<PAGE> 1
As filed with the Securities and Exchange Commission on October 18, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
PHOENIX NETWORK, INC.
(Exact name of registrant as specified in its charter)
----------------------------
Delaware 84-0881154
(State of Incorporation) (I.R.S. Employer Identification No.)
1687 COLE BOULEVARD, GOLDEN, COLORADO 80401
(Address of principal executive offices)
1989 STOCK OPTION PLAN
1992 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plans)
----------------------------
Copies to:
Jeffrey L. Bailey Ernest J. Panasci, Esq.
Phoenix Network, Inc. Freeborn & Peters
1687 Cole Boulevard 950 17th Street - Suite 2600
Golden, Colorado 80401 Denver, Colorado 80202
(Name and Address of Agent for Service) (303) 628-4200
(303) 232-4333
(Telephone Number, Including Area
Code, of Agent for Service)
----------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.001 par value)
1989 Stock Option Plan 3,000,000 $13,875,000
1992 Non-Employee Directors' Stock
Option Plan 480,000 $2,220,000
Total Common Stock, --------- -----------
$0.001 par value
3,480,000 $4.625 $16,095,000 $4878
====================================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457 (h), based on the average of the high
and low prices for the Common Stock on the American Stock Exchange
Composite tape for October 13, 1996.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference in
this Registration Statement:
(1) Registrant 's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended on Form 10-K/A;
(2) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, and June 30, 1996;
(3) Registrant's Current Reports on Form 8-K dated January 31, 1996,
as amended on April 1, 1996, and October 8, 1996
(4) The description of the Registrant's Common Stock which is
contained in the Registrant's Registration Statement on Form 10,
filed August 7, 1989 (File No. 0-17909) including any amendment or
report filed for the purpose of updating such description.
In addition, all reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part of this Registration Statement from the date
of the filing of such reports and documents.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein, 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 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
2
<PAGE> 3
Freeborn & Peters, Denver, Colorado has acted as counsel for the
Registrant in connection with the Registration Statement and has rendered
its opinion in connection therewith. Ernest J. Panasci, a partner of
Freeborn & Peters, is Secretary of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VI of the Registrant's Certificate of Incorporation ("Article VI")
is consistent with Section 102(b)(7) of the Delaware General Corporation Law,
which generally permits a company to include a provision limiting the personal
liability of a director in the company's certificate of incorporation. With
limitations, Article VI eliminates the personal liability of the Registrant's
directors to the Registrant or its stockholders for monetary damages for breach
of fiduciary duty as a director. However, Article VI does not eliminate
director liability: (i) for breaches of the duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) for any
transaction from which a director derives an improper personal benefit; and
(iv) under Section 174 of the Delaware General Corporation Law ("Section 174").
Section 174 makes directors personally liable for unlawful dividends and stock
repurchases or redemptions and expressly sets forth a negligence standard with
respect to such liability. While Article VI protects the directors from awards
for monetary damages for breaches of their duty of care, it does not eliminate
their duty of care. The limitations in Article VI have no effect on claims
arising under the federal securities laws.
With certain limitations, Article XI of the Registrant's By-Law ("By-Laws
Article XI") provides for indemnification of any of the Registrant's past,
present and future officers and directors against liabilities and reasonable
expenses incurred in any criminal or civil action by reason of such person's
being or having been an officer or director of the Registrant or of any other
corporation which such person serves as such at the request of the Registrant.
Indemnification under By-Laws Article XI is limited to officers and directors
who have acted in good faith and in a manner they reasonably believed to be in
the best interests of the Registrant. Any questions regarding whether the
officer or director has met the required standards of conduct are to be
answered by (i) a majority of disinterested directors, or (ii) a written
opinion of independent legal counsel selected by the Board. Indemnification
rights under By-Laws Article XI are non-exclusive. In the event of an
officer's or director's death, such person's indemnification rights shall
extend to his or her heirs and legal representatives. Rights under By-Laws
Article XI are separable, and if any part of that section is determined to be
invalid for any reason, all other parts remain in effect.
Under Section 145 of the Delaware General Corporation Law, directors and
officers, as well as other employees and individuals, may be indemnified
against expenses (including attorneys' fees), judgments, fines, amounts paid in
settlement in connection with specified actions, suits, or proceedings, whether
civil, criminal, administrative, or investigative (other than an action by or
in the right of the corporation -- a "derivative action") if they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to criminal actions or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys'
fees) incurred in connection with the defense or settlement of such an action,
and the Delaware General Corporation Law requires court approval before there
can be any indemnification where the person seeking indemnification has been
found liable to the corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits to this Registration Statement are listed in the Exhibit Index
on page E-1 of this Registration Statement, which Index is incorporated herein
by reference.
