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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 2
(MARK ONE)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1995
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
TO
COMMISSION FILE NO. 0-17909
PHOENIX NETWORK, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0881154
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1687 COLE BLVD., GOLDEN, COLORADO 80401
(Address of principal executive offices)
Registrant's telephone number, including area code: (303) 232-4333
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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Common Stock $0.001 Par Value American Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: None
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 was 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. / /
As of March 26, 1996, the aggregate market value of the voting stock held
by nonaffiliates of the Registrant was $38,621,885 (based on the closing sales
price as reported on the American Stock Exchange).
The number of shares outstanding of the Registrant's Common Stock, $0.001
par value, was 17,399,037 at March 26, 1996.
DOCUMENTS INCORPORATED BY REFERENCE
NONE.
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PART III
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the ownership
of the Company's Common Stock and the various series of Preferred Stock as of
July 31, 1996(1) by: (i) each director and nominee for director; (ii) each
executive officer named in the Summary Compensation Table; (iii) all executive
officers and directors of the Company as a group; and (iv) all those known by
the Company to be beneficial owners of more than five percent (5%) of any class
of its voting securities.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP(2)
------------------------
NUMBER OF PERCENT OF
CLASS BENEFICIAL OWNER ADDRESS SHARES TOTAL
- ------------------- ------------------------------ ------------------------ --------- ----------
<S> <C> <C> <C> <C>
Common Stock Thomas H. Bell(3)(4) 1687 Cole Boulevard 3,238,056 17.75%
Golden, CO 80401
Common Stock Bell Non-Exempt Marital Trust 1687 Cole Boulevard 1,394,335 7.88%
Golden, CO 80401
Common Stock James W. Gallaway(3) 458,425 2.58%
Common Stock Jeffrey L. Bailey(3) 137,498 *
Common Stock Merrill L. Magowan(3) 120,445 *
Common Stock J. Rex Bell(3) 101,498 *
Common Stock Myron A. Wick III(3)(5)(7)(8) 1687 Cole Boulevard 1,915,287 9.85%
Golden, CO 80401
Common Stock Sidney Kahn(3) 1687 Cole Boulevard 85,947 *
Golden, CO 80401
Common Stock Robert R. Curtis(3)(9) 1687 Cole Boulevard 288,452 1.61%
Golden, CO 80401
Common Stock Wallace M. Hammond(3) 266,000 1.48%
Common Stock John David Singleton(3) 172,506 *
Common Stock Max E. Thornhill(3) 1687 Cole Boulevard 1,756,088 9.26%
Golden, CO 80401
Common Stock Paul C. Cissel(3) 72,112 *
Common Stock Judy Van Essen c/o 1687 Cole Boulevard 2,800,000 15.82%
Golden, CO 80401
Common Stock Jon D. Gruber(3)(5)(6) 50 Osgood Place 2,214,120 11.29%
San Francisco, CA 94133
Common Stock J. Patterson McBaine(3)(5)(6) 50 Osgood Place 2,191,224 11.18%
San Francisco, CA 94133
Common Stock Gruber & McBaine Capital 50 Osgood Place 2,172,092 11.08%
Management(3)(5)(6) San Francisco, CA 94133
Common Stock Charles C. McGettigan(3)(5)(7) 50 Osgood Place 1,822,878 9.40%
San Francisco, CA 94133
Common Stock Proactive Investment 50 Osgood Place 1,582,948 8.27%
Managers, L.P.(3)(5) San Francisco, CA 94133
Common Stock Proactive Partners, L.P.(3) 50 Osgood Place 1,510,672 7.92%
San Francisco, CA 94133
Common Stock All executive officers and 8,637,154 38.44%
directors as a group(10)
(13 persons)
Series A Preferred Merrill L. Magowan 1687 Cole Boulevard 10,000 9.89%
Golden, CO 80401
Series A Preferred Myron A. Wick III(11)(12) 1687 Cole Boulevard 20,000 19.78%
Golden, CO 80401
Series A Preferred Charles C. McGettigan(11) 50 Osgood Place 15,000 14.83%
San Francisco, CA 94133
</TABLE>
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<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP(2)
------------------------
NUMBER OF PERCENT OF
CLASS BENEFICIAL OWNER ADDRESS SHARES TOTAL
