AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 29, 2000
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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PINNACLE HOLDINGS INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 65-0652634
- --------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1549 RINGLING BOULEVARD, THIRD FLOOR, SARASOTA, FLORIDA 34236
- ------------------------------------------------------- ----------
(Address of Principal Executive Office) (Zip Code)
PINNACLE HOLDINGS INC. STOCK INCENTIVE PLAN
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(Full title of the plan)
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STEVEN R. DAY
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
PINNACLE HOLDINGS INC.
1549 RINGLING BOULEVARD, THIRD FLOOR
SARASOTA, FLORIDA 34236
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(Name and address of agent for service)
(941) 364-8886
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(Telephone number, including area code, of agent for service)
Copies of all communications to:
CHESTER E. BACHELLER, ESQ.
HOLLAND & KNIGHT LLP
400 NORTH ASHLEY DRIVE
SUITE 2300
TAMPA, FLORIDA 33602
If any of the securities being registered on this Form are to be
offered on delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share 3,000,000 $51.00 $153,000,000 $40,392
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</TABLE>
(1)The provisions of Rule 416 under the Securities Act of 1933 shall apply to
this Registration Statement and the number of shares registered on this
Registration Statement shall increase or decrease as a result of stock splits,
stock dividends or similar transactions.
(2)Estimated solely for the purpose of calculating the registration fee. The fee
is calculated upon the basis of the average between the high and low sales
prices for shares of common stock of the registrant as reported on The Nasdaq
Stock Market's National Market on February 24, 2000.
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<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant,
Pinnacle Holdings Inc., a Delaware corporation, are incorporated by reference in
this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
(b) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A, dated August 11, 1998, filed pursuant to
Section 12(g) of the Securities and Exchange Act of 1934.
(c) All 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 hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation and Bylaws contain
provisions limiting the personal liability of its directors for monetary damages
resulting from breaches of their duty of care to the extent permitted by Section
102 (b) (7) of the Delaware General Corporation Law. The Registrant's
Certificate of Incorporation and Bylaws also contain provisions making
indemnification of its directors and officers mandatory to the fullest extent
permitted by the Delaware General Corporation Law, including circumstances in
which indemnification is otherwise discretionary.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) 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 any criminal action or
proceedings, had no reasonable cause to believe their conduct was illegal. 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 defense or settlement of such an action and require
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The Registrant has
obtained directors' and officers' liability insurance, consistent with the
provisions of the Delaware General Corporation Law, to protect directors and
officers from liabilities under various laws, including the Securities Act of
1933, as amended.
II-1
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Pinnacle Holdings Inc. Stock Incentive Plan.
5.1 Opinion of Holland & Knight LLP re legality of the Common Stock.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Powers of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) 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.
(3) 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.
(b) 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 15(d) of the Securities
and 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 and
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.
II-2
<PAGE>
(c) 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 foregoing provisions (see Item 6) 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.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Pinnacle Holdings Inc., a corporation organized and existing under
the laws of the State of Delaware, 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 Sarasota, State of
Florida, on February 29, 2000.
PINNACLE HOLDINGS INC.
By: /s/ STEVEN DAY
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Steven Day, Vice President, Chief Financial
Officer, Secretary and Director
POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, we, the undersigned officers and
directors of Pinnacle Holdings Inc., hereby severally constitute and appoint
Robert Wolsey and Steven Day, each acting alone as an attorney-in-fact with the
full power of substitution, for him and in his name, place and stead in any and
all capacities, to sign any and all 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, hereby
ratifying and confirming all that said attorneys-in-fact, or either of their
substitute or substitutes, may 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 and on the dates indicated.
