SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
Amendment No. 2
|
ý |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
|
|
|
For the fiscal year ended December 31, 2003 |
|
|
|
|
|
OR |
|
|
|
|
|
o |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT |
Commission File No. 0-29092
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
(Exact name of registrant as specified in its charter)
|
Delaware |
54-1708481 |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
|
|
|
1700 Old Meadow Road, Suite 300, McLean, VA |
22102 |
|
(Address of principal executive offices) |
(Zip Code) |
(703) 902-2800
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
|
Title of each class |
|
Name of each exchange on which registered |
|
None |
|
N/A |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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 ý No o
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 the registrants’ 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. ý
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes ý No o
Non-affiliates of Primus Telecommunications Group, Incorporated held 51,065,784 shares of Common Stock as of June 30, 2003. The fair market value of the stock held by non-affiliates is $262,988,788 based on the sale price of the shares on June 30, 2003.
As of October 31, 2004, 89,884,259 shares of Common Stock, par value $.01, were outstanding.
Documents Incorporated by Reference:
Portions of the definitive Proxy Statement to be delivered to Stockholders in connection with the Annual Meeting of Stockholders are incorporated by reference into Part III.
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
EXPLANATORY NOTE
Primus Telecommunications Group, Incorporated and subsidiaries (the “Company”) is filing this Amendment No. 2 to Form 10-K solely for the purpose of furnishing Exhibit 32, in lieu of the duplicate text of Exhibit 31 that was inadvertently furnished as Exhibit 32 in the Company’s Form 10-K/A, Amendment No.1, for the year ended December 31, 2003, as filed with the Securities and Exchange Commission on October 15, 2004. This amendment continues to speak of the date of the original filing of the Annual Report, and the Company has not updated the disclosures to reflect any events that occurred at a later date.
2
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
INDEX TO FORM 10-K/A Amendment No. 2
|
Item |
|
Page |
|
|
|
|
|
Exhibits, Financial Statement Schedule, and Reports on Form 8-K |
4 |
|
|
7 |
||
3
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULE AND REPORTS ON FORM 8-K
a) Financial Statements and Schedules
The financial statements as set forth under Item 8 of this report on Form 10-K are incorporated herein.
|
Financial Statement Schedules: |
Page |
|
(II) Valuation and Qualifying Accounts |
S-1*** |
All other financial statement schedules have been omitted since they are either not required, not applicable, or the information is otherwise included.
b) Reports on 8-K
Form 8-K dated October 22, 2003, was filed to announce the Company’s filing of a Registration Statement on Form S-3 with the Securities and Exchange Commission concerning the resale of September 2003 Convertible Senior Notes (and the underlying shares of common stock), as contemplated by a registration rights agreement entered into between Primus and the initial purchasers of those notes in connection with their September 15, 2003 issuance and sale pursuant to Rule 144A under the Securities Act of 1933.
Form 8-K dated November 6, 2003, was filed to announce the Company’s results of operations for the quarter ended September 30, 2003.
