<PAGE>
As filed with the Securities and Exchange Commission on March 24, 2000
Registration No. ___________________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
PINNACLE DATA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1263732
(State or other jurisdiction of (IRS Employer Identifica-
incorporation or organization) tion Number)
6600 Port Road
Groveport, Ohio 43125
(Address of principal executive offices) (Zip code)
Pinnacle Data Systems, Inc.
1995 Stock Option Plan
(Full title of the plan)
Stock Option Agreement dated October 1, 1996 between
Pinnacle Data Systems, Inc. and Thomas M. O'Leary
(Full title of the plan)
Stock Option Agreement dated September 12, 1997 between
Pinnacle Data Systems, Inc. and Thomas M. O'Leary
(Full title of the plan)
Stock Option Agreement dated September 12, 1997 between
Pinnacle Data Systems, Inc. and Robert V.R. Ostrander
(Full title of the plan)
Stock Option Agreement dated July 22, 1998 between
Pinnacle Data Systems, Inc. and David S. Richards
(Full title of the plan)
Stock Option Agreement dated June 23, 1999 between
Pinnacle Data Systems, Inc. and Thomas M. O'Leary
(Full title of the plan)
Stock Option Agreement dated June 23, 1999 between
Pinnacle Data Systems, Inc. and Robert V.R. Ostrander
(Full title of the plan)
John D. Bair, Chairman, President and
Chief Executive Officer
Pinnacle Data Systems, Inc.
6600 Port Road
Groveport, Ohio 43125
(614) 748-1150
(Name, address and telephone number, including
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Amount maximum maximum Amount of
to be offering aggregate regis-
Title of securities registered price per offering tration
to be registered (1) share price fee
- ---------------------- ----------- ----------- --------- ---------
Common Shares, without
par value
Options Granted (2) 10,200 $2.50 $25,500
172,750 $3.00 $518,250
15,000 $3.30 $49,500
37,000 $3.50 $129,500
4,000 $4.0625 $16,250
73,950 $4.1250 $305,043.75
6,000 $4.5375 $27,225
3,000 $4.625 $13,875
1,000 $5.50 $5,500
Options Reserved
for Grant (3) 297,500 $13.00 $3,867,500
TOTAL 620,400 $4,958,143.75 $1308.95
===============================================================================
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement also includes an indeterminable number of additional
Common Shares that may become issuable pursuant to antidilution adjustment
provisions of the Plan.
(2) All such shares are issuable upon the exercise of outstanding options to
purchase the number of shares at the exercise prices listed above. The
aggregate offering price and the fee have been computed pursuant to Rule
457(h)(1) of the Securities Act of 1933, as amended, upon the basis of the
price at which the options may be exercised.
(3) The price of $13.00 per share, which is the average of the bid and asked
prices of the Registrant's Common Shares in the over the counter market as
reported on the Nasdaq Bulletin Board on March 21, 2000, is set forth
solely for the purpose of calculating the registration fee in accordance
with Rules 457(h)(1) and 457(c) of the Securities Act of 1933, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
(a) The Registration Statement on Form 10-SB filed with the Securities and
Exchange Commission on December 13, 1999, File No. 000-28483 (the "Form
10-SB") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(b) The description of the Registrant's Common Shares which is contained in the
Form 10-SB, including any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of the Common Shares offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated 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 such 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code sets forth conditions and
limitations governing the indemnification of officers, directors, and other
persons.
Article 8 of the Amended and Restated Code of Regulations of the Company
(see Exhibit 4(a)) contains certain indemnification provisions adopted pursuant
to authority contained in Section 1701.13(E) of the Ohio Revised Code. The
Company's Code of Regulations provides for the indemnification of its officers,
directors, employees, and agents, or persons who are serving or have served at
the request of the Company as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, against all expenses
with respect to any judgments, fines, and amounts paid in settlement, or with
respect to any threatened, pending, or completed action, suit, or proceeding to
which they were or are parties or are threatened to be made parties by reason of
acting in such capacities, provided that it is determined, either by a majority
vote of a quorum of disinterested directors of the Company or by the
shareholders of the Company or otherwise as provided in Section 1701.13(E) of
the Ohio Revised Code, that: (a) they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
Company; (b) in any action, suit, or proceeding by or in the right of the
Company, they were not, and have not been adjudicated to have been, negligent or
guilty of misconduct in the performance of their duties to the Company; (c) with
respect to any criminal action or proceeding, that they had no reasonable cause
to believe that their conduct was unlawful. Section 1701.13(E) provides that
expenses, including attorneys' fees, incurred in defending any action, suit, or
proceeding, may be paid by the Company in advance of the final disposition of
such action, suit, or proceeding, upon receipt of an undertaking by the
indemnified person to repay such amount in the event that indemnification shall
be deemed improper.