- ------------------- ------------------------------ ------------------------ --------- ----------
<S> <C> <C> <C> <C>
Series A Preferred Jon D. Gruber(13) 50 Osgood Place 24,000 23.73%
San Francisco, CA 94133
Series A Preferred J. Patterson McBaine(13) 50 Osgood Place 21,000 20.77%
San Francisco, CA 94133
Series A Preferred McGettigan, Wick Investments 50 Osgood Place 15,000 14.83%
San Francisco, CA 94133
Series A Preferred Lagunitas Partners, L.P. 50 Osgood Place 20,000 19.78%
San Francisco, CA 94133
Series A Preferred Benjamin F. Dillingham 1508 Smith Road 5,000 5.07%
Yuba City, CA 95993-7005
Series A Preferred Elizabeth D. Wick 444 South Beach Road 10,000 10.14%
Hobe Sound, FL 33455
Series A Preferred Walter D. Wick Trust c/o Winston Partners 5,000 5.07%
225 W. Washington St.,
# 1600
Chicago, IL 60606
Series A Preferred Myron A. Wick III Trust c/o Winston Partners 5,000 5.07%
225 W. Washington St.,
# 1600
Chicago, IL 60606
Series A Preferred Penelope DeYoung Trust c/o Winston Partners 5,000 5.07%
225 W. Washington St.,
# 1600
Chicago, IL 60606
Series A Preferred Jupiter Partners c/o John M. Bryan 10,000 10.14%
600 Montgomery St. 35th
Floor
San Francisco, CA 94111
Series A Preferred All executive officers and 30,000 29.67%
directors as a group (13
persons)
Series B Preferred Proactive Partners, L.P. 50 Osgood Place 50,000 43.67%
San Francisco, CA 94133
Series B Preferred Fremont Proactive Partners, 50 Osgood Place 7,500 6.55%
L.P. San Francisco, CA 94133
Series B Preferred Lagunitas Partners, L.P. 50 Osgood Place 35,000 30.57%
San Francisco, CA 94133
Series B Preferred BMA, Inc. 2001 Kirby Avenue 10,000 8.73%
Houston, TX 77019
Series B Preferred Myron A. Wick III(14) 1687 Cole Boulevard 57,500 50.22%
Golden, CO 80401
Series B Preferred Charles C. McGettigan(14) 50 Osgood Place 57,500 50.22%
San Francisco, CA 94133
Series B Preferred All executive officers and 57,500 50.22%
directors as a group (13
persons)
Series D Preferred Proactive Partners, L.P. 50 Osgood Place 333,333 100.00%
San Francisco, CA 94133
Series D Preferred Myron A. Wick III(15) 1687 Cole Boulevard 333,333 100.00%
Golden, CO 80401
Series D Preferred Charles C. McGettigan(15) 50 Osgood Place 333,333 100.00%
San Francisco, CA 94133
</TABLE>
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<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP(2)
------------------------
NUMBER OF PERCENT OF
CLASS BENEFICIAL OWNER ADDRESS SHARES TOTAL
- ------------------- ------------------------------ ------------------------ --------- ----------
<S> <C> <C> <C> <C>
Series D Preferred All executive officers and 333,333 100.00%
directors as a group (13
persons)
Series F Preferred Proactive Partners, L.P. 50 Osgood Place 126,456 10.75%
San Francisco, CA 94133
Series F Preferred Myron A. Wick III(16) 1687 Cole Boulevard 131,518 11.18%
Golden, CO 80401
Series F Preferred Charles C. McGettigan(16) 50 Osgood Place 131,518 11.18%
San Francisco, CA 94133
Series F Preferred John David Singleton 30,095 2.56%
Series F Preferred Max E. Thornhill 1687 Cole Boulevard 285,000 24.23%
Golden, CO 80401
Series F Preferred All executive officers and 446,613 37.98%
directors as a group (13
persons)
</TABLE>
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(1) In addition to 17,698,974 shares of Common Stock, at July 31, 1996, the
Company had 2,725,014 shares of Preferred Stock outstanding, of which
101,125 were shares of Series A Preferred Stock, 114,500 were shares of
Series B Preferred Stock, 1,000,000 were shares of Series C Preferred
Stock, 333,333 were shares of Series D Preferred Stock and 1,176,056 were
shares of Series F Preferred Stock. The Series C Preferred Stock is
nonvoting, except as required by law. The Series A Preferred Stock, Series
B Preferred Stock, Series D Preferred Stock and Series F Preferred Stock
vote together with the Common Stock as a single class on an as-if-converted
to Common Stock basis, except as required by law, the Company's Restated
Certificate of Incorporation or the Company's Certificates of Designation
of Preferences of Series A, Series B, Series D and Series F Preferred
Stock.
