ClearOne Communications, Inc. Form S-8 dated 10-06-2006
As
filed with the Securities and Exchange Commission on October 6,
2006
Registration
Statement No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________________
FORM
S-8
Registration
Statement Under
the
Securities Act of 1933
ClearOne
Communications, Inc.
(Exact
name of registrant as specified in its charter)
|
Utah
(State
or other jurisdiction of incorporation)
|
87-0398877
(IRS
employer identification no.)
|
|
1825
Research Way, Salt Lake City
(Address
of principal executive offices)
|
84119
(Zip
Code)
|
1998
STOCK OPTION PLAN
1997
EMPLOYEE STOCK PURCHASE PLAN
(Full
Title of the Plan)
Eric
L. Robinson
Blackburn
& Stoll, LC
257
East 200 South, Suite 800
Salt
Lake City, UT 84111 (801) 521-7900
(Name,
address and telephone number of agent for service)
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be
Registered
|
Amount
to
be
Registered
|
Proposed
Maximum
Offering
Price
Per
Share (1)
|
Proposed
Maximum
Aggregate
Offering
Price(1)
|
Amount
of
Registration
Fee
(1)
|
|
Common
Stock, par value $.001
|
2,500,000(2)
|
$3.50
|
$8,750,000
|
$936
|
|
Common
Stock, par value $.001
|
500,000(3)
|
$3.50
|
$1,750,000
|
$187
|
|
Total
|
|
|
|
$1,123
|
| (1)
|
Estimated
solely for the purpose of calculating the registration fee, computed
pursuant to Rules 457(h) under the Securities Exchange Act of 1933,
as
amended, on the basis of the average of the high and low prices of
a share
of the Registrant’s common stock, $.001 par value, as reported on the OTC
Bulletin Board on September 4,
2006.
|
| (2)
|
Represents
the registration of an aggregate of 2,500,000 shares of common stock
of
ClearOne Communications, Inc. issuable upon the exercise of options
granted under the 1998 Stock Option Plan.
|
| (3)
|
Represents
the registration of an aggregate of 500,000 shares of common stock
of
ClearOne Communications, Inc. issuable upon purchase by eligible
employees
under the Employee Stock Purchase Plan.
|
Pursuant
to Rule 416, this Registration Statement shall also cover any additional shares
of ClearOne Communications, Inc. common stock that become issuable by reason
of
any stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration that increases the number of
ClearOne Communications, Inc.'s outstanding shares of common stock.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by Rule 428 under the Securities Act of 1933, as amended, this
Registration Statement omits the information specified in Part I of Form S-8.
The documents constituting Part I of this Registration Statement will be sent
or
given to plan participants as required by Rule 428(b). ClearOne Communications,
Inc. (the “Company” or “ClearOne”) is not filing these documents with the
Securities and Exchange Commission (the "Commission") as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant
to
Rule 424 of the Securities Act.
Item
1. Plan Information.
Not
required to be filed with the Commission.
Item
2. Registrant Information.
Not
required to be filed with the Commission.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents previously filed by the Company with the Securities and
Exchange Commission (the “Commission”) are incorporated by reference in this
registration statement:
| · |
Annual
Report on Form 10-K, for the year ended June 30,
2006,
|
| · |
Current
Report on Form 8-K, filed on September 18, 2006, and
|
| · |
The
description of the Registrant’s common stock set forth in the Registrant’s
registration statement on Form 10 filed pursuant to Section 12 of
the
Securities Exchange Act on February 13, 1989, including any amendment
or
report filed with the Commission for the purpose of updating this
description.
|
All
documents subsequently filed by ClearOne pursuant to Sections 13(a), 13(c),
14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a
part
hereof from the date of filing of such documents. Any statement contained in
a
document incorporated or deemed to be incorporated by reference herein shall
be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interest of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
16-10a-902 (“Section 902”) of the Utah Revised Business Corporation Act (the
“Revised Act”) provides that a corporation may indemnify any individual who was,
is or is threatened to be made a named defendant or respondent (a “Party”) in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal (a
“Proceeding”), because he or she is or was a director of the corporation or is
or was serving at its request as a director, officer, partner, trustee,
employee, fiduciary or agent of another corporation or other person or of an
employee benefit plan (an “Indemnified Director”), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys’ fees), incurred in
the Proceeding if his or her conduct was in good faith, he or she reasonably
believed that his or her conduct was in, or not opposed to, the best interests
of the corporation, and, in the case of any criminal Proceeding, he or she
had
no reasonable cause to believe his or her conduct was unlawful; except that
(i) indemnification under Section 902 in connection with a Proceeding by or
in the right of the corporation is limited to payment of reasonable expenses
(including attorneys’ fees) incurred in connection with the Proceeding, and
(ii) the corporation may not indemnify an Indemnified Director in
connection with a Proceeding by or in the right of the corporation in which
the
Indemnified Director was adjudged liable to the corporation, or in connection
with any other Proceeding charging that the Indemnified Director derived an
improper personal benefit, whether or not involving action in his or her
official capacity, in which Proceeding he or she was adjudged liable on the
basis that he or she derived an improper personal benefit.