3
<PAGE> 4
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, 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. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(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 paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the issuer pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 6
above, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be
governed by the final adjudication of such issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 the City of Golden, State of Colorado, on the 18th day of
October, 1996.
PHOENIX NETWORK, INC.
By: /s/ Wallace M. Hammond
--------------------------
Wallace M. Hammond
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wallace M. Hammond and Jeffrey L.
Bailey, and each or any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 18, 1996.
Signature Title
--------- -----
/s/ Wallace M. Hammond President, Chief Executive
- --------------------------- and Director
Wallace M. Hammond (Principal Executive Officer)
/s/ Jeffrey L. Bailey Senior Vice President and Chief
- --------------------------- Financial Officer
Jeffrey L. Bailey (Principal Financial
and Accounting Officer)
/s/ Thomas H. Bell Director
- ---------------------------
Thomas H. Bell
/s/ James W, Gallaway Director
- ---------------------------
James W. Gallaway
/s/ Merrill L. Magowan Director
- ---------------------------
Merrill L. Magowan
/s/ Carles C. McGettigan Director
- ---------------------------
Charles C. McGettigan
/s/ David Singleton Director
- ---------------------------
David Singleton
- --------------------------- Director
Max E. Thornhill
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- -------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant filed as
an exhibit to the Registrant's quarterly report on Form 10-Q for
the quarter ended October 31, 1990, is hereby incorporated by
reference.
4.2 Bylaws of the Registrant filed as an exhibit to the Registrant's
quarterly report on Form 10-Q for the quarter ended October 31,
1990, is hereby incorporated by reference.
4.3 1989 Stock Option Plan, as amended.
4.4 1992 Non-Employee Directors' Stock Option Plan, as amended.
5.1 Opinion of Freeborn & Peters.
23.1 Consent of Freeborn & Peters (contained in Exhibit 5.1).
23.2 Consent of Grant Thornton LLP
24.1 Power of Attorney (contained on the signature pages).
</TABLE>
- -----------------
<PAGE> 1
PHOENIX NETWORK, INC. EXHIBIT 4.3
EXHIBIT 4.3
STOCK OPTION PLAN
Adopted March 23, 1989 and
as Amended through September 26, 1996
1. PURPOSE.
(a) The purpose of the Phoenix Network, Inc. 1989 Stock Option
Plan (the "Plan") is to provide a means by which selected key employees and
directors (if eligible under paragraph 4) of and consultants to Phoenix
Network, Inc., a Colorado corporation (the "Company"), and its Affiliates, as
defined in subparagraph l(b), may be given an opportunity to purchase stock of
the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are
defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code
of 1986, as amended from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of persons now employed by or serving as consultants or directors to
the Company, to secure and retain the services of persons capable of filling
such positions, and to provide incentives for such persons to exert maximum
efforts for the success of the Company.
(d) The Company intends that the options issued under the Plan
shall, in the discretion of the Board of Directors of the Company (the "Board")
or any committee to which responsibility for administration of the Plan has
been delegated pursuant to subparagraph 2(c), be either incentive stock options
as that term is used in Section 422(b) of the Code ("Incentive Stock Options"),
or options which do not qualify as incentive stock options (generally described
as "Non-Qualified Stock Options" or, alternatively, as "Supplemental Stock
Options"). All options shall be separately designated Incentive Stock Options
or Non-Qualified Stock Options at the time of grant, and in such form as issued
pursuant to paragraph 5, and a separate certificate or certificates shall be
issued for shares purchased on exercise of
<PAGE> 2
each type of option. An option designated as a Non-Qualified Stock Option
shall not be treated as an Incentive Stock Option. The options designated as
Incentive Stock Option and the provision of the Plan applicable thereto shall
be interpreted in a manner consistent with Section 422 of the Code and all
valid regulations issued thereunder.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until
the Board , in its discretion, determines that the Plan must comply with Rule
16b-3 promulgated under Section 16(b) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), in which case the Plan shall be administered
by a committee, as provided in subparagraph 2(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons
eligible under the Plan shall be granted options; when and how the option shall
be granted; whether the option will be an Incentive Stock Option or a Non-
Qualified Stock Option; the provisions of each option granted (which need not
be identical), including the time or times during the term of each option
within which all or portions of such option may be exercised; and the number of
shares for which an option shall be granted to each such person.
