that in no event shall the amount to be
refunded to Tenant for any such Expense Year exceed the total amount paid by Tenant as
Additional Rent under this Article 4 for such Expense Year. If Tax Expenses for any period
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during the Lease Term or any extension thereof are increased after payment thereof for any
reason, including, without limitation, error or reassessment by applicable governmental or
municipal authorities, Tenant shall pay Landlord upon demand Tenants Share of any such
increased Tax Expenses. Notwithstanding anything to the contrary contained in this
Section 4.2.5
(except as set forth in
Section 4.2.5.1
, above), there shall be
excluded from Tax Expenses (i) all excess profits taxes, franchise taxes, gift taxes, capital
stock taxes, inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlords general or net income (as opposed to
rents, receipts or income attributable to operations at the Project), (ii) any items included
as Operating Expenses, and (iii) any items paid by Tenant under
Section 4.5
of this
Lease.
4.2.5
Tenants Share
shall mean the percentage set forth in
Section 6
of the
Summary.
4.3
Cost Pools
. Landlord shall have the right, from time to time, to equitably
allocate some or all of the Direct Expenses for the Project among different portions or
occupants of the Project (the
Cost Pools
), in Landlords reasonable discretion. Such Cost
Pools may include, but shall not be limited to, the office space tenants of a building of the
Project or of the Project, and the retail space tenants of a building of the Project or of the
Project. The Direct Expenses within each such Cost Pool shall be allocated and charged to the
tenants within such Cost Pool in an equitable manner.
4.4
Calculation and Payment of Additional Rent
. Tenant shall pay to Landlord, in
the manner set forth in
Section 4.4.1
, below, and as Additional Rent, an amount equal
to Tenants Share of Direct Expenses; provided, however, that if the Lease Expiration Date
occurs on a day other than the last day of an Expense Year, Tenants Share of Direct Expenses
during such Expense Year shall be prorated on the basis that the number of days from the
commencement of such Expense Year to and including the Lease Expiration Date bears to three
hundred sixty-five (365).
4.4.1
Statement of Actual Direct Expenses and Payment by Tenant
.
Landlord shall endeavor to give to Tenant within 150 days following the end of each
Expense Year (or as soon thereafter as is reasonably practicable), a statement (the
Statement
) which shall state the Direct Expenses incurred or accrued for such preceding
Expense Year, and which shall indicate the amount of Tenants Share of Direct Expenses. Upon
receipt of the Statement for each Expense Year commencing or ending during the Lease Term,
Tenant shall pay, with its next installment of Base Rent due, the full amount of Tenants
Share of Direct Expenses for such Expense Year, less the amounts, if any, paid during such
Expense Year as Estimated Direct Expenses, as that term is defined in Section 4.4.2, below,
and if Tenant paid more as Estimated Direct Expenses than the actual Tenants Share of Direct
Expenses, Tenant shall receive a credit in the amount of Tenants overpayment against Rent
next due under this Lease. The failure of Landlord to timely furnish the Statement for any
Expense Year shall not prejudice Landlord or Tenant from enforcing its rights under this
Article 4. Even though the Lease Term has expired and Tenant has vacated the Premises, when
the final determination is made of Tenants Share of Direct Expenses for the Expense Year in
which this Lease terminates, Tenant shall within 30 days of invoice pay to Landlord Tenants
Share of Direct Expenses, and if Tenant paid more as
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Estimated Direct Expenses than the actual
Tenants Share of Direct Expenses, Landlord shall, within thirty (30) days, deliver a check
payable to Tenant in the amount of the overpayment. The provisions of this Section 4.4.1 shall
survive the expiration or earlier termination of the Lease Term.
4.4.2
Statement of Estimated Direct Expenses
. In addition, Landlord shall
endeavor to give Tenant a yearly expense estimate statement (the
Estimate Statement
) which
shall set forth Landlords reasonable estimate (the
Estimate
) of what the total amount of
Direct Expenses for the then-current Expense Year shall be and the estimated Tenants Share of
Direct Expenses (the
Estimated Direct Expenses
). The failure of Landlord to timely furnish
the Estimate Statement for any Expense Year shall not preclude Landlord from enforcing its
rights to collect any Estimated Direct Expenses under this
Article 4
, nor shall
Landlord be prohibited from revising any Estimate Statement or Estimated Direct Expenses
theretofore delivered to the extent necessary. Thereafter, Tenant shall pay, with its next
installment of Base Rent due, a fraction of the Estimated Direct Expenses for the then-current
Expense Year (reduced by any amounts paid pursuant to the last sentence of this
Section
4.4.2
). Such fraction shall have as its numerator the number of months which have elapsed
in such current Expense Year, including the month of such payment, and twelve (12) as its
denominator. Until a new Estimate Statement is furnished (which Landlord shall have the right
to deliver to Tenant at any time), Tenant shall pay monthly, with the monthly Base Rent
installments, an amount equal to one-twelfth (1/12) of the total Estimated Direct Expenses set
forth in the previous Estimate Statement delivered by Landlord to Tenant.
4.5
Taxes and Other Charges for Which Tenant Is Directly Responsible
.
4.5.1 Tenant shall be liable for and shall pay ten (10) days before delinquency, taxes
levied against Tenants equipment, furniture, fixtures and any other personal property located
in or about the Premises. If any such taxes on Tenants equipment, furniture, fixtures and
any other personal property are levied against Landlord or Landlords property or if the
assessed value of Landlords property is increased by the inclusion therein of a value placed
upon such equipment, furniture, fixtures or any other personal property and if Landlord pays
the taxes based upon such increased assessment, which Landlord shall have the right to do regardless of
the validity thereof but only under proper protest if requested by Tenant, Tenant shall upon
demand repay to Landlord the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment, as the case may be.
4.5.2 If the tenant improvements in the Premises, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the real property so as to become a part
thereof, are assessed for real property tax purposes at a valuation higher than the valuation
at which tenant improvements conforming to Landlords building standard in other space in
the Project are assessed, then the Tax Expenses levied against Landlord or the property by
reason of such excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of
Section 4.5.1
, above.
4.5.3 Notwithstanding any contrary provision herein, Tenant shall pay prior to
delinquency any (i) rent tax or sales tax, service tax, transfer tax or value added tax, or
any other
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applicable tax on the rent or services herein or otherwise respecting this Lease,
(ii) taxes assessed upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of
the Project, including the Project parking facility; or (iii) taxes assessed upon this
transaction or any document to which Tenant is a party creating or transferring an interest or
an estate in the Premises.
4.6
Books and Records
.
Landlord shall maintain books and records reflecting the
Operating Expenses and Tax Expenses in accordance with sound accounting and management
practices. Tenant and a certified public accountant employed by a certified public accounting
firm reasonably acceptable to Landlord and working on a non-contingency fee basis shall have
the right to inspect Landlords records at Landlords applicable local office or other
location designated by Landlord upon at least seventy-two (72) hours prior notice during
normal business hours during the ninety (90) days following Landlords delivery of the
Statement to Tenant. The results of any such inspection shall be kept strictly confidential
by Tenant and its agents, and Tenant and its certified public accountant must agree, in their
contract for such services, to such confidentiality restrictions and shall specifically agree
that the results shall not be made available to any other tenant of the Project (and in
connection with the foregoing, prior to exercising its rights hereunder, Tenant and its agents
shall sign a confidentiality agreement acceptable to Landlord). Unless Tenant sends to
Landlord any written exception to a Statement within said ninety (90) day period, such
Statement shall be deemed final and accepted by Tenant and Tenant waives any other rights
pursuant to applicable law to inspect Landlords books and records and/or to contest the
amount of Operating Expenses and/or Tax Expenses due hereunder. Tenant shall pay the amount
shown on any Statement in the manner prescribed in this Lease, whether or not Tenant takes any
such written exception, without any prejudice to such exception. If Tenant makes a timely
exception, Landlord shall cause an independent certified public accountant to issue a final
and conclusive resolution of Tenants exception. If, according to such accountant, Landlords
original determination of annual Operating Expenses and Tax Expenses overstated the amounts
thereof, in the aggregate, by five percent (5%) or less or understated the amounts thereof,
then Tenant shall pay the reasonable cost of the certification, and, in the case of an
understatement, shall pay to Landlord the deficiency in Tenants payment of Operating Expenses
and Tax Expenses within twenty (20) days following Tenants receipt of such certification.
If, according to such certification, Landlords original determination of annual Operating
Expenses and Tax Expenses overstated the amounts thereof, in the aggregate, by more than five
percent (5%), then Landlord shall pay the reasonable cost of the certification and shall, at
its election, either promptly refund to Tenant the amount of Tenants overpayment of Operating
Expenses and Tax Expenses or, if this Lease is still in effect, credit such overpayment
against Tenants subsequent obligations to pay Operating Expenses and Tax Expenses. If this
Lease is no longer in effect, then, provided that Landlord has not terminated this Lease
following a Tenant default pursuant to
Article 19
below (in which event, Landlord
shall credit the amount of such refund against Landlords damages therefrom), Landlord shall
pay the reasonable cost of the certification and shall promptly refund to Tenant the amount of
Tenants overpayment of Operating Expenses and Tax Expenses. This provision shall survive the
termination or expiration of this Lease.
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ARTICLE 5
USE OF PREMISES
5.1
Permitted Use
. Tenant shall use the Premises solely for the Permitted Use set
forth in
Section 7
of the Summary and Tenant shall not use or permit the Premises or
the Project to be used for any other purpose or purposes whatsoever without the prior written
consent of Landlord, which may be withheld in Landlords sole discretion.
5.2
Prohibited Uses
. Tenant further covenants and agrees that Tenant shall not
use, or suffer or permit any person or persons to use, the Premises or any part thereof for
any use or purpose contrary to the provisions of the Rules and Regulations set forth in
Exhibit D
, attached hereto, or in violation of the laws of the United States of
America, the State of California, the ordinances, regulations or requirements of the local
municipal or county governing body or other lawful authorities having jurisdiction over the
Project, including, without limitation, any Environmental Laws (as defined in
Section
24.2.7
below) or any Underlying Documents (collectively,
Applicable Requirements
). A
violation of the Rules and Regulations by Tenant shall be deemed a default under this
Article 5
. Tenant shall not do or permit anything to be done in or about the Premises
which will in any way damage the reputation of the Project or obstruct or interfere with the
rights of other tenants or occupants of the Project, or injure or annoy them or use or allow
the Premises to be used for any improper, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall comply
with, and Tenants rights and obligations under the Lease and Tenants use of the Premises
shall be subject and subordinate to, all Underlying Documents now or hereafter affecting the
Project.
5.3
CC&Rs
. Tenant shall comply with all recorded covenants, conditions, and
restrictions currently affecting the Project (the
Current CC&Rs
). Additionally, Tenant
acknowledges that the Project may be subject to any future covenants, conditions, and
restrictions and/or amendments to the Current CC&Rs (in any such event, the
Future CC&Rs
)
which Landlord, in Landlords discretion, deems reasonably necessary or desirable,
and Tenant agrees that this Lease shall be subject and subordinate to the Current CC&Rs
and such Future CC&Rs (collectively, the
CC&Rs
). Landlord shall have the right to require
Tenant to execute and acknowledge, within ten (10) business days of a request by Landlord, a
Recognition of Covenants, Conditions, and Restriction, in a form substantially similar to
that attached hereto as
Exhibit F
, agreeing to and acknowledging the CC&Rs.
ARTICLE 6
SERVICES AND UTILITIES
Tenant shall promptly pay, as the same become due, all charges for water, gas,
electricity, telephone, sewer service, waste pick-up and any other utilities, materials and
services furnished directly to or used by Tenant on or about the Premises during the Term,
including, without limitation, (a) meter, use and/or connection fees, hook-up fees, or standby
fees, and (b) penalties for discontinued interrupted service. Tenants use of electricity
shall never exceed the capacity
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of the feeders to the Project or the risers or wiring installation, and subject to the
terms of
Section 29.31
, below. Any interruption or cessation of utilities resulting
from any causes, including any entry for repairs pursuant to this Lease, and any renovation,
redecoration or rehabilitation of any area of the Project, shall not render Landlord liable
for damages to either person or property or for interruption or loss to Tenants business, nor
be construed as an eviction of Tenant, nor work an abatement of any portion of Rent, nor
relieve Tenant from fulfillment of any covenant or agreement hereof.
ARTICLE 7
REPAIRS
7.1
Tenants Obligations
.
7.1.1
Except to the extent expressly Landlords obligation under
Section 7.1.2
below, Tenant shall, throughout the Term at its sole cost and expense, (a) keep and
maintain the Premises in good order and condition, and repair and replace every part thereof
(
Tenants Repair Obligations
), including, without limitation, the following: (1) glass,
windows, window frames, window casements (including the repairing, resealing, cleaning and
replacing of both interior and exterior windows) and skylights; (2) interior and exterior
doors, door frames and door closers; (3) interior lighting (including, without limitation,
light bulbs and ballasts); (4) the heating, ventilating and air conditioning (
HVAC
) systems
and equipment, the plumbing, sewer, drainage, electrical, fire protection, elevator,
escalator, life safety and security systems and equipment and other mechanical, electrical and
communications systems and equipment (collectively, the
Building Systems
), or portions of
the Building Systems, that exclusively serve the Premises, including, without limitation, (i)
any specialty or supplemental Building Systems installed by or for Tenant and (ii) all
electrical facilities and equipment, including lighting fixtures, lamps, fans and any exhaust
equipment and systems, electrical motors and all other appliances and equipment of every kind
and nature located in, upon or about the Premises; (5) all communications systems serving the Premises; (6) all of Tenants security systems in
or about or serving the Premises; (7) Tenants signage; and (8) interior demising walls and
partitions (including painting and wallcoverings), equipment, floors, and any roll-up doors,
ramps and dock equipment, (b) furnish all expendables, including light bulbs, paper goods and
soaps, used in the Premises, and (c) to the extent that Landlord notifies Tenant in writing of
its intention to no longer arrange for such monitoring, cause the fire alarm systems serving
the Premises to be monitored by a monitoring or protective services firm approved by Landlord
in writing.
7.1.2 Tenant shall also be responsible for all pest control within the Premises, and for
all trash removal and disposal from the Premises. With respect to any HVAC systems and
equipment exclusively serving the Premises, Tenant shall obtain HVAC systems preventive
maintenance contracts with bimonthly or monthly service in accordance with manufacturer
recommendations, which shall be subject to the reasonable prior written approval of Landlord
and paid for by Tenant, and which shall provide for and include replacement of filters, oiling
and lubricating of machinery, parts replacement, adjustment of drive belts, oil changes and
other preventive maintenance, including annual maintenance of duct work, interior unit drains
and
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caulking of sheet metal, and recaulking of jacks and vents on an annual basis. Tenant
shall have the benefit of all warranties available to Landlord regarding the HVAC systems and
equipment.
7.1.3 Tenants repair, maintenance and replacement obligations shall be performed under
the supervision and subject to the prior approval of Landlord, and within any reasonable
period of time specified by Landlord; provided, however, that (a) with respect to the Building
Systems serving the Premises, Landlord may elect to perform all or some of the foregoing
maintenance, repairs and replacement itself (including obtaining HVAC systems preventive
maintenance contracts), at Tenants expense, and (b) if Tenant fails to perform Tenants
Repair Obligations, Landlord may, but need not, make such repairs and replacements, and Tenant
shall pay Landlord the cost thereof, including a percentage of the cost thereof (to be
uniformly established for the Project) sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs or expenses arising from Landlords involvement with
such repairs and replacements, within ten (10) days after receipt of an invoice therefor.
7.1.4 Notwithstanding the provisions of
Section 7.1.3
above, if, with respect to
the Building Systems serving the Premises, Tenants repair and replacement obligations
hereunder require Tenant to incur capital expenditures, then such repairs or replacements
shall be Landlords Repair Obligations pursuant to
Section 7.2.1
below, and Tenant
shall pay Landlord the cost of such repairs or replacements as an Included Capital Item
hereunder, plus, within thirty (30) days after receipt of an invoice therefor, a percentage of
the cost thereof (to be uniformly established for the Project) sufficient to reimburse
Landlord for all overhead, general conditions, fees and other costs or expenses arising from
Landlords involvement with such repairs and replacements. The exclusion from Operating
Expenses described in
Section 4.2.3(o)
above shall not be applicable to the capital
expenditures incurred by Landlord pursuant this Section.
7.2
Landlords Obligations
.
7.2.1 Subject to the provisions of
Article 11
and
Article 13
hereof,
Landlord shall maintain, repair and replace the following items (
Landlords Repair
Obligations
): (a) the non-structural portions of the roof of the Building, including the
roof coverings (provided that Tenant installs no additional air conditioning or other equipment on the roof that
damages the roof coverings, in which event Tenant shall pay all costs resulting from the
presence of such additional equipment); (b) the Building Systems serving the Premises and/or
the Project, or portions thereof, for which Tenant is not responsible pursuant to
Section
7.1
above; and (c) the parking areas of the Project, pavement, landscaping, sprinkler
systems, sidewalks, driveways, curbs, and lighting systems in the common areas of the Project.
Landlords Repair Obligations also includes the routine repair and maintenance of the load
bearing and exterior walls of the Building, including, without limitation, any painting,
sealing, patching and waterproofing of such walls.
7.2.2 Subject to the provisions of
Article 11
and
Article 13
hereof,
Landlord, at its own cost and expense, agrees to repair and maintain the structural portions
of the roof (specifically excluding the roof coverings), the foundation, the footings, the
floor slab, and the load bearing walls and exterior walls of the Building (excluding any glass
and any routine
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maintenance, including, without limitation, any painting, sealing, patching
and waterproofing of such walls).
7.2.3 Notwithstanding any provision in
Section 7.1.4
,
Section 7.2.1
or
Section 7.2.2
to the contrary, any damage to the portions of the Project that Landlord
is required to repair under
Section 7.1.4
,
Section 7.2.1
or
Section
7.2.2
above arising from and only to the extent of arising from the negligence or willful
misconduct of Tenant or any Tenant Parties (as defined in
Section 10.1.2
below) shall
be repaired by Landlord, and Tenant shall pay Landlord the cost thereof (or, if covered by
Landlords insurance, Tenant shall pay any deductible in connection therewith), including a
percentage of the cost thereof (to be uniformly established for the Project) sufficient to
reimburse Landlord for all overhead, general conditions, fees and other costs or expenses
arising from Landlords involvement with such repairs and replacements, within thirty (30)
days after receipt of an invoice therefor. Landlord may, but shall not be required to, enter
the Premises at all reasonable times to make such repairs, alterations, improvements or
additions to the Premises or to any equipment located in the Premises as Landlord shall desire
or deem necessary or as Landlord may be required to do by governmental or quasi-governmental
authority or court order or decree. As a condition precedent to all of Landlords repair and
maintenance obligations under this Lease, Tenant must have notified Landlord of the need of
such repairs or maintenance.
7.3
Waiver
. Tenant hereby waives any and all rights under and benefits of
subsection 1 of Section 1932 and Sections 1941 and 1942 of the California Civil Code or under
any similar law, statute, or ordinance now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1
Landlords Consent to Alterations
. Tenant may not make any improvements,
alterations, additions or changes to the Premises or any mechanical, plumbing or HVAC
facilities or systems pertaining to the Premises (collectively, the
Alterations
) without
first procuring the prior written consent of Landlord to such Alterations, which consent shall
be requested by Tenant not less than twenty (20) days prior to the commencement thereof, and
which consent shall not be unreasonably withheld by Landlord, provided it shall be deemed
reasonable for Landlord to withhold its consent to any Alteration which adversely affects the
structural portions or the systems or equipment of the Building or is visible from the
exterior of the Building. Notwithstanding the foregoing, Tenant shall be permitted to make
Alterations following ten (10) business days notice to Landlord, but without Landlords prior
consent, to the extent that such Alterations are decorative only (
i.e.
, installation of
carpeting or painting of the Premises).
8.2
Manner of Construction
. Landlord may impose, as a condition of its consent to
any and all Alterations or repairs of the Premises or about the Premises, such requirements as
Landlord in its reasonable discretion may deem desirable, including, but not limited to, the
requirement that Tenant utilize for such purposes only contractors, subcontractors, materials,
mechanics and materialmen approved by Landlord, the requirement that upon Landlords request,
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Tenant shall, at Tenants expense, remove such Alterations upon the expiration or any early
termination of the Lease Term. Tenant shall construct such Alterations and perform such
repairs in a good and workmanlike manner, in conformance with any and all applicable federal,
state, county or municipal laws, rules and regulations and pursuant to a valid building
permit, issued by the city in which the Building is located all in conformance with Landlords
construction rules and regulations; provided, however, that prior to commencing to construct
any Alteration, Tenant shall meet with Landlord to discuss Landlords design parameters and
code compliance issues. In the event Tenant performs any Alterations in the Premises which
require or give rise to governmentally required changes to the structural portions of the
Building, then Landlord shall, at Tenants expense, make such changes. In performing the work
of any such Alterations, Tenant shall have the work performed in such manner so as not to
obstruct access to the Project or any portion thereof, by any other tenant of the Project, and
so as not to obstruct the business of Landlord or other tenants in the Project. Tenant shall
not use (and upon notice from Landlord shall cease using) contractors, services, workmen,
labor, materials or equipment that, in Landlords reasonable judgment, would disturb labor
harmony with the workforce or trades engaged in performing other work, labor or services in or
about the Building or the Common Areas. In addition to Tenants obligations under
Article
9
of this Lease, upon completion of any Alterations, Tenant agrees to cause a Notice of
Completion to be recorded in the office of the recorder of the county in which the Building is
located in accordance with Section 3093 of the Civil Code of the State of California or any
successor statute, and Tenant shall deliver to the Project construction manager a reproducible
copy of the
as built
drawings of the Alterations as well as all permits, approvals and other
documents issued by any governmental agency in connection with the Alterations.