c) Exhibit listing
|
Exhibit |
|
Description |
|
3.1 |
|
Amended and Restated Certificate of Incorporation of Primus; Incorporated by reference to Exhibit 3.1 of the Registration Statement on Form S-8, No. 333-56557 (the “S-8 Registration Statement”). |
|
3.2 |
|
Amended and Restated Bylaws of Primus. |
|
3.3 |
|
Intentionally left blank. |
|
3.4 |
|
Registration Rights Agreement dated December 31, 2002, concerning the rights of the former holders of the Company’s Series C Convertible Preferred Stock (the “2002 Registration Rights Agreement”); Incorporated by reference to the Company’s Form 8-K filed with the SEC on January 2, 2003. |
|
3.5 |
|
Amendment No. 1 to the 2002 Registration Rights Agreement; Incorporated by reference to Exhibit 4.2 to Pre-Effective Amendment No. 2 to the Company’s Registration Statement on Form S-3, No. 333-110234 (the “Resale S-3”). |
|
4.1 |
|
Specimen Certificate of Primus Common Stock; Incorporated by reference to Exhibit 4.1 of the IPO Registration Statement. |
|
4.2 |
|
Form of Indenture; Incorporated by reference to Exhibit 4.1 of the Registration Statement on Form S-1, No. 333-30195 (the “1997 Senior Note Registration Statement”). |
|
4.3 |
|
Form of Indenture of Primus, as amended and restated on January 20, 1999, between Primus and First Union National Bank; Incorporated by reference to Exhibit 4.3 of the Company’s Annual Report on Form 10-K for the year ended December 31, 1998 (the “1998 10-K”). |
|
4.4 |
|
Form of Warrant Agreement of Primus; Incorporated by reference to Exhibit 4.2 of the 1997 Senior Note Registration Statement. |
|
4.5 |
|
Intentionally left blank. |
|
4.6 |
|
Intentionally left blank. |
|
4.7 |
|
Intentionally left blank. |
|
4.8 |
|
Intentionally left blank. |
|
4.9 |
|
Rights Agreement, dated as of December 23, 1998, between Primus and StockTrans, Inc., including the Form of Rights Certificate (Exhibit A), the Certificate of Designation (Exhibit B) and the Form of Summary of Rights (Exhibit C); Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A, No. 0-29092 filed with the Commission on December 30, 1998. |
|
4.10 |
|
Form of legend on certificates representing shares of Common Stock regarding Series B Junior Participating Preferred Stock Purchase Rights; Incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form 8-A, No. 0-29092 filed with the Commission on December 30, 1998. |
4
|
4.11 |
|
Supplemental Indenture between Primus and First Union National Bank dated January 20, 1999; Incorporated by reference to Exhibit 4.3 to Amendment No. 1 to the Company’s Registration Statement on Form S-4, No. 333-76965, filed with the Commission on May 6, 1999. |
|
4.12 |
|
Intentionally left blank. |
|
4.13 |
|
Intentionally left blank. |
|
4.14 |
|
Indenture, dated October 15, 1999, between the Company and First Union National Bank including therein the form of the notes; Incorporated by reference to the November S-4. |
|
4.15 |
|
Intentionally left blank. |
|
4.16 |
|
Indenture, dated February 24, 2000, between the Company and First Union National Bank; Incorporated by reference to Exhibit 4.16 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 (the “2000 10-K”). |
|
4.17 |
|
Specimen 5 3¤4% convertible subordinated debenture due 2007; Incorporated by reference to Exhibit A to Exhibit 4.16 to the 2000 10-K. |
|
4.18 |
|
Intentionally left blank. |
|
4.19 |
|
Amendment No.1 to Rights Agreement, dated as of December 30, 2002, between Primus and StockTrans, Inc. |
|
4.20 |
|
Indenture dated as of September 15, 2003 between the Company and Wachovia Bank, National Association, concerning the Company’s 33¤4% convertible notes, including therein the forms of the notes; Incorporated by reference to Exhibit 4.1 of Post-Effective Amendment No. 1 (No. 333-109902) to the Company’s Registration Statement on Form S-3. |
|
4.21 |
|
Registration Rights Agreement dated as of September 15, 2003 between the Company, Lehman Brothers Inc. and Harris Nesbitt Corp; Incorporated by reference to Exhibit 4.2 of Post-Effective Amendment No. 1 (No. 333-109902) to the Company’s Registration Statement on Form S-3. |
|
4.22 |
|
