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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PHOENIX NETWORK, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 84-0881154
(State of Incorporation) (I.R.S. Employer Identification No.)
1687 COLE BOULEVARD, GOLDEN, COLORADO 80401
(Address of principal executive offices)
1988 STOCK OPTION PLAN OF AMERICONNECT, INC.
1994 STOCK OPTION PLAN OF AMERICONNECT, INC.
(Full Title of the Plans)
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Jeffrey L. Bailey
Phoenix Network, Inc. Copies to:
1687 Cole Boulevard Ernest J. Panasci, Esq.
Golden, Colorado 80401 Freeborn & Peters
(Name and Address of Agent for Service) 950 17th Street -- Suite 2600
(303) 232-4333 Denver, Colorado 80202
(Telephone Number, Including Area Code, (303) 628-4200
of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock ($0.001 par
value.........................
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1988 Stock Option Plan of
AmeriConnect, Inc............. 58,396 $0.184 $10,745
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1994 Stock Option Plan of
AmeriConnect, Inc............. 105,797 $1.623 $171,708
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Total Common Stock,
$0.001 par value.............. 164,193 $182,453 $63
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(1) Calculated pursuant to Rule 457 (h), the offering price per share and the
aggregate offering price are based upon the exercise prices for shares
subject to options previously granted (i) under the 1988 Stock Option Plan
of AmeriConnect, Inc. (58,396 shares at an average per share exercise price
of $0.184) and (ii) under the 1994 Stock Option Plan of AmeriConnect, Inc.
(105,797 shares at an average per share exercise price of $1.623). No
additional options will be granted under the 1988 Stock Option Plan of
AmeriConnect, Inc. and the 1994 Stock Option Plan of AmeriConnect, Inc.
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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
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.
1
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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.
2
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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.
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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 8th day of October,
1996.
PHOENIX NETWORK, INC.
By: /s/ WALLACE M. HAMMOND
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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.
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 8, 1996.
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SIGNATURE TITLE
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<C> <S>
/s/ WALLACE M. HAMMOND President, Chief Executive Officer and
- --------------------------------------------- Director (Principal Executive Officer)
Wallace M. Hammond
/s/ JEFFREY L. BAILEY Senior Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial and Accounting
Jeffrey L. Bailey Officer)
Director
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Thomas H. Bell
/s/ JAMES W. GALLAWAY Director
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James W. Gallaway
Director
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Merrill L. Magowan
/s/ CHARLES C. McGETTIGAN Director
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Charles C. McGettigan
/s/ DAVID SINGLETON Director
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David Singleton
/s/ MAX E. THORNHILL Director
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Max E. Thornhill
</TABLE>
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EXHIBIT INDEX
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EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
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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 -- 1988 Stock Option Plan of AmeriConnect, Inc., as amended, filed as
Exhibit 10.4 to AmeriConnect Inc.'s registration statement on Form
S-1, File No. 33-23845, is hereby incorporated by reference.
4.4 -- 1994 Stock Option Plan of AmeriConnect, Inc., as amended, filed as
Exhibit 4.3 to AmeriConnect Inc.'s registration statement on Form
S-8, File No. 33-80058, is hereby incorporated by reference.
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>
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EXHIBIT 5.1
[FREEBORN & PETERS LETTERHEAD]
October 8, 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 1988 Stock Option Plan of AmeriConnect, Inc. and the 1994 Stock
Option Plan of AmeriConnect, Inc., 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.
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 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 8, 1996
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EXHIBIT 23.2
(CONTINUED)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 6, 1996 accompanying the financial
statements of Automated Communications, Inc. 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 8, 1996
