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As filed with the Securities and Exchange Registration No. 333-82242
Commission on April 5, 2002
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1
to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ClearOne Communications, Inc.
(formerly Gentner Communications Corporation)
(Exact Name of Registrant as Specified in Its Charter)
Utah 3663 87-0398877
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation Industrial Classification Identification
or Organization) Code Number) Number)
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1825 Research Way
Salt Lake City, Utah 84119
(801) 975-7200
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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Frances M. Flood
ClearOne Communications, Inc.
1825 Research Way
Salt Lake City, Utah 84119
(801) 975-7200
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service) Copies to:
Robert Ribeiro, Esq. Robinson Alston, Esq.
Julius Davidson, Esq. Rakesh J. Govindji, Esq.
Fredrikson & Byron, P.A. Jones, Waldo, Holbrook & McDonough, P.C.
1100 International Centre 1500 Wells Fargo Plaza
900 Second Avenue South 170 South Main Street
Minneapolis, MN 55402 Salt Lake City, Utah 84101
(612) 347-7000 (801) 521-3200
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after this registration statement becomes effective and
upon consummation of the merger described in the enclosed prospectus.
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If any of the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
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Exhibit 8.1
March 25, 2002
ClearOne Communications, Inc.
1825 Research Way
Salt Lake City, UT 84119
Re: Agreement and Plan of Merger, dated January 21, 2002 between ClearOne
Communications, Inc., Tundra Acquisition Corporation and E.mergent Inc.
Ladies and Gentlemen:
We have acted as counsel to ClearOne Communications, Inc., a Utah
corporation ("ClearOne") in connection with the Agreement and Plan of Merger
(the "Merger Agreement") dated as of January 21, 2002 between E.mergent, Inc.
("E.mergent"), a Delaware corporation, ClearOne, and Tundra Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of ClearOne
("Merger Sub"), pursuant to which E.mergent shall be merged with and into
MegerSub with MergerSub the surviving corporation in the merger (the "Merger"),
on the terms and conditions set forth therein, the time at which the Merger
become effective being hereafter referred to as the "Effective Time." For
purposes of this opinion, capitalized terms used and not otherwise defined
herein shall have the meaning ascribed thereto in the Merger Agreement. This
opinion is being delivered solely in connection with ClearOne's Registration
Statement on Form S-4 relating to the proposed Merger pursuant to the Merger
Agreement (the "Registration Statement") to which this opinion appears as an
exhibit.
In acting as counsel to ClearOne in connection with the Merger, we have,
in preparing our opinion, as hereinafter set forth, participated in the
preparation of the Merger Agreement and the preparation and filing of the
Registration Statement.
You have requested that we render the opinion set forth below. In
rendering such opinion, we have assumed with your consent that (i) the Merger
will be effected in accordance with the Merger Agreement, (ii) the statements
concerning the Merger set forth in the Merger Agreement and the Registration
Statement are true, complete and correct and will remain true, complete and
correct at all times up to and including the Effective Time, (iii) the
representations made by ClearOne, E.mergent and Merger Sub in their respective
letters delivered to us for purposes of this opinion (the "Representation
Letters") are true, complete and correct and will remain true, complete and
correct at all times up to and including the Effective Time, and (iv) any
representations made in the Representation Letters "to the knowledge of," or
based on the belief of, ClearOne, E.mergent and Merger Sub or similarly
qualified are true, complete and correct without such qualification. We have
also assumed that the parties have complied with and, if applicable, will
continue to comply with, the covenants contained in the Merger Agreement.
We have examined the documents referred to above and the originals, or
duplicates or certified or conformed copies, of such records, documents,
certificates or other instruments and made such other inquiries as in our
judgment are necessary or appropriate to enable us to render the opinion set
forth below. We have not, however, undertaken any independent investigation of
any factual matter set forth in any of the foregoing.
If any of the above-described assumptions are untrue for any reason or if
the Merger is effected on a factual basis different from that contemplated in
the Merger Agreement and the Registration Statement, the opinion expressed
herein may be inapplicable. Our opinion is based on the Internal Revenue Code of
1986, as amended (the "Code"), Treasury Regulations, administrative
interpretations, and judicial precedents as of the date hereof. If there is any
subsequent change in the applicable law or regulations, or if there are
subsequently any new applicable administrative or judicial interpretations of
the law or regulations, the opinion expressed herein may become inapplicable.
Based on and subject to the foregoing, we hereby confirm our opinion set
forth in the discussion contained in the Registration Statement under the
caption "Material U.S. Federal Income Tax Consequences."
We express our opinion herein only as to those matters specifically set
forth in the Registration Statement and no opinion should be inferred as to the
tax consequences of the Merger under any state, local or foreign law, or with
respect to other areas of United States federal taxation. We are members of the
Bar of the State of Utah, and we do not express any opinion herein concerning
any law other than the federal law of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the references to our firm name wherever
appearing in the Registration Statement with respect to the discussion of the
material U.S. Federal income tax consequences of the Merger, including the proxy
statement/prospectus constituting a party thereof. In giving this consent, we do
not thereby admit that we in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder, nor do we
thereby admit that we are experts with respect to any part of such Registration
Statement within the meaning of the term "experts" as used in the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JONES WALDO HOLBROOK & MCDONOUGH, P.C.