8.3
Payment for Improvements
. If payment is made by Tenant directly to
contractors, Tenant shall (i) comply with Landlords requirements for final lien releases and
waivers in connection with Tenants payment for work to contractors, and (ii) sign Landlords
standard contractors rules and regulations. If Tenant orders any work directly from
Landlord, Tenant shall pay to Landlord an amount equal to Landlords then current standard fee
to compensate Landlord for all overhead, general conditions, fees and other costs and expenses
arising from Landlords involvement with such work. If Tenant does not order any work
directly from Landlord, Tenant shall reimburse Landlord for Landlords reasonable, actual, out
of pocket costs and expenses actually incurred in connection with Landlords review of such
work. At Landlords option, prior to the commencement of construction of any Alteration, Tenant
shall provide Landlord with the reasonably anticipated cost thereof, which Landlord shall
disburse during construction pursuant to Landlords standard, commercially reasonable
disbursement procedure.
8.4
Construction Insurance
. In addition to the requirements of
Article 10
of this Lease, in the event that Tenant makes any Alterations that cost in excess of $150,000,
prior to the commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries
Builders All Risk
insurance in an amount reasonably approved by
Landlord covering the construction of such Alterations, and such other insurance as Landlord
may reasonably require, it being understood and agreed that all of such Alterations shall be
insured by Tenant pursuant to
Article 10
of this Lease immediately upon completion
thereof. In addition, Landlord may, in its discretion, require Tenant to obtain a lien and
completion bond or some alternate form
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of security satisfactory to Landlord in an amount
sufficient to ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
8.5
Landlords Property
. All Alterations, improvements, fixtures, equipment
and/or appurtenances which may be installed or placed in or about the Premises, from time to
time, shall be at the sole cost of Tenant and shall be and become the property of Landlord;
provided, however, that Landlord may, by written notice to Tenant, prior to the end of the
Lease Term, or given following any earlier termination of this Lease, require Tenant, at
Tenants expense, to remove any Alterations and/or improvements, repair any damage to the
Premises caused by such removal, and return the affected portion of the Premises to its
condition existing prior to the installment of such Alterations or improvements; provided,
however, that if Tenants request for Landlords approval of any proposed Alterations contains
a request, in all capital letters, that Landlord identify any portion of such Alterations that
Landlord will require Tenant to remove as provided above, then Landlord will, at the time it
approves such Alterations, identify such portion of the Alterations, if any, that Landlord
will require Tenant to so remove. If Tenant fails to complete such removal and/or to repair
any damage caused by the removal of any Alterations or improvements and return the affected
portion of the Premises to their condition existing prior to the installment of such
Alterations or improvements or, if elected by Landlord, to a building standard tenant improved
condition as determined by Landlord, prior to the expiration or earlier termination of this
Lease, Landlord may do so and may charge the cost thereof to Tenant. Tenant hereby protects,
defends, indemnifies and holds Landlord harmless from any liability, cost, obligation, expense
or claim of lien in any manner relating to the installation, placement, removal or financing
of any such Alterations, improvements, fixtures and/or equipment in, on or about the Premises,
which obligations of Tenant shall survive the expiration or earlier termination of this Lease.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or encumbrances arising
out of the work performed, materials furnished or obligations incurred by or on behalf of
Tenant, and shall protect, defend, indemnify and hold Landlord harmless from and against any
Claims (as defined in
Section 10.1.2
below) arising out of same or in connection
therewith. Tenant shall give Landlord notice at least ten (10) business days prior to the
commencement of any such work on the Premises (or such additional time as may be necessary
under Applicable Requirements) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or encumbrance by
bond or otherwise within ten (10) business days after notice by Landlord, and if Tenant shall
fail to do so, Landlord may pay the amount necessary to remove such lien or encumbrance,
without being responsible for investigating the validity thereof. The amount so paid shall be
deemed Additional Rent under this Lease payable upon demand, without limitation as to other
remedies available to Landlord under this Lease. Nothing contained in this Lease shall
authorize Tenant to do any act which shall subject Landlords title to the Premises to any
liens or encumbrances whether claimed by operation of law or express or implied contract. Any
claim to a lien or encumbrance upon the Premises arising in connection with any such work or
respecting the Premises not performed by
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or at the request of Landlord shall be null and void,
or at Landlords option shall attach only against Tenants interest in the Premises and shall
in all respects be subordinate to Landlords title to the Project and Premises.
ARTICLE 10
INSURANCE
10.1
Indemnification and Waiver
.
10.1.1 Tenant hereby assumes all risk of damage to property or injury to persons in, upon
or about the Premises from any cause whatsoever (including, but not limited to, any personal
injuries resulting from a slip and fall in, upon or about the Premises) and agrees that
Landlord, its partners and their respective officers, agents, servants, employees, and
independent contractors (collectively, Landlord Parties) shall not be liable for, and are
hereby released from any responsibility for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant or by other
persons claiming through Tenant, and including such claims caused in whole or in part by any
active or passive act, omission, or neglect of Landlord or any Landlord Party and any claims
in which liability without fault or strict liability is imposed or sought to be imposed,
except only, with respect to any Landlord Party, to the extent such injury, death or damage is
caused by the gross negligence or willful misconduct of such Landlord Party and not covered by
the insurance required to be carried by Tenant hereunder or except to the extent such
limitation on liability is prohibited by law.
10.1.2 Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties
from any and all obligations, losses, claims, actions (including remedial or enforcement
actions of any kind and administrative or judicial proceedings, suits, orders or judgments),
causes of action, liabilities, penalties, damages (including consequential and punitive
damages), costs and expenses (including reasonable attorneys and consultants fees and
expenses) (
Claims
) incurred in connection with or arising from (a) any cause in, on or about
the Premises (including, but not limited to, a slip and fall), (b) any acts, omissions or
negligence of Tenant or of any person claiming by, through or under Tenant, or of the
contractors, agents, servants, employees, invitees, guests or licensees of Tenant or any such
person, in, on or about the Project by reason of Tenants occupancy of the Premises (collectively,
Tenant Parties
) or (c) any breach
of the terms of this Lease, either prior to, during, or after the expiration of the Lease
Term. The foregoing indemnification shall apply regardless of the active or passive
negligence of Landlord Parties and regardless of whether liability without fault or strict
liability is imposed or sought to be imposed on the Landlord Parties; provided, however, that,
with respect to any Landlord Party, Tenants obligations under this Section shall be
inapplicable to the extent such Claims arise from the gross negligence or willful misconduct
of such Landlord Party and are not covered by the insurance required to be carried by Tenant
hereunder, or to the extent such obligations are prohibited by applicable law. Should Landlord
be named as a defendant in any suit brought against Tenant in connection with or arising out
of Tenants occupancy of the Premises, Tenant shall secure defense for Landlord and pay all
expenses incurred in such suit, including without limitation, professional fees such as
reasonable appraisers, accountants and attorneys fees.
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10.1.3 he provisions of this
Section 10.1
shall survive the expiration or sooner
termination of this Lease with respect to any claims or liability arising in connection with
any event occurring prior to such expiration or termination.
10.2
Tenants Compliance With Landlords Fire and Casualty Insurance
. Tenant
shall, at Tenants expense, comply with all insurance company requirements pertaining to the
use of the Premises. If Tenants conduct or use of the Premises causes any increase in the
premium for such insurance policies then Tenant shall reimburse Landlord for any such
increase. Tenant, at Tenants expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3
Tenants Insurance
. Tenant shall maintain the following coverages in the
following amounts.
10.3.1 Commercial General Liability Insurance covering the insured against claims of
bodily injury, personal injury and property damage (including loss of use thereof) arising out
of Tenants operations, and contractual liabilities (covering the performance by Tenant of its
indemnity agreements) including a Broad Form endorsement covering the insuring provisions of
this Lease and the performance by Tenant of the indemnity agreements set forth in
Section
10.1
of this Lease, for limits of liability not less than:
|
|
|
Bodily Injury and
|
|
$5,000,000 each occurrence
|
Property Damage Liability
|
|
$5,000,000 annual aggregate
|
|
|
|
Personal Injury Liability
|
|
$5,000,000 each occurrence
|
|
|
$5,000,000 annual aggregate
|
|
|
0% Insureds participation
|
|
|
|
Umbrella Liability Coverage
|
|
$5,000,000 each occurrence
|
|
|
$5,000,000 annual aggregate
|
10.3.2 Physical Damage Insurance covering (i) all office furniture, business and trade
fixtures, office equipment, free-standing cabinet work, movable partitions, merchandise and
all other items of Tenants property on the Premises installed by, for, or at the expense of
Tenant, (ii) the improvements which exist in the Premises as of the date of this Lease (the
Original Improvements
), and (iii) all other improvements, alterations and additions to the
Premises. Such insurance shall be written on an
all risks
of physical loss or damage basis,
for the full replacement cost value (subject to reasonable deductible amounts) new without
deduction for depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance and shall include coverage for damage or other loss
caused by fire or other peril including, but not limited to, vandalism and malicious mischief,
theft, water damage of any type, including sprinkler leakage, bursting or stoppage of pipes,
and explosion, and providing business interruption coverage for a period of one year.
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10.3.3 Workers Compensation and Employers Liability or other similar insurance pursuant
to all applicable state and local statutes and regulations.
10.4
Form of Policies
. The minimum limits of policies of insurance required of
Tenant under this Lease shall in no event limit the liability of Tenant under this Lease.
Such insurance shall (i) name Landlord, Landlords managing agent, and any other party the
Landlord so specifies (
Additional Insured Parties
), as an additional insured; (ii)
specifically cover the liability assumed by Tenant under this Lease, including, but not
limited to, Tenants obligations under
Section 10.1
of this Lease; (iii) be issued by
an insurance company having a rating of not less than A-X in Bests Insurance Guide or which
is otherwise acceptable to Landlord and licensed to do business in the State of California;
(iv) be primary insurance as to all claims thereunder and provide that any insurance carried
by Landlord is excess and is non-contributing with any insurance requirement of Tenant; (v) be
in form and content reasonably acceptable to Landlord; and (vi) provide that said insurance
shall not be canceled or coverage changed unless thirty (30) days prior written notice shall
have been given to Landlord and any mortgagee of Landlord. With respect to the umbrella
liability coverage, Tenant, at Tenants sole expense, shall procure a per location
endorsement or equivalent reasonably acceptable to Landlord so that the general aggregate and
other limits apply separately and specifically to the Premises. Tenant shall deliver to
Landlord, on or before the Lease Commencement Date and at least ten (10) business days before
the expiration dates thereof, a certification from Tenants insurance company on the forms
currently designated ACORD 28 (Evidence of Commercial Property Insurance) and ACORD 25-S
(Certificate of Liability Insurance), or the equivalent, provided that attached to the ACORD
25-S is an endorsement naming the Additional Insured Parties as additional insureds, which
shall be binding on Tenants insurance company, and which shall expressly (a) provide that
such certification conveys to the Additional Insured Parties all the rights and privileges
afforded under the policies as primary insurance, and (b) contain an unconditional obligation
of the insurance company to advise all of the Additional Insured Parties in writing by
certified mail, return receipt requested, at least thirty (30) days in advance of any
termination or change to the policies that would affect the interest of any of the Additional
Insured Parties, except that ten (10) days prior written notice may be given in the case of
nonpayment of premiums. In lieu of such certificates, Landlord shall have the right to require Tenant
to deliver to Landlord, and if so required by Landlord, Tenant shall deliver to Landlord,
copies of the policies of insurance required to be carried pursuant to Section 10.3 showing
that the Additional Insured Parties are named as additional insureds. In the event Tenant
shall fail to procure such insurance, or to deliver such policies or certificate, Landlord
may, at its option, procure such policies for the account of Tenant, and the cost thereof
shall be paid to Landlord within five (5) days after delivery to Tenant of bills therefor.
10.5
Subrogation
. Landlord and Tenant intend that their respective property loss
risks shall be borne by reasonable insurance carriers to the extent above provided, and
Landlord and Tenant hereby agree to look solely to, and seek recovery only from, their
respective insurance carriers in the event of a property loss to the extent that such coverage
is agreed to be provided hereunder. The parties each hereby waive all rights and claims
against each other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the insured to
recover thereunder. The parties agree that their respective insurance policies are now, or
shall be, endorsed such that the waiver of
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subrogation shall not affect the right of the
insured to recover thereunder, so long as no material additional premium is charged therefor.
10.6
Additional Insurance Obligations
. Tenant shall carry and maintain during the
entire Lease Term, at Tenants sole cost and expense, increased amounts of the insurance
required to be carried by Tenant pursuant to this
Article 10
and such other reasonable
types of insurance coverage and in such reasonable amounts covering the Premises and Tenants
operations therein, as may be reasonably requested by Landlord, but in no event in excess of
the amounts and types of insurance then being required by landlords of buildings comparable to
and in the vicinity of the Building.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1
Repair of Damage to Premises by Landlord
. Tenant shall promptly notify
Landlord of any damage to the Premises resulting from fire or any other casualty. If the
Premises or any Common Areas serving or providing access to the Premises shall be damaged by
fire or other casualty, Landlord shall promptly and diligently, subject to reasonable delays
for insurance adjustment or other matters beyond Landlords reasonable control, and subject to
all other terms of this
Article 11
, restore the structural portions and shell
condition of the Building and such Common Areas. Such restoration shall be to substantially
the same condition of the structural and shell portions of the Building and the Common Areas
prior to the casualty, except for modifications required by zoning and building codes and
other laws or by the holder of a mortgage on the Building or Project or any other
modifications to the Common Areas deemed desirable by Landlord, which are consistent with the
character of the Project, provided that access to the Premises and any common restrooms
serving the Premises shall not be materially impaired. Upon the occurrence of any damage to
the Premises, upon notice (the
Landlord Repair Notice
) to Tenant from Landlord, Tenant shall
assign to Landlord (or to any party designated by Landlord) all insurance proceeds payable to
Tenant under Tenants insurance required under
Section 10.3
of this Lease and pay to Landlord the deductible
amount thereunder, and Landlord shall repair any injury or damage to the Tenant Improvements
and the Original Improvements installed in the Premises and shall return such Tenant
Improvements and Original Improvements to their original condition. Landlord shall not be
liable for any inconvenience or annoyance to Tenant or its visitors, or injury to Tenants
business resulting in any way from such damage or the repair thereof; provided however, that
if such fire or other casualty shall have damaged the Premises or Common Areas necessary to
Tenants occupancy, and the Premises are not occupied by Tenant as a result thereof, then
during the time and to the extent the Premises are unfit for occupancy, the Rent shall be
abated in proportion to the ratio that the amount of rentable square feet of the Premises
which is unfit for occupancy for the purposes permitted under this Lease bears to the total
rentable square feet of the Premises. In the event that Landlord shall not deliver the
Landlord Repair Notice, Tenants right to rent abatement pursuant to the preceding sentence
shall terminate as of the date which is reasonably determined by Landlord to be the date
Tenant should have completed repairs to the Premises assuming Tenant used reasonable due
diligence in connection therewith.
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11.2
Landlords Option to Repair
. Notwithstanding the terms of
Section
11.1
of this Lease, Landlord may elect not to rebuild and/or restore the Premises and/or
Project, and instead terminate this Lease, by notifying Tenant in writing of such termination
within sixty (60) days after the date of discovery of the damage, such notice to include a
termination date giving Tenant sixty (60) days to vacate the Premises, but Landlord may so
elect only if the Building or Project shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, and one or more of the following conditions is
present: (i) in Landlords reasonable judgment, repairs cannot reasonably be completed within
one hundred eighty (180) days after the date of discovery of the damage (when such repairs are
made without the payment of overtime or other premiums); (ii) the holder of any mortgage on
the Building or Project or ground lessor with respect to the Building or Project shall require
that the insurance proceeds or any portion thereof be used to retire the mortgage debt, or
shall terminate the ground lease, as the case may be; (iii) the damage is not fully covered by
Landlords insurance policies (plus the deductible amount); (iv) Landlord decides to rebuild
the Building or Common Areas so that they will be substantially different structurally or
architecturally; (v) the damage occurs during the last twelve (12) months of the Lease Term;
or (vi) any owner of any other portion of the Project, other than Landlord, does not intend to
repair the damage to such portion of the Project; provided, however, that if Landlord does not
elect to terminate this Lease pursuant to Landlords termination right as provided above, and
the repairs cannot, in the reasonable opinion of Landlord, be completed within one hundred
eighty (180) days after being commenced (or within sixty (60) days if the casualty occurs
during the last twelve (12) months of the Lease Term), Tenant may elect, no earlier than sixty
(60) days after the date of the damage and not later than ninety (90) days after the date of
such damage, to terminate this Lease by written notice to Landlord effective as of the date
specified in the notice, which date shall not be less than thirty (30) days nor more than
sixty (60) days after the date such notice is given by Tenant.
11.3
Waiver of Statutory Provisions
. The provisions of this Lease, including this
Article 11
, constitute an express agreement between Landlord and Tenant with respect
to any and all damage to, or destruction of, all or any part of the Premises or the Project,
and any statute or regulation of the State of California, including, without limitation, Sections 1932(2)
and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement between the parties, and any
other statute or regulation, now or hereafter in effect, shall have no application to this
Lease or any damage or destruction to all or any part of the Premises or the Project.
ARTICLE 12
NONWAIVER
No provision of this Lease shall be deemed waived by either party hereto unless expressly
waived in a writing signed thereby. The waiver by either party hereto of any breach of any
term, covenant or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of same or any other term, covenant or condition herein contained. The
subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of Landlords knowledge
of
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such preceding breach at the time of acceptance of such Rent. No acceptance of a lesser
amount than the Rent herein stipulated shall be deemed a waiver of Landlords right to receive
the full amount due, nor shall any endorsement or statement on any check or payment or any
letter accompanying such check or payment be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlords right to recover the full
amount due. No receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Lease Term or of Tenants right of possession
hereunder, or after the giving of any notice shall reinstate, continue or extend the Lease
Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed
that after the service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and the payment of
said Rent shall not waive or affect said notice, suit or judgment.
ARTICLE 13
CONDEMNATION
If the whole or any part of the Premises or Project shall be taken by power of eminent
domain or condemned by any competent authority for any public or quasi-public use or purpose,
or if any adjacent property or street shall be so taken or condemned, or reconfigured or
vacated by such authority in such manner as to require the use, reconstruction or remodeling
of any part of the Premises or Project, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation, Landlord shall have the option to
terminate this Lease effective as of the date possession is required to be surrendered to the
authority. If more than twenty-five percent (25%) of the rentable square feet of the Premises
is taken, or if access to the Premises is substantially impaired, in each case for a period in
excess of one hundred eighty (180) days, Tenant shall have the option to terminate this Lease
effective as of the date possession is required to be surrendered to the authority. Tenant
shall not because of such taking assert any claim against Landlord or the authority for any
compensation because of such taking and Landlord shall be entitled to the entire award or payment in connection therewith,
except that Tenant shall have the right to file any separate claim available to Tenant for any
taking of Tenants personal property and fixtures belonging to Tenant and removable by Tenant
upon expiration of the Lease Term pursuant to the terms of this Lease, and for moving
expenses, so long as such claims do not diminish the award available to Landlord, its ground
lessor with respect to the Building or Project or its mortgagee, and such claim is payable
separately to Tenant. All Rent shall be apportioned as of the date of such termination. If
any part of the Premises shall be taken, and this Lease shall not be so terminated, the Rent
shall be proportionately abated. Tenant hereby waives any and all rights it might otherwise
have pursuant to Section 1265.130 of The California Code of Civil Procedure. Notwithstanding
anything to the contrary contained in this
Article 13
, in the event of a temporary
taking of all or any portion of the Premises for a period of one hundred and eighty (180) days
or less, then this Lease shall not terminate but the Base Rent and the Additional Rent shall
be abated for the period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the Premises.
Landlord shall be entitled to receive the entire award made in connection with any such
temporary taking.
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ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1
Transfers
. Tenant shall not, without the prior written consent of Landlord,
assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise
transfer, this Lease or any interest hereunder, permit any assignment, or other transfer of
this Lease or any interest hereunder by operation of law, sublet the Premises or any part
thereof, or enter into any license or concession agreements or otherwise permit the occupancy
or use of the Premises or any part thereof by any persons other than Tenant and its employees
and contractors (all of the foregoing are hereinafter sometimes referred to collectively as
Transfers
, any person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a
Transferee
, and any person by whom any Transfer is made or sought
to be made is hereinafter sometimes referred to as a
Transferor
). If Tenant desires
Landlords consent to any Transfer, Tenant shall notify Landlord in writing, which notice (the
Transfer Notice
) shall include (i) the proposed effective date of the Transfer (the
Contemplated Effective Date
), which shall not be less than ten (10) business days nor more
than one hundred eighty (180) days after the date of delivery of the Transfer Notice, and the
contemplated length of the term of such contemplated Transfer (the
Contemplated Transfer
Term
); (ii) a description of the portion of the Premises to be transferred (the
Contemplated
Transfer Space
), (iii) all of the terms of the proposed Transfer and the consideration
therefor, including calculation of the Transfer Premium, as that term is defined in
Section 14.3
below, in connection with such Transfer, the name and address of the
proposed Transferee, and a copy of all existing executed and/or proposed documentation
pertaining to the proposed Transfer, including all existing operative documents to be executed
to evidence such Transfer or the agreements incidental or related to such Transfer, provided
that Landlord shall have the right to require Tenant to utilize Landlords standard Transfer
documents in connection with the documentation of such Transfer, (iv) current financial
statements of the proposed Transferee (
Transferee Financials
) certified by an officer,
partner or owner thereof, business credit and personal references and history of the
proposed Transferee and any other information reasonably required by Landlord which will
enable Landlord to determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferees business and proposed use of the Contemplated
Transfer Space, and (v) an executed estoppel certificate from Tenant in the form attached
hereto as
Exhibit E
. Any Transfer made without Landlords prior written consent shall,
at Landlords option, be null, void and of no effect, and shall, at Landlords option,
constitute a default by Tenant under this Lease. Whether or not Landlord consents to any
proposed Transfer, Tenant shall pay Landlords reasonable review and processing fees (not to
exceed $500), as well as any reasonable out-of-pocket third party professional fees
(including, without limitation, attorneys, accountants, architects, engineers and
consultants fees) incurred by Landlord for said Transfer, within thirty (30) days after
written request by Landlord.
