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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
1-12571
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(COMMISSION FILE NO.)
FOCUS AFFILIATES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4467726
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(State of incorporation) (I.R.S. Employer Identification No.)
401 EAST CORPORATE DRIVE, SUITE 220
LEWISVILLE, TEXAS 75057
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(Address of principal executive offices including zip code)
Registrant's telephone number, including area code: (214) 222-7979
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF CLASS WHICH REGISTERED
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COMMON STOCK, $0.01 PAR VALUE BOSTON STOCK EXCHANGE
Securities registered pursuant to Section 12(g) of the Act:
TITLE OF CLASS
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WARRANTS TO PURCHASE COMMON STOCK
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant as required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the registrant's Common Stock held by
non-affiliates as of March 31, 2000 was approximately $19,517,225 (based on the
closing sales price of such stock as of such date on the Nasdaq SmallCap Market
on March 31, 2000).
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As of March 31, 2000 there were 10,746,040 shares of the registrant's
Common Stock outstanding.
PART IV
ITEM. 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a)(3) Exhibits
The following Exhibits are filed herewith pursuant to Rule 601 of
Regulation of S-K and paragraph (c) of this Item 14.
EXHIBIT
NUMBER DESCRIPTION
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3.1 Certificate of Incorporation. (1)
3.2 Certificate of Merger and Plan and Agreement of Merger,
between Cellular Telecom Corporation, a California
corporation, and the Registrant. (1)
3.3 Bylaws. (1)
4.1 Specimen form of Common Stock Certificate. (2)
4.2 Form of Representative's Warrant Agreement. (2)
4.3 Form of Warrant issued as a dividend to Common Stockholders of
Registrant. (3)
4.4 Warrant Agreement, between the Company and Continental Stock
Transfer Trust Company, as Warrant Agent dated December 17,
1997. (3)
4.5 Form of Warrant issued by the Company to Investors in Ben
Neman Sale of Common Stock. (7)
10.1 Form of 1996 Stock Option Plan of Registrant. (1)
10.2 Form of Employment Agreement between the Registrant and Ben
Neman, dated November 9, 1998. (1)
10.3 Form of Employment Agreement between the Registrant and James
E. Bunting. (1)
10.4 1998 Stock Option Plan. (5)
10.5 Credit Facility and Security Agreement, dated June 18, 1996,
by and between the Registrant and CIT Group/Credit Finance,
Inc. and related documents. (1)
10.6 Form of Employment Agreement between the Registrant and John
C. Snyder II, dated April 30, 1997. (4)
10.7 Lease Agreement between the Company and Northpark Industrial,
dated December 22, 1997. (4)
2
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10.8 Lease Agreement between the Company and AMB Industrial Income
Fund, Inc., dated July 18, 1997. (4)
10.9 Loan and Security Agreement, dated January 12, 1998, by and
between the Registrant and BancAmerica Business Credit Inc.
(4)
10.10 Form of Amendment to Loan and Security Agreement referred to
in Exhibit 10.9. (4)
10.11 Amendment No. 3. to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.12 Amendment No.4 to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.13 Amendment No. 5 to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.14 Termination Agreement and Mutual General Release to Loan and
Security Agreement referred to in Exhibit 10.9. (5)
10.15 Redeemable Warrant to Purchase Common Stock dated November 19,
1998 between the Registrant and members of the Investor Group.