(2) To construe and interpret the Plan and options
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any option agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(3) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to administer the Plan.
The interpretation and construction by the Board of any provision of the Plan
or of any agreement or of other matters related to the Plan shall be final.
2
<PAGE> 3
(4) No member of the Board shall be liable for any action
or determination made in good faith with respect to the Plan.
(5) A majority of the members of the Board, or of any
committee designated pursuant to subparagraph 2(c) below, shall constitute a
quorum. All determinations of the Board or such committee shall be made by a
majority of its members.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than two (2) members (the "Committee"), all of
the members of which Committee shall be disinterested persons, if required and
as defined by the provisions of subparagraph 2(d). If administration is
delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board,
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The Board may
abolish the Committee at any time and revest in the Board the administration of
the Plan. The Board may also at any time and from time to time remove any
member of the Committee with or without cause, appoint additional members of
the Committee and fill vacancies, however caused, in the Committee.
Additionally, prior to the date of the first registration of an equity security
of the Company under Section 12 of the Securities Exchange Act of 1934, as
amended, and notwithstanding anything to the contrary contained herein, the
Board may delegate administration of the Plan to any person or persons and the
term "Committee" shall apply to any person or persons to whom such authority
has been delegated.
(d) The term "disinterested person," as used in this Plan, shall
mean a director: (i) who was not during the one (1) year prior to service as
an administrator of the Plan granted or awarded equity securities pursuant to
the Plan or any other plan of the Company or any of its affiliates entitling
the participants therein to acquire equity securities of the Company or any of
its affiliates except as permitted by Rule 16b-3(c)(2)(i) promulgated under the
Exchange Act ("Rule 16b-3(c)(2)(i)"); or (ii) who is otherwise considered to
be a "disinterested person" in accordance with Rule 16b-3(c)(2)(i), or any
other
3
<PAGE> 4
applicable rules, regulations or interpretations of the Securities and
Exchange Commission. Any such person shall otherwise comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act.
(e) Any requirement that an administrator of the Plan be a
"disinterested person" shall not apply if the Board or the Committee expressly
declares that such requirement shall not apply.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate five million
(5,000,000) shares of the Company's common stock. If any option granted under
the Plan shall for any reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option shall again become
available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
(c) An Incentive Stock Option may be granted to an eligible person
under the Plan only if the aggregate fair market value (determined at the time
the option is granted) of the stock with respect to which incentive stock
options (as defined in the Code) granted after 1986 are exercisable for the
first time by such optionee during any calendar year under all incentive stock
option plans of the Company and its Affiliate does not exceed one hundred
thousand dollars ($100,000). Should it be determined that an option granted
under the Plan exceeds such maximum for any reason other than the failure of a
good faith attempt to value the stock subject to the option, such option shall
be considered a Non-Qualified Stock Option to the extent, but only to the
extent, of such excess; provided, however, that should it be determined that an
entire option or any portion thereof does not quality for treatment as an
incentive stock option by reason of exceeding such maximum, such option or the
applicable portion shall be considered a Non-Qualified Stock Option.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to key employees
(including officers) of the Company or its Affiliates. A director of the
Company shall not be eligible to receive Incentive Stock
4
<PAGE> 5
Options unless such director is also a key employee of the Company or any
Affiliate. Non-Qualified Stock Options may be granted only to key employees
(including officers) of, directors of or consultants to the Company or its
Affiliates.
(b) A director shall in no event be eligible for the benefits of
the Plan unless at the time discretion is exercised in the selection of the
director as a person to whom options may be granted, or in the determination of
the number of shares which may be covered by options granted to the director:
(i) the Board has delegated its discretionary authority over the Plan to a
Committee which consists solely of "disinterested persons" as defined in
subparagraph 2(d); or (ii) the Plan otherwise complies with the requirements of
Rule 16b-3 promulgated under the Exchange Act, as from time to time in effect.
The Board shall otherwise comply with the requirements of Rule 16b-3
promulgated under the Exchange Act, as from time to time in effect. This
subparagraph 4(b) shall not apply if the Board or Committee expressly declares
that such requirement shall not apply.
(c) No person shall be eligible for the grant of an option under
the Plan if, at the time of grant, such person owns (or is deemed to own
pursuant to Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of any of its Affiliates unless the exercise price of such option is at
least one hundred ten percent (110%) of the fair market value of such stock at
the date of grant and the term of the option does not exceed five (5) years
from the date of grant.