14.2
Landlords Consent
. Subject to Landlords rights set forth in
Section
14.4
below, Landlord shall not unreasonably withhold or delay its consent to any proposed
Transfer of the Contemplated Transfer Space to the Transferee on the terms specified in the
Transfer Notice. Without limitation as to other reasonable grounds for withholding consent,
the parties hereby agree that it shall be reasonable under this Lease and under any applicable
law for
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Landlord to withhold consent to any proposed Transfer where one or more of the
following apply:
14.2.1 The Transferee is of a character or reputation or engaged in a business which is
not consistent with the quality of the Building or the Project;
14.2.2 The Transferee intends to use the Contemplated Transfer Space for purposes which
are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or instrumentality thereof or a
nonprofit organization;
14.2.4 The rent charged by Tenant to such Transferee during the term of such Transfer,
calculated using a present value analysis, is less than seventy-five percent (75%) of the rent
being quoted by Landlord at the time of such Transfer for comparable space in the Project for
a comparable term, calculated using a present value analysis;
14.2.5 The Transferee is not a party of reasonable financial worth and/or financial
stability in light of the responsibilities to be undertaken in connection with the Transfer on
the date consent is requested (the parties acknowledging that if the Transferee Financials
indicate that the Transferee has a Net Worth [as defined in Section 14.8 below] equal to or
greater than the Net Worth of SHORETEL INC ., a California
corporation (the
Original Tenant
) as of the Date of this Lease, then this condition shall be
satisfied);
14.2.6 The proposed Transfer would cause a violation of another lease for space in the
Project, or would give an occupant of the Project a right to cancel its lease; or
14.2.7 The proposed Transferee is a Prohibited Person, as defined in
Section
29.21
below; or
14.2.8 Either the proposed Transferee, or any person or entity which directly or
indirectly, controls, is controlled by, or is under common control with, the proposed
Transferee, is negotiating with Landlord or has negotiated with Landlord during the six (6)
month period immediately preceding the date Landlord receives the Transfer Notice, to lease
space in the Project.
If Landlord consents to any Transfer pursuant to the terms of this
Section 14.2
(and does not exercise any recapture rights Landlord may have under
Section 14.4
of
this Lease), Tenant may within six (6) months after Landlords consent, but not later than the
expiration of said six-month period, enter into such Transfer of the Premises or portion
thereof, upon substantially the same terms and conditions as are set forth in the Transfer
Notice furnished by Tenant to Landlord pursuant to
Section 14.1
of this Lease,
provided that if there are any changes in the terms and conditions from those specified in the
Transfer Notice (i) such that Landlord would initially have been entitled to refuse its
consent to such Transfer under this
Section 14.2
, or (ii) which would cause the
proposed Transfer to be more favorable to the Transferee than the terms set forth in Tenants
original Transfer Notice, Tenant shall again submit the Transfer to Landlord for its approval
and other action under this
Article 14
(including Landlords right of
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recapture, if any, under
Section 14.4
of this Lease). Notwithstanding anything to the contrary in
this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably
withheld or delayed its consent under
Section 14.2
or otherwise has breached or acted
unreasonably under this
Article 14
, their sole remedies shall be a suit for contract
damages (other than damages for injury to, or interference with, Tenants business including,
without limitation, loss of profits, however occurring) or declaratory judgment and an
injunction for the relief sought, and Tenant hereby waives all other remedies, including,
without limitation, any right at law or equity to terminate this Lease, on its own behalf and,
to the extent permitted under all Applicable Requirements, on behalf of the proposed
Transferee.
14.3
Transfer Premium
.
14.3.1 If Landlord consents to a Transfer, as a condition thereto which the parties
hereby agree is reasonable, Tenant shall pay to Landlord sixty percent (60%) of any
Transfer
Premium
, as that term is defined in this
Section 14.3
, received by Tenant from such
Transferee.
Transfer Premium
means (i)(a) in the case of an assignment, any consideration
(including, without limitation, payment for leasehold improvements) paid by the assignee on
account of such assignment, and (b) in the case of any other Transfer, all rent, additional
rent or other consideration paid by the Transferee to the Transferor pursuant to such Transfer
in excess of the base rent and additional rent payable by such Transferor during the term of
the Transfer on a per rentable square foot basis, minus (ii) any brokerage commissions (not to
exceed commissions typically paid in the market at the time of such subletting or assignment)
and reasonable attorneys fees paid by Transferor in connection with the Transfer
(
Recoverable Expenses
), unless the deduction of such Recoverable Expenses is waived by
Transferor pursuant to
Section 14.3.2
below. For purposes of calculating the Transfer
Premium in connection with a sublease, the Recoverable Expenses shall be deducted, on an
amortized basis, without interest, over the term of the sublease. Payment of the portion of
the Transfer Premium due Landlord hereunder shall be a joint and several obligation of Tenant
and the Transferee, and shall be made to Landlord as follows: (1) in the case of an
assignment, the Transferor shall pay the portion of the
Transfer Premium due to Landlord within ten (10) days after the Transferor receives the
consideration described in clause (i)(a) above; and (2) in the case of any other Transfer, on
the first day of each month during the term of the Transfer, the Transferee shall pay directly
to Landlord sixty percent (60%) of the amount by which the rent, additional rent or other
consideration due from the Transferee for such month exceeds (x) the base rent and additional
rent payable by the applicable Transferor for said month which is allocable to the
Contemplated Transfer Space, plus (y) the amortized amount of Recoverable Expenses allocated
to such month, unless such Recoverable Expenses are waived by Transferor pursuant to
Section 14.3.2
below.
14.3.2 Within sixty (60) days after the effective date of any Transfer, Transferor shall
provide Landlord a written statement, together with reasonably detailed invoices therefor,
certifying the total amount of Recoverable Expenses in connection with any Transfer and
Tenants calculation of the Transfer Premium. Landlord or its authorized representatives shall
have the right at all reasonable times to audit the books, records and papers of Tenant, and
any other Transferor, relating to a Transfer, and shall have the right to make copies thereof.
If the Transfer Premium respecting any Transfer shall be found to be understated, Tenant
shall, within
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ten (10) days after demand, pay the deficiency; and, if understated by more than
five percent (5%), Tenant shall pay Landlords costs of such audit.
14.4
Landlords Option as to Contemplated Transfer Space
. Notwithstanding
anything to the contrary contained in this
Article 14
, in the case of a proposed
assignment, sublease for all or substantially all of the remaining Lease Term, or other
Transfer, Landlord shall have the option, by giving written notice to Tenant within thirty
(30) days after receipt of any Transfer Notice, to recapture the Contemplated Transfer Space.
Such recapture shall cancel and terminate this Lease with respect to such Contemplated
Transfer Space as of the Contemplated Effective Date. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire Premises, the
Rent reserved herein shall be prorated on the basis of the number of rentable square feet
retained by Tenant in proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter in full force and effect, and
upon request of either party, the parties shall execute written confirmation of the same. If
Landlord declines, or fails to elect in a timely manner, to recapture such Contemplated
Transfer Space under this
Section 14.4
, then, subject to the other terms of this
Article 14
, for a period of nine (9) months (the
Nine Month Period
) commencing on
the last day of such thirty (30) day period, Landlord shall not have any right to recapture
the Contemplated Transfer Space with respect to any Transfer made during the Nine Month
Period, provided that any such Transfer is substantially on the terms set forth in the
Transfer Notice, and provided further that any such Transfer shall be subject to the remaining
terms of this
Article 14
. If such a Transfer is not so consummated within the Nine
Month Period (or if a Transfer is so consummated, then upon the expiration of the term of any
Transfer of such Contemplated Transfer Space consummated within such Nine Month Period),
Tenant shall again be required to submit a new Transfer Notice to Landlord with respect any
contemplated Transfer, as provided above in this
Section 14.4
.
14.5
Effect of Transfer
. If Landlord consents to a Transfer, (i) the terms and
conditions of this Lease shall in no way be deemed to have been waived or modified, (ii) such
consent shall not be deemed consent to any further Transfer by either Tenant or a Transferee,
(iii) Tenant shall deliver to Landlord, promptly after execution, an original executed copy of
all documentation pertaining to the Transfer in form reasonably acceptable to Landlord, (iv)
Tenant shall furnish upon Landlords request a complete statement, certified by an independent
certified public accountant, or Tenants chief financial officer, setting forth in detail the
computation of any Transfer Premium Tenant has derived and shall derive from such Transfer,
and (v) no Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlords consent, shall relieve Tenant or any guarantor of the Lease
from any liability under this Lease, including, without limitation, in connection with the
Contemplated Transfer Space.
14.6
Additional Transfers
. For purposes of this Lease, the term
Transfer
shall
also include (i) if Tenant is a partnership, the withdrawal or change, voluntary, involuntary
or by operation of law, of fifty percent (50%) or more of the partners, or transfer of fifty
percent (50%) or more of partnership interests, within a twelve (12)-month period, or the
dissolution of the partnership without immediate reconstitution thereof, and (ii) if Tenant is
a closely held corporation (
i.e.
, whose stock is not publicly held and not traded through an
exchange or over the
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counter), (A) the dissolution, merger, consolidation or other
reorganization of Tenant or (B) the sale or other transfer of an aggregate of fifty percent
(50%) or more of the voting shares of Tenant (other than to immediate family members by reason
of gift or death), within a twelve (12)-month period, or (C) the sale, mortgage, hypothecation
or pledge of an aggregate of fifty percent (50%) or more of the value of the unencumbered
assets of Tenant within a twelve (12) month period.
14.7
Occurrence of Default
. Any Transfer hereunder shall be subordinate and
subject to the provisions of this Lease, and if this Lease shall be terminated during the term
of any Transfer, Landlord shall have the right to: (i) treat such Transfer as cancelled and
repossess the Contemplated Transfer Space by any lawful means, or (ii) require that such
Transferee attorn to and recognize Landlord as its landlord under any such Transfer. If
Tenant shall be in default under this Lease, Landlord is hereby irrevocably authorized, as
Tenants agent and attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply towards Tenants
obligations under this Lease) until such default is cured. Such Transferee shall rely on any
representation by Landlord that Tenant is in default hereunder, without any need for
confirmation thereof by Tenant. Upon any assignment, the assignee shall assume in writing all
obligations and covenants of Tenant thereafter to be performed or observed under this Lease.
No collection or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this
Article 14
or the approval of any Transferee or a release of
Tenant from any obligation under this Lease, whether theretofore or thereafter accruing. In
no event shall Landlords enforcement of any provision of this Lease against any Transferee be
deemed a waiver of Landlords right to enforce any term of this Lease against Tenant or any
other person. If Tenants obligations hereunder have been guaranteed, Landlords consent to
any Transfer shall not be effective unless the guarantor also consents to such Transfer.
14.8
Non-Transfers
. Notwithstanding anything to the contrary contained in this
Article 14
, if Tenant is not then in default of this Lease, Tenant may assign this
Lease or sublet any portion of the Premises (hereinafter collectively referred to as a
Permitted Transfer
) to (a) an affiliate of Tenant (an entity which is controlled by, controls, or is under common
control with, Tenant), (b) any successor entity to Tenant by way of merger, consolidation or
other non-bankruptcy corporate reorganization, or (c) an entity which acquires all or
substantially all of Tenants assets (collectively,
Permitted Transferees
, and,
individually, a
Permitted Transferee
); provided that (i) at least ten (10) business days
prior to the Transfer, Tenant notifies Landlord of such Transfer, and supplies Landlord with
any documents or information reasonably requested by Landlord regarding such Transfer or
Permitted Transferee, including, but not limited to, copies of the sublease or instrument of
assignment and copies of documents establishing to the reasonable satisfaction of Landlord
that the transaction in question is one permitted under this
Section 14.8
, (ii) at
least ten (10) business days prior to the Transfer, Tenant furnishes Landlord with a written
document executed by the proposed Permitted Transferee in which, in the case of an assignment,
such entity assumes all of Tenants obligations under this Lease with respect to the
Contemplated Transfer Space, and, in the case of a sublease, such entity agrees to sublease
the Contemplated Transfer Space subject to this Lease, (iii) in the case of a Transfer
pursuant to clause (b) above, the successor entity must have a net worth (computed in
accordance with generally accepted accounting principles, except that intangible assets such
as
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goodwill, patents, copyrights, and trademarks shall be excluded in the calculation (
Net
Worth
)) at the time of the Transfer that is at least equal to the Net Worth of Tenant
immediately prior to such Transfer, and (iv) any such proposed Transfer is made for a good
faith operating business purpose and not, whether in a single transaction or in a series of
transactions, be entered into as a subterfuge to evade the obligations and restrictions
relating to Transfers set forth in this
Article 14
.
Control
, as used in this
Section 14.8
, shall mean the ownership, directly or indirectly, of at least fifty-one
percent (51%) of the voting securities of, or possession of the right to vote, in the ordinary
direction of its affairs, of at least fifty-one percent (51%) of the voting interest in, any
person or entity.
ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES AND OTHER PROPERTY
15.1
Surrender of Premises
. No act or thing done by Landlord or any agent or
employee of Landlord during the Lease Term shall be deemed to constitute an acceptance by
Landlord of a surrender of the Premises unless such intent is specifically acknowledged in
writing by Landlord. The delivery of keys to the Premises to Landlord or any agent or
employee of Landlord shall not constitute a surrender of the Premises or effect a termination
of this Lease, whether or not the keys are thereafter retained by Landlord, and
notwithstanding such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly terminated. The
voluntary or other surrender of this Lease by Tenant, whether accepted by Landlord or not, or
a mutual termination hereof, shall not work a merger, and at the option of Landlord shall
operate as an assignment to Landlord of all subleases or subtenancies affecting the Premises
or terminate any or all such sublessees or subtenancies.
15.2
Removal of Property by Tenant
. Upon the expiration of the Lease Term, or
upon any earlier termination of this Lease, Tenant shall, subject to the provisions of
Section 8.5
above and this
Article 15
, quit and surrender possession of the
Premises to Landlord in its condition existing as of the date of this Lease, reasonable wear and tear and repairs
which are specifically made the responsibility of Landlord hereunder excepted, with all
interior walls repaired and repainted if marked or damaged, all carpets shampooed and cleaned,
all broken, marred or nonconforming acoustical ceiling tiles replaced, all windows washed, the
plumbing and electrical systems and lighting in good order and repair, including replacement
of any burned out or broken light bulbs or ballasts, the HVAC equipment serviced and repaired
by a reputable and licensed service firm reasonably acceptable to Landlord, and all floors
cleaned and waxed, all to the reasonable satisfaction of Landlord. Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises the following items, and
shall restore the Premises to its condition prior to their installation, including, without
limitation, repairing all damage caused by the installation or removal of any of the following
items: (a) all debris and rubbish, (b) such items of furniture, equipment, business and trade
fixtures, free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the Premises, and
such similar articles of any other persons claiming under Tenant, as Landlord may, in its sole
discretion, require to be removed, (c) any Alterations that Landlord elects to be removed
pursuant to
Section 8.5
, and (d) those improvements
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identified on
Exhibit B
attached hereto, which were installed in the Premises by Tenant prior to the date of this
Lease. If Tenant does not timely remove such property, then Tenant shall be conclusively
presumed to have, at Landlords election: (i) conveyed such property to Landlord without
compensation or (ii) abandoned such property, and Landlord may dispose of or store any part
thereof in any manner at Tenants sole cost, without waiving Landlords right to claim from
Tenant all expenses arising out of Tenants failure to remove the property, and without
liability to Tenant or any other person. Landlord shall have no duty to be a bailee of any
such personal property. If Landlord elects to consider such property abandoned, Tenant shall
be liable to Landlord for the costs of: (1) removal of any such Alterations or personal
property, (2) storage, transportation, and disposition of the same, and (3) repair and
restoration of the Premises, together with interest thereon at the Interest Rate from the date
of expenditure by Landlord.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term or earlier termination
thereof, with the express written consent of Landlord, such tenancy shall be from
month-to-month only, and shall not constitute a renewal hereof or an extension for any further
term, and in such case Tenant shall pay Rent at a monthly rate equal to (a) one hundred fifty
percent (150%) of the Base Rent payable by Tenant immediately prior to such holding over
(without regard to any abatements of Rent on account of casualty or otherwise), plus (b)
Tenants Share of Operating Expenses and Tax Expenses, computed on a monthly basis for each
full or partial month Tenant remains in possession. Such month-to-month tenancy shall be
subject to every other applicable term, covenant and agreement contained herein. If Tenant
holds over after the expiration of the Lease Term or earlier termination thereof, without the
express written consent of Landlord, Tenant shall be a tenant at sufferance only, for the
entire Premises upon all of the terms and conditions of this Lease as might be applicable to
such tenancy; provided, however, that, as liquidated damages and not as a penalty, Tenant
shall pay Base Rent at a monthly rate equal to (i) for the first thirty (30) days of such
holding over, one hundred fifty percent (150%) of the
Base Rent payable by Tenant immediately prior to such holding over (without regard to any
abatements of Rent on account of casualty or otherwise), plus Tenants Share of Operating
Expenses and Tax Expenses; and (ii) thereafter, an amount equal to two hundred percent (200%)
of the Base Rent payable by Tenant immediately prior to such holding over (without regard to
any abatements of Rent on account of casualty or otherwise), plus Tenants Share of Operating
Expenses and Tax Expenses, computed on a monthly basis for each full or partial month Tenant
remains in possession. Nothing contained in this
Article 16
shall be construed as
consent by Landlord to any holding over by Tenant, and Landlord expressly reserves the right
to require Tenant to surrender possession of the Premises to Landlord as provided in this
Lease upon the expiration or other termination of this Lease. The provisions of this
Article 16
shall not be deemed to limit or constitute a waiver of any other rights or
remedies of Landlord provided herein or at law. If Tenant fails to surrender the Premises upon
the termination or expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from
all Claims resulting from such failure, including, without limiting the generality of the
foregoing, any Claims made by any
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succeeding tenant founded upon such failure to surrender and
any lost profits to Landlord resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord an estoppel certificate, which, as submitted by
Landlord, shall be substantially in the form of
Exhibit E
, attached hereto (or such
other form as may be required by any prospective mortgagee or purchaser of the Project, or any
portion thereof), indicating therein any exceptions thereto that may exist at that time, and
shall also contain any other information reasonably requested by Landlord or Landlords
mortgagee or prospective mortgagee. Any such certificate may be relied upon by any prospective
mortgagee or purchaser of all or any portion of the Project. Tenant shall execute and deliver
whatever other instruments may be reasonably required for such purposes. At any time during
the Lease Term, but not more than twice per calendar year, Landlord may require Tenant to
provide Landlord with a current financial statement and financial statements of the two (2)
years prior to the current financial statement year. Such statements shall be prepared in
accordance with generally accepted accounting principles and, if such is the normal practice
of Tenant, shall be audited by an independent certified public accountant. Failure of Tenant
to timely execute, acknowledge and deliver such estoppel certificate or other instruments
shall constitute an acceptance of the Premises and an acknowledgment by Tenant that statements
included in the estoppel certificate are true and correct, without exception.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future ground or
underlying leases of the Building or Project and to the lien of any mortgage, trust deed or
other encumbrances now or hereafter in force against the Building or Project or any part
thereof, if any, and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon the security of
such mortgages or trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances, or the lessors under such ground lease or underlying leases (each, a
Security
Holder
), require in writing that this Lease be superior thereto. Tenant covenants and agrees
in the event any proceedings are brought for the foreclosure of any such mortgage or deed in
lieu thereof (or if any ground lease is terminated), to attorn, without any deductions or
set-offs whatsoever, to the Security Holder or purchaser or any successors thereto upon any
such foreclosure sale or deed in lieu thereof (or to the ground lessor), if so requested to do
so by such purchaser or Security Holder or ground lessor, and to recognize such purchaser or
Security Holder or ground lessor as the lessor under this Lease, provided such Security Holder
or purchaser or ground lessor shall agree to accept this Lease and not disturb Tenants
occupancy, so long as Tenant timely pays the rent and observes and performs the terms,
covenants and conditions of this Lease to be observed and performed by Tenant. Landlords
interest herein may be assigned as security at any time to any Security
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Holder. Without
limiting the generality of the foregoing, (a) Tenant shall, concurrently with its execution
and delivery of this Lease to Landlord, deliver to Landlord a Subordination, Non-Disturbance
and Attornment Agreement in the form attached hereto as
Exhibit I
(the
SNDA
), duly
executed (and acknowledged) by Tenant, and (b) within ten (10) days of request by Landlord
from time to time thereafter (which may be made only in connection with a bona fide sale,
financing or other similar transaction involving the Project), execute such other instruments
or assurances as Landlord may reasonably deem necessary to evidence or confirm the
subordination or superiority of this Lease to any such mortgages, trust deeds, ground leases
or underlying leases. Landlord shall use commercially reasonable efforts to cause German
American Capital Corporation, a Maryland corporation, the Lender under the SNDA (
GACC
), to
execute the SNDA as soon as reasonably practicable following Landlords receipt of the SNDA
from Tenant. Except for making such commercially reasonable efforts, Landlord will be under no
duty or obligation hereunder with respect to the SNDA, nor will the failure or refusal of GACC
to grant a non-disturbance agreement render Landlord liable to Tenant, or affect this Lease,
in any manner. Tenant waives the provisions of any current or future statute, rule or law
which may give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease and the obligations of the Tenant hereunder in the event of any
foreclosure proceeding or sale.