/s/ Jones, Waldo, Holbrook & McDonough, P.C.
Exhibit 8.2
April 18, 2002
E.mergent Inc.
5960 Golden Hills Drive
Golden Valley, MN 55416
RE: Agreement and Plan of Merger by and among ClearOne Communications, Inc.
(f/k/a Gentner Communications Corporation), Tundra Acquisition
Corporation, and E.mergent, Inc. dated as of January 21, 2002 (the
"Merger Agreement")
Ladies and Gentlemen:
We have acted as counsel to E.mergent, Inc. ("E.mergent"), a Delaware
corporation, in connection with (i) the proposed merger (the "Merger") of
E.mergent with and into Tundra Acquisition Corporation ("Merger Sub"), a
Delaware corporation, which is a wholly-owned subsidiary of ClearOne
Communications, Inc. (f/k/a Gentner Communications Corporation), a Utah
corporation ("ClearOne"), and the surviving corporation in the Merger; and (ii)
ClearOne's filing of a Registration Statement on Form S-4 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of up to 873,000 shares of Common Stock of ClearOne
(the "ClearOne Shares"). Pursuant to the Merger Agreement, in the Merger the
shareholders of E.mergent will receive, in exchange for their shares of stock of
E.mergent ("E.mergent Shares"), merger consideration (the "Merger
Consideration") consisting of (i) an aggregate of $7,300,000 in cash (the "Cash
Portion") and (ii) an aggregate of 873,000 ClearOne Shares (the "Stock
Portion"). No other consideration will be received for their E.mergent Shares,
except that cash will be paid to E.mergent shareholders in lieu of any
fractional ClearOne Shares that they would otherwise receive in the Merger.
You have requested our opinion with respect to certain United States
federal income tax consequences of the Merger. The Merger is being consummated
pursuant to the Merger Agreement. Unless otherwise defined, capitalized terms
used herein have the meanings assigned to them in the Merger Agreement.
In connection with rendering our opinion, we have reviewed the Merger
Agreement, including the Exhibits thereto, the Proxy Statement/Prospectus
constituting part of the Registration Statement filed by ClearOne with the
Securities and Exchange Commission on February 6, 2002, and such other documents
and corporate records as we have deemed necessary or appropriate as a basis
therefor. We have assumed that the representations and warranties contained in
the Merger Agreement were true, correct and complete when made and will continue
to be true, correct and complete through the Effective Time, and that the
parties have complied with and, if applicable, will continue to comply with the
covenants contained in the Merger Agreement. We also have assumed that
statements as to factual matters contained in the Proxy Statement/Prospectus are
true, correct, and complete and will continue to be true, correct, and complete
through the Effective Time. Finally, we have relied on the representations made
by officers of E.mergent and ClearOne in tax certificates provided to us dated
March 15, 2002, and we have assumed that such representations will continue to
be true, correct, and complete through the Effective Time.
Based upon the foregoing, in reliance thereon and subject thereto, and
based upon the Internal Revenue Code of 1986, as amended (the "Code"), the
Treasury Regulations promulgated thereunder, judicial decisions, revenue rulings
and revenue procedures of the Internal Revenue Service, and other administrative
pronouncements, all as in effect on the date hereof, and assuming that the
Merger and related transactions will be consummated in accordance with the terms
of the Merger Agreement, it is our opinion that the Merger will qualify as a
reorganization within the meaning of Section 368(a) by virtue of Section
368(a)(2)(D) of the Code, and that each of Emergent, ClearOne and Merger Sub
will be a party to such reorganization within the meaning of Section 368(b) of
the Code. Furthermore, we hereby confirm that the discussion set forth under the
caption "Material U.S. Federal Income Tax Consequences" in the Proxy
Statement/Prospectus, insofar as such discussion constitutes statements of
United States federal income tax law or legal conclusions, subject to the
assumptions, limitations and qualifications set forth therein, accurately
reflects our opinion of the material United States federal income tax
consequences of the Merger.
No opinion is expressed as to any matter not specifically addressed
above, including the accuracy of the representations or reasonableness of the
assumptions relied upon by us in rendering the opinion set forth above. Our
opinion is based on current United States federal income tax law and
administrative practice, and we do not undertake to advise you as to any future
changes in United States federal income tax law or administrative practice that
may affect our opinion unless we are specifically retained to do so. We consent
to the use of this opinion as an Exhibit to the Registration Statement that
includes the Proxy Statement/Prospectus, and to the references to Fredrikson &
Byron, P.A. under the captions "The Transaction--Material Federal Income Tax
Consequences" and "Legal Opinions" in the Proxy Statement/Prospectus. In giving
our consent, we do not admit that we are "experts" within the meaning of Section
11 of the Securities Act of 1933 or within the category of persons whose consent
is required by Section 7 of the Securities Act of 1933.
