As filed with the Securities and Exchange Commission on November 13, 2002
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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CLEARONE COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Utah 87-039877
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1825 Research Way
Salt Lake City, Utah 84119
(Address of Registrant's principal executive offices)
1998 STOCK OPTION PLAN
(Full title of the plan)
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Frances M. Flood
ClearOne Communications, Inc.
President and Chief Executive Officer
1825 Research Way
Salt Lake City, Utah 84119
(801) 975-7200
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered (1) Registered (2) Offering Price per Aggregate Offering Price Registration Fee
Share
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Common Stock, $0.001 par 800,000 $3.70 $2,960,000.00 $272.32
value ("Common Stock")
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities
Act"), the amount being registered also includes an indeterminate number of
shares of Common Stock that may be offered pursuant to the ClearOne
Communications, Inc. 1998 Stock Option Plan (the "Plan") as a result of
stock splits, stock dividends and anti-dilution provisions and other terms.
(2) Pursuant to Rules 457(h) and 457(c) under the Securities Act solely for
purposes of calculating the registration fee of shares of Common Stock
subject to registration under this Registration Statement on Form S-8, the
per share Proposed Maximum Offering Price of Common Stock and the Aggregate
Offering Price are based on the average of the bid and asked per share
prices of the Common Stock on the NASDAQ on November 12, 2002.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the "Note" to Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference as of their
respective dates in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 2002, filed on September 25, 2002;
(b) The Registrant's Current Reports on Form 8-K dated: May 31, 2002,
filed by the Registrant on August 14, 2002; August 28, 2002 filed by the
Registrant on August 28, 2002; September 25, 2002 filed by the Registrant
on September 25, 2002; September 26, 2002 filed by the Registrant pursuant
to Item 5 of Form 8-K on September 27, 2002; and
(c) The description of the Registrant's Common Stock set forth under
the heading "Description of Registrant's Securities to be Registered" in
the Registrant's Registration Statement on Form 10 filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
October 4, 1988, as amended on Form 8 on January 5, 1989 and February 15,
1989; as the description is thereafter amended by the description set forth
under the heading "Description of ClearOne Capital Stock" in the
Registrant's Registration Statement on Form S-4/A, filed on May 7, 2002, as
thereafter amended by the description set forth under the heading
"Description of Common Stock" in the Registrant's Registration Statement on
Form S-3/A, filed on November 1, 2002.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicate that all
securities offered have been sold or which deregister all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and are a part thereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement 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 such 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. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of securities registered hereby, a post-effective amendment
to this Registration Statement:
i. To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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; and
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 the undertakings set forth in paragraphs
(1)(i) and (1)(ii) above do not apply if 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 Exchange Act that are incorporated
by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(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 further undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
ClearOne Communications, Inc. 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 Salt Lake City, State of Utah, on
November 13, 2002.
CLEARONE COMMUNICATIONS, INC.
By: /s/ Frances M. Flood
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Frances M. Flood
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Frances
M. Flood and Susie Strohm, and each of them severally, his or her true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution to sign in his or her name, place and stead, in any and all such
capacities, the Registration Statement and any and all amendments thereto
(including post-effective amendments) and any documents in connection therewith,
and to file the same, with all exhibits thereto, with the Securities and
Exchange Commission, each of said attorneys-in-fact to have power to act with or
without the other, and to have full power and authority to do and perform, in
the name and on behalf of each such officer and director of the Registrant who
shall have executed such a power of attorney, every act whatsoever which such
attorneys-in-fact, or any one of them, may deem necessary or desirable to be
done in connection therewith as fully and to all intents and purposes as such
officer or director of the Registrant might or could do in person.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the indicated capacities on the dates indicated.
Signature Title Date
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/s/ Frances M. Flood Director, President and Chief November 13, 2002
-------------------------- Executive Officer (Principal
Frances M. Flood Executive Officer)
/s/ Susie Strohm Chief Financial Officer November 12, 2002
-------------------------- (Principal Financial and
Susie Strohm Accounting Officer)
/s/ Edward Dallin Bagley Director November 12, 2002
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Edward Dallin Bagley
/s/ Brad R. Baldwin Director November 12, 2002
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Brad R. Baldwin
/s/ Harry Spielberg Director November 12, 2002
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Harry Spielberg
/s/ David Wiener Director November 12, 2002
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David Wiener
Exhibit Index
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description of Document
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4.1 Articles of Incorporation dated July 7, 1983 (incorporated by
reference from the Registrant's Registration Statement on Form
S-3/A filed on November 1, 2002).
4.2 Amendment to Articles of Incorporation dated March 26, 1985
(incorporated by reference from the Registrant's Registration
Statement on Form S-3/A filed on November 1, 2002).
4.3 Corrected Amendment to Articles of Incorporation dated September
10, 1986 (incorporated by reference from the Registrant's
Registration Statement on Form S-3/A filed on November 1, 2002).
4.4 Amendment to Articles of Incorporation dated July 1, 1991
(incorporated by reference from the Registrant's Registration
Statement on Form S-3/A filed on November 1, 2002).
4.5 Amendment to Articles of Incorporation dated December 12, 2001
(incorporated by reference from the Registrant's Registration
Statement on Form S-3/A filed on November 1, 2002).
4.6 1998 Stock Option Plan (incorporated by reference from the
Registrant's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1998).
5.1 Opinion of Clyde, Snow, Sessions & Swenson, PC as to the
validity of the Common Stock.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Clyde, Snow, Sessions & Swenson, PC (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature pages).