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UNITED STATES OF AMERICA
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In the Matter of Phelps M. Wood,
Respondent. |
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ORDER INSTITUTING CEASE- AND-DESIST PROCEEDINGS PURSUANT TO SECTION 21C OF THE SECURITIES EXCHANGE ACT OF 1934 AND FINDINGS AND ORDER OF THE COMMISSION |
I.
The Commission deems it appropriate that public administrative proceedings be, and they hereby are, instituted pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") to determine whether Phelps M. Wood ("Wood") violated (or caused violations of) Sections 13(d) and 16(a) of the Exchange Act and Rules 13d-1, 13d-2, 16a-2, 16a-3 and former Rule 16a-1 promulgated thereunder.
II.
In anticipation of the institution of these administrative proceedings, Wood ("the Respondent") has submitted an Offer of Settlement which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceeding brought by or on behalf of the Commission or to which the Commission is a party, the Respondent, without admitting or denying the matters set forth herein, consents to the issuance of this Order Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the Securities Exchange Act of 1934 and Findings and Order of the Commission ("the Order"), and to the entry of the findings, and imposition of the remedial sanctions, set forth in Section VI. below.
III.
On the basis of this Order and the Respondent's Offer of Settlement ("Offer"), the Commission finds the following:
A. FACTS
1. Respondent
Phelps M. Wood of Arcadia, California, age 62, has been a director of Central Coal & Coke Corp. ("Central Coal") since April 1980, a beneficial owner of more than five percent of Central Coal's common stock since July 1980, and a beneficial owner of more than ten percent of Central Coal's common stock since July 1991.
2. Issuer
Central Coal & Coke Corp., a Delaware corporation with principal offices in Kansas City, Missouri, currently owns and leases real properties and mineral interests.
According to Central Coal's Annual Report on Form 10-K for the year ended December 31, 1998, Central Coal had total assets of over $11.5 million and shareholders' equity of over $11.2 million as of December 31, 1998. Central Coal had 355,995 shares of common stock outstanding as of December 31, 1998. Central Coal reported net earnings of $517,419, or $1.45 per common share, for its 1998 fiscal year. Central Coal's common stock is registered with the Commission pursuant to Section 12(g) of the Exchange Act and is traded over the counter.
B. APPLICABLE LAW
Section 13(d) of the Exchange Act and Rule 13d-1 thereunder, in relevant part, provide that any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a company registered pursuant to Section 12 of the Exchange Act, is directly or indirectly the beneficial owner of more than 5 percent of such security, shall, within 10 days after such acquisition, file a Schedule 13D with the Commission and the appropriate Exchange.1 Rule 13d-2(a) requires that amendments to Schedule 13D be promptly filed if any material change to the facts set forth in the Schedule 13D occurs. A change of one percent or more in the reporting person's beneficial ownership of the specified securities is deemed material for the purposes of Rule 13d-2(a).
Section 16(a) of the Exchange Act2 requires that beneficial owners of more than ten percent of any class of any equity security registered pursuant to Section 12 of the Exchange Act and the officers and directors of the issuer of any such security (hereinafter "insider") file a statement with the Commission by the effective date of a registration statement filed pursuant to Section 12 of the Exchange Act, or within ten days of becoming such officer, director or beneficial owner, reporting the amount of all equity securities of such issuer of which they are a beneficial owner. Section 16(a) also requires an insider to file with the Commission within ten days after the close of each calendar month, if there has been a change in the insider's ownership of the issuer's equity securities during such month, a statement indicating such changes. The rules enacted pursuant to Section 16(a) provide that an initial statement by an insider is to be made on a Form 3 and subsequent statements of changes in beneficial ownership are to be made on a Form 4 or a Form 5.
C. WOOD'S VIOLATIONS OF SECTIONS 13(d) and 16(a) OF THE EXCHANGE ACT AND THE RULES THEREUNDER
As shown in the attached Tables, Wood has failed to timely file a Schedule 13D and twelve amendments thereto, resulting in delinquencies ranging from one week to sixteen years and nine months. In addition, Wood failed to timely file a Form 3 reporting his holdings of Central Coal, failed to timely file for periods ranging from one week to more than nineteen years and five months twenty-three Forms 4, and failed to timely file for periods of eleven months and two weeks, and three years and eleven months two Forms 5. The total value of the transactions in Central Coal stock for which Wood filed late Forms 4 and 5 is approximately $948,443.
Wood's history of delinquency, compiled from the ownership reports he has filed with the Commission for Central Coal, is set forth below:
PHELPS M. WOOD
Forms 3, 4 and 5 For Holdings and
Transactions in the Equity Securities of
Central Coal & Coke Corp.