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SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ ROBERT WOLSEY Chief Executive Officer, President, Chief February 29, 2000
- ------------------------------------ Operating Officer and Director
Robert Wolsey
/s/ STEVEN DAY Vice President, Chief Financial Officer, February 29, 2000
- ------------------------------------ Secretary and Director
Steven Day
Director February 29, 2000
/s/ ANDREW BANKS
- ------------------------------------
Andrew Banks
Director February 29, 2000
/s/ ROYCE YUDKOFF
- ------------------------------------
Royce Yudkoff
Director February 29, 2000
/s/ GEORGE PETER O'BRIEN
- ------------------------------------
George Peter O'Brien
Director February 29, 2000
/s/ J. CLARKE SMITH
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J. Clarke Smith
</TABLE>
II-4
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INDEX OF EXHIBITS
4.1 Pinnacle Holdings Inc. Stock Incentive Plan.
5.1 Opinion of Holland & Knight LLP re legality of the Common Stock.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Powers of Attorney (included on signature page).
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EXHIBIT 4.1
PINNACLE HOLDINGS INC.
STOCK INCENTIVE PLAN
1. PURPOSE. The purpose of this Stock Incentive Plan (the "Plan") is to
further the interests of Pinnacle Holdings Inc., a Delaware
corporation, its Subsidiaries and its shareholders by providing
incentives in the form of grants of stock options and restricted stock
to key employees and other persons who contribute materially to the
success and profitability of the Company. Also, the Plan will assist
the Company in attracting and retaining key persons.
2. DEFINITIONS. The following definitions will apply to the Plan:
a. "AWARD" means, individually or collectively, a grant under the
Plan of a Nonqualified Stock Option, an Incentive Stock Option
or Restricted Stock.
b. "BOARD" means the board of directors of Pinnacle Holdings Inc.
c. "CAUSE" means (i) any intentional misapplication by the
Recipient of the Company's funds, intended to result directly
or indirectly in significant gain or personal enrichment at
the expense of the Company, or any other act of dishonesty
committed by the Recipient in connection with the Company's
business; (ii) the Recipient's conviction of a crime involving
moral turpitude; (iii) the Recipient's non-performance or
non-observance in any material respect of any requirement with
respect to the Recipient's employment; or (iv) any other
action by the Recipient involving willful and deliberate
malfeasance or negligence in the performance of the
Recipient's duties; provided that "Cause" may be otherwise
defined for purposes of any Award in the related Option
Agreement or Restricted Stock Agreement.
d. "CODE" means the Internal Revenue Code of 1986, as amended.
e. "COMMITTEE" means the stock incentive committee appointed by
the Board and consisting solely of two or more directors who
are "outside directors" as such term is defined in Section
162(m) of the Code, and "nonemployee directors" as such term
is defined in Rule 16b-3 under the Securities Exchange Act of
1934 ("1934 Act"). The Board may appoint a different stock
incentive committee for the purpose of granting Awards to
Eligible Persons who are not currently and are not expected to
subsequently become subject to the requirements of Section 16
of the 1934 Act or Section 162(m) of the Code. If the Board
does not appoint a stock incentive committee, "Committee"
means the Board.
f. "COMMON STOCK" means the Common Stock, par value $.001 per
share of Pinnacle Holdings Inc., or such other class of shares
or securities as to which the Plan may be applicable pursuant
to Section 9 of the Plan.
g. "COMPANY" means Pinnacle Holdings Inc. and its Subsidiaries.
h. "DATE OF GRANT" means the date on which the Option or
Restricted Stock, whichever is applicable, is granted.
i. "DISABILITY" means "disability" as defined in the Company's
long term disability plan or policy.
j. "ELIGIBLE PERSON" means any person who performs or has in the
past performed services for the Company, whether as a
director, officer, Employee, consultant or other independent
contractor, and any person who performs services relating to
the Company as an employee or independent contractor of a
corporation or other entity that provides services for the
Company.
k. "EMPLOYEE" means any person employed on an hourly or salaried
basis by the Company.
