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.
2
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.
3
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
|
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.
5
(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.
6
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
Exhibit
4.8
CLEARONE
COMMUNICATIONS, INC.
1998
STOCK OPTION PLAN
ARTICLE
1
GENERAL
PROVISIONS
1.1 PURPOSE
OF THE PLAN
This
1998
Stock Option Plan (the "Plan") is intended to promote the interests of ClearOne
Communications Inc., a Utah corporation, (the "Corporation") by providing
eligible persons with the opportunity to acquire or increase their proprietary
interest in the Corporation as an incentive for them to remain in the Service
of
the Corporation.
Capitalized
terms shall have the meanings assigned to such terms in the attached
Appendix.
1.2 ADMINISTRATION
OF THE PLAN
a. The
Plan
shall be administered by the Board or, to the extent required under applicable
Stock Exchange requirements or if desired by the Board, a committee of the
Board. If administered by committee, the Primary Committee shall have sole
and
exclusive authority to administer the Plan with respect to Section 16 Insiders;
committee authority to administer the Plan with respect to all other persons
may
be vested in either the Primary Committee or a Secondary Committee, as
determined by the Board.
b. Members
of the Primary Committee or any Secondary Committee shall serve for such period
of time as the Board may determine and may be removed by the Board at any time.
The Board may terminate the functions of any Secondary Committee at any time
and
delegate all powers and authority previously delegated to such committee to
the
Primary Committee. To the extent committee administration is no longer required
by applicable law, regulation or Stock Exchange requirement, the Board may
also
terminate the functions of any committee at any time and reassume all powers
and
authority previously delegated to such committee.
c. Each
Plan
Administrator shall, within the scope of its administrative functions under
the
Plan, have full power and authority to establish such rules and regulations
as
it may deem appropriate for proper administration of the Plan and to make such
determinations under, and issue such interpretations of, the provisions of
the
Plan and any outstanding options thereunder as it may deem necessary or
advisable. Decisions of the Plan Administrator within the scope of its
administrative functions under the Plan shall be final and binding on all
parties who have an interest in the Plan under its jurisdiction or any option
thereunder.
d. Service
on the Primary Committee or the Secondary Committee shall constitute service
as
a Board member, and members of each such committee shall accordingly be entitled
to full indemnification and reimbursement as Board members for their service
on
such committee. No member of the Primary Committee or the Secondary Committee
shall be liable for any act or omission made in good faith with respect to
the
Plan or any option grants under the Plan.
e. Each
Plan
Administrator shall, within the scope of its administrative jurisdiction under
the Plan, have full authority (subject to the provisions of the Plan) to
determine which eligible persons are to receive option grants, the time or
times
when such option grants are to be made, the number of shares to be covered
by
each such grant, the status of the granted option as either an Incentive Option
or a Non-Statutory Option, the time or times at which each option is to become
exercisable, the vesting schedule (if any) applicable to the option shares,
the
acceleration of such vesting schedule, and all other terms and conditions of
the
option grants.
1.3 ELIGIBILITY
The
following persons shall be eligible to participate in the Plan:
a. Employees,
b. non-employee
members of the Board or the board of directors of any Parent or Subsidiary,
and
c. consultants
and other independent advisors who provide Services to the Corporation or any
Parent or Subsidiary.
1.4. STOCK
SUBJECT TO THE PLAN
a. The
stock
issuable under the Plan shall be shares of authorized but unissued Common Stock,
including shares repurchased by the Corporation on the open market. The maximum
number of shares of Common Stock that may be issued over the term of the Plan
shall not exceed 2,500,000 shares, which number of shares may be changed from
time to time in accordance with Article 3.4 below.
b. Shares
of
Common Stock subject to outstanding options shall be available for subsequent
issuance under the Plan to the extent (i) the options expire or terminate for
any reason prior to exercise in full or (ii) the options are cancelled in
accordance with the cancellation-regrant provisions of Article 2.4. However,
should the Exercise Price be paid with shares of Common Stock or should shares
of Common Stock otherwise issuable under the Plan be withheld by the Corporation
in satisfaction of the withholding taxes incurred in connection with the
exercise of an option under the Plan, then the number of shares of Common Stock
available for issuance under the Plan shall be reduced by the gross number
of
shares for which the option is exercised, and not by the net number of shares
of
Common Stock issued to the holder of such option.
2
c. Should
any change be made to the Common Stock by reason of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or other
change affecting the outstanding Common Stock as a class without the
Corporation's receipt of consideration, appropriate adjustments shall be made
to
(i) the maximum number and/or class of securities issuable under the Plan,
(ii)
the number and/or class of securities for which any one person may be granted
options per calendar year, and (iii) the number and/or class of securities
and
the Exercise Price in effect under each outstanding option in order to prevent
the dilution or enlargement of benefits thereunder. The adjustments determined
by the Plan Administrator shall be final, binding and conclusive.
ARTICLE
2.
OPTION
GRANT PROGRAM
2.1. OPTION
TERMS
Each
option shall be evidenced by one or more documents in the form approved by
the
Plan Administrator; provided, however, that each such document shall comply
with
the terms specified below. Each document evidencing an Incentive Option shall,
in addition, be subject to the provisions of Article 2.2 of the Plan,
below.
a. Exercise
Price
(1) The
Exercise Price shall be fixed by the Plan Administrator but shall not be less
than one hundred percent (100%) of the Fair Market Value per share of Common
Stock on the Grant Date.
(2) The
Exercise Price shall become immediately due upon exercise of the option and
shall, subject to the provisions of Article 3.1, and the documents evidencing
the option, be payable in one or more of the forms specified below:
(a) cash
or
check made payable to the Corporation,
(b) a
promissory note payable to the Corporation, but only to the extent authorized
by
the Administrator pursuant to Section 12 of the Plan,
(c) shares
of
Common Stock held for the requisite period necessary to avoid a charge to the
Corporation's earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date, but only upon prior written approval of
the
Plan Administrator, or
3
(d) upon
the
prior written approval of the Plan Administrator, and to the extent the option
is exercised for vested shares, through a special sale and remittance procedure
pursuant to which the Optionee shall concurrently provide irrevocable written
instructions to (a) a Corporation-designated brokerage firm to effect the
immediate sale of the Purchased Shares and remit to the Corporation, out of
the
sale proceeds available on the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for the Purchased Shares plus all applicable
federal, state and local income and employment taxes required to be withheld
by
the Corporation by reason of such exercise and (b) the Corporation to deliver
the certificates for the Purchased Shares directly to such brokerage firm in
order to complete the sale.
Except
to
the extent such sale and remittance procedure is utilized, payment of the
Exercise Price for the Purchased Shares must be made on the Exercise
Date.
b. Exercise
and Term of Options.
Each
option shall be exercisable at such time or times, during such period and for
such number of shares as shall be determined by the Plan Administrator and
set
forth in the documents evidencing the option. However, no option shall have
a
term in excess of ten (10) years measured from the Grant Date.
c. Effect
of Termination of Service
(1) The
following provisions shall govern the exercise of any options held by the
Optionee at the time of cessation of Service:
(a) Any
option outstanding at the time of the Optionee's cessation of Service for any
reason except death, Permanent Disability or Misconduct shall remain exercisable
for a three (3) month period thereafter, provided no option shall be exercisable
after the Expiration Date.
