CONSULTING AGREEMENT (the "Agreement"), made and entered into to be effective
of July 6, 2007, ClearOne Communications, Inc., a Utah corporation, with an
address at 5225 Wiley Post Way, Suite 500, Salt Lake City, Utah 84116
(hereinafter the "Company"), and Edward Dallin Bagley, and individual with
address at 2350
Holladay, Utah 84121
Consultant agrees to provide consulting services to the Company in connection
with strategic decisions and planning including, without limitation, merger
acquisition discussions, private equity discussions, tender offers, lines of
credit, market makers, and new lines of business. Consultant will spend a
minimum of forty hours per month engaged in such services for the benefit of
Company. The Company shall invite Consultant to attend meetings of the Company’s
Board of Directors, on an as needed basis, for the purpose of reporting on
discussing his consulting activities. It is not anticipated that Consultant
be present at the Company’s offices on a daily basis. As such, Consultant will
no longer maintain an office at the Company and Consultant will not participate
in the day-to-day decisions of management, including decisions on employment
work shall be performed in a workmanlike and professional manner.
of Performing Services.
Consultant shall have the right to determine the method, details, and means
performing the work to be performed for Company. Company shall, however, be
entitled to exercise general power of supervision and control over the results
of work performed by Consultant to assure satisfactory performance.
Consultant will use reasonable efforts to accommodate Company’s work schedule
and Consultant shall develop appropriate administrative procedures for
coordinating with each other.
Company agrees to retain Consultant and Consultant agrees to accept the
consulting services with the Company for a term (the “Term”) commencing on the
date hereof and continuing for a three-year period thereafter. This Agreement
may be terminated earlier than the three-year anniversary by the Company only
“for cause.” For purposes hereof, “for cause” shall mean one of the following:
material breach by Consultant of the terms of this Agreement,
weeks from receipt of written notice
Board of Directors of such breach, (b) material wrongful misappropriation of
money, assets or other property of the Company or any subsidiary or affiliate
the Company, (c) the conviction of Consultant for any felony or a crime
involving moral turpitude, or (d) Consultant’s chronic alcoholism or chronic
termination of this Agreement by the Company for cause, or by Consultant for
reason, Company shall pay to Consultant all amounts owing as of and through
date of termination within thirty (30) days of such termination.
EXPENSES, AND PAYMENT
compensation for his consulting services, the Company shall pay Consultant
$4,000.00 per month (which fee will increase in an amount equal to any increases
in board compensation) and Consultant shall be granted during the Term stock
options commensurate with grants of stock options made to the Company’s
addition to the foregoing, the Company will reimburse Consultant for
Consultant’s actual out-of-pocket expenses that are approved by the Company in
advance in writing. Expenses shall be reimbursed within ten (10) days after
receipt of Consultant's invoice.
OF CONSULTANT FOR TAXES AND OTHER MATTERS
independent contractor, Consultant shall pay and report all federal and state
income tax withholding, social security taxes, and unemployment insurance
applicable to Consultant. Consultant shall not be entitled to participate in
health or disability insurance, retirement benefits, or other welfare or pension
benefits (if any) to which employees of Company may be entitled.
Consultant agrees to execute a confidentiality or non-disclosure agreement
the standard form that is adopted by the Company from time to time for use
Company consultants and independent contractors.
Consultant represents and warrants that he has no obligations to any third
which will in any way limit or restrict its ability to perform consulting
services to Company hereunder.
with Federal Securities Laws.
the nature of this Agreement, Consultant understands that he will be privy
material non-public information and as such the Company considers Consultant
be an insider. Therefore, Consultant agrees to follow the Company’s “Statement
of Policy Regarding Federal Securities Laws” which will require Consultant to,
among other things, withhold from trading in Company’s securities during
blackout periods and obtain pre-clearance of securities trades.
Consultant shall not be liable to Company for any failure or delay caused by
events beyond Consultant's control, including, without limitation, Company's
failure to furnish necessary information, sabotage, failure or delays in
transportation or communication, failures or substitutions of equipment, labor
disputes, accidents, shortages of labor, fuel, raw materials or equipment,
Agreement shall be governed and construed in all respects in accordance with
laws of the State of Utah.
parties are and shall be independent contractors to one another, and nothing
herein shall be deemed to cause this Agreement to create an agency, partnership,
or joint venture between the parties. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of
employer and employee between Company and either Consultant or any employee
agent of Consultant.
notices required or permitted hereunder shall be in writing addressed to the
respective parties as set forth herein, unless another address shall have been
designated, and shall be delivered by hand or by registered or certified mail,
Agreement, together with the severance agreement executed concurrently herewith,
constitutes the entire agreement of the parties hereto and supersedes all prior
representations, proposals, discussions, and communications, whether oral or
writing. This Agreement may be modified only in writing and shall be enforceable
in accordance with its terms when signed by the party sought to be
failure of either party to insist on strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall any waiver
relinquishment of any right or power at any one time or times be deemed a waiver
or relinquishment of that right or power for all or any other times.
the desire and intent of the parties that the provisions of this Agreement
be enforced to the fullest extent possible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if
provision or portion of this Agreement shall be adjudicated to be invalid or
unenforceable, this Agreement shall be deemed amended to delete from it the
portion adjudicated to be invalid or unenforceable and the remaining provisions
shall nevertheless continue in full force and effect without being impaired
invalidated in any way.
Consultant represents and agrees that he has reviewed all aspects of this
Agreement, that Consultant has carefully read and fully understands all the
provisions of this Agreement, that Consultant is voluntarily entering into
Agreement, and that Consultant has had the opportunity to review any or all
aspects of this Agreement with the legal advisor or advisors of Consultant’s
choice before affixing its signature hereto.
Agreement shall not be construed against the party preparing it, and shall
construed without regard to the identity of the person who drafted it or the
party who caused it to be drafted and shall be construed as if all parties
jointly prepared this Agreement and it shall be deemed their joint work product,
and each and every provision of this Agreement shall be construed as though
the parties hereto participated equally in the drafting hereof; and any
uncertainty or ambiguity shall not be interpreted against any one party. As
result of the foregoing, any rule of construction that a document is to be
construed against the drafting party shall not be applicable.
covenants, agreements, representations, and warranties made herein shall survive
the execution and delivery of this Agreement and related documents.
and Attorneys Fees. If
party hereto shall bring any suit or action against another for relief,
declaratory or otherwise, arising out of this Agreement, the prevailing party
shall have and recover against the non-prevailing party, in addition to all
court costs and disbursements, such sum as the court may adjudge to be a
reasonable attorney’s fee.
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives, to be effective on the date and year first
President, Chief Executive Officer and Director