The Company maintains directors and officers liability insurance.
At present, there are no claims, actions, suits, or proceedings pending
where indemnification would be required under these provisions, and the Company
does not know of any threatened claims, actions, suits, or proceedings which may
result in a request for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit If Incorporated by Reference,
No. Document with which Exhibit
Description of Exhibit was Previously Filed with SEC
------------------------------------ -----------------------------
4(a) Amended and Restated Articles of Registration Statement on Form
Incorporation of Pinnacle Data 10-SB, File No. 000-28483 (see
Systems, Inc. Exhibit 3(a) therein).
4(b) Amended and Restated Code Registration Statement on Form
of Regulations of Pinnacle Data 10-SB, File No.000-28483 (see
Systems, Inc. Exhibit 3(b) therein).
4(c) Standard form of Director stock Registration Statement on Form
option agreement between Pinnacle 10-SB, File No. 000-28483 (see
Data Systems, Inc. and individual Exhibit 10(i) therein).
members of the Board of Directors.
4(d) Employment agreement and stock Registration Statement on Form
option agreement between Pinnacle 10-SB, File No. 000-28483 (see
Data Systems, Inc. and David J. Exhibit 10(j) therein).
Richards dated July 22, 1998.
4(e) Pinnacle Data Systems, Inc. Registration Statement on Form
1995 Stock Option Plan. 10-SB, File No.000-28483 (see
Exhibit 10(k) therein).
4(f) Amendment No. 1 to Pinnacle Data Contained herein.
Systems, Inc. 1995 Stock Option
Plan.
5 Opinion of Baker & Hostetler LLP. Contained herein.
23(a) Consent of Baker & Hostetler LLP. Contained in Exhibit 5.
23(b Consent of Hausser + Taylor LLP. Contained herein.
24 Powers of Attorney. Contained herein.
ITEM 9. UNDERTAKINGS.
The 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 of 1933, as amended (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; and (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) shall not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
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, each such post-effective amendment 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.
(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.
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The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in 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 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 and will be governed by the final adjudication of such issue.
<PAGE>
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 Columbus, State of Ohio, on March 23, 2000.
PINNACLE DATA SYSTEMS, INC.
Date: March 23, 2000 By /s/John D. Bair
John D. Bair, Chairman, President,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/John D. Bair Chairman, President, Chief March 23, 2000
John D. Bair Executive Officer and
Director (principal
executive officer)
/s/Thomas J. Carr Chief Financial Officer, March 23, 2000
Thomas J. Carr Treasurer, and Director
(principal financial and
principal accounting officer)
C. Robert Hahn* Chief Operating Officer, March 23, 2000
C. Robert Hahn Vice President, and
Director
Thomas M. O'Leary* Director March 23, 2000
Thomas M. O'Leary
Robert V.R. Ostrander* Director March 23, 2000
Robert V.R. Ostrander
*The undersigned, John D. Bair, by signing his name hereto, does hereby
execute this Registration Statement on behalf of each of the above-named
directors of the Registrant pursuant to powers of attorney duly executed by such
directors and filed with the Securities and Exchange Commission as exhibits to
this Registration Statement.
By /s/John D. Bair March 23, 2000
John D. Bair, Attorney in Fact
<PAGE>
EXHIBIT INDEX
If Incorporated by Reference,
Exhibit Document with which Exhibit
No. Description of Exhibit was Previously Filed with SEC
- ----- ------------------------------ ------------------------------
4(a) Amended and Restated Articles Registration Statement on Form
of Incorporation of Pinnacle Data 10-SB, File No.000-28483 (see
Systems, Inc. Exhibit 3(a) therein).
4(b) Amended and Restated Code of Registration Statement on Form
Regulations of Pinnacle Data 10-SB, File No. 000-28483 (see
Systems, Inc. Exhibit 3(b) therein).