(2) This table is based upon information supplied by executive officers,
directors and principal stockholders and Schedules 13D and 13G filed with
the Securities and Exchange Commission (the "Commission"). Unless otherwise
indicated in the footnotes to this table and subject to community property
laws where applicable, each of the stockholders named in this table has
sole voting and investment power with respect to the shares indicated as
beneficially owned. Beneficial ownership of less than 1% of a class of
stock is indicated with an asterisk.
(3) Includes shares of Common Stock which certain executive officers,
directors, nominees for director and principal stockholders of the Company
have the right to acquire within 60 days after the date of this table
pursuant to outstanding options and warrants as follows: Thomas H. Bell,
545,000 shares; James W. Gallaway, 87,875 shares; Jeffrey L. Bailey,
137,498 shares; Merrill L. Magowan, 79,125 shares; J. Rex Bell, 101,498
shares; Myron A. Wick III, 428,557 shares; Robert R. Curtis, 255,312
shares; Sidney Kahn, 9,447 shares; Wallace M. Hammond, 250,000 shares; John
David Singleton, 14,126 shares; Max Thornhill, 116,088 shares; Paul C.
Cissel, 70,312 shares; Charles C. McGettigan, 384,807 shares; Jon D.
Gruber, 219,008 shares; J. Patterson McBaine, 219,008 shares; Gruber &
McBaine Capital Management, 219,008 shares and Proactive Investment
Managers, L.P., 206,857 shares. Also includes shares of Common Stock which
certain executive officers, directors, nominees for director and principal
stockholders of the Company have the right to acquire within 60 days after
the date of this table pursuant to conversion of outstanding Series A, B, D
and F Preferred Stock as follows (on an as-if-converted to Common Stock
basis): Merrill L. Magowan, 41,320 shares; Myron A. Wick III, 1,325,398
shares; Robert R. Curtis, 20,730 shares; John David Singleton, 481,520
shares; Max Thornhill, 4,560,000 shares; Jon D. Gruber, 1,696,779 shares;
J. Patterson McBaine, 1,684,383 shares; Gruber & McBaine Capital
Management, 1,680,251 shares; Charles C. McGettigan, 1,304,738 shares and
Proactive Investment Managers, L.P., 1,242,758 shares.
(4) Includes 1,394,335 shares of Common Stock beneficially held in the name of
the Bell Non-Exempt Marital Trust of which Thomas H. Bell is a trustee.
(5) Includes 1,582,947 shares of Common Stock which the following entities
either own or have the right to acquire within 60 days after the date of
this table upon conversion of Series A, B, D or F Preferred Stock or
exercise of warrants held as follows: 1,510,672 shares held by Proactive
Partners, L.P., a California
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limited partnership ("PP"), the general partner of which is Proactive
Investment Managers, L.P., a California limited partnership ("PIM"), of
which Messrs. Gruber, McBaine, McGettigan and Wick are general partners;
and 72,275 shares held by Fremont Proactive Partners, L.P., a California
limited partnership ("FPP"), of which PIM is also the general partner.