(5)
10.16 Employment Agreement between the Registrant and Ben Neman,
dated November 25, 1998. (5)
10.17 Assignment of lease to Cellular Wholesalers, Inc of Lease
Agreement referred to in Exhibit 10.8. (5)
10.18 Employment Agreement between the Registrant and Michael King,
dated January 8, 1999. (5)
10.19 Employment Agreement between the Registrant and Michael Hedge,
dated January 29, 1999. (5)
10.20 Registration Rights Agreement dated November 19, 1998 between
the Registrant and the Investor Group. (5)
10.21 Subordinated Convertible Note dated November 19, 1998 between
the Registrant and members of the Investor Group in the
Company's November 1998 private placement. (5)
10.22 Agreement Regarding Termination of Employment for Ben Neman
dated as of April 21, 1999. (6)
10.23 Amendment to Agreement Regarding Termination of Employment for
Ben Neman dated as of April 30, 1999. (6)
10.24 Agreement between the Company and NationsCredit dated as of
May 19, 1999. (7)
10.25 Employment Agreement between Mark Fruehan and the Company
dated as of May 1, 1999. (7)
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10.26 Agreement to Merge with Cellular Wholesalers, Inc. dated as of
July 23, 1999. (8)
10.27 Amended and Restated Agreement to Merge with Cellular
Wholesalers, Inc. dated as of July 23, 1999. (9)
10.28 Agreement dated October 2, 1999 between the Company and Ben
Neman. (10)
10.29 Agreement dated October 2, 1999 among the Company, Cellular
Specialists and Bob Neman. (10)
10.30 Agreement dated March 8, 2000 among the Company, Intellicell
Merger Sub, Inc., Ronald Goldberg, Philip Leavitt, Sherwin
Geitner, Cary Maimon and Melvyn Cohen. (10)
23.1 Consent of Arthur Andersen LLP. (10)
23.2 Consent of Hollander, Lumer & Co. LLP.*
27. Financial Data Schedule. (10)
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* Filed herewith.
(1) Incorporated by reference to Registrant's Form S-1 Registration Statement
filed with the Commission on November 4, 1996.
(2) Incorporated by reference to Registrants Amendment No. 1 to Form S-1
Registration Statement filed with the Commission on December 9, 1996.
(3) Incorporated by reference to Registrant's Form 8-A Registration Statement
filed with the Commission on December 5, 1997.
(4) Incorporated by reference to Registrant's Form 10-K filed with the
Commission on April 15, 1998.
(5) Incorporated by reference to Registrant's Form 10-K filed with the
Commission on March 30. 1999.
(6) Incorporated by reference to Registrant's Form 10-Q filed with the
Commission on May 17, 1999.
(7) Incorporated by reference to Registrant's Form 10-Q filed with the
Commission on August 16, 1999.
(8) Incorporated by reference to Registrant's Form 8-K filed with the
Commission on August 6, 1999.
(9) Incorporated by reference to Registrant's Form 8-K filed with the
Commission on August 26, 1999.
(10) Previously filed as an exhibit to Registrant's Form 10-K filed with the
Commission on April 14, 2000.
4
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SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this first amendment to its annual
report on Form 10-K to be signed on its behalf by the undersigned, thereunto
duly authorized.
FOCUS AFFILIATES, INC.
Dated: May 10, 2000
By: /s/ John Swinehart
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John Swinehart
Chairman of the Board, Vice President of
Finance and Principal Accounting Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
3.1 Certificate of Incorporation. (1)
3.2 Certificate of Merger and Plan and Agreement of Merger,
between Cellular Telecom Corporation, a California
corporation, and the Registrant. (1)
3.3 Bylaws. (1)
4.1 Specimen form of Common Stock Certificate. (2)
4.2 Form of Representative's Warrant Agreement. (2)
4.3 Form of Warrant issued as a dividend to Common Stockholders of
Registrant. (3)
4.4 Warrant Agreement, between the Company and Continental Stock
Transfer Trust Company, as Warrant Agent dated December 17,
1997. (3)
4.5 Form of Warrant issued by the Company to Investors in Ben
Neman Sale of Common Stock. (7)
10.1 Form of 1996 Stock Option Plan of Registrant. (1)
10.2 Form of Employment Agreement between the Registrant and Ben
Neman, dated November 9, 1998. (1)
10.3 Form of Employment Agreement between the Registrant and James
E. Bunting. (1)
10.4 1998 Stock Option Plan. (5)
10.5 Credit Facility and Security Agreement, dated June 18, 1996,
by and between the Registrant and CIT Group/Credit Finance,
Inc. and related documents. (1)
10.6 Form of Employment Agreement between the Registrant and John
C. Snyder II, dated April 30, 1997. (4)
10.7 Lease Agreement between the Company and Northpark Industrial,
dated December 22, 1997. (4)
</TABLE>
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<TABLE>
<S> <C>
10.8 Lease Agreement between the Company and AMB Industrial Income
Fund, Inc., dated July 18, 1997. (4)
10.9 Loan and Security Agreement, dated January 12, 1998, by and
between the Registrant and BancAmerica Business Credit Inc.