5. OPTION PROVISIONS.
Each option shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate. The
provisions of separate options need not be identical, but each option shall
include (through incorporation of provisions hereof by reference in the option
or otherwise) the substance of each of the following provisions:
(a) The term of any option shall not be greater than ten (10)
years from the date it was granted.
5
<PAGE> 6
(b) The exercise price of each Incentive Stock Option shall be not
less than one hundred percent (100%) of the fair market value of the stock
subject to the option on the date the option is granted. The exercise price of
each Non-Qualified Stock Option shall be not less than eighty-five percent (85
%) of the fair market value of the stock subject to the option on the date the
option is granted.
(c) The purchase price of stock acquired pursuant to an option
shall be paid, to the extent permitted by applicable statutes and regulations,
either (i) in cash at the time the option is exercise, or (ii) at the
discretion of the Board or the Committee, either at the time of the grant or
exercise of the option, (A) by delivery to the Company of other common stock of
the Company, (B) according to a deferred payment or other arrangement (which
may include, without limiting the generality of the foregoing, the use of other
common stock of the Company) with the person to whom the option is granted or
to whom the option is transferred pursuant to subparagraph 5(d), or (C) in any
other form of legal consideration that may be acceptable to the Board or the
Committee.
In the case of any deferred payment arrangement, interest
shall be payable at least annually and shall be charged at the minimum rate of
interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
(d) An option shall not be transferable except by will or by the
laws of descent and distribution, and shall be exercisable during the lifetime
of the person to whom the. option is granted only by such person.
(e) The total number of shares of stock subject to an option may,
but need not, be allotted in periodic installments (which may, but need not, be
equal). From time to time during each of such installment periods, the option
may be exercised with respect to some or all of the shares allotted to that
period, and/or with respect to some or all of the shares allotted to any prior
period as to which the option was not fully exercised. During the remainder of
the term of the option (if its term extends beyond the end of the installment
periods), the option may be exercised from time to time with respect to any
shares then
6
<PAGE> 7
remaining subject to the option. The provisions of this subparagraph 5(e) are
subject to any option provisions governing the minimum number of shares as to
which any option may be exercised.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 5(d), as a condition of exercising any
such option, (1) to give written assurances satisfactory to the Company as to
the optionee's knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to the
Company who is knowledgeable and experienced in financial and business matters,
and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the option; and
(2) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then currently effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii), as to any particular requirement, a determination
is made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws.
(g) An option shall terminate shall terminate three (3) months
after termination of the optionee's employment or relationship as a consultant
or director with the Company or an Affiliate, unless (i) such termination is
due to such person's permanent and total disability, within the meaning of
Section 422(c)(6) of the Code, in which case the option may, but need not,
provide that it may be exercised at any time within one (1) year following such
termination of employment or relationship as a consultant or director; or (ii)
the optionee dies while in the employ of or while serving as a consultant or
director to the Company or an Affiliate, or within not more than three (3)
months after termination of such relationship, in which case the option may,
but need not, provide that it may be exercised at any time within eighteen (18)
months following the death of the optionee by the person or persons to whom the
optionee's rights under such option pass by will or by the laws of descent and
distribution; or (iii) the option by its
7
<PAGE> 8
terms specifies either (a) that it shall terminate sooner than three (3) months
after termination of the optionee's employment or relationship as a consultant
or director, or (b) that it may be exercised more than three (3) months after
termination of the relationship with the Company or an Affiliate. This
subparagraph 5(g) shall not be construed to extend the term of any option or to
permit anyone to exercise the option after expiration of its term, nor shall it
be construed to increase the number of shares as to which any option is
exercisable from the amount exercisable on the date of termination of the
optionee's employment or relationship as a consultant or director.
(h) The option may, but need not, include a provision whereby the
optionee may elect at any time during the term of his or her employment or
relationship as a consultant or director with the Company or any Affiliate to
exercise the option as to any part or all of the shares subject to the option
prior to the stated vesting date of the option or of any installment or
installments specified in the option. Any shares so purchased from any
unvested installment or option may be subject to a repurchase right in favor of
the Company or to any other restriction the Board or the Committee determines
to be appropriate.
(i) To the extent provided by the terms of an option, the optionee
may satisfy any federal, state or local tax withholding obligation relating to
the exercise of such option by any of the following means or by a combination
of such means: (1) tendering a cash payment; (2) authorizing the Company to
withhold from the shares of the Common Stock otherwise issuable to the
participant as a result of the exercise of the stock option a number of shares
having a fair market value less than or equal to the amount of the withholding
tax obligation; or (3) delivering to the Company owned and unencumbered shares
of the Common Stock having a fair market value less than or equal to the amount
of the withholding tax obligation.