(6) Includes 589,132 shares of Common Stock which the following entities either
own or have the right to acquire within 60 days after the date of this
table upon conversion of Series A, B, D or F Preferred Stock or exercise of
warrants held as follows: 30,500 shares held by Gruber & McBaine Capital
Management, a California corporation ("GMCM"), of which Messrs. Gruber and
McBaine are the sole directors; 548,644 held by Lagunitas Partners L.P., a
California limited partnership, of which Messrs. Gruber and McBaine and
GMCM are general partners; 5,000 shares held by GMJ Investments, L.P., a
California limited partnership, of which Messrs. Gruber and McBaine and
GMCM are general partners; and 5,000 shares held by Lagunitas
International, a Cayman Islands Limited Partnership, of which GMCM is a
general partner.
(7) Includes 153,950 shares of Common Stock which could be acquired within 60
days of the date of this table upon exercise of warrants or conversion of
Series A Preferred Stock held by McGettigan, Wick & Co., Inc., a merchant
banking fund of which Messrs. McGettigan and Wick are Managing Directors,
and 61,980 shares which could be acquired within 60 days of this table upon
conversion of Series A Preferred Stock held by McGettigan, Wick
Investments, a partnership of which Messrs. McGettigan and Wick are general
partners.
(8) Includes 48,659 shares of Common Stock which is owned or could be acquired
within 60 days of the date of this table upon conversion of Series A
Preferred Stock held by the Myron A. Wick III Trust for which Mr. Wick is
the trustee.
(9) Includes 5,000 shares held by Mr. Curtis for the benefit of his minor
children.
(10) Includes 7,846,079 shares of Common Stock which such persons have the right
to acquire within 60 days after the date of this table upon conversion of
Series A, B, D or F Preferred Stock and pursuant to outstanding options and
warrants.
(11) Includes 15,000 shares of Series A Preferred Stock which is owned by
McGettigan, Wick Investments, a partnership of which Messrs. McGettigan and
Wick are general partners.
(12) Includes 5,000 shares of Series A Preferred Stock which is owned by the
Myron A. Wick III Trust for which Mr. Wick is the trustee.
(13) Includes 20,000 shares of Series A Preferred Stock owned by Lagunitas
Partners L.P.
(14) Includes 50,000 shares of Series B Preferred Stock owned by PP and 7,500
shares of Series B Preferred Stock owned by FPP. Messrs. Wick and
McGettigan are general partners of PIM, which is the general partner of PP
and FPP.
(15) Includes 333,333 shares of Series D Preferred Stock owned by PP. Messrs.
Wick and McGettigan are general partners of PIM which is the general
partner of PP and FPP.
(16) Includes 126,456 shares of Series F Preferred Stock owned by PP and 5,062
shares of Series F Preferred Stock owned by FPP. Messrs. Wick and
McGettigan are general partners of PIM, which is the general partner of PP
and FPP.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934.
Section 16(a) of the Securities Exchange Act of 1934 (the "1934 Act")
requires the Company's directors and executive officers, and persons who own
more than ten percent (10%) of a registered class of the Company's equity
securities, to file with the Commission initial reports of ownership and reports
of changes in ownership of Common Stock and other equity securities of the
Company. Officers, directors and greater than ten percent (10%) stockholders are
required by Commission regulation to furnish the Company with copies of all
Section 16(a) forms they file.
To the Company's knowledge, based solely on a review of the copies of such
reports furnished to the Company and representations that no other reports were
required, during the fiscal year ended December 31, 1995, all Section 16(a)
filing requirements applicable to its officers, directors and greater than ten
percent (10%) beneficial owners were complied with.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
PHOENIX NETWORK, INC.
By: /s/ WALLACE M. HAMMOND Date: August 29, 1996
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Wallace M. Hammond
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ JEFFREY L. BAILEY Date: August 29, 1996
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Jeffrey L. Bailey
Senior Vice President
Chief Financial Officer
(Principal Financial and Accounting Officer)
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