(b) Any
option outstanding at the time of the Optionee's cessation of Service due to
death or Permanent Disability shall remain exercisable for a twelve (12) month
period thereafter, provided no option shall be exercisable after the Expiration
Date. Subject to the foregoing, any option exercisable in whole or in part
by
the Optionee at the time of death may be exercised subsequently by the personal
representative of the Optionee's estate or by the person or persons to whom
the
option is transferred pursuant to the Optionee's will or in accordance with
the
laws of descent and distribution.
(c) Should
the Optionee's Service be terminated for Misconduct, then all outstanding
options held by the Optionee shall terminate immediately and cease to be
outstanding.
4
(d) During
the applicable post-Service exercise period, the option may not be exercised
in
the aggregate for more than the number of shares for which the option is
exercisable on the date of the Optionee's cessation of Service; the option
shall, immediately upon the Optionee's cessation of Service, terminate and
cease
to be outstanding to the extent the option is not otherwise at that time
exercisable. Upon the expiration of the applicable exercise period or (if
earlier) upon the Expiration Date, the option shall terminate and cease to
be
outstanding for any shares for which the option has not been exercised.
(2) The
Plan
Administrator shall have the discretion, exercisable either at the time an
option is granted or at any time while the option remains outstanding,
to:
(a) extend
the period of time for which the option is to remain exercisable following
the
Optionee's cessation of Service from the period otherwise in effect for that
option to such greater period of time as the Plan Administrator shall deem
appropriate, but in no event beyond the Expiration Date, and/or
(b) permit
the option to be exercised, during the applicable post-Service exercise period,
not only with respect to the number of shares of Common Stock for which such
option is exercisable at the time of the Optionee's cessation of Service but
also with respect to one or more additional shares that would have vested under
the option had the Optionee continued in Service.
d. Stockholder
Rights.
The
holder of an option shall have no stockholder rights with respect to the shares
subject to the option until such person shall have exercised the option, paid
the Exercise Price, and become a holder of record of the Purchased
Shares.
e. Limited
Transferability of Options.
During
the lifetime of the Optionee, Incentive Options may be exercised only by the
Optionee, and shall not be assignable or transferable except by will or the
laws
of descent and distribution following the Optionee's death. Non-Statutory
Options may be assigned or transferred in whole or in part only (i) during
the
Optionee's lifetime if in connection with the Optionee's estate plan to one
or
more members of the Optionee's immediate family (spouse and children) or to
a
trust established exclusively for the benefit of one or more such immediate
family members, or (ii) by will or the laws of descent and distribution
following the Optionee's death. The assigned portion may only be exercised
by
the person or persons who acquire a proprietary interest in the option pursuant
to the assignment. The terms applicable to the assigned portion shall be the
same as those in effect for the option immediately prior to such assignment
and
shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate.
2.2. INCENTIVE
OPTIONS
The
terms
specified below shall apply to all Incentive Options. Except as modified by
the
provisions of this Article 2.2, all the provisions of this Plan shall apply
to
Incentive Options. Options specifically designated as Non-Statutory Options
when
issued under the Plan shall not
be
subject to the terms of this Article 2.2.
5
a. Eligibility.
Incentive Options may only be granted to Employees.
b. Exercise
Price.
The
Exercise Price shall not be less than one hundred percent (100%) of the Fair
Market Value per share of Common Stock on the Grant Date.
c. Dollar
Limitation.
The
aggregate Fair Market Value of the shares of Common Stock (determined as of
the
respective date or dates of grant) for which one or more options granted to
any
Employee under the Plan (or any other option plan of the Corporation or any
Parent or Subsidiary) may for the first time become exercisable as Incentive
Options during any one (1) calendar year shall not exceed the sum of One Hundred
Thousand Dollars ($100,000). To the extent the Employee holds two (2) or more
such options that become exercisable for the first time in the same calendar
year, the foregoing limitation on the exercisability of such options as
Incentive Options shall be applied in the order in which such options are
granted.
d. 10%
Stockholder.
If an
Employee to whom an Incentive Option is granted is a 10% Stockholder, then
the
Exercise Price shall not be less than one hundred ten percent (110%) of the
Fair
Market Value per share of Common Stock on the Grant Date, and the option term
shall not exceed five (5) years measured from the Grant Date.
e. Holding
Period.
Shares
purchased pursuant to an option shall cease to qualify for favorable tax
treatment as Incentive Option Shares if and to the extent Optionee disposes
of
such shares within two (2) years of the Grant Date or within one (1) year of
Optionee's purchase of said shares.
2.3. CORPORATE
TRANSACTION/CHANGE IN CONTROL
a. In
the
event of any Corporate Transaction, and subject to the terms set forth in an
Optionee’s Stock Option Grant, the Board of Directors shall have the sole
authority to elect that each outstanding option shall automatically accelerate
so that each such option shall, immediately prior to the effective date of
the
Corporate Transaction, shall become fully exercisable for all of the shares
of
Common Stock at the time subject to such option and may be exercised for any
or
all of those shares as fully-vested shares of Common Stock. The Board may
exercise its discretion to accelerate the vesting of options whether or not
(i)
such option is, in connection with the Corporate Transaction, either to be
assumed by the successor corporation or parent thereof or to be replaced with
a
comparable option to purchase shares of the capital stock of the successor
corporation or parent thereof, (ii) such option is to be replaced with a cash
incentive program of the successor corporation which preserves the spread
existing on the unvested option shares at the time of the Corporate Transaction
and provides for subsequent payout in accordance with the same vesting schedule
applicable to such option, except to the extent that the acceleration of such
option is subject to other limitations imposed by the Plan Administrator at
the
time of the option grant.
6
b. The
Plan
Administrator's discretion under Article 2.3.a. above shall be exercisable
either at the time the option is granted or at any time while the option remains
outstanding, whether or not those options are to be assumed or replaced in
the
Corporate Transaction. The Plan Administrator shall also have the discretion
to
grant options that do not accelerate whether or not such options are assumed
in
connection with a Corporate Transaction.
c. If
the
Board of Directors elects the automatic acceleration of some or all of the
outstanding options upon the occurrence of a Corporate Transaction, all such
outstanding options shall terminate and cease to be outstanding, except to
the
extent assumed by the successor corporation (or parent thereof) immediately
following the consummation of the Corporate Transaction.
d. Each
option which is assumed in connection with a Corporate Transaction shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities that would have been issuable to the
Optionee in consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction. Appropriate
adjustments shall also be made to (i) the number and class of securities
available for issuance under the Plan following the consummation of such
Corporate Transaction, (ii) the exercise price payable per share under each
outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same and (iii) the maximum number of securities
and/or class of securities for which any one person may be granted stock
options.
e. The
Plan
Administrator shall have the discretion, exercisable at the time the option
is
granted or at any time while the option remains outstanding, to provide for
the
automatic acceleration of any options assumed or replaced in a Corporate
Transaction that do not otherwise accelerate at that time in the event the
Optionee's Service should subsequently terminate by reason of an Involuntary
Termination within eighteen (18) months following the effective date of such
Corporate Transaction. Any options so accelerated shall remain exercisable
for
shares until the earlier of (i) the expiration of the option term or (ii) the
expiration of the one (1)-year period measured from the effective date of the
Involuntary Termination.
f. The
Plan
Administrator shall have the discretion, exercisable either at the time the
option is granted or at any time while the option remains outstanding, to (i)
provide for the automatic acceleration of one or more outstanding options upon
the occurrence of a Change in Control or (ii) condition any such option
acceleration upon the subsequent Involuntary Termination of the Optionee's
Service within a specified period (not to exceed eighteen (18) months) following
the effective date of such Change in Control. Any options accelerated in
connection with a Change in Control shall remain fully exercisable until the
Expiration Date or sooner termination of the option term.