6. COVENANTS OF THE COMPANY.
(a) During the term of the options granted under the Plan, the
Company shall keep available at all times the number of shares of stock
required to satisfy such options.
8
<PAGE> 9
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the options granted
under the Plan; provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any option
granted under the Plan or any stock issued or issuable pursuant to any such
option. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the
Company deems necessary for the lawful issuance and sale of stock under the
Plan, the Company shall be relieved from any liability for failure to issue and
sell stock upon exercise of such options unless and until such authority is
obtained.
7. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under the
Plan shall constitute general funds of the Company.
8. MISCELLANEOUS.
(a) The Board or the Committee shall have the power to accelerate
the time during which an option may be exercised or the time during which an
option or any part thereof will vest pursuant to subparagraph 5(e),
notwithstanding the provisions in the option stating the time during which it
may be exercised or the time during which it will vest.
(b) Neither an optionee nor any person to whom an option is
transferred under subparagraph 5(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
option unless and until such person has satisfied all requirements for exercise
of the option pursuant to its terms.
(c) Throughout the term of any option granted pursuant to the
Plan, the Company shall make available to the holder of such option, not later
than one hundred twenty (120) days after the close of each
9
<PAGE> 10
of the Company's fiscal years during the option term, upon request, such
financial and other information regarding the Company as comprises the annual
report to the shareholders of the Company provided for in the bylaws of the
Company.
(d) Nothing in the Plan or any instrument executed or option
granted pursuant thereto shall confer upon any eligible employee or optionee
any right to continue in the employ of the Company or any Affiliate (or to
continue acting as a consultant or director) or shall affect the right of the
Company or any Affiliate to terminate the employment or consulting relationship
or directorship of any eligible employee or optionee with or without cause.
9. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any option granted under the Plan (through merger, consolidation,
reorganization, reclassification, recapitalization, stock dividend, dividend in
property other than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or otherwise), the
Plan and outstanding options will be appropriately adjusted in the class(es)
and maximum number of shares subject to the Plan and the class(es) and number
of shares and price per share of stock subject to outstanding options.
(b) In the event of: (1) a merger or consolidation in which the
Company is not the surviving corporation or (2) a reverse merger in which the
Company is the surviving corporation but the shares of the Company's common
stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise then to the extent permitted by applicable law: (i) any surviving
corporation shall assume any options outstanding under the Plan or shall
substitute similar options for those outstanding under the Plan, or (ii) such
options shall continue in full force and effect. In the event any surviving
corporation refuses to assume or continue such options, or to substitute
similar options for those outstanding under the Plan, then, with respect to
options held by persons then performing services as employees or as consultants
or directors for the Company as the case may be, the time at which such options
may first be exercised shall be accelerated and the options
10
<PAGE> 11
terminated if not exercised prior to such event. In the event of a dissolution
or liquidation of the Company, any options outstanding under the plan shall
terminate if not exercised prior to such event.
10. AMENDMENT OF THE PLAN.
(A) The Board at any time, and from time to time, may amend the
Plan. However, except as provided in paragraph 9 relating to adjustments upon
changes in stock, no amendment shall be effective unless approved by the
stockholders of the Company within twelve (12) months before or after the
adoption of the amendment, where the amendment will:
(1) Increase the number of shares reserved for options
under the Plan;
(2) Modify the requirements as to eligibility for
participation in the Plan (to the extent such modification requires
stockholder approval in order for the Plan to satisfy the requirements of
Section 422 of the Code); or
(3) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to satisfy the requirements
of Section 422 of the Code or to comply with the requirements of Rule 16b-3.
(b) It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide optionees with
the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to incentive stock
options and/or to bring the Plan and/or incentive stock options granted under
it into compliance therewith.
(c) Rights and obligations under any option granted before
amendment of the Plan shall not be altered or impaired by any amendment of the
Plan unless (i) the Company requests the consent of the person to whom the
option was granted and (ii) such person consents in writing.
11. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate ten (10) years from the date
the Plan is adopted by the Board or approved by the
11
<PAGE> 12
shareholders of the Company, whichever is earlier. No options may be granted
under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan
is in effect shall not be altered or impaired by suspension or termination of
the Plan, except with the consent of the person to whom the option was granted.
12. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no
options granted under the Plan shall be exercised unless and until the Plan has
been approved by the vote of the holders of a majority of the outstanding
shares of the Company entitled to vote, or by the written consent of the
holders of the outstanding shares of the Company entitled to vote to the extent
necessary under applicable laws to obtain incentive stock option treatment
under Section 422 of the Code.
12
<PAGE> 1
EXHIBIT 4.4
PHOENIX NETWORK, INC.
1992 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
Adopted November 20, 1992
Amended on March 25, 1993 and March 24, 1994
1. PURPOSE
(a) The purpose of the 1992 Non-Employee Directors' Stock Option
Plan (the "Plan") is to provide a means by which each director of Phoenix
Network, Inc., a Delaware corporation (the "Company"), who is not otherwise an
employee of the Company or any affiliate of the Company (each such person being
referred to as a "Non-Employee Director") may be given an opportunity to
purchase stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the
services of persons now serving as Non-Employee Directors of the Company, to
secure and retain the services of persons capable of serving in such capacity,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(c) The Company intends that the options issued under the Plan not
be incentive stock options as that term is used in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors of
the Company (the "Board") unless and until the Board delegates administration
to a committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a
committee (the "Committee") composed of not fewer than the minimum number of
members which may be
<PAGE> 2
required to comply with the requirements of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board. The Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.
3. SHARES SUBJECT TO THE PLAN
(a) Subject to the provisions of paragraph 10 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate four hundred
eighty thousand (480,000) shares of the Company's common stock. If any option
granted under the Plan shall for any reason expire or otherwise terminate
without having been exercised in full, the stock not purchased under such
option shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY
Options shall be granted only to Non-Employee Directors of the
Company.
5. NON-DISCRETIONARY GRANTS
(a) On January 4, 1993, each person who is then serving as a
Non-Employee Director shall automatically be granted under the Plan an option
to purchase twenty-four thousand (24,000) shares of common stock of the Company
(subject to adjustment as provided in paragraph 10 hereof) on the terms and
conditions set forth herein.
2
<PAGE> 3
(b) Each person who is elected or appointed for the first time to
be a Non-Employee Director after January 4, 1993 shall, upon the effective date
of such election or appointment, automatically be granted an option to purchase
ten thousand (10,000) shares of the Company's common stock (subject to
adjustment as provided in paragraph 10 hereof) on such date upon the terms and
conditions set forth herein.
(c) On the first business day of each calendar year, commencing
January 3, 1994, each person who is then serving as a Non-Employee Director
shall automatically be granted an option to purchase a number of shares of the
Company's common stock (rounded to the nearest one hundred (100) shares) equal
to the Proration Factor (as defined below) multiplied by the sum of (i) ten
thousand (10,000) shares of common stock of the Company and (ii) two thousand
five hundred (2,500) shares of common stock of the Company multiplied by the
number of full years such Non-Employee Director has served as a Non-Employee
Director (subject to adjustment as provided in paragraph 10 hereof). The
"Proration Factor" shall mean a fraction the numerator of which is the number
of calendar days during the preceding calendar year on which such person served
as a Non-Employee Director and the denominator of which is three hundred
sixty-five (365).
6. OPTION PROVISIONS
Each option granted under the Plan shall contain the following terms
and conditions (through incorporation of provisions hereof by reference in the
option or otherwise):
(a) Each option shall expire on a date (the "Expiration Date") ten
(10) years from the date of grant. The term of each option may terminate
sooner than the Expiration Date if the optionee's service as a Non-Employee
Director or, subsequently, as an employee of the Company terminates for any
reason. In the event of such termination of service, the option shall
terminate
3
<PAGE> 4
on the earlier of (1) the Expiration Date or (2) the later of the date three
(3) months following the date of termination of service or the date seven (7)
months following the date of grant; provided, however, that if such termination
of service is due to the optionee's death or permanent and total disability
(within the meaning of Section 422(c)(6) of the Code), the option shall
terminate on the earlier of the Expiration Date or eighteen (18) months
following the date of such termination. In any and all circumstances, an
option may be exercised following termination of the optionee's service to the
Company only as to that number of shares as to which it was exercisable on the
date of termination of such service under the provisions of subparagraph 6(e)
hereof. Notwithstanding the foregoing provisions of this subparagraph (a), if
exercise within the foregoing periods is prohibited under paragraph 13 below,
the term of the option shall be extended (but in no event beyond the Expiration
Date) to a date thirty (30) days following the first date on which the
condition of paragraph 13 of the Plan has been met.