Section
16-10a-906 of the Revised Act provides that a corporation may not indemnify
a
director under Section 902 unless authorized and a determination has been made
(by the board of directors, a committee of the board of directors or by the
stockholders) that indemnification of the director is permissible in the
circumstances because the director has met the applicable standard of conduct
set forth in Section 902.
Section
16-10a-903 (“Section 903”) of the Revised Act provides that, unless limited by
its articles of incorporation, a corporation shall indemnify a director who
was
successful, on the merits or otherwise, in the defense of any Proceeding, or
in
the defense of any claim, issue or matter in the Proceeding, to which he or
she
was a Party because he or she is or was a director of the corporation, against
reasonable expenses (including attorneys’ fees) incurred by him or her in
connection with the Proceeding or claim.
In
addition to the indemnification provided by Sections 902 and 903, Section
16-10a-905 (“Section 905”) of the Revised Act provides that, unless otherwise
limited by a corporation’s articles of incorporation, a director may apply for
indemnification to the court conducting the Proceeding or to another court
of
competent jurisdiction. On receipt of an application and after giving any notice
the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order
the
corporation to pay the director’s reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court’s determination that the director
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as
the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys’ fees) incurred by the director.
Section
16-10a-904 (“Section 904”) of the Revised Act provides that a corporation may
pay for or reimburse the reasonable expenses (including attorneys’ fees)
incurred by a director who is a Party to a Proceeding in advance of the final
disposition of the Proceeding if (i) the director furnishes the corporation
a written affirmation of his or her good faith belief that he or she has met
the
applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or
in
his or her behalf, to repay the advance if it is ultimately determined that
he
or she did not meet the required standard of conduct, and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 904.
Section
16-10a-907 of the Revised Act provides that, unless a corporation’s articles of
incorporation provide otherwise, (i) an officer of the corporation is
entitled to mandatory indemnification under Section 903 and is entitled to
apply
for court ordered indemnification under Section 905, in each case to the same
extent as a director, (ii) the corporation may indemnify and advance
expenses to an officer, employee, fiduciary or agent of the corporation to
the
same extent as a director, and (iii) a corporation may also indemnify and
advance expenses to an officer, employee, fiduciary or agent who is not a
director to a greater extent than the right of indemnification granted to
directors, if not inconsistent with public policy, and if provided for by its
articles of incorporation, bylaws, general or specific action of its board
of
directors, or contract.
The
Registrant's bylaws provide that it shall indemnify an individual made a party
to a proceeding because he is or was a director, against any liability incurred
in the proceeding if (1) the individual's conduct was in good faith; (2) the
individual reasonably believed that his conduct was in, or not opposed to,
the
Registrant's best interests; and (3) in the case of a criminal proceeding he
had
no reasonable cause to believe his conduct was unlawful; provided, however,
that
(x) in the case of an action by or in the right of the Registrant,
indemnification is limited to reasonable expenses incurred in connection with
the proceeding and (y) the corporation may not, unless authorized by a court
of
competent jurisdiction, indemnify an individual (A) in connection with a
proceeding by or in the right of the Registrant in which the individual was
adjudged liable to the Registrant or (B) in connection with any other proceeding
in which the individual is adjudged liable on the basis that he derived an
improper personal benefit. In a judicial proceeding under the foregoing clause
(y), in order to authorize indemnification, the court must determine that the
individual is fairly and reasonably entitled to indemnification in view of
all
the relevant circumstances. A director is entitled to mandatory indemnification
if he was successful, on the merits or otherwise, in the defense of any
proceeding, or in the defense of any claim, issue or matter in the proceeding
to
which he was a party because he is or was a director of the Registrant, against
the reasonable expenses incurred by him in connection with the proceeding or
claim with respect to which he was successful.