7
g. The
portion of any Incentive Option accelerated in connection with a Corporate
Transaction or Change in Control shall remain exercisable as an Incentive Option
only to the extent the applicable One Hundred Thousand Dollar ($100,000)
limitation is not exceeded. To the extent such dollar limitation is exceeded,
the accelerated portion of such option shall be exercisable as a Non-Statutory
Option under the federal tax laws.
h. The
grant
of options under the Plan shall in no way affect the right of the Corporation
to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer
all
or any part of its business or assets.
ARTICLE
3.
MISCELLANEOUS
3.1 FINANCING
a. The
Plan
Administrator may permit any Optionee to pay the option Exercise Price by
delivering a promissory note payable in one or more installments. The terms
of
any such promissory note (including the interest rate and the terms of
repayment) shall be established by the Plan Administrator in its sole
discretion. Promissory notes may be authorized with or without security or
collateral. In all events, the maximum credit available to the Optionee may
not
exceed the sum of (i) the aggregate option Exercise Price payable for the
Purchased Shares plus (ii) the amount of any federal, state and local income
and
employment tax liability incurred by the Optionee in connection with the option
exercise.
b. The
Plan
Administrator may, in its discretion, determine that one or more such promissory
notes shall be subject to forgiveness by the Corporation in whole or in part
upon such terms as the Plan Administrator may deem appropriate.
3.2 TAX
WITHHOLDING
a. The
Corporation's obligation to deliver shares of Common Stock upon the exercise
of
options under the Plan shall be subject to the satisfaction of all applicable
federal, state and local income and employment tax withholding
requirements.
b. The
Plan
Administrator may, in its discretion, provide any or all holders of
Non-Statutory Options under the Plan with the right to use shares of Common
Stock in satisfaction of all or part of the Taxes incurred by such holders
in
connection with the exercise of their options. Such right may be provided to
any
such holder in either or both of the following formats:
(1) Stock
Withholding:
The
election to have the Corporation withhold, from the shares of Common Stock
otherwise issuable upon the exercise of such Non-Statutory Option, a portion
of
those shares with an aggregate Fair Market Value equal to the percentage of
the
Taxes (not to exceed one hundred percent (100%)) designated by the
holder.
8
(2) Stock
Delivery:
The
election to deliver to the Corporation, at the time the Non-Statutory Option
is
exercised, one or more shares of Common Stock previously acquired by such holder
(other than in connection with the option exercise triggering the Taxes) with
an
aggregate Fair Market Value equal to the percentage of the Taxes (not to exceed
one hundred percent (100%)) designated by the holder.
3.3 EFFECTIVE
DATE AND TERM OF THE PLAN
a. The
Plan
shall become effective on the Plan Effective Date. However, no shares shall
be
issued under the Plan pursuant to Incentive Options until the Plan is approved
by the Corporation's stockholders. If such stockholder approval is not obtained
within twelve (12) months after the Plan Effective Date, then all Incentive
Options previously granted under this Plan shall automatically convert into
Non-Statutory Options.
b. The
Plan
shall terminate upon the earliest of (i) June 10, 2008, (ii) the date on which
all shares available for issuance under the Plan shall have been issued, or
(iii) the termination of all outstanding options in connection with a Corporate
Transaction. Upon such Plan termination, all outstanding options shall continue
to have force and effect in accordance with the provisions of the documents
evidencing such options.
3.4 AMENDMENT
OF THE PLAN
a. The
Board
shall have complete and exclusive power and authority to amend or modify the
Plan in any or all respects, or to cancel any grants made thereunder; provided,
however, that no such amendment, modification, or cancellation shall adversely
affect any rights and obligations with respect to options at the time
outstanding under the Plan unless each affected Optionee consents to such
amendment, modification, or cancellation. In addition, amendments to the Plan
shall be subject to approval of the Corporation's stockholders to the extent
required by applicable laws, regulations, or applicable stock exchange
requirements.
b. Options
to purchase shares of Common Stock may be granted under the Plan that are in
each instance in excess of the number of shares then available for issuance
under the Plan, provided any excess shares actually issued are held in escrow
until there is obtained Board approval (and shareholder approval if required
by
applicable laws, regulations, or Stock Exchange requirements) of an amendment
sufficiently increasing the number of shares of Common Stock available for
issuance under the Plan.
3.5 USE
OF PROCEEDS
Any
cash
proceeds received by the Corporation from the sale of shares of Common Stock
under the Plan shall be used for general corporate purposes.
9
3.6 REGULATORY
APPROVALS
a. The
implementation of the Plan, the granting of any option under the Plan, and
the
issuance of any shares of Common Stock upon the exercise of any option shall
be
subject to the Corporation's obtaining all approvals and permits required by
regulatory authorities having jurisdiction over the Plan and the options granted
under it, and the shares of Common Stock issued pursuant to the
Plan.
b. No
shares
of Common Stock shall be issued or delivered under the Plan unless and until
there shall have been compliance with all applicable requirements of federal
and
state securities laws and all applicable listing requirements of any stock
exchange on which Common Stock is then listed for trading.
3.7 NO
EMPLOYMENT/SERVICE RIGHTS
Nothing
in the Plan shall confer upon the Optionee any right to continue in Service
for
any period of specific duration or interfere with or otherwise restrict in
any
way the rights of the Corporation (or any Parent or Subsidiary employing or
retaining such person) or of the Optionee, which rights are hereby expressly
reserved by each, to terminate such person's Service at any time for any reason,
with or without cause.
10
APPENDIX
The
following definitions shall be in effect under the Plan and the Plan
Documents:
1. Board
shall
mean the Corporation's Board of Directors.
2. Change
in Control
shall
mean a change in ownership or control of the Corporation effected through either
of the following transactions:
(i) the
acquisition, directly or indirectly, by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation), of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation's outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation's stockholders, which the Board does not
recommend such stockholders to accept, or
(ii) a
change
in the composition of the Board over a period of thirty-six (36) consecutive
months or less such that a majority of the Board members ceases, by reason
of
one or more contested elections for Board membership, to be comprised of
individuals who either (A) have been Board members continuously since the
beginning of such period or (B) have been elected or nominated for election
as
Board members during such period by at least a majority of the Board members
described in clause (A) who were still in office at the time the Board approved
such election or nomination.