ARTICLE 19
DEFAULTS; REMEDIES
19.1
Events of Default
. The occurrence of any of the following shall constitute a
default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge required to be paid
under this Lease, or any part thereof, when due unless such failure is cured within five (5)
business days after notice; or
19.1.2 Except where a specific time period is otherwise set forth for Tenants
performance in this Lease, in which event the failure to perform by Tenant within such
time period shall be a default by Tenant under this
Section 19.1.2
, any failure by
Tenant to observe or perform any other provision, covenant or condition of this Lease to be
observed or performed by Tenant where such failure continues for thirty (30) days after
written notice thereof from Landlord to Tenant; provided that if the nature of such default is
such that the same cannot reasonably be cured within a thirty (30) day period, Tenant shall
not be deemed to be in default if it diligently commences such cure within such period and
thereafter diligently proceeds to rectify and cure such default; or
19.1.3 Abandonment of the Premises by Tenant; or
19.1.4 The failure by Tenant to observe or perform according to the provisions of
Articles 5
,
14
,
17
or
18
of this Lease where such failure
continues for more than two (2) business days after notice from Landlord; or
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19.1.5 Tenants failure to occupy the Premises within ten (10) business days after the
Lease Commencement Date.
The notice periods provided herein are in lieu of, and not in addition to, any notice
periods provided by law, and Landlord shall not be required to give any additional notice in
order to be entitled to commence an unlawful detainer proceeding.
19.2
Remedies Upon Default
. Upon the occurrence of any event of default by
Tenant, Landlord shall have, in addition to any other remedies available to Landlord at law or
in equity (all of which remedies shall be distinct, separate and cumulative), the option to
pursue any one or more of the following remedies, each and all of which shall be cumulative
and nonexclusive, without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall immediately surrender the
Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any
other remedy which it may have for possession or arrearages in rent, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, without being liable for prosecution or any claim
or damages therefor; and Landlord may recover from Tenant the following:
(a) The worth at the time of award of the unpaid rent which has been earned at the time
of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid rent which would
have been earned after termination until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by which the unpaid rent for the balance
of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenants failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, specifically including but not
limited to, brokerage commissions and advertising expenses incurred, expenses of remodeling
the Premises or any portion thereof for a new tenant, whether for the same or a different use,
and any special concessions made to obtain a new tenant; and
(e) At Landlords election, such other amounts in addition to or in lieu of the foregoing
as may be permitted from time to time by applicable law.
The term
rent
as used in this
Section 19.2
shall be deemed to be and to mean
all sums of every nature required to be paid by Tenant pursuant to the terms of this Lease,
whether to Landlord or to others. As used in
Sections 19.2.1(a)
and
(b)
,
above, the worth at the time of award shall be computed by allowing interest at the
Interest Rate (as set forth in
Article 25
of this Lease), but in no case greater
than the maximum amount of such interest permitted by law. As used in
Section
19.2.1(c)
above, the
worth at the time of award
shall be computed by
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discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil Code Section 1951.4
(lessor may continue lease in effect after lessees breach and abandonment and recover rent as
it becomes due, if lessee has the right to sublet or assign, subject only to reasonable
limitations). Accordingly, if Landlord does not elect to terminate this Lease on account of
any default by Tenant, Landlord may, from time to time, without terminating this Lease,
enforce all of its rights and remedies under this Lease, including the right to recover all
rent as it becomes due.
19.2.3 Landlord shall at all times have the rights and remedies (which shall be
cumulative with each other and cumulative and in addition to those rights and remedies
available under
Sections 19.2.1
and
19.2.2
, above, or any law or other
provision of this Lease), without prior demand or notice except as required by applicable law,
to seek any declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof.
19.3
Efforts to Relet
. No re-entry or repossession, repairs, maintenance,
changes, alterations and additions, reletting, appointment of a receiver to protect Landlords
interests hereunder, or any other action or omission by Landlord shall be construed as an
election by Landlord to terminate this Lease or Tenants right to possession, or to accept a
surrender of the Premises, nor shall same operate to release Tenant in whole or in part from
any of Tenants obligations hereunder, unless express written notice of such intention is sent
by Landlord to Tenant. Tenant hereby irrevocably waives any right otherwise available under
any law to redeem or reinstate this Lease.
19.4
Landlord Defaults
. Landlord shall not be in default hereunder unless
Landlord fails to begin and thereafter pursue with reasonable diligence the cure of any
failure of Landlord to meet its obligations hereunder within thirty (30) days after the
receipt by Landlord of written notice from Tenant of the alleged failure to perform. In no
event shall Tenant have the right to terminate or rescind this Lease as a result of Landlords default as to any covenant or
agreement contained in this Lease. Tenant hereby waives such remedies of termination and
rescission and hereby agrees that Tenants remedies for default hereunder and for breach of
any promise or inducement shall be limited to a suit for damages and/or injunction. In
addition, Tenant hereby covenants that, prior to the exercise of any such remedies, Tenant
will give notice and a reasonable time to cure any default by Landlord to any Security Holder
of which Tenant has been given notice.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services and other
payments herein reserved and on keeping, observing and performing all the other terms,
covenants, conditions, provisions and agreements herein contained on the part of Tenant to be
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kept, observed and performed, shall, during the Lease Term, peaceably and quietly have, hold
and enjoy the Premises subject to the terms, covenants, conditions, provisions and agreements
hereof without interference by any persons lawfully claiming by or through Landlord. The
foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
Concurrently with Tenants execution of this Lease, Tenant shall deposit with Landlord a
security deposit (the
Security Deposit
) in the amount set forth in
Section 7
of the
Summary, as security for the faithful performance by Tenant of all of its obligations under
this Lease. If Tenant defaults with respect to any provisions of this Lease, including, but
not limited to, the provisions relating to the payment of Rent, the removal of property and
the repair of resultant damage, Landlord may, without notice to Tenant, but shall not be
required to apply all or any part of the Security Deposit for the payment of any Rent or any
other sum in default and Tenant shall, within three (3) days after demand therefor, restore
the Security Deposit to its original amount, and Tenants failure to do so shall, at
Landlords option, be a default under this Lease with no opportunity to cure. Any unapplied
portion of the Security Deposit shall be returned to Tenant, or, at Landlords option, to the
last assignee of Tenants interest hereunder, within sixty (60) days following the later to
occur of (a) the expiration of the Lease Term or (b) Tenants vacation and surrender of the
Premises in accordance with the requirements of this Lease. Tenant shall not be entitled to
any interest on the Security Deposit. Tenant hereby waives the provisions of Section 1950.7
of the California Civil Code, or any successor statute, and all other provisions of law, now
or hereafter in effect, to the extent they: (i) establish the time frame by which a landlord
must refund a security deposit under a lease, and/or (ii) provide that a landlord may claim
from a security deposit only those sums reasonably necessary to remedy defaults in the payment
of rent, to repair damage caused by a tenant or to clean the premises, it being agreed
that Landlord may, in addition, claim those sums specified in this Section above and/or
those sums reasonably necessary to compensate Landlord for any loss or damage caused by
Tenants default of this Lease, as amended hereby, including, but not limited to, all damages
or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil
Code.
ARTICLE 22
ROOFTOP EQUIPMENT
22.1
Grant of License
. Subject to the applicable terms and conditions contained
in this Lease (including, without limitation,
Article 8
above and this Section),
Tenant shall have a license (the
License
), at no additional charge to Tenant, to install,
operate, maintain and use, during the Lease Term, (a) HVAC and non revenue producing
telecommunications and satellite equipment to serve Tenants business in the Premises
(collectively,
Rooftop Equipment
) on the open space of the roof of the Building within the
existing sight screen wall, in a specific location reasonably designated by Landlord (the
License Area
); and (b) connections for the Rooftop Equipment for (i) electrical wiring to
the Buildings existing electrical supply and (ii) cable or similar connection necessary to
connect the Rooftop Equipment with Tenants related
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equipment located in the Premises. The
routes or paths for such wiring and connections shall be through the Buildings existing
risers, conduits and shafts, subject to reasonable space limitations and Landlords reasonable
requirements for use of such areas, and in all events subject to Landlords reasonable
approval of plans and installation pursuant to other provisions of this Lease, including,
without limitation,
Section 29.33
below (such routes or paths are collectively
referred to as the
Cable Path
and all such electrical and other connections are referred to
collectively as the
Connections
). The Rooftop Equipment and Connections are collectively
referred to as the
Equipment
.
22.2
Interference
. Without limiting the generality of any other provision hereof,
Tenant shall install, maintain and operate the Equipment in a manner so as to not cause any
electrical, electromagnetic, radio frequency or other material interference with the use and
operation of any: (a) television or radio equipment in or about the Project; (b) transmitting,
receiving or master television, telecommunications or microwave antennae equipment currently
or hereafter located in any portion of the Project; or (c) radio communication system now or
hereafter used or desired to be used by Landlord or any current licensee or tenant of Landlord
(and, to the extent commercially reasonable, any future licensee or tenant of Landlord, but
only provided that the same does not impair the functionality of Tenants Equipment). Upon
notice of any such interference, Tenant shall immediately cooperate with Landlord to identify
the source of the interference and shall, within twenty-four (24) hours, if requested by
Landlord, cease all operations of the Equipment (except for intermittent testing as approved
by Landlord, which approval shall not be unreasonably withheld) until the interference has
been corrected to the reasonable satisfaction of Landlord, unless Tenant reasonably
establishes prior to the expiration of such twenty-four (24) hour period that the interference
is not caused by the Equipment, in which case Tenant may operate its Equipment pursuant to the
terms of this Lease. Tenant shall be responsible for all costs associated with any tests
deemed reasonably necessary to resolve any and all interference as set forth in this Section.
If any such interference caused by Tenant has not been corrected within ten (10) days after
notice to Tenant, Landlord may (i) require Tenant to remove the specific Equipment causing such interference, or (ii) eliminate the
interference at Tenants expense. If the equipment of any other party causes interference
with the Equipment, Tenant shall reasonably cooperate with such other party to resolve such
interference in a mutually acceptable manner.
22.3
Roof Repairs
. If Landlord desires to perform roof repairs and/or roof
replacements to the Building (the
Roof Repairs
), Landlord shall give Tenant at least ten
(10) business days prior written notice of the date Landlord intends to commence such Roof
Repairs (except in the event of an emergency, in which event Landlord shall furnish Tenant
with reasonable notice in light of the circumstances), along with a description of the work
scheduled to be performed, where it is scheduled to be performed on the roof, and an estimate
of the time frame required for that performance. Tenant shall, within ten (10) business days
following receipt of such notice, undertake such measures as it deems suitable to protect the
Equipment from interference by Landlord, its agents, contractors or employees, in the course
of any Roof Repairs.
22.4
Rules and Regulations
. Without limiting the applicable provisions of this
Lease, Tenants use of the roof of the Building for the installation, operation, maintenance
and use of the
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Equipment shall be subject to the terms and conditions contained in the Rooftop
Work Rules and Regulations attached hereto as
Exhibit D-1
.
ARTICLE 23
SIGNS
23.1
Signage Rights
. Tenant shall not place on any portion of the Premises any
sign, placard, lettering, banner, displays, graphic, decor or other advertising or
communicative material which is visible from the exterior of the Building without Landlords
prior written approval; provided, however, that Tenant shall be entitled to the following
signage rights in accordance with Landlords signage standards in effect at the time (
Signage
Standards
) and all Applicable Requirements (
Tenants Signage Rights
): (a) Project-standard
tenant identification signage on the monument sign for the Building and (b) if during the
Lease Term, Landlord allows any other tenant of the Project to place identification signage on
the exterior of its building, or modifies the Signage Standards to allow identification
signage on the exterior of the buildings in the Project, then Tenants Signage Rights shall
include the right to place identification signage on the exterior of the Building. The
material, typeface, graphic format and proportions of Tenants signs, as well as the precise
location of such signs, shall be subject to Landlords approval, which shall not be
unreasonably withheld. Tenant, at its expense, shall be responsible for obtaining all
approvals for such signs and for obtaining and installing such signs. The failure of Tenant to
obtain such approvals shall not release Tenant from any of its obligations under this Lease.
Any approved signs shall strictly conform to all Applicable Requirements and shall be
installed and removed at Tenants expense. Tenant, at its sole expense, shall maintain such
signs in good condition and repair during the Term. Prior to the expiration or earlier
termination of this Lease, Tenant at its sole cost shall remove all of its exterior signage
and repair any and all damage caused to the Building and/or Project (including and fading or
discoloration) by such signs and/or the removal of such signs from the Building
and/or Project.
23.2
Rights Personal to Tenant
. Tenants Signage Rights are personal to, and may
be exercised only by, the Original Tenant or a Permitted Transferee (and not by any other
assignee, sublessee or Transferee of Tenants interest in this Lease), and only so long as the
Original Tenant or Permitted Transferee continues to occupy the entire Premises.
ARTICLE 24
COMPLIANCE WITH LAW; HAZARDOUS SUBSTANCES
24.1
Compliance with Laws
. Tenant shall not do anything or suffer anything to be
done in or about the Premises or the Project which will in any way conflict with any
Applicable Requirements that may hereafter be enacted or promulgated. At its sole cost and
expense, Tenant shall promptly comply with all such Applicable Requirements. Should any
standard or regulation now or hereafter be imposed on Landlord or Tenant by a state, federal
or local governmental body charged with the establishment, regulation and enforcement of
occupational, health or safety standards for employers, employees, landlords or tenants, then
Tenant agrees, at
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its sole cost and expense, to comply promptly with such standards or regulations. Tenant
shall be responsible, at its sole cost and expense, to make all alterations to the Premises as
are required to comply with Applicable Requirements. The judgment of any court of competent
jurisdiction or the admission of Tenant in any judicial action, regardless of whether Landlord
is a party thereto, that Tenant has violated any of said Applicable Requirements, shall be
conclusive of that fact as between Landlord and Tenant.
24.2
Hazardous Substances; Mold Conditions.
24.2.1
Prohibition Against Hazardous Substances.
(a) Tenant shall not cause or permit any Hazardous Substances (as defined below) to be
brought upon, produced, treated, stored, used, discharged or disposed of in or near the
Project without Landlords prior written consent, which Landlord may give or withhold in its
sole discretion. Any handling, transportation, storage, treatment, disposal or use of any
Hazardous Substances in or about the Project by Tenant, its agents, employees, contractors or
invitees shall strictly comply with all Applicable Requirements. Tenant shall be solely
responsible for obtaining and complying with all permits necessary for the maintenance and
operation of its business, including, without limitation, all permits governing the use,
handling, storage, treatment, transport, discharge and disposal of Hazardous Substances.
Tenant shall indemnify, defend and hold Landlord and the Landlord Parties harmless from and
against any Claims (including, without limitation, diminution in value of the Premises or the
Project, damages for the loss or restriction on use of leasable space or of any amenity of the
Premises or the Project, damages arising from any adverse impact on marketing of space in the
Project, Remedial Work (as defined below), and sums paid in settlement of claims) which result
from or arise out of the use, storage, treatment, transportation, release, or disposal of any
Hazardous Substances on or about the Premises during the Term and on or about the Project
outside of the Premises by Tenant or any Tenant Parties.
(b) Landlord shall have the right, at any time, but not more than two (2) times in any
calendar year (unless Landlord has reasonable cause to believe that Tenant has failed to fully
comply with the provisions of this
Section 24.2
, or unless required by any lender or
governmental agency), to inspect the Premises and conduct tests and investigations to
determine whether Tenant is in compliance with the provisions of this
Section 24.2
.
The costs of all such inspections, tests and investigations shall be borne solely by Tenant.
The foregoing rights granted to Landlord shall not, however, create (i) a duty on Landlords
part to inspect, test, investigate, monitor or otherwise observe the Premises or the
activities of Tenant or any Tenant Party with respect to Hazardous Substances, including, but
not limited to, Tenants operation, use or remediation thereof, or (ii) liability on the part
of Landlord or any Landlord Party for Tenants use, storage, treatment, transportation,
release, or disposal of any Hazardous Substances, it being understood that Tenant shall be
solely responsible for all liability in connection therewith.
24.2.2
Landlord Notification
.
Tenant shall promptly provide Landlord with
complete copies of all documents, correspondence and other written materials directed to or
from, or relating to, Tenant concerning environmental issues at the Premises or the Project,
including, without limitation,
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documents relating to the release, potential release,
investigation, compliance, cleanup and abatement of Hazardous Substances, and any claims,
causes of action or other legal documents related to same. Within twenty-four (24) hours of
any unauthorized release, spill or discharge of Hazardous Substances, in, on, or about the
Premises or Project, Tenant shall provide written notice to Landlord fully describing the
event. Tenant shall also provide Landlord with a copy of any document or correspondence
submitted by or on behalf of Tenant to any regulatory agency as a result of or in connection
with the unauthorized release, spill or discharge. Within twenty-four (24) hours of receipt
by Tenant of any warning, notice of violation, permit suspension or similar disciplinary
measure relating to Tenants actual or alleged failure to comply with any environmental law,
rule, regulation, ordinance or permit, Tenant shall provide written notice to Landlord.
24.2.3
Remedial Work
.
If any investigation or monitoring of site conditions or
any clean-up, containment, restoration, removal or remediation of Hazardous Substances
(collectively,
Remedial Work
) is required under any Applicable Requirements as a result of
the handling, use, storage, treatment, transportation or disposal of any Hazardous Substances
by Tenant or any Tenant Party, then Tenant shall perform or cause to be performed the Remedial
Work in compliance with Applicable Requirements or, at Landlords option, Landlord may cause
such Remedial Work to be performed and Tenant shall reimburse Landlord for the reasonable
costs thereof within thirty (30) days after demand therefor. All Remedial Work performed by
Tenant shall be performed by one or more contractors, selected by Tenant and approved in
advance in writing by Landlord, and under the supervision of a consulting engineer selected by
Tenant and approved in advance in writing by Landlord. All costs and expenses of such
Remedial Work shall be paid by Tenant, including, without limitation, the charges of such
contractor(s), the consulting engineer and Landlords reasonable attorneys and experts fees
and costs incurred in connection with monitoring or review of such Remedial Work.
24.2.4
Hazardous Substances Disclosure Certificate
.
Prior to executing this
Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials
Disclosure Certificate (
Initial Disclosure Certificate
), a fully completed copy of which is
attached hereto as
Exhibit G
and incorporated herein by this reference. The completed
Hazardous Substances Disclosure Certificate shall be deemed incorporated into this Lease for
all purposes, and Landlord shall be entitled to rely fully on the information contained
therein. Tenant shall, on each anniversary of the Lease Commencement Date and at such other
times as Tenant desires to handle, produce, treat, store, use, discharge or dispose of new or
additional Hazardous Substances on or about the Premises that were not listed on the Initial
Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure
Certificate (each, an
Updated Disclosure Certificate
) describing Tenants then current and
proposed future uses of Hazardous Substances on or about the Premises, which Updated
Disclosure Certificates shall be in the same format as that which is set forth in
Exhibit
G
or in such updated format as Landlord may reasonably require from time to time. Tenant
shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days
prior to the date Tenant intends to commence the manufacture, treatment, use, storage, handle,
discharge or disposal of new or additional Hazardous Substances on or about the Premises, and
Landlord shall have the right to approve or disapprove such new or additional Hazardous
Substances in its sole and absolute discretion. Tenant shall make no use of Hazardous
Substances on or about the Premises except
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as described in the Initial Disclosure Certificate
or as otherwise approved by Landlord in writing in accordance with this
Section 24.2
.
24.2.5
Mold
.
(a) Because mold spores are present essentially everywhere and mold can grow in almost
any moist location, Tenant acknowledges the necessity of adopting and enforcing good
housekeeping practices, ventilation and vigilant moisture control within the Premises
(particularly in kitchen areas, janitorial closets, bathrooms, in and around water fountains
and other plumbing facilities and fixtures, break rooms, in and around outside walls, and in
and around HVAC systems and associated drains) for the prevention of mold (such measures,
Mold Prevention Practices
). Tenant will, at its sole cost and expense keep and maintain the
Premises in good order and condition in accordance with the Mold Prevention Practices and
acknowledges that the control of moisture, and prevention of mold within the Premises, are
integral to its obligations under this Lease.
(b) Tenant, at its sole cost and expense, shall:
(1) Regularly monitor the Premises for the presence of mold and any conditions that
reasonably can be expected to give rise or be attributed to mold or fungus including, but not
limited to, observed or suspected instances of water damage, condensation, seepage, leaks or
any other water penetration (from any source, internal or external), mold growth, mildew,
repeated complaints of respiratory ailments or eye irritation by Tenants employees or any
other occupants of the Premises, or any notice from a governmental agency of complaints
regarding the indoor air quality at the Premises (the
Mold Conditions
); and
(2) Immediately notify Landlord in writing if it observes,
suspects, has reason to believe mold or Mold Conditions at the Premises.
(c) In the event of suspected mold or Mold Conditions at the Premises, Landlord may cause
an inspection of the Premises to be conducted, during such time as Landlord may designate, to
determine if mold or Mold Conditions are present at the Premises.
24.2.6
Surrender
.
Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of (a) mold, Mold Conditions, debris,
waste and (b) Hazardous Substances placed on, about or near the Premises by Tenant or any
Tenant Parties, and in a condition which complies with all Environmental Laws and any
additional requirements of Landlord that are reasonably necessary to protect the value of the
Premises or the Project, including, without limitation, the obtaining of any closure permits
or other governmental permits or approvals related to Tenants use of Hazardous Substances in
or about the Premises. Tenants obligations and liabilities pursuant to the provisions of
this
Section 24.2
shall be in addition to any other surrender requirement in this
Lease and shall survive the expiration or earlier termination of this Lease. If it is
determined by Landlord that the condition of all or any portion of the Premises and/or the
Project is not in compliance with the provisions of this Lease with respect to Hazardous
Substances, including, without limitation, all Environmental Laws, at the expiration or
earlier termination of this Lease, then at Landlords
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sole option, Landlord may require Tenant
to hold over possession of the Premises until Tenant can surrender the Premises to Landlord in
the condition in which the Premises existed as of the Lease Commencement Date and prior to the
appearance of such Hazardous Substances except for normal wear and tear, including, without
limitation, the conduct or performance of any closures as required by any Environmental Laws.
