UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT PURSUANT
TO
SECTION 13 OR 15(D) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): February
5, 2010
ClearOne Communications,
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Utah
(State or
Other Jurisdiction of Incorporation)
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001-33660
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87-0398877
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(Commission
File Number)
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(I.R.S.
employer
identification
number)
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Salt
Lake City, Utah
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84116
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(Address
of principal executive offices)
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(Zip
Code)
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(801)
975-7200
(Registrant’s
Telephone Number, Including Area Code)
Not
applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement
communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement
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On
November 3, 2009, ClearOne Communications, Inc. (“ClearOne”) entered into
and closed the Merger Agreement with Alta-Wasatch Acquisition Corporation
(“Alta-Wasatch”), our wholly owned subsidiary and NetStreams, Inc
(“NetStreams”). Pursuant to the Merger Agreement, Alta-Wasatch, merged into
NetStreams (the “Merger”).
In
connection with the closing of the Merger on November 3, 2009, we entered
into the Joinder to the Loan and Security Agreement (the “Joinder”) and the
Seventh Amendment to the Loan and Security Agreement (the “Seventh
Amendment”).
Pursuant
to the Joinder, we entered into the Loan and Security Agreement as a co-borrower
and assumed certain obligations under the Loan and Security Agreement. We were
not required to pledge additional security interests to the Bank. The existing
collateral arrangement with respect to Borrowers’ assets continues to secure the
obligations of the parties under the Loan and Security Agreement. In connection
therewith, NetSteams entered into the Seventh Amendment which obligates us to
the Loan and Security Agreement in the amount of $2,000,000 and payment of
Interest (as defined in the Loan and Security Agreement) under the Formula
Revolving Line (as defined in the Loan and Security Agreement) shall be due and
payable on the first calendar day of each month during the term of the Loan and
Security Agreement.
On
December 22, 2009 ClearOne along with NetStreams executed the Eighth Amendment
to Loan and Security Agreement (“Eighth Amendment”) with Square 1 Bank. The
effect of the agreement is to extend the forbearance period from December 15,
2009 to January 15, 2010.
On
February 01, 2010 ClearOne along with NetStreams executed the Ninth Amendment to
Loan and Security Agreement (“Ninth Amendment”) with Square 1 Bank. The effect
of the agreement is to extend the forbearance period from January 15, 2010 to
February 15, 2010.
The
foregoing descriptions of the Joinder, Seventh Amendment, Eighth Amendment and
Ninth Amendment are only summaries and are qualified in their entirety by
reference to the full text of the Joinder, Seventh Amendment, Eighth amendment
and Ninth Amendment, which are attached hereto as exhibits.
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Exhibit
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Number
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Description
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2.2
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Agreement
and Plan of Merger, dated as of November 3, 2009, by and among
ClearOne Communications, Inc., Alta-Wasatch Acquisition Corporation,
NetStreams, Inc., Austin Ventures VIII, L.P., and Kevin A. Reinis.
Incorporated by reference to our Form 8-K filed on Nov 9,
2009
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10.23
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Joinder
to Loan and Security Agreement, dated as of November 3, 2009, by and
between ClearOne Communications, Inc. and Square 1 Bank. Incorporated by
reference to our Form 8-K filed on Nov 9, 2009
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10.24
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10.25
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Eighth
Amendment to Loan and Security Agreement, dated as of December 15, 2009,
by and between Square 1 Bank, ClearOne Communications, Inc., NetStreams,
Inc., and NetStreams, LLC. Incorporated by reference to our Form 8-K filed
on Dec 29, 2009
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10.26
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Ninth
Amendment to Loan and Security Agreement, dated as of January 13, 2010, by
and between Square 1 Bank, ClearOne Communications, Inc., NetStreams,
Inc., and NetStreams, LLC.
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2
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CLEARONE
COMMUNICATIONS, INC.
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Date: February
5, 2010
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By:
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/s/
Narsi Narayanan
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Narsi
Narayanan
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Vice
President - Finance
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EXHIBIT
10.26
EIGHTH
AMENDMENT TO FORBEARANCE AGREEMENT
AND
NINTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
Eighth Amendment to Forbearance Agreement and Ninth Amendment to Loan and
Security Agreement (the “ Amendment
”), is entered into as of January 13, 2010, by and between SQUARE 1 BANK (the “
Bank
”) and CLEARONE COMMUNICATIONS, INC., NETSTREAMS, INC.
and NETSTREAMS, LLC (collectively, “ Borrower ”
).