3. Code
shall
mean the Internal Revenue Code of 1986, as amended.
4. Common
Stock
shall
mean the Corporation's common stock.
5. Corporate
Transaction
shall
mean either of the following stockholder-approved transactions to which the
Corporation is a party:
(i) a
merger
or consolidation in which securities possessing more than fifty percent (50%)
of
the total combined voting power of the Corporation's outstanding securities
are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction; or
(ii) the
sale,
transfer or other disposition of all or substantially all of the Corporation's
assets in complete liquidation or dissolution of the Corporation.
6. Eligible
Director
shall
mean a non-employee Board member eligible to participate in the
Plan.
1
7. Employee
shall
mean an individual who is in the employ of the Corporation (or any Parent or
Subsidiary), subject to the control and direction of the employer entity as
to
both the work to be performed and the manner and method of
performance.
8. Exercise
Date
shall
mean the date on which the Corporation shall have received written notice of
the
option exercise.
9. Exercise
Price
shall
mean the exercise price per share as specified in the Stock Option
Grant.
10. Expiration
Date
shall
mean the date on which the option expires as specified in the Stock Option
Grant.
11. Fair
Market Value
per
share of Common Stock on any relevant date shall be determined in accordance
with the following provisions:
(i) If
the
Common Stock is traded at the time on the NASDAQ National Market, then the
Fair
Market Value shall be the closing selling price per share of Common Stock on
the
date in question, as such price is reported by the National Association of
Securities Dealers on the NASDAQ National Market or any successor system. If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If
the
Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the date
in question on the Stock Exchange determined by the Plan Administrator to be
the
primary market for the Common Stock, as such price is officially quoted in
the
composite tape of transactions on such exchange. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such
quotation exists.
(iii)
If the
Common Stock is not listed on any Stock Exchange nor traded on the NASDAQ
National Market, then the Fair Market Value shall be determined by the Plan
Administrator after taking into account such factors as the Plan Administrator
shall deem appropriate.
(iv) For
purposes of any option grants made on the Underwriting Date, the Fair Market
Value shall be deemed to be equal to the price per share at which the Common
Stock is sold in the initial public offering pursuant to the Underwriting
Agreement.
12. Grant
Date
shall
mean the date on which the option is granted to Optionee as specified in the
Stock Option Grant.
2
13. Incentive
Option
shall
mean an option which satisfies the requirements of Code Section
422.
14. Involuntary
Termination
shall
mean the termination of the Service of any individual which occurs by reason
of:
(i) such
individual's involuntary dismissal or discharge by the Corporation for reasons
other than Misconduct, or
(ii) such
individual's voluntary resignation following (A) a change in his or her position
with the Corporation which materially reduces his or her level of
responsibility, (B) a reduction in his or her level of compensation (including
base salary, fringe benefits and participation in corporate-performance based
bonus or incentive programs) by more than fifteen percent (15%) or (C) a
relocation of such individual's place of employment by more than fifty (50)
miles, provided and only if such change, reduction or relocation is effected
by
the Corporation without the individual's consent.
15. Market
Stand Off
shall
mean the market stand off restriction on disposition of the Purchased Shares
as
identified under such title in the Stock Option Exercise Notice and Purchase
Agreement.
16. Misconduct
shall
mean the commission of any act of fraud, embezzlement or dishonesty by the
Optionee, any unauthorized use or disclosure by such person of confidential
information or trade secrets of the Corporation (or any Parent or Subsidiary),
or any other intentional misconduct by such person adversely affecting the
business or affairs of the Corporation (or any Parent or Subsidiary) in a
material manner. The foregoing definition shall not be deemed to be inclusive
of
all the acts or omissions which the Corporation (or any Parent or Subsidiary)
may consider as grounds for the dismissal or discharge of any Optionee or other
person in the Service of the Corporation (or any Parent or
Subsidiary).
17. 1933
Act
shall
mean the Securities Act of 1933, as amended.
18. 1934
Act
shall
mean the Securities Exchange Act of 1934, as amended.
19. Non-Statutory
Option
shall
mean an option not intended to satisfy the requirements of Code Section
422.
20. Optionee
shall
mean any person to whom an option is granted under Plan.
21. Option
Shares
shall
mean the number of shares of Common Stock subject to the option as specified
in
the Stock Option Grant.
22. Owner
shall
mean Optionee and all subsequent holders of the Purchased Shares who derive
their claim of ownership through a Permitted Transfer from
Optionee.
3
23. Parent
shall
mean any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one or the other corporations
in such chain.
24. Permanent
Disability or Permanently Disabled
shall
mean the inability of the Optionee to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment expected
to result in death or to be of continuous duration of twelve (12) months or
more.
25. Permitted
Transfer
shall
mean (i) a gratuitous transfer of the Purchased Shares, provided and only if
Optionee obtains the Corporation's prior written consent to such transfer,
(ii)
a transfer of title to the Purchased Shares effected pursuant to Optionee's
will
or the laws of intestate succession following Optionee's death, or (iii) a
transfer to the Corporation in pledge as security for any purchase-money
indebtedness incurred by Optionee in connection with the acquisition of the
Purchased Shares.
26. Plan
Administrator
shall
mean the particular entity, whether the Board or a committee of the Board,
which
is authorized to administer the Plan with respect to one or more classes of
eligible persons, to the extent such entity is carrying out its administrative
functions under the Plan with respect to the persons under its
jurisdiction.
27. Plan
Documents
shall
mean the Plan, the Stock Option Grant, and Stock Option Exercise Notice and
Purchase Agreement, collectively.
28. Plan
Effective Date
shall
mean June 10, 1998, the date on which the Plan was adopted by the
Board.
29. Primary
Committee
shall
mean the committee of two (2) or more non-employee Board members (as defined
in
the regulations to Section 16 of the 1934 Act) appointed by the Board to
administer the Plan with respect to Section 16 Insiders.
30. Purchased
Shares
shall
mean the shares purchased upon exercise of the Option.
31. Recapitalization
shall
mean any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other charge affecting the Corporation's outstanding
Common Stock as a class without the Corporation's receipt of
consideration.
32. Reorganization
shall
mean any of the following transactions:
(i) a
merger
or consolidation in which the Corporation is not the surviving
entity;
(ii) a
sale,
transfer or other disposition of all or substantially all of the Corporation's
assets;
4
(iii) a
reverse
merger in which the Corporation is the surviving entity but in which the
Corporation's outstanding voting securities are transferred in whole or in
part
to a person or persons different from the persons holding those securities
immediately prior to the merger; or
(iv) any
transaction effected primarily to change the state in which the Corporation
is
incorporated or to create a holding company structure.
33. SEC
shall
mean the Securities Exchange Commission.