(b) The exercise price of each option shall be one hundred percent
(100%) of the fair market value (which shall be the closing bid price) of the
stock subject to such option on the date such option is granted.
(c) The optionee may elect to make payment of the purchase price
of common stock acquired upon exercise of an option under one of the following
alternatives: (1) payment of the exercise price in cash (including check and
including cash (or check) delivered pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which results in the
receipt of cash (or check) by the Company prior to the issuance of Common
Stock) at the time the option is exercised; (2) provided that at the time of
exercise the Company's common stock is publicly traded and quoted regularly in
The Wall Street Journal, payment by delivery of shares of common stock of the
Company that have been owned by the optionee for at
4
<PAGE> 5
least six (6) months and that are owned free and clear of any liens, claims,
encumbrances, or security interests, which common stock shall be valued at fair
market value (which shall be the closing bid price) on the date of exercise; or
(3) payment by a combination of the methods of payment specified in
subparagraphs 6(c)(1) and 6(c)(2) above.
(d) An option shall not be transferable except by will or by the
laws of descent and distribution, and shall be exercisable during the lifetime
of the person to whom the option is granted only by such person or by such
person's guardian or legal representative.
(e) (1) Each option granted under the Plan shall vest in
installments at a rate of one sixteenth (1/16) per quarter for sixteen (16)
quarters following the date of grant.
(2) Subject to the limitations contained herein,
including, without limitation, those contained in paragraph 13, each option
shall be exercisable with respect to each installment on or after the date of
vesting applicable to such installment.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of exercising any
such option: (1) to give written assurances satisfactory to the Company as to
the optionee's knowledge and experience in financial and business matters; and
(2) to give written assurance satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then currently effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii) as to any particular requirement, a determination is
made by counsel for
5
<PAGE> 6
the Company that such requirement need not be met in the circumstances under
the then applicable securities laws.
(g) The Board shall not amend more than once every six months any
provision of this Plan relating to the amount, price and timing of grants of
options to Non-Employee Directors, including amendments to Sections 4 through 6
of this Plan, except to comply with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules and
regulations thereunder.
7. COVENANTS OF THE COMPANY
(a) During the terms of the options granted under the Plan, the
Company shall keep available at all times the number of shares of common stock
required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to grant options and issue and sell shares of common stock upon
exercise of options granted under the Plan; provided, however, that this
undertaking shall not require the Company to register under the Securities Act
either the Plan, any option granted under the Plan, or any stock issued or
issuable pursuant to any such option. If the Company is unable in a timely
manner to obtain from any such regulatory commission or agency the authority
which counsel for the Company deems necessary for the lawful grant of options
and issuance and sale of common stock under the Plan, the Company shall defer
the grant of such options and/or issuance and sale of Common Stock until the
Company receives any such regulatory commission or agency authority and shall
be relieved from any liability for such delay.
6
<PAGE> 7
8. USE OF PROCEEDS FROM STOCK
Proceeds from the sale of stock pursuant to options granted under the
Plan shall constitute general funds of the Company.
9. MISCELLANEOUS
(a) Neither an optionee nor any person to whom an option is
transferred under subparagraph 6(d) hereof shall be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any shares subject to
such option unless and until such person has satisfied all requirements for
exercise of the option pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant
thereto shall confer upon any Non-Employee Director any right to continue
acting as a director of (or to employment by) the Company or shall affect any
right of the Company, its Board or stockholders to terminate the directorship
(or employment) of any Non-Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a
group, and no beneficiary or other person claiming under or through him, shall
have any right, title or interest in or to any option reserved for the purposes
of the Plan except as to such shares of common stock, if any, as shall have
been reserved for him pursuant to an option granted to him.
(d) In connection with each option granted pursuant to the Plan,
it shall be a condition precedent to the Company's obligation to issue or
transfer shares to a Non-Employee Director, or to evidence the removal of any
restrictions on transfer, that such Non-Employee Director make arrangements
satisfactory to the Company to insure that the amount of any federal or other
withholding tax required to be withheld with respect to such sale or transfer,
or such removal or lapse, is made available to the Company for timely payment
of such tax.
7
<PAGE> 8
10. ADJUSTMENTS UPON CHANGES IN STOCK
(a) If any change is made in the common stock subject to the Plan,
or subject to any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure, or otherwise), the Plan and
outstanding options will be appropriately adjusted in the class(es) and maximum
number of shares subject to the Plan and the class(es) and number of shares and
price per share of stock subject to outstanding options.