April 25, 1980 through February 4, 2000
Month Price Due/ Apprx.
of No. of Per Total Date Yrs/Mos/
Trans. Type Shares Share* $Value Rec'd Wks.Late
Form 3
4-80 8,880 04-25-80 2w
05-12-80
__________________________________________________________________________________________
Forms 4 and 5
07-80 Buy 10,100 N/A N/A 08-10-80 19y5m3w
02-01-00
12-80 Buy 2,200 N/A N/A 01-10-84 16y3w
02-01-00
05-83 Buy 6,000 26.00 156,000 06-10-83
T
06-10-83
06-83 Buy 4,500 26.23 118,035 07-10-83
16y6m3w
02-04-00
07-86 Sale 2,200 26.50 58,300 08-11-86 13y5m3w
02-01-00
05-88 Buy 351 26.60 9,337 06-10-88
T
3,403 26.50 90,180 06-13-88
06-88 Buy 800 26.50 21,200 07-11-88
T
07-14-88
11-88 Buy 200 26.75 5,350 12-12-88
T
11-21-88
12-88 Buy 700 26.50 18,550 01-10-89
T
569 26.75 15,221 01-06-89
12-88 Sale 10,100 26.50 267,650 01-10-89
T
01-06-89
02-89 Buy 1,790 26.75 47,883 03-10-89
T
02-27-89
07-89 Buy 149 27.00 4,023 08-10-89
1m
09-11-89
08-89 Buy 730 27.50 20,075 09-11-89
T
09-11-89
02-90 Buy 900 27.50 24,750 03-12-90 1m
04-09-90
03-90 Buy 500 27.50 13,750 04-10-90
T
750 27.00 20,250 04-09-90
06-90 Buy 400 27.50 11,000 07-10-90
10m2w
05-24-91
07-90 Buy 480 27.96 13,421 08-10-90 9m2w
05-24-91
09-90 Buy 1,375 28.50 39,188 10-10-90 7m2w
100 28.00 2,800 05-24-91
41,988
10-90 Buy 132 28.00 3,696 11-13-90 6m1w
05-24-91
01-91 Buy 40 28.50 1,140 02-11-91 3m1w
05-24-91
04-91 Buy 300 28.50 8,550 05-10-91
2w
300 28.25 8,475 05-24-91
17,025
05-91 Buy 3,500 26.50 92,750 06-10-91
T
05-31-91
07-91 Buy 1,491 26.50 39,512 08-12-91
T
08-05-91
09-91 Buy 500 26.75 13,375 10-10-91
T
14,902 27.06 403,248 10-10-91
860 27.00 23,220
10-91 Buy 300 27.00 8,100 11-12-91
T
10-10-91
10-91 Buy 400 27.00 10,800 11-12-91
T
7,000 27.00 189,000 11-12-91
03-92 Buy 14,867 27.00 401,409 04-10-92 1w
04-17-92
05-92 Buy 500 27.00 13,500 06-10-92 4m
10-13-92
09-92 Buy 2,142 26.00 55,692 10-13-92
T
10-13-92
01-93 Buy 676 27.25 18,421 02-10-93
T
02-11-93
02-93 Buy 500 27.00 13,500 03-10-93
T
02-11-93
04-93 Buy 500 27.25 13,625 05-10-93 8m1w
01-18-94
07-93 Buy 1,000 27.25 27,250 08-10-93 5m1w
01-18-94
09-93 Buy 351 27.50 9,653 10-12-93 3m1w
01-18-94
06-94 Buy 900 28.50 25,650 07-11-94 5m
12-15-94
07-94 Buy 1,200 27.25 32,700 08-10-94
4m
12-15-94
12-94 Buy 350 28.50 9,975 01-10-95
T
105 29.00 3,045 12-15-94
01-95 Buy 608 28.50 17,328 02-10-95 4y11m3w
02-01-00
05-95 Buy 8,271 28.00 231,588 06-12-95
T
06-12-95
05-95 Opt 500 29.00 14,500 02-14-96
T
Grant 06-12-95
09-95 Buy 502 30.00 15,060 10-10-95
T
10-13-95
10-95 Buy 1,445 29.38 42,454 11-13-95
T
730 29.00 21,170 10-13-95
12-95 Buy 600 30.75 18,450 01-10-96
4y3w
02-01-00
FY-95 Form 5 02-14-96
3y11m2w
02-01-00
04-96 Opt 500 30.50 15,250 02-14-97
T
Grant 05-13-96
02-97 Buy 400 30.50 12,200 03-10-97
T
03-14-97
04-97 Buy 1,600 30.25 48,400 05-12-97
T
05-13-97
05-97 Opt 500 30.50 15,250 02-17-98
T
Grant 05-13-97
07-97 Buy 600 30.50 18,300 08-11-97
1m
09-16-97
05-98 Opt 500 31.38 15,690 02-15-99
T
Grant 07-13-98
06-98 Buy 200 32.00 6,400 07-10-98
T
300 30.50 9,150 07-13-98
08-98 Buy 1,022 32.00 32,704 09-10-98
T
09-14-98
09-98 Buy 500 30.88 15,440 10-13-98
1y3m2w
1,000 30.88 30,880 02-01-00
1,000 30.88 30,880
77,200
FY-98 Form 5 02-16-99 11m2w
02-01-00
Total value late
reported transactions: $ 948,443
* = Price per share rounded off
N/A = Not applicable
Not rec'd = Not received
T = Timely
Opt = Option
B/O = Beneficial Ownership
Schedules 13D and Amendments
Central Coal & Coke Corp.