4(c) Standard form of Director stock Registration Statement on Form
option agreement between Pinnacle 10-SB, File No. 000-28483 (see
Data Systems, Inc. and individual Exhibit 10(i) therein).
members of the Board of Directors.
4(d) Employment agreement and stock Registration Statement on Form
option agreement between Pinnacle 10-SB, File No. 000-28483 (see
Data Systems, Inc. and David J. Exhibit 10(j) therein).
Richards dated July 22, 1998.
4(e) Pinnacle Data Systems, Inc. 1995 Registration Statement on Form
Stock Option Plan. 10-SB, File No. 000-28483 (see
Exhibit 10(k) therein).
4(f) Amendment No. 1 to Pinnacle Data Contained herein.
Systems, Inc.1995 Stock Option
Plan.
5 Opinion of Baker & Hostetler LLP. Contained herein.
23(a) Consent of Baker & Hostetler LLP. Contained in Exhibit 5.
23(b) Consent of Hausser + Taylor LLP. Contained herein.
24 Powers of Attorney. Contained herein.
<PAGE>
Exhibit 4(d)
AMENDMENT NO. 1 TO
PINNACLE DATA SYSTEMS, INC. 1995 STOCK OPTION PLAN
The Pinnacle Data Systems, Inc. 1995 Stock Option Plan (the "Plan") is
hereby amended pursuant to the following provisions:
1. Definitions
All capitalized terms used in this amendment which are not otherwise
defined herein shall have the respective meanings given such terms in the Plan.
2. Shares Subject To Plan
The total number of Shares for which options may be granted under the Plan,
as provided under Section 3 of the Plan, is hereby increased by 300,000 Shares
to a total of 600,000 Shares.
3. Administration of Plan
The first paragraph of Section 2 of the Plan is hereby deleted in its
entirety from the Plan and replaced with the following two paragraphs:
The Plan shall be administered by the Company's Board of
Directors (the "Board") or, if the Board so elects, a committee (the
"Committee") which shall consist of not less than three directors of
the Company appointed by the Board. The members of the Committee shall
serve at the pleasure of the Board, which may remove members from the
Committee or appoint new members to the Committee from time to time,
and members of the Committee may resign by written notice to the
President or Secretary of the Company. For purposes of this Plan, the
Board, if it is administering the Plan, or the Committee, if it is
administering the Plan, shall hereinafter be referred to as the
"Administrator."
Notwithstanding the foregoing to the contrary, if the common
shares of the Company are registered under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Act"), or are
required to be so registered or the Company is subject to the
reporting requirements of Section 13 of the Act (hereinafter referred
to as a "Reporting Company"), any option granted to a person who,
because of his relationship with the Company, is subject to the
reporting requirements of Section 16(a) of the Act, shall not be
effective unless (i) the grant of such option is approved by either
the Board or a committee consisting solely of two or more
"Non-Employee Directors" (as defined in Rule 16b-3(b)(3) promulgated
under the Act), (ii) the grant of such option is approved or ratified
by the shareholders of the Company, in compliance with Section 14 of
the Act, not later than the date of the annual meeting of the
Company's shareholders next following the date of such grant, or (iii)
such option, by its terms, provides that common shares received upon
exercise of the option may not be disposed of before at least six
months have elapsed from the date the option was granted.
<PAGE>
4. Eligibility
Section 4 of the Plan is hereby deleted in its entirety from the Plan and
replaced with the following:
All employees of the Company and its subsidiaries are eligible to
receive options under the Plan ("Eligible Persons"). No director of
the Company who is not also an employee of the Company or any of its
subsidiaries shall be eligible to participate in the Plan.
5. Transferability
The following two sentences are hereby added to the end of Section
5(c)(iii) of the Plan:
Notwithstanding the foregoing to the contrary, the Administrator may, in
its sole discretion and in the manner established by the Administrator, provide
for the irrevocable transfer, without payment of consideration, of any
Nonqualified Option by a Grantee to such Grantee's spouse, children,
grandchildren, nieces, or nephews, or to the trustee of any trust for the
principal benefit of one or more such persons, or to a partnership whose only
partners are one or more such persons. In the case of such a permitted transfer,
the Nonqualified Option shall be exercisable only by the transferee or such
transferee's legal representative.
6. Six Month Holding Period
Section 6 of the Plan is hereby deleted in its entirety from the Plan.