34. Secondary
Committee
shall
mean a committee of two (2) or more Board members appointed by the Board to
administer the Plan with respect to eligible persons other than Section 16
Insiders.
35. Section
16 Insider
shall
mean an officer or director of the Corporation subject to the short-swing profit
liabilities of Section 16 of the 1934 Act.
36. Service
shall
mean the performance of services to the Corporation (or any Parent or
Subsidiary) by a person in the capacity of an Employee, a non-employee member
of
the board of directors or a consultant or independent advisor, except to the
extent otherwise specifically provided in the documents evidencing the option
grant.
37. Stock
Exchange
shall
mean either the American Stock Exchange, the New York Stock Exchange, another
regional stock exchange, or the NASDAQ market as established by the National
Association of Securities Dealers.
38. Stock
Option Exercise Notice and Purchase Agreement
shall
mean the agreement of said title in substantially the form of Exhibit A to
the
Stock Option Grant, pursuant to which Optionee gives notice of his intent to
exercise the option and purchase Shares.
39. Stock
Option Grant
shall
mean the Stock Option Grant document, pursuant to which Optionee has been
informed of the basic terms of the option granted under the Plan.
40. Subsidiary
shall
mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
41. Taxes
shall
mean the Federal, state and local income and employment tax liabilities incurred
by the holder of Non-Statutory Options in connection with the exercise of those
options.
42. 10%
Stockholder
shall
mean the owner of stock (as determined under Code Section 424(d)) possessing
more than ten percent (10%) of the total combined voting power of all classes
of
stock of the Corporation (or any Parent or Subsidiary).
5
Exhibit
4.9
CLEARONE COMMUNICATIONS, INC.
1997
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE
I - PURPOSE
The
ClearOne Communications, Inc. (hereafter, the "Company") 1997 Employee Stock
Purchase Plan (the "Plan") is intended to provide a method whereby employees
of
the Company will have an opportunity to acquire a proprietary interest in the
Company through the purchase of shares of the Company's Common Stock at a
discount.
ARTICLE
II - DEFINITIONS
2.1
-
Base Pay. "Base Pay" shall mean regular straight-time earnings excluding
payments for overtime, shift premium, bonuses and other special payments,
commissions and other marketing incentive payments.
2.2
-
Board. "Board" shall mean the Company's board of directors.
2.3
-
Commencement Date. "Commencement Date" means the date on which shares of Common
Stock become available for purchase under the Plan.
2.5
-
Common Stock. "Common Stock" means the Company's issued and/or outstanding
Common Stock.
2.6
-
Employee. "Employee" means any person who is customarily employed on a full-time
or part-time basis by the Company and is regularly scheduled to work more than
20 hours per week.
2.7
-
Offering. "Offering" means the Company's offer of shares of its Common Stock
for
purchase under the Plan.
2.8
-
Participant. "Participant" means any person who, being eligible under Article
III herein, participates in the Plan.
2.9
-
Purchase Date. "Purchase Date" means the date each quarter on which the Company,
through the Participating Broker, purchases shares of Common Stock for the
individual accounts of Plan Participants.
2.10
-
Participating Broker. "Participating Broker" means the securities broker or
brokers retained by the Company for purposes of executing orders to buy or
sell
shares of Common Stock on behalf of Plan Participants.
ARTICLE
III - ELIGIBILITY AND PARTICIPATION
3.1
-
Initial Eligibility. Any Employee who has completed ninety (90) days' continuous
employment and is currently employed by the Company on the date his
participation in the Plan is to become effective shall be eligible to
participate in the Plan on or after such ninety day period has
concluded.
3.2
-
Leave of Absence. For purposes of participation in the Plan, a person on leave
of absence shall be deemed to be an Employee for the first 90 days of such
leave
of absence and such Employee's employment shall be deemed to have terminated
at
the close of business on the 90th day of such leave of absence unless such
Employee shall have returned to regular full-time or part-time employment (as
the case may be) prior to the close of business on such 90th day. Termination
by
the Company of any Employee's leave of absence, other than termination of such
leave of absence on return to full time or part time employment, shall terminate
an Employee's employment for all purposes of the Plan and shall terminate such
Employee's participation in the Plan pursuant to Section 6.3
herein.
ARTICLE
IV - OPERATION OF THE PLAN
4.1
-
Subscription. An eligible Employee may become a Participant by completing an
authorization for payroll deductions in the form of Exhibit "A" attached hereto
(the "Enrollment Form"), in the amount specified by such Participant. The
Enrollment Form executed by the Participant together with this Plan constitutes
a subscription for shares of Common Stock. The
Enrollment Form shall be filed with the Company’s Human Resources Department at
least five (5) business days prior to issuance of the first paycheck on which
payroll deductions are to be made, unless a later time for filing the Enrollment
Form is set by the Committee.
1
4.2
-
Right to Purchase. Once payroll deductions have been made from a Participants
paycheck pursuant to Article V herein, such Participant shall be deemed to
have
been granted a right to purchase shares of Common Stock. Each Participant will
be deemed to have exercised his right to purchase Common Stock on the Purchase
Date, unless such Participant notifies the Committee pursuant to Section 6.1
herein.
4.3
-
Purchases; Purchase Price. On the Purchase Date, the Company shall deliver
the
amounts withheld from each Participant's compensation pursuant to Article V
and
direct the Participating Broker to conduct open market purchases of shares
of
Common Stock
4.4
-
Company Contributions. The Company shall contribute to the account of each
Participant, for no consideration, one (1) share of its Common Stock for every
nine (9) shares purchased by such Participant under the Plan. Fractional shares
will not be contributed.
4.5
-
Transaction Fees and Commissions. The Company shall be responsible for all
transaction fees and commissions incurred in connection with the purchase of
shares of Common Stock for purposes of the Plan. Each Participant shall be
responsible for all transaction fees and commissions incurred in connection
with
any subsequent sales or transfers of Common Stock from the Participant's
account.
4.6
-
Holding Period. Subject to death, disability, or a medical condition of the
Participant or the Participant's immediate family that will incur significant
costs to the Participant, each Participant shall be obligated to hold shares
of
Common Stock, both purchased under the Plan and contributed by the Company
under
Section 4.4, in such Participant's account for not less than one (1) year from
the Purchase Date applicable to the purchase of such shares.
4.7
-
Termination Date. The Plan shall terminate on June 30, 2010 unless sooner
terminated under Section 10.5 or by the Company pursuant to Section 10.6 (the
"Termination Date").
ARTICLE
V - PAYROLL DEDUCTIONS
5.1
-
Amount of Deduction. Each Participant shall file an Enrollment Form as specified
in Section 4.1 and shall elect to have deductions made from
each
paycheck at the rate of not less than twenty-five dollars ($25.00), nor more
than ten percent (10%) of the Participant's Base Pay for the period covered
by
the paycheck. In the case of a part-time hourly Employee, such Employee's Base
Pay shall be determined by multiplying such Employee's hourly rate by the number
of regularly scheduled hours of work for such Employee. Payroll deductions
for a
Participant shall commence on the Offering Commencement Date or when such
Participant's Enrollment Form become effective, whichever is later, and shall
end on the Termination Date (as defined in Section 4.7) unless sooner terminated
by the Participant as provided in Article VI.