The burden of proof hereunder shall be upon Tenant. For purposes of this Lease, the terms
normal wear and tear, reasonable wear and tear or similar phrases shall not include any
deterioration in the condition or diminution of the value of any portion of the Premises
and/or the Project in any manner whatsoever related to directly, or indirectly, Hazardous
Substances. Any such holdover by Tenant will be with Landlords consent, will not be
terminable by Tenant in any event or circumstance and will otherwise be subject to the
provisions of
Article 16
of this Lease.
24.2.7
Definitions
.
As used in this Lease, the following terms shall be defined
as follows:
(a)
Hazardous Substances
means (1) any substance or material that is included within
the definitions of hazardous substances, hazardous materials, toxic substances,
pollutant, contaminant, hazardous waste, or solid waste in any Environmental Law (as
hereinafter defined); (2) petroleum or petroleum derivatives, including crude oil or any
fraction thereof, all forms of natural gas, and petroleum products or by-products or waste;
(3) polychlorinated biphenyls (PCBs); (4) asbestos and asbestos containing materials (whether
friable or non-friable); (5) lead and lead based paint or other lead containing materials
(whether friable or non-friable); (6) urea formaldehyde; (7) microbiological pollutants; (8)
batteries or liquid solvents or similar chemicals; (9) radon gas; (10) mildew, fungus, mold,
bacteria and/or other organic spore material, whether or not airborne, colonizing, amplifying
or otherwise; and (11) any additional substance, material or waste (A) the presence of which
on or about the Premises (i) requires reporting, investigation or remediation under any
Environmental Laws, (ii) causes or threatens to cause a nuisance on the Premises or any adjacent area
or property or poses or threatens to pose a hazard to the health or safety of persons on the
Premises or any adjacent area or property, or (iii) which, if it emanated or migrated from the
Premises, could constitute a trespass, or (B) which is now or is hereafter classified or
considered to be hazardous or toxic under any Environmental Laws.
(b)
Environmental Laws
means all statutes, terms, conditions, limitations,
restrictions, standards, prohibitions, obligations, schedules, plans and timetables that are
contained in or promulgated pursuant to any federal, state or local laws (including rules,
regulations, ordinances, codes, judgments, orders, decrees, contracts, permits, stipulations,
injunctions, the common law, court opinions, and demand or notice letters issued, entered,
promulgated or approved thereunder), relating to pollution or the protection of the
environment, including laws relating to emissions, discharges, releases or threatened releases
of Hazardous Substances into ambient air, surface water, ground water or lands or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances including but not limited to the: Comprehensive
Environmental Response Compensation and Liability Act of 1980 (CERCLA), as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. 9601
et seq
.; Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA),
42 U.S.C. 6901
et
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seq
.; Federal Water Pollution Control Act, 33 U.S.C. 1251
et seq
.; Toxic
Substances Control Act, 15 U.S.C. 2601
et seq
.; Clean Air Act, 42 U.S.C. 7401
et seq
.; and the
Safe Drinking Water Act, 42 U.S.C. § 300f
et seq
.
Environmental Laws
shall include any
statutory or common law that has developed or develops in the future regarding mold, fungus,
microbiological pollutants, mildew, bacteria and/or other organic spore material.
Environmental Laws
shall not include laws relating to industrial hygiene or worker safety,
except to the extent that such laws address asbestos and asbestos containing materials
(whether friable or non-friable) or lead and lead based paint or other lead containing
materials.
24.3
Survival
.
Tenants obligations under this
Section 24.2
shall
survive the expiration or earlier termination of this Lease until all Claims within the scope
of this
Section 24.2
are fully, finally, and absolutely barred by the applicable
statutes of limitations.
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be received by
Landlord or Landlords designee within five (5) business days after Tenants receipt of
written notice from Landlord that said amount is due, then Tenant shall pay to Landlord a late
charge equal to five percent (5%) of the overdue amount plus any reasonable attorneys fees
incurred by Landlord by reason of Tenants failure to pay Rent and/or other charges when due
hereunder. The late charge shall be deemed Additional Rent and the right to require it shall
be in addition to all of Landlords other rights and remedies hereunder or at law and shall
not be construed as liquidated damages or as limiting Landlords remedies in any manner. In
addition to the late charge described above, any Rent or other amounts owing hereunder which
are not paid within ten (10) days after the date they are due shall bear interest from the
date when due until paid at a rate per annum (
Interest Rate
) equal to the lesser of (i) the annual Bank Prime Loan
rate cited in the Federal Reserve Statistical Release Publication G.13(415), published on the
first Tuesday of each calendar month (or such other comparable index as Landlord and Tenant
shall reasonably agree upon if such rate ceases to be published) plus two (2) percentage
points, or (ii) the highest rate permitted by applicable law. In the event that Tenant shall
fail to timely pay Rent when due more than twice in any twelve (12) month period, at
Landlords option, notwithstanding anything contained in this Lease to the contrary, Tenant
shall thereafter be required to pay all Base Rent and estimated Direct Expenses due under this
Lease quarterly in advance. Notwithstanding the foregoing, Landlord will not assess a late
charge until Landlord has given written notice of such late payment for the first late payment
in any twelve (12) month period and after Tenant has not cured such late payment within three
(3) days from receipt of such notice. No other notices will be required during the following
twelve (12) months for a late charge to be incurred.
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ARTICLE 26
LANDLORDS RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1
Landlords Cure
. All covenants and agreements to be kept or performed by
Tenant under this Lease shall be performed by Tenant at Tenants sole cost and expense and
without any reduction of Rent, except to the extent, if any, otherwise expressly provided
herein. If Tenant shall fail to perform any obligation under this Lease, and such failure
shall continue in excess of the time allowed under
Section 19.1.2
, above, unless a
specific time period is otherwise stated in this Lease, Landlord may, but shall not be
obligated to, make any such payment or perform any such act on Tenants part without waiving
its rights based upon any default of Tenant and without releasing Tenant from any obligations
hereunder.
26.2
Tenants Reimbursement
. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, upon delivery by Landlord to Tenant of
statements therefor: (i) sums equal to expenditures reasonably made and obligations incurred
by Landlord in connection with the remedying by Landlord of Tenants defaults pursuant to the
provisions of
Section 26.1
; (ii) sums equal to all losses, costs, liabilities, damages
and expenses referred to in
Article 10
of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or attempting to collect
the Rent or in enforcing or attempting to enforce any rights of Landlord under this Lease or
pursuant to law, including, without limitation, all reasonable legal fees and other amounts so
expended. Tenants obligations under this
Section 26.2
shall survive the expiration
or sooner termination of the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon twenty-four (24) hours
notice to Tenant (except in the case of an emergency) to enter the Premises to (i) inspect
them; (ii) show the Premises to prospective purchasers, or to current or prospective
mortgagees, ground or underlying lessors or insurers or, during the last nine (9) months of
the Lease Term, to prospective tenants; (iii) post notices of nonresponsibility; or (iv)
alter, improve or repair the Premises, or for structural alterations, repairs or improvements to the Premises or the
Buildings systems and equipment. Notwithstanding anything to the contrary contained in this
Article 27
, Landlord may enter the Premises at any time to (A) perform services
required of Landlord, including janitorial service; (B) take possession due to any breach of
this Lease in the manner provided herein; and (C) perform any covenants of Tenant which Tenant
fails to perform. Landlord may make any such entries without the abatement of Rent, except as
otherwise provided in this Lease, and may take such reasonable steps as required to accomplish
the stated purposes. Tenant hereby waives any claims for damages or for any injuries or
inconvenience to or interference with Tenants business, lost profits, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the
above purposes, Landlord shall at all times have a key with which to unlock all the doors in
the Premises, excluding Tenants vaults, safes and special security areas designated in
advance by Tenant. In an emergency, Landlord shall have the right to use any means that
Landlord may deem proper to
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open the doors in and to the Premises. Any entry into the Premises by Landlord in the
manner hereinbefore described shall not be deemed to be a forcible or unlawful entry into, or
a detainer of, the Premises, or an actual or constructive eviction of Tenant from any portion
of the Premises. No provision of this Lease shall be construed as obligating Landlord to
perform any repairs, alterations or decorations except as otherwise expressly agreed to be
performed by Landlord herein.
ARTICLE 28
TENANT PARKING
Tenant shall have the non-exclusive right to park in the Projects parking facilities in
common with other tenants of the Project upon terms and conditions, as may from time to time
be established by Landlord. Tenant agrees not to use more than the number of unassigned
parking stalls set forth in
Section 9
of the Summary, and agrees to cooperate with
Landlord and other tenants in the Project in the use of the parking facilities. Landlord
reserves the right in its discretion to determine whether the parking facilities are becoming
crowded and to allocate and assign parking passes among Tenant and the other tenants in the
Project. Tenants use of the parking facilities shall be at no charge, provided that Landlord
shall have the right to charge Tenant the portion that Landlord deems allocable to Tenant of
any charges (e.g., fees or taxes) imposed by the Regional Air Quality Control Board or other
governmental or quasi-governmental agency in connection with the parking facilities (
e.g.,
in
connection with operation or use of the parking facilities). Landlord shall not be liable to
Tenant, nor shall this Lease be affected, if any parking is impaired by (or if any parking
charges are imposed as a result of) any moratorium, initiative, referendum, law, ordinance,
regulation or order passed, issued or made by any governmental or quasi-governmental body.
Tenants continued right to use the parking stalls is conditioned upon Tenants abiding by all
rules and regulations which are prescribed from time to time for the orderly operation and use
of the parking facility (including any sticker or other identification system established by
Landlord and the prohibition of vehicle repair and maintenance activities in the Projects
parking facilities), Tenants cooperation in seeing that Tenants employees and visitors also
comply with such rules and regulations and Tenant not being in default under this Lease.
Tenants use of the Project parking facility shall be at Tenants sole risk and Tenant acknowledges and agrees that Landlord shall have no liability
whatsoever for damage to the vehicles of Tenant, its employees and/or visitors, or for other
personal injury or property damage or theft relating to or connected with the parking rights
granted herein or any of Tenants, its employees and/or visitors use of the parking
facilities. Tenants rights hereunder are subject to the terms of any Underlying Documents.
Landlord specifically reserves the right to change the size, configuration, design, layout and
all other aspects of the Project parking facility at any time and Tenant acknowledges and
agrees that Landlord may, without incurring any liability to Tenant and without any abatement
of Rent under this Lease, from time to time, close-off or restrict access to the Project
parking facility for purposes of permitting or facilitating any such construction, alteration
or improvements. Landlord may delegate its responsibilities hereunder to a parking operator
in which case such parking operator shall have all the rights of control attributed hereby to
the Landlord. Tenants parking rights pursuant to this
Article 28
are solely for the
benefit of Tenants own personnel and such rights may not be transferred, assigned, subleased
or otherwise alienated by Tenant without Landlords prior approval.
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ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1
Terms; Captions
. The words
Landlord
and
Tenant
as used herein shall
include the plural as well as the singular. The necessary grammatical changes required to
make the provisions hereof apply either to corporations or partnerships or individuals, men or
women, as the case may require, shall in all cases be assumed as though in each case fully
expressed. The captions of Articles and Sections are for convenience only and shall not be
deemed to limit, construe, affect or alter the meaning of such Articles and Sections. Unless
the context clearly requires otherwise, (a) the plural and singular numbers will each be
deemed to include the other; (b) the masculine, feminine, and neuter genders will each be
deemed to include the others; (c) shall, will, must, agrees, and covenants are each
mandatory; (d) may is permissive; (e) or is not exclusive; and (f) whenever the words
include, includes or including are used in this Lease, they shall be deemed, as the
context indicates, to be followed by the words but (is/are) not limited to. Where specific
language is used to clarify or illustrate by example a general statement contained herein,
such specific language shall not be deemed to modify, limit or restrict the construction of
the general statement which is being clarified or illustrated.
29.2
Binding Effect
. Subject to all other provisions of this Lease, each of the
covenants, conditions and provisions of this Lease shall extend to and shall, as the case may
require, bind or inure to the benefit not only of Landlord and of Tenant, but also of their
respective heirs, personal representatives, successors or assigns, provided this clause shall
not permit any assignment by Tenant contrary to the provisions of
Article 14
of this
Lease.
29.3
No Air Rights
. No rights to any view or to light or air over any property,
whether belonging to Landlord or any other person, are granted to Tenant by this Lease. If at
any time any windows of the Premises are temporarily darkened or the light or view therefrom
is obstructed by reason of any repairs, improvements, maintenance or cleaning in or about the
Project, the same shall be without liability to Landlord and without any reduction or
diminution of Tenants obligations under this Lease.
29.4
Modification of Lease
. Should any current or prospective mortgagee or ground
lessor for the Building or Project require a modification of this Lease, which modification
will not cause an increased cost or expense to Tenant or in any other way materially and
adversely change the rights and obligations of Tenant hereunder, then and in such event,
Tenant agrees that this Lease may be so modified and agrees to execute whatever documents are
reasonably required therefor and to deliver the same to Landlord within ten (10) business days
following a request therefor. At the request of Landlord or any mortgagee or ground lessor,
Tenant agrees to execute a short form of Lease and deliver the same to Landlord within ten
(10) business days following the request therefor.
29.5
Transfer of Landlords Interest
. Tenant acknowledges that Landlord has the
right to transfer all or any portion of its interest in the Project or Building and in this
Lease, and Tenant agrees that in the event of any such transfer, Landlord shall automatically
be released
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from all liability under this Lease and Tenant agrees to look solely to such transferee
for the performance of Landlords obligations hereunder after the date of transfer and such
transferee shall be deemed to have fully assumed and be liable for all obligations of this
Lease to be performed by Landlord, including the return of any Security Deposit, and Tenant
shall attorn to such transferee.
29.6
Prohibition Against Recording
. Except as provided in
Section 29.4
of
this Lease, neither this Lease, nor any memorandum, affidavit or other writing with respect
thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of
Tenant.
29.7
Landlords Title
. Landlords title is and always shall be paramount to the
title of Tenant. Nothing herein contained shall empower Tenant to do any act which can, shall
or may encumber the title of Landlord.
29.8
Relationship of Parties
. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship of principal
and agent, partnership, joint venturer or any association between Landlord and Tenant.
29.9
Application of Payments
. Landlord shall have the right to apply payments
received from Tenant pursuant to this Lease, regardless of Tenants designation of such
payments, to satisfy any obligations of Tenant hereunder, in such order and amounts as
Landlord, in its sole discretion, may elect.
29.10
Time of Essence
. Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor.
29.11
Partial Invalidity
. If any term, provision or condition contained in this
Lease shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, provision or condition to persons or circumstances other than those
with respect to which it is invalid or unenforceable, shall not be affected thereby, and each
and every other term, provision and condition of this Lease shall be valid and enforceable to the fullest
extent possible permitted by law.
29.12
No Warranty
. In executing and delivering this Lease, Tenant has not relied
on any representations, including, but not limited to, any representation as to the amount of
any item comprising Additional Rent or the amount of the Additional Rent in the aggregate or
that Landlord is furnishing the same services to other tenants, at all, on the same level or
on the same basis, or any warranty or any statement of Landlord which is not set forth herein
or in one or more of the exhibits attached hereto.
29.13
Landlord Exculpation
. The liability of Landlord or the Landlord Parties to
Tenant for any default by Landlord under this Lease or arising in connection herewith or with
Landlords operation, management, leasing, repair, renovation, alteration or any other matter
relating to the Project or the Premises shall be limited solely and exclusively to an amount
which is equal to the lesser of (a) the interest of Landlord in the Building or (b) the equity
interest Landlord would have in the Building if the Building were encumbered by third-party
debt in an
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amount equal to eighty percent (80%) of the value of the Building (as such value is
determined by Landlord), provided that in no event shall such liability extend to any sales or
insurance proceeds received by Landlord or the Landlord Parties in connection with the Project
or the Premises. Neither Landlord, nor any of the Landlord Parties shall have any personal
liability therefor, and Tenant hereby expressly waives and releases such personal liability on
behalf of itself and all persons claiming by, through or under Tenant. The limitations of
liability contained in this
Section 29.13
shall inure to the benefit of Landlords and
the Landlord Parties present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners, heirs, successors
and assigns. Under no circumstances shall any present or future partner of Landlord (if
Landlord is a partnership), or trustee or beneficiary (if Landlord or any partner of Landlord
is a trust), have any liability for the performance of Landlords obligations under this
Lease. Notwithstanding any contrary provision herein, neither Landlord nor the Landlord
Parties shall be liable under any circumstances for injury or damage to, or interference with,
Tenants business, including but not limited to, loss of profits, loss of rents or other
revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however
occurring.
29.14
Entire Agreement
. It is understood and acknowledged that there are no oral
agreements between the parties hereto affecting this Lease and this Lease constitutes the
parties entire agreement with respect to the leasing of the Premises and supersedes and
cancels any and all previous negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto or displayed by Landlord to Tenant with
respect to the subject matter thereof, and none thereof shall be used to interpret or construe
this Lease. None of the terms, covenants, conditions or provisions of this Lease can be
modified, deleted or added to except in writing signed by the parties hereto.
29.15
Right to Lease
. Landlord reserves the absolute right to effect such other
tenancies in the Project as Landlord in the exercise of its sole business judgment shall
determine to best promote the interests of the Building or Project. Tenant does not rely on
the fact, nor does Landlord represent, that any specific tenant or type or number of tenants shall, during
the Lease Term, occupy any space in the Building or Project.
29.16
Force Majeure
. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, acts of war, terrorist acts, inability to obtain services, labor,
or materials or reasonable substitutes therefor, governmental actions, civil commotions, fire
or other casualty, and other causes beyond the reasonable control of the party obligated to
perform, except with respect to the obligations imposed with regard to Rent and other charges
to be paid by Tenant pursuant to this Lease (collectively, a
Force Majeure
), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance of such party
for a period equal to any such prevention, delay or stoppage and, therefore, if this Lease
specifies a time period for performance of an obligation of either party, that time period
shall be extended by the period of any delay in such partys performance caused by a Force
Majeure; provided, however, that nothing contained in this
Section 29.16
shall (a)
permit Tenant to holdover in the Premises after the expiration or earlier termination of this
Lease, or (b) relieve Tenant from any obligation required to be performed by Tenant hereunder
if Tenants failure to perform such obligation
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would constitute a breach under
Article
5
or
Article 24
above, or would interfere with any other tenant of the Projects
use, occupancy or enjoyment of its respective premises or the Project.
29.17
Waiver of Redemption by Tenant
. Tenant hereby waives, for Tenant and for
all those claiming under Tenant, any and all rights now or hereafter existing to redeem by
order or judgment of any court or by any legal process or writ, Tenants right of occupancy of
the Premises after any termination of this Lease.
29.18
Notices
. All notices, demands, statements, designations, approvals or
other communications (collectively,
Notices
) given or required to be given by either party
to the other hereunder or by law shall be in writing, shall be (A) sent by United States
certified or registered mail, postage prepaid, return receipt requested (
Mail
), (B)
transmitted by telecopy, if such telecopy is promptly followed by a Notice sent by Mail, (C)
delivered by a nationally recognized overnight courier, or (D) delivered personally. Any
Notice shall be sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in
Section 10
of the Summary, or to such other place as
Tenant may from time to time designate in a Notice to Landlord, or to Landlord at the
addresses set forth below, or to such other places as Landlord may from time to time designate
in a Notice to Tenant. Any Notice will be deemed given (i) three (3) days after the date it
is posted if sent by Mail, (ii) the date the telecopy is transmitted,
(iii) the date the overnight courier delivery is made, or (iv) the date personal delivery is
made. As of the date of this Lease, any Notices to Landlord must be sent, transmitted, or
delivered, as the case may be, to the following addresses:
Carr NP Properties, L.L.C.
1810 Gateway Drive, Suite 150
San Mateo, CA 94404
Attn: Market Officer
and
Blackstone Real Estate Advisors
345 Park Avenue
New York, NY 10154
Attn: Marshall Findley, Managing Director
and
Coblentz Patch Duffy & Bass, LLP
One Ferry Building, Suite 200
San Francisco, California 94111
Attention: Alan C. Gennis, Esq.
29.19
Joint and Several
. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
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29.20
Authority
. If Tenant is a corporation, trust or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and warrants that Tenant
is a duly formed and existing entity qualified to do business in California and that Tenant
has full right and authority to execute and deliver this Lease and that each person signing on
behalf of Tenant is authorized to do so. In such event, Tenant shall, within ten (10) days
after execution of this Lease, deliver to Landlord satisfactory evidence of such authority
and, if a corporation, upon demand by Landlord, also deliver to Landlord satisfactory evidence
of (i) good standing in Tenants state of incorporation and (ii) qualification to do business
in California.
29.21
Tenant Representations and Warranties
. Tenant hereby makes the following
representations and warranties, each of which is material and being relied upon by Landlord,
is true in all respects as of the date of this Lease, and shall survive the expiration or
termination of this Lease. Tenant shall re-certify such representations and warranties to
Landlord periodically, upon Landlords reasonable request.
29.21.1 If Tenant is an entity, Tenant is duly organized, validly existing and in good
standing under the laws of the state of its organization and is qualified to do business in
the state in which the Premises are located and the persons executing this Lease on behalf of
Tenant have the full right and authority to execute this Lease on behalf of Tenant and to bind
Tenant without the consent or approval of any other person or entity. Tenant has full power,
capacity, authority and legal right to execute and deliver this Lease and to perform all of
its obligations hereunder. This Lease is a legal, valid and binding obligation of Tenant,
enforceable in accordance with its terms.