RECITALS
Borrower
and Bank are parties to that certain Loan and Security Agreement dated as of
November 12, 2008 (as amended from time to time, with related documents,
including that certain Joinder to Loan and Security Agreement dated as of
November 3, 2009, the “Loan Agreement”).
Borrower and Bank are parties to that certain Forbearance Agreement and First
Amendment to Loan and Security Agreement, dated as of March 31, 2009 (as amended
from time to time, the “ Forbearance
Agreement ”). The parties desire to amend the Loan Agreement
and the Forbearance Agreement in accordance with the terms of this
Amendment.
Now,
therefore, the parties agree as follows:
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1)
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Bank
hereby waives Borrower’s expected violation of the monthly reporting
requirements, as set forth in Section 6.2(a) and Section 6.2 (b) of the
Loan Agreement, for the reporting period ended December 31,
2009.
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2)
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Section
3 of the Forbearance Agreement is hereby amended and restated, in its
entirety, as follows:
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3.
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Forbearance . Borrower acknowledges the
existence of the Existing Default under the Loan
Agreement. Borrower further acknowledges and agrees that Bank
is not in any way agreeing to waive such Existing Default as a result of
this Agreement or the performance by the parties of their respective
obligations hereunder or thereunder. Subject to the conditions
contained herein and performance by Borrower of all of the terms of this
Agreement and the Loan Agreement after the date hereof, Bank shall, until
the earliest of (i) Feburary 15, 2010, or (ii) such date that there shall
occur any further Event of Default (the “Forbearance Period”), forbear from
exercising any remedies that it may have against Borrower as a result of
the occurrence of the Existing Default. Such forbearance does
not apply to any other Event of Default or other failure by Borrower to
perform in accordance with the Loan Agreement or this
Agreement. This forbearance shall not be deemed a continuing
waiver or forbearance with respect to any Event of Default of a similar
nature that may occur after the date of this
Agreement.
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3)
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The
following definition in Exhibit A to the Loan Agreement is hereby amended
and restated, in its entirety, as
follows:
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“ Term Loan Maturity Date ”
means February 15, 2010.
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4)
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Unless
otherwise defined, all initially capitalized terms in this Amendment shall
be as defined in the Loan Agreement or the Forbearance
Agreement. The Loan Agreement or the Forbearance Agreement, as
amended hereby, shall be and remain in full force and effect in accordance
with its respective terms and hereby is ratified and confirmed in all
respects. Except as expressly set forth herein, the execution,
delivery, and performance of this Amendment shall not operate as a waiver
of, or as an amendment of, any right, power, or remedy of Bank under the
Loan Agreement or Forbearance Agreement, as in effect prior to the date
hereof. Borrower ratifies and reaffirms the continuing
effectiveness of all agreements entered into in connection with the Loan
Agreement or Forbearance Agreement.
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5)
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Borrower
represents and warrants that the representations and warranties contained
in the Loan Agreement or Forbearance Agreement are true and correct as of
the date of this Amendment.
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6)
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This
Amendment may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one
instrument.
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7)
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As
a condition to the effectiveness of this Amendment, Bank shall have
received, in form and substance satisfactory to Bank, the
following:
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(a)
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this
Amendment, duly executed by
Borrower;
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(b)
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payment
of all Bank Expenses, including Bank’s expenses for the documentation of
this Amendment and any related documents, which may be debited from any of
Borrower's accounts; and
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such
other documents and completion of such other matters, as Bank may
reasonably deem necessary or
appropriate.
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[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
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CLEARONE
COMMUNICATIONS, INC.
By:
/s/ ZEYNEP HAKIMOGLU
Its:
President & CEO
NETSTREAMS,
INC.
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SQUARE
1 BANK
By:
/s/ TOMMY DEAVENPORT
Its:
SVP - Regional Manager
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By: /s/
ZEYNEP HAKIMOGLU
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Its:
Director
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NETSTREAMS,
LLC
By: /s/
NARSI NARAYANAN
Its:
Member Representative
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