5.2
-
Participant's Account. All payroll deductions made for a Participant shall
be
credited to such Participant's account under the Plan. A Participant may not
make any separate cash payment into such account except when on leave of absence
and then only as provided in Section 5.4.
5.3
-
Changes in Payroll Deductions. A Participant may change the amounts withheld
from the Participants future paychecks by filing a new Enrollment Form with
the
Human Resources Department, and specifying the amounts to be withheld from
such
future paychecks. Any changes in the amount withheld from such Participants
future paychecks under this Section shall only be permitted if not less than
six
(6) months has elapsed since the Participant last made changes to the amounts
withheld under this Section.
5.4
-
Leave of Absence. If a Participant goes on a leave of absence, such Participant
shall have the right to elect: (a) to withdraw the balance in his or her account
pursuant to Section 6.1, (b) to discontinue contributions to the Plan but remain
a Participant in the Plan, or remain a Participant in the Plan during such
leave
of absence, authorizing deductions to be made from payments by the Company
to
the Participant during such leave of absence and undertaking to make cash
payments to the Plan at the end of each payroll period to the extent that
amounts payable by the Company to such Participant are insufficient to meet
such
Participant's authorized Plan deductions.
2
ARTICLE
VI - WITHDRAWAL
6.1
- In
General. A Participant may withdraw from the Plan by electing to withdraw all
accumulated payroll deductions credited to such Participants account under
the
Plan at any time by giving written notice to the Companys Human Resources
Department within five (5) business days before the paycheck is issued on which
payroll deductions have been terminated. With the exception of any payroll
deductions of such Participant used to purchase Common Stock prior to the giving
of such written notice, all of the Participant's payroll deductions credited
to
his account will be paid to him promptly after receipt of his notice of
withdrawal, and no further payroll
deductions will be made from his pay. Any Common Stock purchased on behalf
of
the Participant pursuant to the Plan shall be returned to him pursuant to
Section
6.6 herein. The Company may, at its option, treat any attempt to borrow by
an
Employee on the security of his accumulated payroll deductions as an election,
under Section 3.2, to withdraw such deductions.
6.2
-
Effect on Subsequent Participation. A Participant's withdrawal from the Plan
will not have any effect upon his eligibility to participate in any succeeding
Offering or in any similar plan which may hereafter be adopted by the
Company.
6.3
-
Termination of Employment. Upon termination of the Participant's employment
for
any reason, including retirement (but excluding death while in the employ of
the
Company or continuation of a leave of absence for a period beyond 90 days),
any
payroll deductions credited to his account and not used to purchase Common
Stock
will be returned to him. Any Common Stock purchased for the Participants account
shall be returned to the Participant pursuant to Section 6.6 herein. In the
case
of the Participants death subsequent to the termination of his employment,
such
accumulated payroll deductions and/or Common Stock purchased for his account
shall be returned to the person or persons entitled thereto under Section
10.1.
6.4
-
Termination of Employment Due to Death. Upon termination of the Participant's
employment because of his death, his beneficiary (as defined in Section 10.1)
shall have the right to elect, by written notice given to the Company Secretary
prior to the earlier of the Termination Date or the expiration of a period
of
sixty (60) days commencing with the date of the death of the Participant,
either:
a)
to
withdraw all of the payroll deductions credited to the Participant's account
under the Plan, or
b)
to
purchase the number of full shares of stock which the accumulated payroll
deductions in the Participant's account at the date of the Participant's death
will purchase at the applicable purchase price (as defined in Section 4.3),
together with any applicable contributions by the Company under Section 4.4,
and
any excess in such account will be returned to said beneficiary, with interest
as specified in Article VII.
In
the
event that no such written notice of election shall be duly received by the
office of the Secretary of the Company, the beneficiary shall automatically
be
deemed to have elected, pursuant to paragraph (b), to purchase the applicable
number of shares under the Plan on the next Purchase Date.
6.5
-
Leave of Absence. A Participant on leave of absence shall, subject to the
election made by such Participant pursuant to Section 5.4, continue to be a
Participant in the Plan so long as such Participant is on continuous leave
of
absence. A Participant who has been on leave of absence for more than
90
days and who therefore is not an Employee for the purpose of the Plan shall
not
be entitled to participate in the Offering if the Offering Commencement Date
is
after the 90th day of such leave of absence. Notwithstanding any other
provisions of the Plan, unless a Participant on leave of absence returns to
regular full time or part time employment with the Company at the earlier of:
(a) the termination of such leave of absence or (b) three months from the 90th
day of such leave of absence, such Participant's participation in the Plan
shall
terminate on whichever of such dates first occurs.
6.6
-
Closing of Account. If a Participants participation under the Plan is terminated
pursuant to this Article or Sections 3.2, 10.5, or 10.6 herein, then the Company
shall return any accumulated amounts withheld from the Participant's account
not
used to purchase Common Stock, and shall direct the Participating Broker to
close such Participant's account with the Participating Broker, and remit to
the
Participant or his beneficiary pursuant to Section 10.1, any Common Stock
purchased on his behalf. Any Common Stock remitted under this Section shall
retain the holding period restrictions as defined in Section 4.6
herein.
3
ARTICLE
VII - INTEREST
7.1
-
Payment of Interest. No interest will be paid or allowed on any money paid
into
the Plan or credited to the account of any Participant Employee; provided,
however, that interest shall be paid on any and all money which is distributed
to an Employee or his beneficiary pursuant to the provisions of Sections 6.1,
6.3, 6.4, 6.6, and 8.1. Such distributions shall bear simple interest during
the
period from the date of withholding to the date of return at the regular
passbook savings account rates per annum in effect at the regular passbook
savings account rates per annum in effect during such period at a major
commercial bank in Salt Lake City, Utah selected by the Committee. Where the
amount returned represents an excess amount in an Employee's account after
such
account has been applied to the purchase of stock, the Employee's withholding
account shall be deemed to have been applied first toward purchase of stock
under the Plan, so that interest shall be paid on the last withholdings during
the period which results in the excess amount.
ARTICLE
VIII - STOCK
8.1
-
Maximum Shares. The maximum number of shares of Common Stock which shall be
issued under the Plan shall be five hundred thousand (500,000) shares. If the
total number of shares of Common Stock for which payroll deductions have been
made under Article V herein exceeds the maximum number of
shares
for the Offering, the Company, on the applicable Purchase Date, shall make
a pro
rata allocation of the shares available for delivery and distribution in an
nearly a uniform manner as shall be practicable and as it shall determine to
be
equitable, and the balance of payroll deductions credited to the account of
each
Participant under the Plan shall be returned to him as promptly as
possible.
8.2
-
Participant's Interest in Common Stock. The Participant shall not have an
interest in any Common Stock until purchases of such Common Stock have been
made
for the Participants account.