29.21.2 Tenant has not (a) made a general assignment for the benefit of creditors, (b)
filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition
by any creditors, (c) suffered the appointment of a receiver to take possession of all or
substantially all of its assets, (d) suffered the attachment or other judicial seizure of all
or substantially all of its assets, (e) admitted in writing its inability to pay its debts as
they come due, or (f) made an offer of settlement, extension or composition to its creditors
generally.
29.21.3 Tenant is not in violation of any Anti-Terrorism Law;
29.21.4 Tenant is not, as of the date hereof:
(a) conducting any business or engaging in any transaction or dealing with any Prohibited
Person, including the making or receiving of any contribution of funds, goods or services to
or for the benefit of any Prohibited Person;
(b) dealing in, or otherwise engaging in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224; or
(c) engaging in or conspiring to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth
in, any Anti-Terrorism Law; and
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29.21.5 neither Tenant nor any of its affiliates, officers, directors, shareholders,
members or lease guarantor, as applicable, is a Prohibited Person.
As used herein,
Anti-Terrorism Law
is defined as any law relating to terrorism,
anti-terrorism, money-laundering or anti-money laundering activities, including without
limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act
of 1986, Executive Order No. 13224, and Title 3 of the USA Patriot Act, and any regulations
promulgated under any of them. As used herein
Executive Order No. 13224
is defined as
Executive Order No. 13224 on Terrorist Financing effective September 24, 2001, and relating to
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit,
or Support Terrorism, as may be amended from time to time.
Prohibited Person
is defined as
(1) a person or entity that is listed in the Annex to Executive Order No. 13224, or a person
or entity owned or controlled by an entity that is listed in the Annex to Executive Order No.
13224; (2) a person or entity with whom Landlord is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law; or (3) a person or entity that is named
as a specially designated national and blocked person on the most current list published by
the U.S. Treasury Department Office of Foreign Assets Control at its official website,
http://www.treas.gov/ofac/t11sdn.pdf or at any replacement website or other official
publication of such list.
USA Patriot Act
is defined as the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Public Law 107-56), as may be amended from time to time.
29.22
Landlord Representations and Warranties
. Landlord hereby makes the
following representations and warranties, each of which is material and being relied upon by
Tenant, is true in all respects as of the date of this Lease, and shall survive the expiration
or termination of this Lease.
29.22.1 If Landlord is an entity, Landlord is duly organized, validly existing and in
good standing under the laws of the state of its organization and is qualified to do business
in the state in which the Premises are located and the persons executing this Lease on behalf
of Landlord have the full right and authority to execute this Lease on behalf of Landlord and
to bind Landlord. Landlord has full power, capacity, authority and legal right to execute and
deliver this Lease and to perform all of its obligations hereunder. This Lease is a legal,
valid and binding obligation of Landlord, enforceable in accordance with its terms.
29.22.2 Landlord has not (a) made a general assignment for the benefit of creditors, (b)
filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition
by any creditors, (c) suffered the appointment of a receiver to take possession of all or
substantially all of its assets, (d) suffered the attachment or other judicial seizure of all
or substantially all of its assets, (e) admitted in writing its inability to pay its debts as
they come due, or (f) made an offer of settlement, extension or composition to its creditors
generally.
29.23
Attorneys Fees
. In any lawsuit, action, arbitration, quasi-judicial
proceeding, administrative proceeding, or any other proceeding brought by either party to
enforce any of such partys rights or remedies under this Lease, and/or any covenant therein,
including any action or proceeding for damages, unlawful detainer, declaratory relief, breach
of lease, and/or
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any other action or proceeding to collect any payments required under this Lease, to
enforce this Lease, or to quiet title against the other party, the prevailing party shall be
entitled to reasonable attorneys fees and all costs, expenses and disbursements in connection
with such action or proceeding, including, but not limited to, all costs of reasonable
investigation, and all costs associated with expert witnesses and expert consultation, which
sums may be included in any judgment or decree entered in such action in favor of the
prevailing party. In addition, Tenant shall pay all attorneys fees and other fees and costs,
including, but not limited to, investigative costs and expert witness and consultant fees and
costs, that Landlord incurs in enforcing the monetary obligations of Tenant under this Lease
and/or any monetary covenant herein where an action or proceeding is not brought. Tenant also
shall pay all attorneys fees and other fees and costs, including but not limited to,
investigative costs and expert witness and consultant fees and costs, that Landlord incurs in
enforcing, defending, or interpreting this Lease, or otherwise protecting Landlords rights
under this Lease, in any voluntary or involuntary bankruptcy case, assignment for the benefit
of creditors, or other insolvency, liquidation, or reorganization proceeding involving Tenant
or this Lease, including, but not limited to, all motions and proceedings regarding or related
to relief from the automatic stay, lease assumption or rejection and/or extensions of time
related thereto, lease designation, use of cash collateral, claim objections, and disclosure
statements and plans of reorganization.
29.24
Governing Law; WAIVER OF TRIAL BY JURY
. This Lease shall be construed and
enforced in accordance with the laws of the State of California. IN
GRAFTON PARTNERS L.P.
v. SUPERIOR COURT
, 36 CAL. 4TH 944 (2005), THE CALIFORNIA SUPREME COURT RULED THAT
CONTRACTUAL, PRE-DISPUTE JURY TRIAL WAIVERS ARE UNENFORCEABLE. THE PARTIES, HOWEVER,
ANTICIPATE THAT THE CALIFORNIA LEGISLATURE MAY ENACT LEGISLATION TO PERMIT SUCH WAIVERS IN
CERTAIN CASES. IN ANTICIPATION OF SUCH LEGISLATION, LANDLORD AND TENANT HEREBY WAIVE, AS OF
THE EFFECTIVE DATE OF SUCH LEGISLATION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE OR ANY EMERGENCY OR STATUTORY REMEDY. IN THE
EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR
ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION
(UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION, BUT SHALL BE
RELEGATED TO AN INDEPENDENT ACTION AT LAW. IN ADDITION, IN ANY ACTION OR PROCEEDING ARISING
HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE JURISDICTION OF ANY COMPETENT COURT
WITHIN THE STATE OF CALIFORNIA, AND (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY
CALIFORNIA LAW. THE PROVISIONS OF THIS SECTION 29.23 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
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29.25
Submission of Lease
. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of, option for or option to lease, and
it is not effective as a lease or otherwise until execution and delivery by both Landlord and
Tenant.
29.26
Brokers
. Landlord and Tenant hereby warrant to each other that they have
had no dealings with any real estate broker or agent in connection with the negotiation of
this Lease, excepting only Tenants Broker specified in
Section 13
of the Summary, and
that they know of no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Each party agrees to indemnify and defend the other party against
and hold the other party harmless from any and all claims, demands, losses, liabilities,
lawsuits, judgments, costs and expenses (including without limitation reasonable attorneys
fees) with respect to any leasing commission or equivalent compensation alleged to be owing on
account of any dealings with any real estate broker or agent, other than Tenants Broker,
occurring by, through, or under the indemnifying party. Landlord shall pay Tenants Broker a
leasing commission pursuant Paragraph 8 of the Letter of Intent dated March 9, 2007.
29.27
Independent Covenants
. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent and Tenant
hereby expressly waives the benefit of any statute to the contrary and agrees that if Landlord
fails to perform its obligations set forth herein, Tenant shall not be entitled to make any
repairs or perform any acts hereunder at Landlords expense or to any setoff of the Rent or
other amounts owing hereunder against Landlord.
29.28
Project or Building Name and Signage
. Landlord shall have the right at any
time to change the name of the Project or Building and to install, affix and maintain any and
all signs on the exterior and on the interior of the Project or Building as Landlord may, in
Landlords reasonable discretion, desire. Tenant shall not use the name of the Project or
Building or use pictures or illustrations of the Project or Building in advertising or other
publicity or for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.
29.29
Counterparts
. This Lease may be executed in counterparts with the same
effect as if both parties hereto had executed the same document. Both counterparts shall be
construed together and shall constitute a single lease.
29.30
Confidentiality
. Tenant acknowledges that the content of this Lease and
any related documents are confidential information. Tenant shall keep such confidential
information strictly confidential and shall not disclose such confidential information to any
person or entity other than Tenants financial, legal, and space planning consultants.
29.31
Building Renovations
. It is specifically understood and agreed that
Landlord has no obligation and has made no promises to alter, remodel, improve, renovate,
repair or decorate the Premises or any part thereof and that no representations respecting the
condition of the Premises have been made by Landlord to Tenant except as specifically set
forth herein. However, Tenant hereby acknowledges that Landlord is currently renovating or may
during the Lease Term renovate, improve, alter, or modify (collectively, the
Renovations
)
the Project
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and/or the Premises. Tenant hereby agrees that such Renovations shall in no way
constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent.
Landlord shall have no responsibility and shall not be liable to Tenant for any injury to or
interference with Tenants business arising from the Renovations, nor shall Tenant be entitled
to any compensation or damages from Landlord for loss of the use of the whole or any part of
the Premises or of Tenants personal property or improvements resulting from the Renovations,
or for any inconvenience or annoyance occasioned by such Renovations.
29.32
No Violation
. Tenant hereby warrants and represents that neither its
execution of nor performance under this Lease shall cause Tenant to be in violation of any
agreement, instrument, contract, law, rule or regulation by which Tenant is bound, and Tenant
shall protect, defend, indemnify and hold Landlord harmless against any Claims arising from
Tenants breach of this warranty and representation.
29.33
Communications and Computer Lines
. Tenant may install, maintain, replace,
remove or use any communications or computer wires and cables serving the Premises
(collectively, the
Lines
), provided that (i) Tenant shall obtain Landlords prior written
consent, use an experienced and qualified contractor approved in writing by Landlord, and
comply with all of the other provisions of
Articles 7
and
8
of this Lease,
(ii) an acceptable number of spare Lines and space for additional Lines shall be maintained
for existing and future occupants of the Project, as determined in Landlords reasonable
opinion, (iii) the Lines therefor (including riser cables) shall be appropriately insulated to
prevent excessive electromagnetic fields or radiation, shall be surrounded by a protective
conduit reasonably acceptable to Landlord, and shall be identified in accordance with the
Identification Requirements, as that term is set forth hereinbelow, (iv) any new or existing
Lines servicing the Premises shall comply with all applicable governmental laws and
regulations, (v) as a condition to permitting the installation of new Lines, Landlord may
require that Tenant remove existing Lines located in or serving the Premises and repair any
damage in connection with such removal, and (vi) Tenant shall pay all costs in connection
therewith. All Lines shall be clearly marked with adhesive plastic labels (or plastic tags
attached to such Lines with wire) to show Tenants name, suite number, telephone number and
the name of the person to contact in the case of an emergency (A) every four feet (4) outside
the Premises (specifically including, but not limited to, the electrical room risers and other
Common Areas), and (B) at the Lines termination point(s) (collectively, the
Identification
Requirements
). Unless otherwise instructed by Landlord (by notice to Tenant), Tenant shall,
at Tenants sole cost and expense, prior to the expiration or earlier termination of this
Lease, remove any Lines located in or serving the Premises (and repair any resulting damage).
29.34
Transportation Management
. Tenant shall fully comply with all present or
future programs intended to manage parking, transportation or traffic in and around the
Project and/or the Building, and in connection therewith, Tenant shall take responsible action
for the transportation planning and management of all employees located at the Premises by
working directly with Landlord, any governmental transportation management organization or any
other transportation-related committees or entities. Such programs may include, without
limitation: (i) restrictions on the number of peak-hour vehicle trips generated by Tenant;
(ii) increased vehicle occupancy; (iii) implementation of an in-house ridesharing program and
an employee
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56
transportation coordinator; (iv) working with employees and any Project, Building or
area-wide ridesharing program manager; (v) instituting employer-sponsored incentives
(financial or in-kind) to encourage employees to rideshare; and (vi) utilizing flexible work
shifts for employees.
29.35
Development of the Project
.
29.35.1
Subdivision
. Landlord reserves the right to further subdivide all or a
portion of the Project. Tenant agrees to execute and deliver, upon demand by Landlord and in
the form requested by Landlord, any additional documents needed to conform this Lease to the
circumstances resulting from such subdivision.
29.35.2
Other Improvements
. If portions of the Project or property adjacent to
the Project (collectively, the
Other Improvements
) are owned by an entity other than
Landlord, Landlord, at its option, may enter into an agreement with the owner or owners of any
or all of the Other Improvements to provide (i) for reciprocal rights of access and/or use of
the Project and the Other Improvements, (ii) for the common management, operation,
maintenance, improvement and/or repair of all or any portion of the Project and the Other
Improvements, provided that Tenants rights under this Lease are not materially impaired,
(iii) for the allocation of a portion of the Direct Expenses to the Other Improvements and the
operating expenses and taxes for the Other Improvements to the Project, and (iv) for the use
or improvement of the Other Improvements and/or the Project in connection with the
improvement, construction, and/or excavation of the Other Improvements and/or the Project.
Nothing contained herein shall be deemed or construed to limit or otherwise affect Landlords
right to convey all or any portion of the Project or any other of Landlords rights described
in this Lease.
29.35.3
Construction of Project and Other Improvements
. Tenant acknowledges that
portions of the Project and/or the Other Improvements may be subject to demolition or
construction following Tenants occupancy of the Premises, and that such construction may
result in levels of noise, dust, obstruction of access, etc. which are in excess of that
present in a fully constructed project. Tenant hereby waives any and all rent offsets or
claims of constructive eviction which may arise in connection with such demolition or
construction.
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57
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed the day and date
first above written.
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LANDLORD
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TENANT
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CARR NP PROPERTIES, L.L.C.,
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SHORETEL, INC .
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a Delaware limited liability company
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a California corporation
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By:
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/s/ JOHN COMBS
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By:
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/s/ JOHN MOE
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John Combs
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John Moe
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Print Name
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Managing Director
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Its:
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CEO
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[chairman, president or vice-president]
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By:
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/s/ JOHN FINEGAN
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John Finegan
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Print Name
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Its:
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SECRETARY
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[secretary, assistant secretary, chief
financial officer or assistant treasurer]
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58
EXHIBIT A
OAKMEAD WEST
OUTLINE OF PREMISES
See Attached
EXHIBIT A
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OAKMEAD WEST
ShoreTel, Inc.
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1
EXHIBIT B
OAKMEAD WEST
ALTERATIONS TO BE REMOVED BY TENANT
See Attached
EXHIBIT B
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1
EXHIBIT C
OAKMEAD WEST
NOTICE OF LEASE TERM DATES
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To:
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Carr NP Properties, L.L.C.
1810 Gateway Drive, Suite 150
San Mateo, CA 94404
Attn: Market Officer
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Re:
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Office Lease dated April 20,
2007, between
CARR NP PROPERTIES, L.L.C.,
a Delaware limited liability company (
Landlord
),
and
SHORETEL, INC.
, a California corporation
(
Tenant
) concerning 960 Stewart Drive, Sunnyvale, California.
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Gentlemen:
In accordance with the Office Lease (the
Lease
), we wish to advise you and/or confirm
as follows:
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1.
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The Lease Term shall commence on or has commenced on October 6, 2007 for a
term of approximately two (2) years ending on September 30, 2009.
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2.
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Monthly Base Rent commenced to accrue on October 6, 2007, in the amount of
$117,994.85.
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3.
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If the Lease Commencement Date is other than the first day of the month,
the first billing will contain a pro rata adjustment. Each billing thereafter
shall be for the full amount of the monthly installment as provided for in the
Lease.
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4.
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Your rent checks should be made payable to Carr NP Properties, L.L.C. at
the following address:
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Carr NP Properties, L.L.C.
f/b/o German American Capital Corporation
as secured party, Collection Account
P.O. Box 642922
Pittsburgh, PA
15264-2922 /s/
Jeff Martin
EXHIBIT C
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OAKMEAD WEST
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1
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Or by wire transfer or ACH as follows:
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Bank:
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PNC Bank, NA
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Account Name:
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Carr NP Properties, L.L.C. f/b/o German American
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Capital Corporation as secured party, Collection Account
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Account No.:
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1019785375
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ABA No.:
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043000096
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Reference
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642922
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Customer No.
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TBD
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5.
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The exact number of rentable square feet within the Premises is 63,781
rentable square feet.
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6.
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Tenants Share is 100%.
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Landlord:
CARR NP PROPERTIES, L.L.C.,
a Delaware limited liability company
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By:
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/s/
JOHN MOE
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John Moe
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Managing Director
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Agreed to and Accepted as
of May 1, 2007.
Tenant:
SHORETEL, INC.
, a
California corporation
By:
/s/ JOHN COMBS
Its:
CEO
EXHIBIT
C
OAKMEAD WEST
ShoreTel, Inc.
2
EXHIBIT D
OAKMEAD WEST
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and Regulations.
Landlord shall not be responsible to Tenant for the nonperformance of any of said Rules and
Regulations by or otherwise with respect to the acts or omissions of any other tenants or
occupants of the Project. In the event of any conflict between the Rules and Regulations and
the other provisions of this Lease, the latter shall control.
1. Tenant shall not place anything, or allow anything to be placed near the glass of any
window, door, partition or wall which may, in Landlords judgment, appear unsightly from
outside of the Building, except as provided in the Lease.
2. The sidewalks, exits and entrances located in the common areas of the Project shall
not be obstructed by Tenant or used by Tenant for any purposes other than for ingress to and
egress from the Premises. Tenant shall lend its full cooperation to keep such areas free from
all obstruction and in a clean and good condition and shall move all supplies, furniture and
equipment as soon as received directly to the Premises and move all such items and waste being
taken from the Premises (other than waste customarily removed by employees of the Premises)
directly to the shipping platform at or about the time arranged for removal therefrom.
3. Upon termination of the Lease, Tenant shall deliver to Landlord all keys and passes
for offices, rooms, parking lot and toilet rooms which shall have been furnished Tenant. If
the keys so furnished are lost, Tenant shall pay Landlord therefor.
4. Without Landlords prior written consent, which shall not be unreasonably withheld,
Tenant shall not use the name of the Project or any picture of the Project in connection with,
or in promoting or advertising the business of, Tenant, except Tenant may use the address of
the Project as the address of its business.
5. Tenant assumes full responsibility for protecting the Premises from theft, robbery and
pilferage, which may arise from a cause other than Landlords negligence, which includes
keeping doors locked and other means of entry to the Premises closed and secured.
6. No peddlers or solicitors shall be permitted in or about the common areas.
7. Tenant shall not advertise the business, profession or activities of Tenant conducted
in the Project in any manner which violates the letter or spirit of any code of ethics adopted
by any recognized association or organization pertaining to such business, profession or
activities.
8. No equipment, mechanical ventilators, awnings, special shades or other forms of window
covering shall be permitted either inside or outside the windows of the Premises without
Landlords prior written consent, and then only at the expense and risk of Tenant, and they
shall
EXHIBIT D
OAKMEAD WEST
ShoreTel, Inc.
1
be of such shape, color, material, quality, design and make as may be approved by
Landlord, which shall not be unreasonably withheld.
9. Tenant shall promptly remove all rubbish and waste from the Premises.
10. Whenever Landlords consent, approval or satisfaction is required under these Rules,
then unless otherwise stated, any such consent, approval or satisfaction must be obtained in
advance, such consent or approval may be granted or withheld in Landlords reasonable
discretion, and Landlords satisfaction shall be determined in its sole but reasonable
judgment.
Landlord reserves the right at any time to change or rescind any one or more of these
Rules and Regulations, or to make such other and further reasonable Rules and Regulations as
in Landlords judgment may from time to time be necessary for the management, safety, care and
cleanliness of the Premises, the Common Areas and the Project, and for the preservation of
good order therein, as well as for the convenience of other occupants and tenants therein.
Landlord may waive any one or more of these Rules and Regulations for the benefit of any
particular tenants, but no such waiver by Landlord shall be construed as a waiver of such
Rules and Regulations in favor of any other tenant, nor prevent Landlord from thereafter
enforcing any such Rules or Regulations against any or all tenants of the Project. Tenant
shall be deemed to have read these Rules and Regulations and to have agreed to abide by them
as a condition of its occupancy of the Premises.
EXHIBIT D
OAKMEAD WEST
ShoreTel, Inc.
2
EXHIBIT D-1
OAKMEAD WEST
ROOFTOP RULES AND REGULATIONS
1.
Roof Area
. Tenant shall accept the License Area and Cable Path in their condition and as-built configuration existing on the Lease Commencement Date. Landlord
has made no representations or promise as to the suitability or effectiveness of any part of
the roof for Tenants proposed use, or as to any Applicable Requirements applicable to
Tenants proposed use, or as to the condition of (or alteration or improvement of) the License
Area or the Cable Path.
2.
Rooftop Installation Work
. Installation of the Equipment (
Rooftop
Installation Work
) must be performed in a good and workmanlike manner and in accordance with
all Applicable Requirements, and shall be subject to (a) obtaining Landlords prior written
approval of plans and specifications, which approval shall not be unreasonably withheld,
conditioned or delayed, and Tenant acknowledges and agrees that, without limiting the
generality of the foregoing, it shall be reasonable for Landlord to disapprove any Equipment
if it exceeds roof load limitations, or if it exceeds the height of the roof parapet; (b)
obtaining Landlords prior written approval of Tenants contractor for the Rooftop
Installation Work, and such contractor must provide evidence of insurance reasonably
satisfactory to Landlord prior to commencing work in or about the Building; and (c) all
additional requirements under the Lease that apply to Alterations by Tenant. The plans and
specifications for the Equipment shall include, without limitation, the design, size and
features thereof and mounting structure, floor and power load requirements, cabling
installations, the means of affixing or mounting the Equipment, and the means of connecting
the Equipment to the Buildings electrical system and to the interior of the Premises. The
giving of any approval by Landlord shall not eliminate any of Tenants obligations under the
Lease, including, without limitation, Tenants obligation to obtain all required permits and
to comply with all Applicable Requirements. Tenant agrees to pay Landlords reasonable cost
of review and approval of the plans and specifications within thirty (30) days after receipt
of an invoice therefor.