Form of Senior Debt Indenture under Universal Shelf Registration Statement on Form S-3 (No. 333-110241) (the “Universal S-3”); Incorporated by reference to Exhibit 4.3 of the Universal S-3. |
|
4.23 |
|
Form of Subordinated Debt Indenture under Universal S-3; Incorporated by reference to Exhibit 4.4 of the Universal S-3. |
|
10.1 |
|
Amendment No. 1 to Stockholder Agreement among Warburg, Pincus, K. Paul Singh, Primus, and TresCom, dated as of April 16, 1998; Incorporated by reference to Exhibit 10.1 of the Form 8-K for Amendments. |
|
10.2 |
|
Switched Transit Agreement, dated June 5, 1995, between Teleglobe USA, Inc. and Primus for the provision of services to India; Incorporated by reference to Exhibit 10.2 of the IPO Registration Statement. |
|
10.3 |
|
Hardpatch Transit Agreement, dated February 29, 1996, between Teleglobe USA, Inc. and Primus for the provision of services to Iran; Incorporated by reference to Exhibit 10.3 of the IPO Registration Statement. |
|
10.4 |
|
Employment Agreement, dated June 1, 1994, between Primus and K. Paul Singh; Incorporated by reference to Exhibit 10.5 of the IPO Registration Statement.* |
|
10.5 |
|
Primus 1995 Stock Option Plan, as amended; Incorporated by reference to Exhibit 10.5 of the 2000 10-K.* |
|
10.6 |
|
Primus 1995 Director Stock Option Plan; Incorporated by reference to Exhibit 10.7 of the IPO Registration Statement.* |
|
10.7 |
|
Intentionally left blank. |
|
10.8 |
|
Service Provider Agreement between Telstra Corporation Limited and Axicorp Pty., Ltd., dated May 3, 1995; Incorporated by reference to Exhibit 10.12 of the IPO Registration Statement. |
|
10.9 |
|
Dealer Agreement between Telstra Corporation Limited and Axicorp Pty., Ltd. dated January 8, 1996; Incorporated by reference to Exhibit 10.13 of the IPO Registration Statement. |
|
10.10 |
|
Hardpatch Transit Agreement dated October 5, 1995 between Teleglobe USA, Inc. and Primus regarding the provision of services to India; Incorporated by reference to Exhibit 10.14 of the IPO Registration Statement. |
|
10.11 |
|
Master Lease Agreement dated as of November 21, 1997 between NTFC Capital Corporation and Primus Telecommunications, Inc.; Incorporated by reference to Exhibit 10.17 of Primus’s Annual Report on Form 10-K for the year ended December 31, 1997, as amended on Form 10-K/A dated April 30, 1998 (the “1997 10-K”). |
|
10.12 |
|
Primus Employee Stock Purchase Plan; Incorporated by reference to Exhibit 10.15 of the 1997 Senior Note Registration Statement.* |
|
10.13 |
|
Primus 401(k) Plan; Incorporated by reference to Exhibit 4.4 of the Primus Registration Statement on Form S-8 (No. 333-35005). |
|
10.14 |
|
Intentionally left blank. |
|
10.15 |
|
Primus Telecommunications Group, Incorporated-TresCom International Stock Option Plan; Incorporated by reference to Exhibit 4.1 of the S-8 Registration Statement.* |
|
10.16 |
|
Warrant Agreement between the Company and Warburg, Pincus Investors, L.P.; Incorporated by reference to Exhibit 10.6 to the TresCom Form S-1. |
|
10.17 |
|
Form of Indemnification Agreement between the Company and its directors and executive officers; Incorporated by reference to Exhibit 10.23 to the TresCom Form S-1. |
|
10.18 |
|
The Company’s 1998 Restricted Stock Plan; Incorporated by reference to Exhibit 10.33 to Amendment No. 1 to the Company’s Registration Statement on Form S-3, No. 333-86839, filed with the Commission on September 17, 1999. |
5
|
10.19 |
|
Agreement for the Reciprocal Purchase of Capacity On the Systems of Each of the Company and Global Crossing Holdings Ltd. Effective as of May 24, 1999; Incorporated by reference to Exhibit 10.19 of the Company’s Annual Report on Form 10-K for the year ended December 31, 1999 (the “1999 10-K”). |
|
10.20 |
|
Indefeasible Right of Use Agreement between Primus Telecommunications, Inc. and Qwest Communications Corporation dated December 30, 1999; Incorporated by reference to Exhibit 10.20 of the Company’s 1999 10-K. |
|
10.21 |
|
Common Stock Purchase Agreement between the Company and Pilot Network Services, Inc. dated December 28, 1999; Incorporated by reference to Exhibit 10.21 of the Company’s 1999 10-K. |