(4)
10.10 Form of Amendment to Loan and Security Agreement referred to
in Exhibit 10.9. (4)
10.11 Amendment No. 3. to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.12 Amendment No.4 to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.13 Amendment No. 5 to Loan and Security Agreement referred to in
Exhibit 10.9. (5)
10.14 Termination Agreement and Mutual General Release to Loan and
Security Agreement referred to in Exhibit 10.9. (5)
10.15 Redeemable Warrant to Purchase Common Stock dated November 19,
1998 between the Registrant and members of the Investor Group.
(5)
10.16 Employment Agreement between the Registrant and Ben Neman,
dated November 25, 1998. (5)
10.17 Assignment of lease to Cellular Wholesalers, Inc of Lease
Agreement referred to in Exhibit 10.8. (5)
10.18 Employment Agreement between the Registrant and Michael King,
dated January 8, 1999. (5)
10.19 Employment Agreement between the Registrant and Michael Hedge,
dated January 29, 1999. (5)
10.20 Registration Rights Agreement dated November 19, 1998 between
the Registrant and the Investor Group. (5)
10.21 Subordinated Convertible Note dated November 19, 1998 between
the Registrant and members of the Investor Group in the
Company's November 1998 private placement. (5)
10.22 Agreement Regarding Termination of Employment for Ben Neman
dated as of April 21, 1999. (6)
10.23 Amendment to Agreement Regarding Termination of Employment for
Ben Neman dated as of April 30, 1999. (6)
10.24 Agreement between the Company and NationsCredit dated as of
May 19, 1999. (7)
10.25 Employment Agreement between Mark Fruehan and the Company
dated as of May 1, 1999. (7)
</TABLE>
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<TABLE>
<S> <C>
10.26 Agreement to Merge with Cellular Wholesalers, Inc. dated as of
July 23, 1999. (8)
10.27 Amended and Restated Agreement to Merge with Cellular
Wholesalers, Inc. dated as of July 23, 1999. (9)
10.28 Agreement dated October 2, 1999 between the Company and Ben
Neman. (10)
10.29 Agreement dated October 2, 1999 among the Company, Cellular
Specialists and Bob Neman. (10)
10.30 Agreement dated March 8, 2000 among the Company, Intellicell
Merger Sub, Inc., Ronald Goldberg, Philip Leavitt, Sherwin
Geitner, Cary Maimon and Melvyn Cohen. (10)
23.1 Consent of Arthur Andersen LLP. (10)
23.2 Consent of Hollander, Lumer & Co. LLP.*
27. Financial Data Schedule. (10)
</TABLE>
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* Filed herewith.
(1) Incorporated by reference to Registrant's Form S-1 Registration Statement
filed with the Commission on November 4, 1996.
(2) Incorporated by reference to Registrants Amendment No. 1 to Form S-1
Registration Statement filed with the Commission on December 9, 1996.
(3) Incorporated by reference to Registrant's Form 8-A Registration Statement
filed with the Commission on December 5, 1997.
(4) Incorporated by reference to Registrant's Form 10-K filed with the
Commission on April 15, 1998.
(5) Incorporated by reference to Registrant's Form 10-K filed with the
Commission on March 30. 1999.
(6) Incorporated by reference to Registrant's Form 10-Q filed with the
Commission on May 17, 1999.
(7) Incorporated by reference to Registrant's Form 10-Q filed with the
Commission on August 16, 1999.
(8) Incorporated by reference to Registrant's Form 8-K filed with the
Commission on August 6, 1999.
(9) Incorporated by reference to Registrant's Form 8-K filed with the
Commission on August 26, 1999.
(10) Previously filed as an exhibit to Registrant's Form 10-K filed with the
Commission on April 14, 2000.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report, dated May 14, 1999, included and incorporated by reference in this Form
10-K, into the Company's previously filed Form S-3 Registration Statement, File
No. 333-85507.
HOLLANDER, LUMER & CO. LLP
Los Angeles, California
April 24, 2000