8.3
-
Registration of Stock. Stock to be delivered to a Participant under the Plan
will be registered in the name of the Participant, or, if the Participant so
directs by written notice to the Company's Human Resources Department prior
to
the Termination Date, in the names of the Participant and one such other person
as may be designate by the Participant, as joint tenants with rights of
survivorship or as tenants by the entireties, to the extent permitted by
applicable law.
ARTICLE
IX - ADMINISTRATION
9.1
-
Appointment of Committee. The Board shall appoint a compensation committee
(the
"Committee") to administer the Plan. The Committee shall consist of no fewer
than three members of the Board. No member of the Committee shall be eligible
to
purchase stock under the Plan.
9.2
-
Authority of Committee. Subject to the express provisions of the Plan, the
Committee shall have plenary authority in its discretion to interpret and
construe any and all provisions of the Plan, to adopt rules and regulations
for
administering the Plan, and to make all other determinations deemed necessary
or
advisable for administering the Plan. The Committee's determination on the
foregoing matters shall be conclusive.
9.3
-
Rules Governing the Administration of the Committee. The Board may from time
to
time appoint members of the Committee in substitution for or in addition to
members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee may select one of its members as its Chairman and
shall
hold its meetings at such times and places as it shall deem advisable and may
hold telephonic meetings. A majority of its members hall constitute a quorum.
All determinations of the Committee shall be made by a majority of its members.
The Committee may correct any defect or omission or reconcile any inconsistency
in the Plan, in the manner and to the extent it shall deem desirable. Any
decision or determination reduced to writing and signed by a majority of the
members of the Committee shall be as fully effective as if it had been made
by a
majority vote at a meeting duly called and held. The Committee may appoint
a
secretary and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.
4
(i)
maintaining individual accounts and transaction records of Plan Participants,
(ii) receiving and processing Enrollment Forms, (iii) receiving and holding
payroll deductions from the paychecks of Plan Participants, (iv) delivering
payroll deductions under the Plan to the Participating Broker at quarterly
intervals for purchase of Common Stock, (v) elections and changes in elections
made by Plan Participants, (vi) delivery of certificates representing the shares
of Common Stock purchased by Plan Participants, (vii) keeping minutes of its
actions under the Plan, and (viii) any and all procedures and functions of
the
Plan not otherwise specified herein or assigned to another party in accordance
with the terms of the Plan or by authority of the Committee.
9.5
-
Reports. The Company shall provide to each Participant, on at least an annual
basis, statements setting forth the amounts of payroll deductions, the purchase
price for each Purchase Date, the number of shares purchased on each Purchase
Date, the total number of shares purchased, and the remaining cash balance,
if
any, for such Participant's account.
9.6
-
Professional Assistance. The Committee may employ such legal counsel, including,
without limitation, independent legal counsel regularly employed by the Company,
consultants and agents as the Committee may deem appropriate for the
administration of the Plan and may rely upon any opinion received from any
such
counsel or consultant and any computations received from any such consultant
or
agent. All expenses incurred by the Committee in interpreting and administering
the Plan, including, without limitation, meeting fees and expenses and
professional fees, shall be paid by the company.
9.7
-
Participating Broker. The Committee shall designate a Participating Broker
to
act as the Company's agent pursuant to the operation of the Plan. Functions
of
the Participating Broker may include, without limitation, the execution of
orders to purchase Common Stock with the proceeds obtained pursuant to Article
V
herein and the closing of a Participant's brokerage account with the
Participating Broker pursuant to Section 6.6 herein.
9.8
-
Liability. No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect to the
Plan or any deduction or withholding made under the Plan. Each member or former
member of the Committee or the Board shall be indemnified and held harmless
by
the Company against all costs or expenses (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the Board)
arising out of any act or omission to act in connection with the Plan to the
extent allowed by law.
5
ARTICLE
X - MISCELLANEOUS
10.1
-
Designation of Beneficiary. A Participant may file a written designation of
a
beneficiary who is to receive any Common Stock and/or cash. Such designation
of
beneficiary may be changed by the Participant at any time by written notice
to
the Secretary of the Company. Upon the death of a Participant and upon receipt
by the Company of proof of identity and existence at the Participant's death
of
a beneficiary validly designated by him under the Plan, the Company shall
deliver such Common Stock and/or cash to such beneficiary. In the event of
the
death of a Participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
company shall deliver such Common Stock and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such Common Stock and/or cash to the spouse
or to
any one or more dependents of the Participant as the Company may designate.
No
beneficiary shall, prior to the death of the Participant by whom he has been
designated, acquire any interest in the Common Stock or cash credited to the
Participant under the Plan.
10.2
-
Transferability. Neither payroll deductions credited to a Participant's account
nor any rights to receive Common Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by the Participant
other than by will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition of such rights shall be
without effect, except that the Company may treat such act as an election to
withdraw from the plan under Section 6.1.
10.3
-
Use of Funds. All payroll deductions received or held by the Company under
the
Plan may be used by the Company for any corporate purpose and the Company shall
not be obligated to segregate such payroll deductions.
10.4
- No
Adjustment Upon Changes in Capitalization. No adjustment shall be made to a
Participant's account due to stock splits, reverse stock splits, changes in
the
Company's capitalization, or similar transaction. No adjustments shall be made
for stock dividends.
10.5
-
Dissolution or Liquidation. In the event of a proposed dissolution or
liquidation of the Company, a sale of all or substantially all of the assets
of
the Company, or the merger of the Company with or into another corporation,
the
Plan will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Committee, and the Company shall return
to each Participant, with interest, the accumulated withholdings in such
Participant's account, as well as any Common Stock purchased for such
Participant's account, with such Participant subject to the one-year holding
period restriction described in Section 4.6.
10.6
-
Amendment and Termination. The Board shall have complete power and authority
to
terminate or amend the Plan at any time and for any reason. No termination,
modification, or amendment of the Plan may, without the consent of an Employee
then having a right to purchase Common Stock under the Plan, adversely affect
the rights of such Employee to purchase Common Stock.
10.7
-
Effective Date. The Plan shall become effective as of January 1,
1997.
10.8
- No
Employment Rights. The Plan does not, directly or indirectly, create any right
for the benefit of any Employee or class of Employees to purchase any shares
under the Plan, or create in any Employee or class of Employees any right with
respect to continuation of employment by the Company, and it shall not be deemed
to interfere in any way with the Company's right to terminate, or otherwise
modify, an Employee's employment at any time.
10.9
-
Effect of Plan. The provisions of the Plan shall, in accordance with its terms,
be binding upon, and inure to the benefit of, all successors of each
Participant, including, without limitation, such Participant's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
10.10
-
Governing Law. The provisions of the Plan and all matters relating thereto
shall
be governed by the laws of the State of Utah, except to the extent such laws
are
superseded by the laws of the United States.
6
ClearOne
Communications, Inc.
Employee
Stock Purchase Plan Enrollment Form
AUTHORIZATION
Participant
Name (Last, First, M.I.)