Very truly yours,
FREDRIKSON & BYRON, P.A.
/s/ Robert Ribeiro
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No.1 to the Registration Statement (Form S-4, No. 333-82242) and
related Prospectus of ClearOne Communications, Inc. for the registration of
shares of its common stock and to the incorporation by reference therein of our
report dated July 27, 2001 with respect to the consolidated financial statements
of ClearOne Communications, Inc. (formerly Gentner Communications Corporation)
included in its Annual Report (Form 10-K) for the year ended June 30, 2001,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Salt Lake City, Utah
April 4, 2002
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Directors
ClearOne Communications, Inc.
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-4, No. 333-82242) and
related Prospectus of ClearOne Communications, Inc for the registration of its
common stock and to the incorporation by reference therein of our report dated
July 27, 2001, with respect to the financial statements of Ivron Systems Ltd.
for the years ending December 31, 1998, 1999, and 2000, included in ClearOne
Communications, Inc Current Report filed on Form 8-K/A on November 23, 2001,
filed with the Securities and Exchange Commission, and which Form 8K/A is
incorporated by reference into the Registration Statement.
/s/ KPMG
KPMG
Chartered Accountants
Dublin, Ireland
April 4, 2002
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No.1 to
Registration Statement No. 333-82242 of ClearOne Communications, Inc. on Form
S-4 of our report dated March 1, 2002, appearing in the Annual Report on Form
10-KSB of E.mergent, Inc. for the year ended December 31, 2001, and to the
reference to us under the heading "Experts" in the prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
April 4, 2002
Exhibit 99.1
E.MERGENT, INC.
SPECIAL MEETING OF STOCKHOLDERS
10:00 a.m.
ACOUSTIC COMMUNICATION SYSTEMS
13705 26th Ave. North
Minneapolis, MN 55441
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E.mergent, Inc.
5960 Golden Hills Dr., Golden Valley, MN 55416 proxy
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This Proxy is Solicited on Behalf of the Board of Directors.
The undersigned, having duly received the Notice of Special Meeting, the Proxy
Statement/ Prospectus, and the Form of Proxy dated _________________, _________,
hereby appoints James W. Hansen and Jill R. Larson proxies (each with the power
to act alone and with the power of substitution and revocation), to represent
the undersigned and to vote, as designated on the reverse side, all common
shares of E.mergent, Inc., which the undersigned is entitled to vote at the
Special Meeting of Shareholders of E.mergent, Inc., to be held at 10:00 a.m. on
__________________, at Acoustic Communication Systems, located at 13705 26th
Avenue North, Suite 110, Minneapolis, Minnesota 55441, and at any adjournments
or postponements thereof. Failures to vote and abstentions will have the same
effect as a vote against the Merger.
See reverse for voting instructions.
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COMPANY #
CONTROL #
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There are three ways to vote your Proxy
Your telephone or Internet vote authorizes the Named Proxies to vote your shares
in the same manner as if you marked, signed and returned your proxy card.
VOTE BY PHONE - TOLL FREE - 1-800-240-6326 - QUICK "' EASY "'IMMEDIATE
o Use any touch-tone telephone to vote your proxy 24 hours a day, 7 days a
week, until 11:00 a.m. (CT) on -----------------------.
o You will be prompted to enter your 3-digit Company Number and your 7-digit
Control Number which are located above.
o Follow the simple instructions the voice provides you.
VOTE BY INTERNET - - QUICK "' EASY "'IMMEDIATE
o Use the Internet to vote your proxy 24 hours a day, 7 days a week, until
11:00 a.m. (CT) on ---------------.
o You will be prompted to enter your 3-digit Company Number and your 7-digit
Control Number which are located above to obtain your records and create an
electronic ballot.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope
we've provided or return it to E.mergent, Inc., c/o Shareowner ServicesSM, P.O.
Box 64873, St. Paul, MN 55164-0873.
If you vote by Phone or Internet, please do not mail your Proxy Card
- Please detach here -
[GRAPHIC OMITTED]
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The Board of Directors Recommends a Vote FOR Item 1.
1. To adopt and approve the Agreement and Plan of Merger dated as of January 21,
2002, by and among ClearOne Communications, Inc., a Utah corporation, Tundra
Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of
ClearOne Communications, Inc. and E.mergent, Inc., a Delaware corporation, and
to approve the merger contemplated by the Merger Agreement.
For Against Abstain
2. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting.
For Against Abstain
This proxy when properly executed will be voted in the manner directed herein by
the undersigned shareholder. If no direction is made, this proxy will be voted
in favor of proposal in Item 1.
PLEASE SIGN, DATE AND MAIL THIS PROXY STATEMENT IN THE ENCLOSED ADDRESSED
ENVELOPE, WHICH REQUIRES NO POSTAGE IF MAILED IN THE U.S.
Address Change? Mark Box
Indicate changes below: Date________________________, 2002
Signature(s) in Box
Please sign exactly as your name appears
at left; in the case of joint tenancy,
both tenants must sign; fiduciaries please
indicate title and authority.
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