3.
General Requirements
. In addition to the applicable provisions of the Lease,
Tenants use of the roof of the Building is subject to the following general requirements:
(a) Tenant shall provide Landlord with reasonable advance notice prior to commencing
installation of the Equipment or other work on or to the Equipment from time to time, and
agrees to afford Landlord the opportunity to be present for all such work, provided that only
subsequent notice within a reasonable time shall be required in the case of an emergency that
presents an immediate danger. Tenant shall reimburse Landlord for the reasonable cost of any
Landlord representative being present for the performance of such work within thirty (30) days
after receipt of an invoice therefor.
(b) After the initial installation of any Equipment, Tenant shall not make any material
alteration, addition or improvement thereto, without first obtaining Landlords prior written
approval; and any such material alterations, additions or improvements shall be subject to
EXHIBIT D-1
OAKMEAD WEST
ShoreTel, Inc.
1
all the conditions and restrictions that apply to the original Equipment, including,
without limitation, the requirement that Tenant furnish Landlord with detailed plans and
specifications relating to the proposed alterations, additions or improvements.
(c) Landlord shall allow Tenant full access to the roof for the purposes of installation,
maintenance and repair of the Equipment during normal business hours upon Tenants reasonable
advance request, subject to reasonable rules and restrictions of Landlord.
(d) Tenant, at its expense, shall at all times keep the Equipment in good order,
condition and repair, and the Equipment location and the areas immediately surrounding same
neat and clean. With respect to all operations relating to the Equipment, Tenant shall conduct
its business and control other Tenant Parties in such manner as not to create any nuisance, or
interfere with, annoy or disturb Landlord in its operation of the Building.
4.
Services
. Tenant shall be responsible for the cost of supplying electricity to
the Equipment, including without limitation, electricity usage, installation, maintenance and
repair of any Connections and of any separate meter required by Landlord. Electric usage
shall be determined, at Landlords option, either (a) by meter installed by Landlord at
Tenants sole cost and expense, or (b) by Landlords reasonable estimate based upon the
quantity of use by Tenant, the manufacturers specifications for electrical usage of the
Equipment and any other relevant factors. Tenant shall pay Landlord monthly, within thirty
(30) days after being billed therefor, for all electricity used by Tenant or any Tenant
Parties in connection with the operation of the Equipment.
5.
Roof Damage
. Any damage to the roof or any other portion of the Building
resulting from Tenants installation, operation, use, maintenance or removal of the Equipment,
including without limitation, leakage, water damage or damage to the roof membrane, shall be
repaired by Landlord at Tenants sole cost and expense. Tenant shall reimburse Landlord for
any costs and expenses so incurred by Landlord within thirty (30) days after Landlords
written request and copies of invoices therefor. Tenant shall, at Tenants sole cost and
expense, provide protection to the roof membrane as Landlord may reasonably deem necessary so
that such membrane is not damaged in connection with Tenants installation, operation, use,
maintenance or removal of Equipment.
6.
Compliance With Applicable Requirements
. Tenant, at its sole cost and expense,
shall comply with all Applicable Requirements applicable to the installation, maintenance,
operation, use and removal of the Equipment. Without limiting the generality of the foregoing,
Tenant, at its sole cost and expense, shall be responsible for obtaining, if required, any
building permits, and any licenses or permits which may be required by the Federal
Communications Commission (FCC), the Federal Aviation Administration (FAA) or any other
governmental authority having jurisdiction over the Equipment or the Building and shall
provide copies of the same to Landlord. If necessary, Landlord agrees reasonably to cooperate
with Tenant, at Tenants sole cost and expense, to obtain any appropriate licenses or permits.
7.
Radio Frequency Emitting Equipment
. To the extent Tenant is operating radio
frequency (RF) emitting equipment on the roof of or inside the Building, Tenant shall
cooperate generally with Landlord and other carriers such that the Buildings rooftop shall be
and remain in
EXHIBIT D-1
OAKMEAD WEST
ShoreTel, Inc.
2
compliance with all rules and regulations of the U.S. Occupational Safety and Health
Administration (
OSHA
) and the FCC relating to guidelines for human exposure to radio
frequency or electromagnetic emission levels, as may be issued from time to time, including
but not limited to the rules and regulations adopted in FCC document OET 65 (which rules and
regulations have also been adopted by OSHA). If Landlord in its reasonable judgment believes
that the Equipment, either by itself or in conjunction with other equipment in or on the
Building, may exceed permitted emission levels, then Tenant shall (a) promptly upon Landlords
written request, at Tenants sole cost and expense, deliver to Landlord a reasonably
acceptable certification or survey report demonstrating that the Buildings rooftop is in
compliance with all applicable FCC and OSHA rules and regulations (a
Rooftop Survey
), and
(b) to the extent Tenants equipment or the operation thereof directly or indirectly causes
the Buildings rooftop (or any section thereof) not to be in compliance with such rules and
regulations, promptly remedy any such non-compliance in accordance with Landlords reasonable
directions and at Tenants sole cost and expense. If Tenant (i) relocates or makes any change
to the Equipment or (ii) makes any change to any equipment or operation thereof that directly
or indirectly affects the operation of the Equipment, Landlord may, at its option, require
that a new Rooftop Survey be conducted at Tenants sole cost and expense by a firm approved by
Landlord in its reasonable discretion.
8.
Temporary Removal; Relocation
. Tenant, at its sole expense, shall remove or
relocate the Equipment on a temporary basis and upon fifteen (15) days written notice from
Landlord at any time Landlord reasonably determines such removal or relocation is reasonably
necessary or appropriate for the expeditious repair, replacement, alteration, improvement or
additions to or of the roof or any area of the Cable Path, or to access any such areas for
Project needs. In addition, if at any time Tenant does not lease the entirety of the Building,
Landlord reserves the right to require that the Equipment be permanently relocated on not less
than forty-five (45) days prior written notice, to another location on the roof as Landlord
shall reasonably designate.
9.
Termination; Equipment As Property of Tenant
. Upon the expiration or earlier
termination of the Lease, Tenant shall immediately cease using the License Area and Cable Path
and shall, at its own cost and expense, remove the Equipment and restore the License Area and
areas affected by the cabling installations to the condition in which they were found prior to
the installation of the Equipment, reasonable wear and tear excepted. The Equipment shall be
considered personal property of Tenant; provided, however, if Tenant fails to remove the
Equipment within thirty (30) days following the expiration or earlier termination of the
Lease, it shall be deemed abandoned and may be claimed by Landlord or removed and disposed of
by Landlord at Tenants expense.
10.
Landlord Exculpation
. Tenant assumes full responsibility for protecting from
theft or damage the Equipment and any other tools or equipment that Tenant may use in
connection with the installation, operation, use, repair, maintenance or removal of the
Equipment, assumes all risk of theft, loss or damage, and waives any Claim with respect
thereto against Landlord and the other Landlord Parties. Further, in no event shall Landlord
or any Landlord Parties be liable under any circumstances for any consequential damages or for
injury or damage to, or interference with, Tenants business, including but not limited to,
loss of profits, loss of rents or
EXHIBIT D-1
OAKMEAD WEST
ShoreTel, Inc.
3
other revenues, loss of business opportunity, loss of goodwill or loss of use, resulting from
damage to or any failure or interruption of use of the Equipment, however occurring.
11.
Insurance; Indemnity
.
(a) Tenant shall cause the insurance policies required to be maintained
pursuant to
Section 10.3
of the Lease to cover the Equipment and any Claims
arising in connection with the presence, use, operation, installation, repair, maintenance, or
removal of the Equipment.
(b) Tenant hereby agrees to protect, defend, indemnify and hold Landlord and
the other Landlord Parties, and each of them, harmless from and against any and all
Claims arising from or connected in any way with the Equipment or the operations of Tenant or
any Tenant Parties in connection therewith (except, with respect to any Landlord Party, to the
extent caused by the gross negligence or willful or criminal misconduct of such Landlord Party
or otherwise prohibited by Governmental Requirements), including, without limitation, (i) all
foreseeable and unforeseeable consequential damages, (ii) any violation of Governmental
Requirements, and (iii) any personal injuries or property damage. The foregoing indemnity
shall survive the expiration or earlier termination of the Lease.
12.
Rights Personal to Tenant
. Tenants rights under
Article 22
of the
Lease are personal to the Original Tenant therein and any Permitted Transferee, and shall not
be transferable or assignable, whether voluntarily or involuntarily, whether by operation of
law or otherwise, either in connection with an assignment of the Lease, or a sublease of all
or part of the Premises, or otherwise to any person or entity that has satisfied the
requirements of
Article 14
of the Lease, other than to Permitted Transferee. Any
purported transfer of any license hereunder, other than to a Permitted Transferee, shall be
void and a material default under the Lease.
EXHIBIT D-1
OAKMEAD WEST
ShoreTel, Inc.
4
EXHIBIT E
OAKMEAD WEST
FORM OF TENANTS ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Office Lease (the
Lease
) made and entered
into as of
, 200
,
by and between
CARR NP PROPERTIES,
L.L.C.
, a Delaware limited liability company, as Landlord, and the undersigned as Tenant, for
Premises on 960 Stewart Drive, Sunnyvale, California, certifies as follows:
1. Attached hereto as
Exhibit A
is a true and correct copy of the Lease and all
amendments and modifications thereto. The documents contained in
Exhibit A
represent
the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the Lease, the Lease Term
commenced on
, and the Lease Term expires on
_, and the undersigned has no
option to terminate or cancel the Lease or to purchase all or any part of the Premises and/or
the Project.
3. Base Rent became payable on
.
4. The Lease is in full force and effect and has not been modified, supplemented or
amended in any way except as provided in
Exhibit A
.
5. Tenant has not transferred, assigned, or sublet any portion of the Premises nor
entered into any license or concession agreements with respect thereto except as follows:
6. Tenant shall not modify the documents contained in
Exhibit A
without the prior
written consent of Landlords mortgagee.
7. All monthly installments of Base Rent, all Additional Rent and all monthly
installments of estimated Additional Rent have been paid when due through
. The
current monthly installment of Base Rent is $
.
8. All conditions of the Lease to be performed by Landlord necessary to the
enforceability of the Lease have been satisfied and Landlord is not in default thereunder. In
addition, the undersigned has not delivered any notice to Landlord regarding a default by
Landlord thereunder. The Lease does not require Landlord to provide any rental concessions or
to pay any leasing brokerage commissions.
EXHIBIT E
OAKMEAD WEST
ShoreTel, Inc.
1
9. No rental has been paid more than thirty (30) days in advance and no security has been
deposited with Landlord except as provided in the Lease. Neither Landlord, nor its successors
or assigns, shall in any event be liable or responsible for, or with respect to, the
retention, application and/or return to Tenant of any security deposit paid to any prior
landlord of the Premises, whether or not still held by any such prior landlord, unless and
until the party from whom the security deposit is being sought, whether it be a lender, or any
of its successors or assigns, has actually received for its own account, as landlord, the full
amount of such security deposit.
10. As of the date hereof, there are no existing defenses or offsets, or, to the
undersigneds knowledge, claims or any basis for a claim, that the undersigned has against
Landlord.
11. If Tenant is a corporation or partnership, each individual executing this Estoppel
Certificate on behalf of Tenant hereby represents and warrants that Tenant is a duly formed
and existing entity qualified to do business in California and that Tenant has full right and
authority to execute and deliver this Estoppel Certificate and that each person signing on
behalf of Tenant is authorized to do so.
12. There are no actions pending against the undersigned under the bankruptcy or similar
laws of the United States or any state.
13. Tenant is in full compliance with all federal, state and local laws, ordinances,
rules and regulations affecting its use of the Premises, including, but not limited to, those
laws, ordinances, rules or regulations relating to hazardous or toxic materials. Tenant has
never permitted or suffered, nor does Tenant have any knowledge of, the generation,
manufacture, treatment, use, storage, disposal or discharge of any hazardous, toxic or
dangerous waste, substance or material in, on, under or about the Project or the Premises or
any adjacent premises or property in violation of any federal, state or local law, ordinance,
rule or regulation.
14. To the undersigneds knowledge, all tenant improvement work to be performed by
Landlord under the Lease has been completed in accordance with the Lease and has been accepted
by the undersigned and all reimbursements and allowances due to the undersigned under the
Lease in connection with any tenant improvement work have been paid in full. All work (if
any) in the common areas required by the Lease to be completed by Landlord has been completed
and all parking spaces required by the Lease have been furnished and/or all parking ratios
required by the Lease have been met.
EXHIBIT E
OAKMEAD WEST
ShoreTel, Inc.
2
The undersigned acknowledges that this Estoppel Certificate may be delivered to Landlord or to
a prospective mortgagee or prospective purchaser, and acknowledges that said prospective mortgagee
or prospective purchaser will be relying upon the statements contained herein in making the loan or
acquiring the property of which the Premises are a part and that receipt by it of this certificate
is a condition of making such loan or acquiring such property.
Executed at
on the
day of
, 200_.
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Tenant:
SHORETEL, INC.
, a
California corporation
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By:
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/s/ JOHN COMBS
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Its:
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By:
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Its:
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EXHIBIT E
OAKMEAD WEST
ShoreTel, Inc.
3
EXHIBIT F
OAKMEAD WEST
FORM OF RECOGNITION OF COVENANTS, CONDITIONS AND RESTRICTIONS
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Coblentz Patch Duffy & Bass, LLP
One Ferry Building
Suite 200
San Francisco, California 94111
Attention: Alan C. Gennis, Esq.
RECOGNITION OF COVENANTS
,
CONDITIONS, AND RESTRICTION
S
This Recognition of Covenants, Conditions, and Restrictions (this
Agreement
) is entered
into as of the ___day of
, 200_, by and between
CARR NP PROPERTIES, L.L.C.
, a Delaware limited liability company (
Landlord
), and
SHORETEL, INC .
, a California corporation (
Tenant
), with
reference to the following facts:
Landlord and Tenant entered into that certain Office Lease dated April 20, 2007 (the
Lease
). Pursuant to the Lease, Landlord leased to Tenant and Tenant leased from Landlord
space (the
Premises
) located on certain real property described in
Exhibit A
attached hereto and incorporated herein by this reference (the
Property
), which is part of
an area owned by Landlord containing approximately ___(___) acres of real property located in
the City of
, California (the
Project
), as more particularly described in
Exhibit B
attached hereto and incorporated herein by this reference.
Landlord, as declarant, has previously recorded, or proposes to record concurrently with
the recordation of this Agreement, a Declaration of Covenants, Conditions, and Restrictions
(the
Declaration
), dated
, ___, in connection with the Project.
Tenant is agreeing to recognize and be bound by the terms of the Declaration, and the
parties hereto desire to set forth their agreements concerning the same.
NOW, THEREFORE, in consideration of (a) the foregoing recitals and the mutual agreements
hereinafter set forth, and (b) for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows,
1.
Tenants Recognition of Declaration
. Notwithstanding that the Lease has been
executed prior to the recordation of the Declaration, Tenant agrees to recognize and by bound
by all of the terms and conditions of the Declaration.
EXHIBIT F
OAKMEAD WEST
ShoreTel, Inc.
1
2.
Miscellaneous
.
2.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, estates, personal representatives, successors, and assigns.
2.2 This Agreement is made in, and shall be governed, enforced and construed under the
laws of, the State of California.
2.3 This Agreement constitutes the entire understanding and agreements of the parties
with respect to the subject matter hereof, and shall supersede and replace all prior
understandings and agreements, whether verbal or in writing. The parties confirm and
acknowledge that there are no other promises, covenants, understandings, agreements,
representations, or warranties with respect to the subject matter of this Agreement except as
expressly set forth herein.
2.4 This Agreement is not to be modified, terminated, or amended in any respect, except
pursuant to any instrument in writing duly executed by both of the parties hereto.
2.5 In the event that either party hereto shall bring any legal action or other
proceeding with respect to the breach, interpretation, or enforcement of this Agreement, or
with respect to any dispute relating to any transaction covered by this Agreement, the losing
party in such action or proceeding shall reimburse the prevailing party therein for all
reasonable costs of litigation, including reasonable attorneys fees, in such amount as may be
determined by the court or other tribunal having jurisdiction, including matters on appeal.
2.6 All captions and heading herein are for convenience and ease of reference only, and
shall not be used or referred to in any way in connection with the interpretation or
enforcement of this Agreement.
2.7 If any provision of this Agreement, as applied to any party or to any circumstance,
shall be adjudged by a court of competent jurisdictions to be void or unenforceable for any
reason, the same shall not affect any other provision of this Agreement, the application of
such provision under circumstances different form those adjudged by the court, or the validity
or enforceability of this Agreement as a whole.
2.8 Time is of the essence of this Agreement.
2.9 The Parties agree to execute any further documents, and take any further actions, as
may be reasonable and appropriate in order to carry out the purpose and intent of this
Agreement.
2.10 As used herein, the masculine, feminine or neuter gender, and the singular and
plural numbers, shall each be deemed to include the others whenever and whatever the context
so indicates.
EXHIBIT F
OAKMEAD WEST
ShoreTel, Inc.
2
SIGNATURE PAGE OF RECOGNITION O
F
COVENANTS, CONDITIONS AND RESTRICTION
S
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first above written.
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LANDLORD:
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TENANT:
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CARR NP PROPERTIES, L.L.C.,
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SHORETEL, INC .
,
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a Delaware limited liability company
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a California corporation
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By:
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By:
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/s/ JOHN COMBS
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John Moe
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Managing Director
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Print Name
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Its:
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[chairman, president or vice-president]
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By:
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Print Name
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Its:
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[secretary, assistant secretary,
chief financial officer or assistant treasurer]
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EXHIBIT F
OAKMEAD WEST
ShoreTel, Inc.
3
EXHIBIT G
OAKMEAD WEST
HAZARDOUS SUBSTANCES DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information provided by
you in this Hazardous Substances Disclosure Certificate is necessary for the Landlord to
evaluate your proposed uses of the premises (the
Premises
) and to determine whether to enter
into a lease agreement with you as tenant. If a lease agreement is signed by you and the
Landlord (the
Lease Agreement
), on an annual basis in accordance with the provisions of
Section 24.2 of the Lease Agreement, you are to provide an update to the information initially
provided by you in this certificate. Any questions regarding this certificate should be
directed to, and when completed, the certificate should be delivered to:
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Landlord:
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c/o CarrAmerica Realty Corporation
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1810 Gateway Drive, Suite 150
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San Mateo, CA 94404
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Attn: Market Officer
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Phone: (650) 655-6800
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Name of
(Prospective) Tenant:
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SHORETEL
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Mailing Address:
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960 Stewart Dr.
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Sunnyvale,
CA 94085
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Contact Person, Title
and Telephone Number(s):
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Jeff Martin Dir. Ops/Facilities
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(408) 331-3466
(w) (408) 718-4406 (cell)
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Contact Person for Hazardous Waste Materials Management and Manifests and Telephone
Number(s):
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Same
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Address of
(Prospective) Premises:
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960 Stewart Dr. Sunnyvale, CA 94085
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Length of (Prospective)
initial Term:
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2 yrs.
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1.
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GENERAL INFORMATION:
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Describe the proposed operations to take place in, on, or about the Premises,
including, without limitation, principal products processed, manufactured or assembled,
and services and activities to be provided or otherwise conducted. Existing tenants
should describe any proposed changes to on-going operations.
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EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-1-
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2.
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USE, STORAGE AND DISPOSAL OF HAZARDOUS SUBSTANCES
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2.1
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Will any Hazardous Substances (as hereinafter defined) be used, generated,
treated, stored or disposed of in, on or about the Premises? Existing tenants should
describe any Hazardous Substances which continue to be used, generated, treated, stored
or disposed of in, on or about the Premises.
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Wastes
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Yes
o
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No
þ
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Chemical Products
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Yes
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No
þ
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Other
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Yes
o
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No
þ
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If Yes is marked, please explain:
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2.2
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If Yes is marked in Section 2.1, attach a list of any Hazardous Substances to
be used, generated, treated, stored or disposed of in, on or about the Premises,
including the applicable hazard class and an estimate of the quantities of such
Hazardous Substances to be present on or about the Premises at any given time;
estimated annual throughput; the proposed location(s) and method of storage (excluding
nominal amounts of ordinary household cleaners and janitorial supplies which are not
regulated by any Environmental Laws, as hereinafter defined); and the proposed
location(s) and method(s) of treatment or disposal for each Hazardous Substance,
including, the estimated frequency, and the proposed contractors or subcontractors.
Existing tenants should attach a list setting forth the information requested above and
such list should include actual data from on-going operations and the identification of
any variations in such information from the prior years certificate.
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3.
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STORAGE TANKS AND SUMPS
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Is any above or below ground storage or treatment of gasoline, diesel, petroleum, or other
Hazardous Substances in tanks or sumps proposed in, on or about the Premises? Existing
tenants should describe any such actual or proposed activities.
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Yes
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No
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If yes, please explain:
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EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-2-
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4.1
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Has your company been issued an EPA Hazardous Waste Generator I.D. Number?
Existing tenants should describe any additional identification numbers issued since the
previous certificate.
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Yes
o
No
þ
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4.2
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Has your company filed a biennial or quarterly reports as a hazardous waste
generator? Existing tenants should describe any new reports filed.
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Yes
o
No
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If yes, attach a copy of the most recent report filed.
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5.
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WASTEWATER TREATMENT AND DISCHARGE
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5.1
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Will your company discharge wastewater or other wastes to:
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___ storm drain?
___ sewer?
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___ surface water?
X
no wastewater or other wastes discharged.
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Existing tenants should indicate any actual discharges. If so, describe the nature
of any proposed or actual discharge(s).
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5.2
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Will any such wastewater or waste be treated before discharge?
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Yes
o
No
þ
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If yes, describe the type of treatment proposed to be conducted. Existing tenants
should describe the actual treatment conducted.