July 14, 1980 through February 7, 2000
Date
Date Event Due/
Apprx.
of No. of Triggering Date
Yrs/Mos/
Trans. Type Shares Amendment Rec'd
Wks.Late
07-14-80 13D 18,980 07-14-80
7y11m
06-18-88
05-02-83 13D Amendment Purchase 05-02-83*
16y9m
of shares 02-07-00
06-83 13D Amendment " 07-10-83
16y7m
02-07-00
06-13-88 13D Amendment " 06-13-88
T
06-13-88
12-22-88 13D Amendment Disposition 12-22-88
1w
of shares 01-06-89
07-13-90 13D Amendment Purchase 07-13-90
10m1w
of shares 05-28-91
05-20-91 13D Amendment " 05-20-91
1w
05-31-91
09-23-91 13D Amendment " 09-23-91
1w
10-10-91
10-30-91 13D Amendment " 10-30-91
1w
11-12-91
03-26-92 13D Amendment " 03-26-92
2w
04-14-92
02-05-93 13D Amendment " 02-05-93
T
02-11-93
07-21-94 13D Amendment " 07-21-94
4m2w
12-15-94
05-03-95 13D Amendment Purchase 05-03-95
1m
of shares 06-12-95
04-29-97 13D Amendment " 04-29-97
1w
05-13-97
09-18-98 13D Amendment " 09-18-98
1y4m2w
02-07-00
* = For the purpose of this table, the date due for amendments reflects the date the obligation to file the amendment arose.
IV.
FINDINGS
Based on the above, the Commission finds that Wood violated Sections 13(d) and 16(a) of the Exchange Act, Rules 13d-1, 13d-2, 16a-2, 16a-3 and former Rule 16a-1 promulgated thereunder.
V.
OFFER OF SETTLEMENT
Wood has submitted an Offer of Settlement in this proceeding which the Commission has determined to accept. Wood, in his Offer, consents to this Order making findings, as set forth above, and ordering him to cease and desist from committing or causing any violations of, and committing or causing any future violations of, Sections 13(d) and 16(a) of the Exchange Act and Rules 13d-1, 13d-2, 16a-2 and 16a-3 promulgated thereunder.
VI.
ORDER
Accordingly, IT IS HEREBY ORDERED, pursuant to Section 21C of the Exchange Act, that Wood cease and desist from committing or causing any violations of, and committing or causing any future violations of, Sections 13(d) and 16(a) of the Exchange Act and Rules 13d-1, 13d-2, 16a-2 and 16a-3 promulgated thereunder.
By the Commission.
Jonathan G. Katz
Secretary
1 The Commission adopted amendments to Regulation 13D-G under the Exchange Act, permitting certain large shareholders to use short form Schedule 13G, rather than long form Schedule 13D, to report accumulations and changes in stock holdings. The shareholders that will be permitted to use Schedule 13G under these amendments are ones that own less than 20% and that do not have the purpose or effect of changing or influencing control of the issuer. See Release No. 34- 39538, January 12, 1998 (63 Fed. Reg. 2854, January 16, 1998.)
2 Until May 1, 1991, the statutory filing requirements under Section 16 of the Exchange Act were implemented by Rule 16a- 1. On January 10, 1991, the Commission adopted a comprehensive revision of the rules under Section 16 which became effective on May 1, 1991. See Rel. 34-28869, 56 Fed. Reg. 7242 (Feb. 21, 1991). Among other things, these amendments place the implementation of the former Rule 16a-1 filing requirements in new Rules 16a-2 and 16a-3. Accordingly, this Order, at Section VI below, orders that Respondent cease and desist from violating Rules 16a-2 and 16a-3.
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