|
10.22 |
|
Warrant to purchase up to 200,000 shares of common stock of Pilot Network Services, Inc. dated December 28, 1999; Incorporated by reference to Exhibit 10.22 of the Company’s 1999 10-K. |
|
10.23 |
|
Intentionally left blank. |
|
10.24 |
|
Intentionally left blank. |
|
10.25 |
|
Intentionally left blank. |
|
10.26 |
|
Intentionally left blank. |
|
10.27 |
|
Intentionally left blank. |
|
10.28 |
|
Form of Promissory Note issued prior to July 30, 2002 by certain officers to the Company; Incorporated by reference to Exhibit 10.28 of the Company’s 2000 10-K. |
|
10.29 |
|
Form of Security Agreement issued prior to July 30, 2002 by certain officers to the Company; Incorporated by reference to Exhibit 10.29 of the Company’s 2000 10-K. |
|
10.30 |
|
Customer Transfer Agreement by and between the Company and Cable & Wireless USA, Inc. dated as of September 13, 2002; Incorporated by reference to Exhibit 2.1 of the Company’s quarterly report on Form 10-Q for the quarter ended September 30, 2002. |
|
12 |
|
Computation of ratio of earnings to fixed charges.*** |
|
21.1 |
|
Subsidiaries of the Registrant.*** |
|
23.1 |
|
Consent of Independent Registered Public Accounting Firm.**** |
|
31 |
|
Certifications.**** |
|
32 |
|
Certification.** |
|
99.1 |
|
Lock-Up Agreement, as amended, dated November 21, 2003 among the Company and certain stockholders; Incorporated by reference to Exhibit 4.3 of the Resale S-3. |
|
99.2 |
|
Contractual/Governance Agreement dated November 4, 2003, the Company and certain stockholders; Incorporated by reference to Exhibit 99.1 of the Resale S-3. |
* Compensatory benefit plan.
** This certification is being “furnished” and will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act (15 U.S.C. 78r) and will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent that the registrant specifically incorporates it by reference.
*** Included as part of the Company’s annual report on Form 10-K for the year ended December 31, 2003.
**** Included as part of the Company’s Form 10-K/A, Amendment No. 1 for the year ended December 31, 2003.
6
Pursuant to the requirements of the 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 on November 8, 2004.
|
|
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED |
|||
|
|
|
|||
|
|
By: |
|
/s/ K. Paul Singh |
|
|
|
|
K. Paul Singh |
||
|
|
|
Chairman of the Board, President and Chief Executive Officer |
||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
|
|
|
|
/s/ K. Paul Singh |
|
Chairman, President and Chief Executive Officer (Principal |
|
November 8, 2004 |
|
|
|
K. Paul Singh |
|
Executive Officer) and Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ John F. Depodesta |
|
Executive Vice President, Secretary and Director |
|
November 8, 2004 |
|
|
|
John F. Depodesta |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Neil L. Hazard |
|
Executive Vice President, Chief Operating Officer, and |
|
November 8, 2004 |
|
|
|
Neil L. Hazard |
|
Chief Financial Officer (Principal Financial Officer) |
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Tracy Book Lawson |
|
Vice President and Corporate Controller (Principal |
|
November 8, 2004 |
|
|
|
Tracy Book Lawson |
|
Accounting Officer) |
|
|
|
|
|
|
|
|
|
|
|
|
|
David E. Hershberg * |
|
Director |
|
November 8, 2004 |
|
|
|
David E. Hershberg |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pradman P. Kaul * |
|
Director |
|
November 8, 2004 |
|
|
|
Pradman P. Kaul |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John G. Puente * |
|
Director |
|
November 8, 2004 |
|
|
|
John G. Puente |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Douglas M. Karp * |
|
Director |
|
November 8, 2004 |
|
|
|
Douglas M. Karp |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul G. Pizzani * |
|
Director |
|
November 8, 2004 |
|
|
|
Paul G. Pizzani |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*By: |
/s/ K. Paul Singh |
|
Chairman, President and Chief Executive Officer |
|
November 8, 2004 |
|
|
|
K. Paul Singh |
|
(Principal Executive Officer) and Director |
|
|
|
|
Attorney-in-fact |
|
|
|
|
|
7