(b) In the event of (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise; or (4)
any other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, then to the extent
permitted by applicable law: (A) any surviving corporation shall assume any
outstanding options under the Plan or shall substitute similar options for
those outstanding under the Plan, or (B) such options shall continue in full
force and effect. In the event any surviving corporation refuses to assume or
continue such options, or to substitute similar options for those outstanding
under the Plan, then such options shall be terminated if not exercised prior to
such event.
8
<PAGE> 9
11. AMENDMENT OF THE PLAN
(a) Subject to Section 6(g), the Board at any time, and from time
to time, may amend the Plan. However, except as provided in paragraph 10
relating to adjustments upon changes in stock, no amendment shall be effective
unless approved by the stockholders of the Company within twelve (12) months
before or after the adoption of the amendment, where the amendment will modify
the Plan in any way if such modification requires stockholder approval in order
for the Plan to comply with the requirements of Rule 16b-3 promulgated under
the Exchange Act or to prevent disqualification of the Non-Employee Directors
from being "disinterested persons" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
(b) Rights and obligations under any option granted before
amendment of the Plan shall not be altered or impaired by any amendment of the
Plan, except with the consent of the person to whom the option was granted.
12. TERMINATION OR SUSPENSION OF THE PLAN
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate ten (10) years from the date
it was initially adopted by the Board. No options may be granted under the
Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan
is in effect shall not be altered or impaired by suspension or termination of
the Plan, except with the consent of the person to whom the option was granted.
9
<PAGE> 10
13. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is approved by the
stockholders of the Company if stockholder approval is then required in order
for the Plan to comply with the requirements of Rule 16b-3 promulgated under
the Exchange Act or to prevent disqualification of the Non-Employee Directors
from being "disinterested persons" within the meaning of Rule 16b-3 promulgated
under the Exchange Act. No option granted under the Plan shall be exercised or
exercisable unless and until the condition of this paragraph 13 has been met.
10
<PAGE> 1
EXHIBIT 5.1
[FREEBORN & PETERS LETTERHEAD]
October 18, 1996
Phoenix Network, Inc.
1687 Cole Boulevard
Golden, Colorado 80401
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Phoenix Network, Inc., a Delaware
corporation (the "Corporation"), in connection with the preparation and filing
of the registration statement on Form S-8 with the U.S. Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Registration
Statement"), pertaining to the registration by the Corporation of shares of its
common stock, par value $0.001 per share (the "Common Stock"), as described on
the cover page of such Registration Statement. Terms not otherwise defined
herein shall have the same meaning ascribed to them in the Registration
Statement.
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter is subject to and should be read in conjunction therewith. The law
covered by the opinions expressed herein is limited to the Laws of the State of
Delaware for the limited purpose of the organization, power and authority of
corporations. In addition, as to any facts material to this opinion, we have
relied, among other sources listed in the Accord, on factual representations
made by the Corporation in the Registration Statement.
Based on the foregoing, we are of the opinion that the shares of
Common Stock under the Corporation's 1989 Stock Option Plan and its 1992
Non-Employee Directors' Stock Option Plan, the issuance of which is being
registered by the Corporation, have been duly and validly authorized for
issuance and sale and if and when sold and delivered as described in the
Registration Statement against payment as set forth therein, will be validly
issued, fully paid and nonassessable shares of Common Stock.
<PAGE> 2
Phoenix Network, Inc.
October 8, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm in the Registration
Statement.
We render no opinion as to the laws of any jurisdiction other than the
internal corporate law of the State of Delaware.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ FREEBORN & PETERS
FREEBORN & PETERS
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 6, 1996 accompanying the
consolidated financial statements of Automated Communications, Inc. and
appearing in the Phoenix Network, Inc. Report on Form 8-K dated January 31,
1996, as amended on April 1, 1996, which is incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
/s/ GRANT THORNTON LLP
- -----------------------------
GRANT THORNTON LLP
San Francisco, California
October 18, 1996
<PAGE> 2
EXHIBIT 23.2
(CONTINUED)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated March 28, 1996 accompanying the
consolidated financial statements of Phoenix Network, Inc. and Subsidiaries
appearing in the 1995 Annual Report of the Company to its stockholders and
accompanying the schedules included in the Annual Report on Form 10-K for the
year ended December 31, 1995 which are incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned reports.
/s/ GRANT THORNTON LLP
- ----------------------------------
GRANT THORNTON LLP
San Francisco, California
October 18, 1996