7. Effective Date; Construction
The effective date of this amendment is February 16, 2000, and this
amendment shall be deemed to be a part of the Plan as of such date. In the event
of any inconsistencies between the provisions of the Plan and this amendment,
the provisions of this amendment shall control. Except as modified by this
amendment, the Plan shall continue in full force and effect without change.
This amendment shall be submitted to the stockholders of the Company for
approval as soon as reasonably practicable, but in any event not later than 12
months after the date of this amendment. Notwithstanding the preceding paragraph
or any other provisions of this amendment to the contrary, if this amendment is
not approved by the stockholders of the Company within such 12-month period,
this amendment and all options granted with respect to the additional common
shares subject to the Plan as a result of this amendment shall automatically
become null and void and have no further force or effect.
<PAGE>
EXHIBIT 5
OPINION OF BAKER & HOSTETLER LLP
BAKER & HOSTETLER LLP
65 East State Street
Suite 2100
Columbus, Ohio 43215
March 23, 2000
Pinnacle Data Systems, Inc.
6600 Port Road
Groveport, Ohio 43125
Ladies and Gentlemen:
We are acting as counsel to Pinnacle Data Systems, Inc., an Ohio
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
to register 545,900 common shares, without par value, of the Company (the
"Shares") for offer and sale under, and pursuant to, the Company's 1995 Stock
Option Plan (the "Plan", as amended by Amendment No. 1 thereto ("Amendment No.
1")).
In connection therewith, we have examined the Company's Amended and
Restated Articles of Incorporation, the Company's Amended and Restated Code of
Regulations, and the records, as exhibited to us, of the corporate proceedings
of the Company; a copy of the Plan, Amendment No. 1, and such other documents
and records, including a certificate from the secretary of the Company and a
certificate from the treasurer of the Company, as we considered necessary for
purposes of this opinion. In rendering this opinion, we have assumed the
genuineness, without independent investigation, of all signatures on all
documents examined by us, the conformity to original documents of all documents
submitted to us as certified or facsimile copies, and the authenticity of all
such documents.
Based upon the foregoing, and assuming the approval of Amendment No. 1 by
the Company's shareholders as required by the Plan, we are of the opinion that
the Shares, when sold and paid for in the manner contemplated by the Plan, will
have been validly issued and will be fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Baker & Hostetler LLP
BAKER & HOSTETLER LLP
<PAGE>
EXHIBIT 23(a)
CONSENT OF BAKER & HOSTETLER LLP
Contained in Exhibit 5.
<PAGE>
EXHIBIT 23(b)
CONSENT OF HAUSSER + TAYLOR LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Pinnacle Data Systems, Inc. of our report dated February 23, 1999
relating to the balance sheets of Pinnacle Data Systems, Inc. as of December 31,
1997 and 1998, and the related statements of income, stockholders' equity, and
cash flows for the years then ended, which report appears in the report on Form
10-SB of Pinnacle Data Systems, Inc.
/s/ Hausser + Taylor LLP
HAUSSER + TAYLOR LLP
Columbus, Ohio
March 23, 2000
<PAGE>
EXHIBIT 24
POWERS OF ATTORNEY
For Registration Statement on Form S-8
for 1995 Stock Option Plan
The undersigned, each of whom is a director of Pinnacle Data Systems, Inc.,
an Ohio corporation (the "Company"), hereby constitutes and appoints John D.
Bair and Thomas J. Carr, and each of them (with full power to each of them to
act alone), as his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in his capacity as director of the Company, to execute any and all of the
Company's Registration Statements on Form S-8, and any and all amendments
thereto (including post-effective amendments), to register under the Securities
Act of 1933, as amended (the "Securities Act"), any common shares, without par
value, of the Company for sale under, and pursuant to, any and all of the
Company's current or hereafter adopted or approved stock option plans or other
"employee benefit plans" (as such term is defined under Rule 405 promulgated
under the Securities Act), as such plans are currently amended or shall
hereafter be amended, including without limitation the 1995 Stock Option Plan,
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 and about the premises, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
/s/ C. Robert Hahn March 23, 2000
C. Robert Hahn Date
/s/ Thomas M. O'Leary March 23, 2000
Thomas M. O'Leary Date
/s/ Robert V.R. Ostrander March 23, 2000
Robert V.R. Ostrander Date