The
Registrant must also advance a director expenses under certain circumstances.
The Registrant may also indemnify and advance expenses to an officer, employee
or agent to any extent consistent with public policy.
The
Registrant's articles of incorporation provide that the Registrant will
indemnify a director against any liability that may arise as a result of such
director contracting with the Registrant for the benefit of himself or any
firm,
association or corporation in which such director may be interested in any
way,
provided such director acts in good faith.
Item
7. Exemption From Registration Claimed.
Not
applicable.
Item
8. Exhibits.
|
EXHIBIT
NO.
|
DESCRIPTION
OF EXHIBIT
|
|
4.2
|
Articles
of Incorporation dated July 7, 1983 (Incorporated by reference to
Exhibit
3.1 of the Company’s registration statement on Form S-3/A filed on
November 1, 2002)
|
|
|
|
4.3
|
Amendment
to Articles of Incorporation dated March 26, 1985 (Incorporated by
reference to Exhibit 3.2 of the Company’s registration statement on Form
S-3/A filed on November 1, 2002)
|
|
4.4
|
Corrected
Amendment to Articles of Incorporation dated September 10, 1986
(Incorporated by reference to Exhibit 3.3 of the Company’s registration
statement on Form S-3/A filed on November 1,
2002)
|
|
4.5
|
Amendment
to Articles of Incorporation dated July 1, 1991 (Incorporated by
reference
to Exhibit 3.4 of the Company’s registration statement on Form S-3/A filed
on November 1, 2002)
|
|
4.6
|
Amendment
to Articles of Incorporation dated December 12, 2001 (Incorporated
by
reference to Exhibit 3.5 of the Company’s registration statement on Form
S-3/A filed on November 1, 2002)
|
|
4.7
|
Bylaws,
as adopted on August 24, 1993 (Incorporated by reference to Exhibit
3.6 of
the Company’s registration statement on Form S-3/A filed on November 1,
2002)
|
|
4.8
|
1998
Stock Option Plan
|
|
4.9
|
1997
Employee Stock Purchase Plan
|
|
5.1
|
Opinion
of Blackburn & Stoll, LC
|
|
23.1
|
Consent
of Blackburn & Stoll, LC (contained in Exhibit 5.1
hereto)
|
|
23.2
|
Consent
of Independent Registered Public Accounting Firm
|
|
23.3
|
Consent
of Independent Registered Public Accounting Firm
|
|
24.1
|
Power
of Attorney (included on signature pages
hereto)
|
Item
9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
Provided,
however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed by the registrant pursuant to section 13 or section
15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
the
registration statement.
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liability (other than 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 Act and will be governed by the final adjudication
of
such issue.
.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Salt
Lake, State of Utah, on October 2, 2006.
CLEARONE
COMMUNICATIONS, INC.
By
/s/
Zee Hakimoglu
President,
Chief Executive Officer and Director
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
dates indicated.
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below in so
signing also makes, constitutes and appoints Zee Hakimoglu as true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him and in her name, place and stead, in any and all capacities to execute
and cause to be filed with the Securities and Exchange Commission any and all
amendments (including pre-effective and post-effective amendments) to this
registration statement, with exhibits thereto and other documents in connection
therewith, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes
as
he might or could do in person, and hereby ratifies and confirms said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or
cause to be done by virtue hereof.
|
Signature
|
Title
|
Date
|
|
/s/
Zee Hakimoglu
Zee
Hakimoglu
|
President,
Chief Executive Officer and Director (Principal Executive
Officer)
|
October
2, 2006
|
|
/s/
Greg LeClaire
Greg
LeClaire
|
Vice
President of Finance (Principal Financial Officer and Principal
Accounting
Officer)
|
October
2, 2006
|
|
/s/
E. Dallin Bagley
E.
Dallin Bagley
|
Chairman
of the Board
|
October
2, 2006
|
|
/s/
Brad R. Baldwin
Brad
R. Baldwin
|
Director
|
October
2, 2006
|
|
/s/
Larry R. Hendricks
Larry
R. Hendricks
|
Director
|
October
2, 2006
|
|
/s/
Scott M. Huntsman
Scott
M. Huntsman
|
Director
|
October
3, 2006
|
|
/s/
Harry Spielberg
Harry
Spielberg
|
Director
|
October
2, 2006
|
7