Social
Security Number Hire
Date
Birth
Date
__________________________________ _________
- _______ - _________ __________
___________
[
] Initial
Election
[ ] Married
[
] Change
Election
[ ] Single
I
hereby
authorize and direct that my employer, ClearOne Communications Inc. (the
“Company”), withhold from each pay period the indicated amount from my gross
compensation for monthly purchases of shares of the Company’s common stock for
my account, pursuant to the 1997 Employee Stock Purchase Plan (the” Plan”). I
intend to complete all applications required by Morgan Stanley to open
a special
“EMSIP” (Employee Stock Investment Plan) account, and understand that all shares
of stock purchased under the terms hereby authorized will be deposited
into this
account. I understand that under the Plan I may authorize no less than
$25.00
and no more the 10% of my gross compensation to be withheld from each
paycheck.
[ ] 3%
[ ] 5% [
]10% %______________ $______________
I
understand that I may change, suspend, and resume contributions at such
times as
outlined in the terms of the Plan, and that my salary reduction and
participation in the Plan is completely voluntary. I also understand that
the
amounts withdrawn from my compensation, along with shares purchased for
my
account, are subject to the withdrawal and/or sale restrictions set forth
in the
Plan summary, a copy of which I have received. I understand the Morgan
Stanley
may discontinue my EMSIP account at any time by notifying me and the Company
in
writing.
I also understand that I am subject to an Annual Account Service Charge
of
$30.00 to offset costs incurred by Morgan Stanley Dean Witter for the effective
administration and maintenance of my account.
I do not wish to contribute to the Employee Stock Investment Plan at this
time.
I hereby authorize the above payroll deduction.
Signature
_____________________________________________________________ Date
_________________________________
JOINT
ACCOUNT DESIGNATION
In
connection with our Morgan Stanley EMSIP account, with rights of survivorship,
we confirm that:
| 1. |
In
all matters pertaining to the joint account maintained pursuant
to the
terms of the Plan, Morgan Stanley may act upon instructions from
either of
us.
|
| 2. |
If
both of us reside in a state other than Louisiana or Texas, upon
the death
of either of us, all securities, funds, and property in the joint
EMSIP
account shall be the sole property of the
survivor.
|
| 3. |
If
either of us resides in the state of Louisiana or Texas, upon death
of
either of us all securities, funds, and property in the joint EMSIP
account shall be divided, with one half belonging to the survivor,
and one
half belonging to the estate of the
deceased.
|
Signature
______________________________________________________________ Date
_________________________________
Signature
______________________________________________________________ Date
_________________________________
BENEFICIARY
DESIGNATION
Designate
the following beneficiaries for any interest due from the Plan upon the
event of
death:
Beneficiary
(Primary)______________________________________________ Relationship________________________________
Beneficiary
(Secondary)____________________________________________ Relationship________________________________
Signature
_______________________________________________________ Date
______________________________________
We
suggest that you consult your tax or legal advisor regarding the consequences
of
the designation of the beneficiary you have made. You may change your
designation by properly completing a new Beneficiary Designation section
of this
form.
7
|
BLACKBURN
&
STOLL, LC
Attorneys
at Law
257
East 200 South, Suite 800
Salt
Lake City, Utah 84111
|
EXHIBIT
5.1
Telephone
(801) 521-7900
Fax
(801) 521-7965
|
|
|
October
5, 2006
|
ClearOne
Communications, Inc.
1825
Research Way
Salt
Lake
City, Utah 84119
Re:
Registration Statement on Form S-8
Ladies
and Gentlemen:
We
have
acted as counsel to ClearOne Communications, Inc. (the “Company”) in the
preparation of a Registration Statement on Form S-8 filed to be filed on or
about October 5, 2006, to which this opinion is attached as Exhibit 5.1 (the
"Registration Statement"), with the Securities and Exchange Commission (the
"Commission"). The Registration Statement relates to up to 3,000,000 shares
(the
"Shares") of common stock of the Company, par value $.001 per share, issuable
under the 1998 Stock Option Plan (the “Option Plan”) and the 1997 Employee Stock
Purchase Plan (the “Purchase Plan,” and together with the Option Plan, the
“Plans”).
This
opinion is an exhibit to the Registration Statement, and is being furnished
to
you in accordance with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act of 1933, as amended (the "1933 Act").
In
that
capacity, we have reviewed the Registration Statement, the Plans and other
documents, corporate records, certificates, and other instruments for purposes
of this opinion.
In
such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to
us
as originals, the conformity of all documents submitted to us as certified,
conformed or photostatic copies and the authenticity of the originals of such
documents. In making our examination of documents executed by parties other
than
the Company, we have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other,
and
execution and delivery by such parties of such documents and the validity,
binding effect and enforceability thereof. As to any facts material to the
opinions expressed herein, we have, to the extent we deemed appropriate, relied
upon statements and representations of officers and other
representatives
of
the
Company and others.
We
assume
that the appropriate action will be taken, prior to the offer and sale of the
Shares in accordance with the Plans, to register and qualify the Shares for
sale
under all applicable state securities or “blue sky” laws.
The
law
covered by the opinions expressed herein is limited to the laws of the State
of
Utah and the federal laws of the United States of America, and we do not express
any opinion herein concerning any other law. It is understood that this opinion
is to be used only in connection with the offer and sale of Shares while the
Registration Statement is in effect.
Based
upon and subject to the foregoing, and to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion
that:
Upon
the
issuance, payment for and sale of the Shares in the manner contemplated by
the
Registration Statement and in accordance with the terms of the Plans, and
subject to the Company completing all actions and proceedings required on its
part to be taken prior to the issuance of the Shares pursuant to the terms
of
the Plans and the Registration Statement, the Shares will be legally and validly
issued, fully paid and nonassessable securities of the Company.
Please
note that we are opining only as to the matters expressly set forth herein,
and
no opinion should be inferred as to any other matters.
In
rendering this opinion, we have assumed that the certificates representing
the
Shares will conform to the form of specimen examined by us and such certificates
will be duly executed and delivered by the Company.
We
hereby
consent to the use of this opinion as an exhibit to the Registration
Statement.
Very
truly yours,
/s/
Blackburn & Stoll, LC
BLACKBURN
& STOLL, LC
2
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement
on Form
S-8 of ClearOne Communications, Inc. of our report dated August 21, 2006
with
respect to the financial statements of ClearOne Communications, Inc. as of
June
30, 2006 and 2005 and for the years ended June 30, 2006 and 2005, which appear
in the Annual Report on Form 10-K for the year ended June 30, 2006.
/s/
Hansen, Barnett & Maxwell
HANSEN,
BARNETT & MAXWELL
Salt
Lake
City, Utah
October
2, 2006
Exhibit
23.3
Consent
of Independent Registered Public Accounting Firm
The
Board
of Directors of
ClearOne
Communications, Inc.:
We
consent to the use of our report dated December 15, 2005, with respect to the
consolidated statements of operations and comprehensive loss, stockholders’
equity and cash flows for the year ended June 30, 2004, incorporated by
reference in the registration statement.
|
/s/
KPMG LLP
|
|
|
|
|
|
Salt
Lake City, Utah
|
|
|
October
5, 2006
|
|