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EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-3-
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6.1
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Do you plan for any air filtration systems or stacks to be used in your
companys operations in, on or about the Premises that will discharge into the air; and
will such air emissions be monitored? Existing tenants should indicate whether or not
there are any such air filtration systems or stacks in use in, on or about the Premises
which discharge into the air and whether such air emissions are being monitored.
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Yes
o
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If yes, please describe:
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6.2
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Do you propose to operate any of the following types of equipment, or any other
equipment requiring an air emissions permit? Existing tenants should specify any such
equipment being operated in, on or about the Premises.
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_____ Spray booth(s) _____ Incinerator(s)
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_____ Dip tank(s) _____ Other (Please describe)
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_____ Drying
oven(s)
X
No Equipment Requiring Air Permits
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If yes, please describe:
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6.3
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Please describe (and submit copies of with this Hazardous Substances Disclosure
Certificate) any reports you have filed in the past thirty-six months with any
governmental or quasi-governmental agencies or authorities related to air discharges or
clean air requirements and any such reports which have been issued during such period
by any such agencies or authorities with respect to you or your business operations.
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7.
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HAZARDOUS SUBSTANCES DISCLOSURES
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7.1
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Has your company prepared or will it be required to prepare a Hazardous
Substances management plan (
Management Plan
) or Hazardous Substances Business Plan
and Inventory (
Business Plan
) pursuant to Fire Department or other governmental or
regulatory agencies requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
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Yes
o
No
þ
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EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-4-
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If yes, attach a copy of the Management Plan or Business Plan. Existing tenants
should attach a copy of any required updates to the Management Plan or Business
Plan.
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7.2
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Are any of the Hazardous Substances, and in particular chemicals, proposed to
be used in your operations in, on or about the Premises listed or regulated under
Proposition 65? Existing tenants should indicate whether or not there are any new
Hazardous Substances being so used which are listed or regulated under Proposition 65.
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Yes
o
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þ
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If yes, please explain:
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8.
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ENFORCEMENT ACTIONS AND COMPLAINTS
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8.1
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With respect to Hazardous Substances or Environmental Laws, has your company
ever been subject to any agency enforcement actions, administrative orders, or consent
decrees or has your company received requests for information, notice or demand
letters, or any other inquiries regarding its operations? Existing tenants should
indicate whether or not any such actions, orders or decrees have been, or are in the
process of being, undertaken or if any such requests have been received.
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Yes
o
No
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If yes, describe the actions, orders or decrees and any continuing compliance
obligations imposed as a result of these actions, orders or decrees and also
describe any requests, notices or demands, and attach a copy of all such
documents. Existing tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not already delivered to
Landlord pursuant to the provisions of Section 24.2 of the Lease Agreement.
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8.2
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Have there ever been, or are there now pending, any lawsuits against your
company regarding any environmental or health and safety concerns?
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Yes
o
No
þ
EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-5-
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If yes, describe any such lawsuits and attach copies of the complaint(s),
cross-complaint(s), pleadings and other documents related thereto as requested
by Landlord. Existing tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related documents not
already delivered to Landlord pursuant to the provisions of Paragraph 32 of the
Lease Agreement.
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8.3
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Have there been any problems or complaints from adjacent tenants, owners or
other neighbors at your companys current facility with regard to environmental or
health and safety concerns? Existing tenants should indicate whether or not there have
been any such problems or complaints from adjacent tenants, owners or other neighbors
at, about or near the Premises and the current status of any such problems or
complaints.
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Yes
o
No
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If yes, please describe. Existing tenants should describe any such problems or
complaints not already disclosed to Landlord under the provisions of the signed
Lease Agreement and the current status of any such problems or complaints.
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9.
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PERMITS AND LICENSES
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Attach copies of all permits and licenses issued to your company with respect to its
proposed operations in, on or about the Premises, including, without limitation, any
Hazardous Substances permits, wastewater discharge permits, air emissions permits, and use
permits or approvals. Existing tenants should attach copies of any new permits and licenses
as well as any renewals of permits or licenses previously issued.
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As used herein, Hazardous Substances and Environmental Laws shall have the meanings
given to such terms in the Lease Agreement.
The undersigned hereby acknowledges and agrees that this Hazardous Substances Disclosure
Certificate is being delivered to Landlord in connection with the evaluation of a Lease Agreement
and, if such Lease Agreement is executed, will be attached thereto as an exhibit. The undersigned
further acknowledges and agrees that if such Lease Agreement is executed, this Hazardous Substances
Disclosure Certificate will be updated from time to time in accordance with Section 24.2 of the
Lease Agreement. The undersigned further acknowledges and agrees that the Landlord and its
partners, lenders and representatives may, and will, rely upon the
EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-6-
statements, representations, warranties, and certifications made herein and the truthfulness
thereof in entering into the Lease Agreement and the continuance thereof throughout the term, and
any renewals thereof, of the Lease Agreement.
I
[print name] John Combs, acting with full authority to bind the (proposed) Tenant
and on behalf of the (proposed) Tenant, certify, represent and warrant that the information
contained in this certificate is true and correct.
(PROSPECTIVE) TENANT:
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By:
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/s/ John Combs
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/s/ JEFF MARTIN
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Title:
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CEO
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Date:
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4/30/07
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EXHIBIT G
OAKMEAD WEST
ShoreTel, Inc.
-7-
EXHIBIT H
Intentionally Omitted
EXHIBIT
H
OAKMEAD WEST
ShoreTel, Inc.
-1-
EXHIBIT I
OAKMEAD WEST
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Harvey R. Uris, Esq.
APN:
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
SHORETEL, INC.
Tenant
AND
GERMAN AMERICAN CAPITAL CORPORATION
Lender
Premises: 960 Stewart Drive, Sunnyvale, California
Dated:
as of
___, 2007
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-1-
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS
AGREEMENT made as of this ___ day of ___, 2007, between GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation, having an address at 60 Wall Street, New York, New York 10005
(hereinafter called
Lender
), and SHORETEL, INC., a California corporation, having an
address at 960 Stewart Drive, Sunnyvale, California 94085 (hereinafter called
Tenant
).
RECITALS:
WHEREAS, by a lease dated as of April 20, 2007, between Carr NP Properties L.L.C., a Delaware
limited liability company (hereinafter called
Landlord
), as landlord, and Tenant, as
tenant (
Lease
), Landlord leased to Tenant certain premises located at 960 Stewart Drive,
Sunnyvale, California (the
Premises
) on the property described in Schedule A annexed
hereto and made a part hereof (the
Property
); and
WHEREAS, Lender has made a loan to Landlord, which loan is secured by, among other things, a
mortgage or deed of trust (which mortgage or deed of trust, and all amendments, renewals,
increases, modifications, replacements, substitutions, extensions, spreaders and consolidations
thereof and all re-advances thereunder and addictions thereto, is referred to as the
Security
Instrument
) encumbering the Property and recorded in the Santa Clara County Official Records;
and
WHEREAS, Lender and Tenant desire to confirm their understanding and agreement with respect to
the Lease and the Security Instrument.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained,
Lender and Tenant hereby agree and covenant as follows:
1. The Lease, and all of the terms, covenants, provisions and conditions thereof (including,
without limitation, any right of first refusal, right of first offer, option or any similar right
with respect to the sale or purchase of the Property, or any portion thereof) is, shall be and
shall at all times remain and continue to be subject and subordinate in all respects to the lien,
terms, covenants, provisions and conditions of the Security Instrument and to all advances and
re-advances made thereunder and all sums secured thereby. This provision shall be self-operative
but Tenant shall execute and deliver any additional instruments which Lender may reasonably require
to effect such subordination.
2. So long as (i) Tenant is not in default (beyond any period given in the Lease to Tenant to
cure such default) in the payment of rent, percentage rent or additional rent or in the performance
or observance of any of the other terms, covenants, provisions or conditions of the Lease on
Tenants part to be performed or observed, and (ii) the Lease is in full force and effect: (a)
Tenants possession of the Premises and Tenants rights and privileges under the Lease, or any
extensions or renewals thereof which may be effected in accordance with any option therefor which
is contained in the Lease, shall not be diminished or interfered with by Lender, and Tenants
occupancy of the Premises shall not be disturbed by Lender for any reason whatsoever
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-2-
during the term of the Lease or any such extensions or renewals thereof and (b) Lender will not
join Tenant as a party defendant in any action or proceeding to foreclose the Security Instrument
or to enforce any rights or remedies of Lender under the Security Instrument which would cut-off,
destroy, terminate or extinguish the Lease or Tenants interest and estate under the Lease (except
to the extent required so that Tenants right to receive or set-off any monies or obligations owed
or to be performed by any of Lenders predecessors-in-interest shall not be enforceable thereafter
against Lender or any of Lenders successors-in-interest). Notwithstanding the foregoing provisions
of this paragraph, if it would be procedurally disadvantageous for Lender not to name or join
Tenant as a party in a foreclosure proceeding with respect to the Security Instrument, Lender may
so name or join Tenant without in any way diminishing or otherwise affecting the rights and
privileges granted to, or inuring to the benefit of, Tenant under this Agreement.
3. (A) After notice is given by Lender that the Security Instrument is in default and that the
rentals under the Lease should be paid to Lender, Tenant will attorn to Lender and pay to Lender,
or pay in accordance with the directions of Lender, all rentals and other monies due and to become
due to Landlord under the Lease or otherwise in respect of the Premises. Such payments shall be
made regardless of any right of off-set, counterclaim or other defense which Tenant may have
against Landlord, whether as the tenant under the Lease or otherwise.
(B) In addition, if Lender (or its nominee or designee) shall succeed to the rights of
Landlord under the Lease through possession or foreclosure action, delivery of a deed or otherwise,
or another person purchases the Property or the portion thereof containing the Premises upon or
following foreclosure of the Security Instrument or in connection with any bankruptcy case
commenced by or against Landlord, then at the request of Lender (or its nominee or designee) or
such purchaser (Lender, its nominees and designees, and such purchaser, and their respective
successors and assigns, each being a
Successor-Landlord
), Tenant shall attorn to and
recognize Successor-Landlord as Tenants landlord under the Lease and shall promptly execute and
deliver any instrument that Successor-Landlord may reasonably request to evidence such attornment.
Upon such attornment, the Lease shall continue in full force and effect as, or as if it were, a
direct lease between Successor-Landlord and Tenant upon all terms, conditions and covenants as are
set forth in the Lease. If the Lease shall have terminated by operation of law or otherwise as a
result of or in connection with a bankruptcy case commenced by or against Landlord or a foreclosure
action or proceeding or delivery of a deed in lieu, upon request of Successor-Landlord, Tenant
shall promptly execute and deliver a direct lease with Successor-Landlord which direct lease shall
be on substantially the same terms and conditions as the Lease (subject, however, to the provisions
of clauses (i)-(v) of this paragraph 3(B) and shall be effective as of the day the Lease shall have
terminated as aforesaid. Notwithstanding the continuation of the Lease, the attornment of Tenant
thereunder or the execution of a direct lease between Successor-Landlord and Tenant as aforesaid,
Successor- Landlord shall not:
(i) be liable for any previous act or omission of Landlord under the Lease;
(ii) be subject to any off-set, defense, or counterclaim which shall have theretofore accrued
to Tenant against Landlord;
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-3-
(iii) be bound by any modification of the Lease or by any previous prepayment of rent or
additional rent made more than one (1) month prior to the date same was due which Tenant might have
paid to Landlord, unless such modification or prepayment shall have been expressly approved in
writing by Lender or Successor Landlord;
(iv) be liable for any security deposited under the Lease unless such security has been
physically delivered to Lender or Successor Landlord; and
(v) be liable or obligated to comply with or fulfill any of the obligations of the Landlord
under the Lease or any agreement relating thereto with respect to the construction of, or payment
for, improvements on or above the Premises (or any portion thereof), leasehold improvements, tenant
work letters and/or similar items.
4. Tenant agrees that, without the prior written consent of Lender, it shall not (a) amend,
modify, terminate or cancel the Lease or any extensions or renewals thereof, (b) tender a surrender
of the Lease, (c) make a prepayment of any rent or additional rent more than one (1) month in
advance of the due date thereof, or (d) subordinate or permit the subordination of the Lease to any
lien subordinate to the Security Instrument. Any such purported action without such consent shall
be void as against the holder of the Security Instrument.
5. (A) Tenant shall promptly notify Lender of any default by Landlord under the Lease and of
any act or omission of Landlord which would give Tenant the right to cancel or terminate the Lease
or to claim a partial or total eviction.
(B) In the event of a default by Landlord under the Lease which would give Tenant the right,
immediately or after the lapse of a period of time, to cancel or terminate the Lease or to claim a
partial or total eviction, or in the event of any other act or omission of Landlord which would
give Tenant the right to cancel or terminate the Lease, Tenant shall not exercise such right (i)
until Tenant has given written notice of such default, act or omission to Lender and (ii) unless
Lender has failed, within sixty (60) days after Lender receives such notice to cure or remedy the
default, act or omission, or, if such default, act or omission shall be one which is not reasonably
capable of being remedied by Lender within such sixty (60) day period, until a reasonable period
for remedying such default, act or omission shall have elapsed following the giving of such notice
and following the time when Lender shall have become entitled under the Security Instrument to
remedy the same (which reasonable period shall in no event be less than the period to which
Landlord would be entitled under the Lease or otherwise, after similar notice, to effect such
remedy), provided that Lender shall with due diligence give Tenant written notice of its intention
to and shall commence and continue to, remedy such default, act or omission. If Lender cannot
reasonably remedy a default, act or omission of Landlord until after Lender obtains possession of
the Premises, Tenant may not terminate or cancel the Lease or claim a partial or total eviction by
reason of such default, act or omission until the expiration of a reasonable period necessary for
the remedy after Lender secures possession of the Premises. To the extent Lender incurs any
expenses or other costs in curing or remedying such default, act or omission, including, without
limitation, attorneys fees and disbursements, Lender shall be subrogated to Tenants rights
against Landlord.
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-4-
(C) Notwithstanding the foregoing, Lender shall have no obligation hereunder to remedy such
default, act or omission.
6. To the extent that the Lease shall entitle Tenant to notice of the existence of any
mortgage and the identity of any mortgagee or any ground lessor, this Agreement shall constitute
such notice to Tenant with respect to the Security Instrument and Lender.
7. Upon and after the occurrence of a default under the Security Instrument, which is not
cured after any applicable notice and/or cure periods, Lender shall be entitled, but not obligated,
to exercise the claims, rights, powers, privileges and remedies of Landlord under the Lease and
shall be further entitled to the benefits of, and to receive and enforce performance of, all of the
covenants to be performed by Tenant under the Lease as though Lender were named therein as
Landlord.
8. Anything herein or in the Lease to the contrary notwithstanding, in the event that a
Successor-Landlord shall acquire title to the Property or the portion thereof containing the
Premises, Successor-Landlord shall have no obligation, nor incur any liability, beyond
Successor-Landlords then interest, if any, in the Property, and Tenant shall look exclusively to
such interest, if any, of Successor-Landlord in the Property for the payment and discharge of any
obligations imposed upon Successor-Landlord hereunder or under the Lease, and Successor-Landlord is
hereby released or relieved of any other liability hereunder and under the Lease. Tenant agrees
that, with respect to any money judgement which may be obtained or secured by Tenant against
Successor-Landlord, Tenant shall look solely to the estate or interest owned by Successor-Landlord
in the Property, and Tenant will not collect or attempt to collect any such judgement out of any
other assets of Successor-Landlord.
9. Notwithstanding anything to the contrary in the Lease, Tenant agrees for the benefit of
Landlord and Lender that, except as permitted by, and fully in accordance with, applicable law,
Tenant shall not generate, store, handle, discharge or maintain in, on or about any portion of the
Property, any asbestos, polychlorinated biphenyls, or any other hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such (including, but not
limited to, pesticides and petroleum products if they are defined, determined or identified as
such) in any federal, state or local laws, rules or regulations (whether now existing or hereafter
enacted or promulgated) or any judicial or administrative interpretation of any thereof, including
any judicial or administrative interpretation of any thereof, including any judicial or
administrative orders or judgments.
10. If the Lease provides that Tenant is entitled to expansion space, Successor-Landlord shall
have no obligation nor any liability for failure to provide such expansion space if a prior
landlord (including, without limitation, Landlord), by reason of a lease or leases entered into by
such prior landlord with other tenants of the Property, has precluded the availability of such
expansion space.
11. Except as specifically provided in this Agreement, Lender shall not, by virtue of this
Agreement, the Security Instrument or any other instrument to which Lender may be a party, be or
become subject to any liability or obligation to Tenant under the Lease or otherwise.
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-5-
12. (A) Tenant acknowledges and agrees that this Agreement satisfies and complies in all
respects with the provisions of Article 18 of the Lease and that this Agreement supersedes (but
only to the extent inconsistent with) the provisions of such Article and any other provision of the
Lease relating to the priority or subordination of the Lease and the interests or estates created
thereby to the Security Instrument.
(B) Tenant agrees to enter into a subordination, non-disturbance and attornment agreement with
any lender which shall succeed Lender as lender with respect to the Property, or any portion
thereof, provided such agreement is substantially similar to this Agreement. Tenant does herewith
irrevocably appoint and constitute Lender as its true and lawful attorney-in-fact in its name,
place and stead to execute such subordination, non-disturbance and attornment agreement, without
any obligation on the part of Lender to do so. This power, being coupled with an interest, shall be
irrevocable as long as the Indebtedness secured by the Security Instrument remains unpaid. Lender
agrees not to exercise its rights under the preceding two sentences if Tenant promptly enters into
the subordination, non-disturbance and attornment agreement as required pursuant to the first
sentence of this subparagraph (B).
13. (A) Any notice required or permitted to be given by Tenant to Landlord shall be
simultaneously given also to Lender, and any right to Tenant dependent upon notice shall take
effect only after notice is so given. Performance by Lender shall satisfy any conditions of the
Lease requiring performance by Landlord, and Lender shall have a reasonable time to complete such
performance as provided in Paragraph 5 hereof.
(B) All notices or other communications required or permitted to be given to Tenant or to
Lender pursuant to the provisions of this Agreement shall be in writing and shall be deemed given
only if mailed by United States registered mail, postage prepaid, or if sent by nationally
recognized overnight delivery service (such as Federal Express or United States Postal Service
Express Mail), addressed as follows: to Tenant, at the address first set forth above, Attention:
Director of Facilities and Chief Financial Officer, with a copy to ; to Lender, at the address
first set forth above, Attention: Asset Management and General Counsel, with a copy to Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036, Attention: Harvey R.
Uris, Esq.; or to such other address or number as such party may hereafter designate by notice
delivered in accordance herewith. All such notices shall be deemed given three (3) business days
after delivery to the United States Post office registry clerk if given by registered mail, or on
the next business day after delivery to an overnight delivery courier.
14. This Agreement may be modified only by an agreement in writing signed by the parties
hereto, or their respective successors-in-interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their respective successors and assigns. The term
Lender shall mean the then holder of the Security Instrument. The term Landlord shall mean the
then holder of the landlords interest in the Lease. The term person shall mean an individual,
joint venture, corporation, partnership, trust, limited liability company, unincorporated
association or other entity. All references herein to the Lease shall mean the Lease as modified
by this Agreement and to any amendments or modifications to the Lease which are consented to in
writing by Lender. Any inconsistency between the Lease and the
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-6-
provisions of this Agreement shall be resolved, to the extent of such inconsistency, in favor
of this Agreement.
15. Tenant hereby represents to Lender as follows:
(a) The Lease is in full force and effect and has not been further amended.
(b) There has been no assignment of the Lease or subletting of any portion of the premises
demised under the Lease.
(c) There are no oral or written agreements or understandings between Landlord and Tenant
relating to the premises demised under the Lease or the Lease transaction except as set forth in
the Lease.
(d) The execution of the Lease was duly authorized and the Lease is in full force and effect
and to the best of Tenants knowledge there exists no default (beyond any applicable grace period)
on the part of either Tenant or Landlord under the Lease.
(e) There has not been filed by or against nor to the best of the knowledge and belief of
Tenant is there threatened against Tenant, any petition under the bankruptcy laws of the United
States.
(f) To the best of Tenants knowledge, there is no present assignment, hypothecation or pledge
of the Lease or rents accruing under the Lease by Landlord, other than pursuant to the Security
Instrument.
16. Whenever, from time to time, reasonably requested by Lender (but not more than three (3)
times during any calendar year), Tenant shall execute and deliver to or at the direction of Lender,
and without charge to Lender, one or more written certifications, in a form acceptable to Tenant,
of all of the matters set forth in Paragraph 15 above, and any other information the Lender may
reasonably require to confirm the current status of the Lease.
17. BOTH TENANT AND LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
in which the Property is located.
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-7-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
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LENDER
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GERMAN AMERICAN CAPITAL CORPORATION, a
Maryland corporation
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By:
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Name:
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Title:
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TENANT
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SHORETEL, INC., a
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California corporation
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By:
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Name:
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Title:
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AGREED AND CONSENTED TO:
CARR NP PROPERTIES, L.L.C.
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By:
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Christopher Peatross Chief
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Executive Officer
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EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-8-
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STATE OF
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)
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ss.
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COUNTY OF
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On , before me, , personally appeared
, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature of Notary Public
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(Seal)
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STATE OF
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)
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ss.
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COUNTY OF
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On , before me, , personally appeared
, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature of Notary Public
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(Seal)
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EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-9-
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STATE OF
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)
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ss.
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COUNTY OF
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On , before me, , personally appeared
, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature of Notary Public
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(Seal)
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STATE OF
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)
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)
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ss.
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COUNTY OF
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On , before me, , personally appeared
, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature of Notary Public
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(Seal)
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EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-10-
SCHEDULE A
Legal Description of Property
All that real property situated in the City of Sunnyvale, County of Santa Clara, State of
California, more particularly described as follows:
EXHIBIT I
OAKMEAD WEST
ShoreTel, Inc.
-11-