l. "FAIR MARKET VALUE" means the fair market value of the Common
Stock. If the Common Stock is
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publicly traded on the date as of which fair market value is
being determined, the Fair Market Value is the closing sale
price of the Common Stock on the trading day next preceding
such date as reported on the registered national exchange
providing the primary market in the Common Stock, or if the
Common Stock was not traded on such market, the average of the
closing bid prices as reported by the Nasdaq Stock Market on
that date. If the Common Stock is not publicly traded on the
date as of which fair market value is being determined, the
Board will determine the fair market value of the Shares,
using such factors as the Board considers relevant, such as
the price at which recent sales have been made, the book value
of the Common Stock, and the Company's current and projected
earnings.
m. "INCENTIVE STOCK OPTION" means a stock option, granted
pursuant to this Plan or any other Company plan, that
satisfies the requirements of Section 422 of the Code and that
entitles the Recipient to purchase Common Stock.
n. "NONQUALIFIED STOCK OPTION" means a stock option, granted
pursuant to the Plan, that is not an Incentive Stock Option
and that entitles the Recipient to purchase Common Stock.
o. "OPTION" means an Incentive Stock Option or a Nonqualified
Stock Option.
p. "OPTION AGREEMENT" means a written agreement, between the
Company and a Recipient, that sets out the terms and
restrictions of an Option Award.
q. "OPTION SHAREHOLDER" means an Employee who has acquired Shares
upon exercise of an Option.
r. "OPTION SHARES" means Shares that a Recipient receives upon
exercise of an Option.
s. "PERIOD OF RESTRICTION" means the period beginning on the Date
of Grant of a Restricted Stock Award and ending on the date on
which all restrictions applicable to the Shares subject to
such Award expire.
t. "PLAN" means this Pinnacle Holdings Inc. Stock Incentive Plan,
as amended from time to time.
u. "RECIPIENT" means an individual who receives an Award.
v. "RESTRICTED STOCK" means an Award granted pursuant to Section
7 of the Plan.
w. "RESTRICTED STOCK AGREEMENT" means a written agreement,
between the Company and a Recipient, that sets out the terms
and restrictions of a Restricted Stock Award.
x. "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 9 of the Plan.
y. "SUBSIDIARY" means any entity 50 percent or more of the voting
securities of which are owned directly or indirectly by the
Company at any time during the existence of the Plan.
3. ADMINISTRATION. The Committee will administer the Plan. The Committee
has the exclusive power to select the Recipients of Awards pursuant to
the Plan, to establish the terms of the Awards granted to each
Recipient, and to make all other determinations necessary or advisable
under the Plan. The Committee has the sole discretion to determine
whether the performance of an Eligible Person warrants an Award under
the Plan, and to determine the size and type of the Award. The
Committee has full and exclusive power to construe and interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating
to the Plan, and to take all actions necessary or advisable for the
Plan's administration. The Committee, in the exercise of its powers,
may correct any defect or supply any omission, or reconcile any
inconsistency in the Plan, or in any Agreement, in the manner and to
the extent it deems necessary or expedient to make the Plan fully
effective. In exercising this power, the Committee may retain counsel
at the expense of the Company. The Committee also has the power to
determine the duration and purposes of leaves of absence which may be
granted to a Recipient without constituting a termination of the
Recipient's employment for purposes of the Plan. Any of the Committee's
determinations will be final and binding on all persons. A member of
the Committee will not be liable for
2
<PAGE>
performing any act or making any determination in good faith.
4. SHARES SUBJECT TO PLAN. Subject to the provisions of Section 9 of the
Plan, the maximum aggregate number of Shares that may be subject to
Awards under the Plan is 3,000,000. If an unexercised Option expires or
becomes unexercisable, the unpurchased Shares subject to such Option
will be available for other Awards under the Plan. If any portion of a
Restricted Stock Award is forfeited during the applicable Period of
Restriction, the forfeited shares will be available for other Awards
under the Plan.
5. ELIGIBILITY. Any Eligible Person that the Committee in its sole
discretion designates is eligible to receive an Award under the Plan.
Only an Employee may receive an Incentive Stock Option. The Committee's
grant of an Award to a Recipient in any year does not entitle the
Recipient to an Award in any other year. Furthermore, the Committee may
grant different Awards to different Recipients. The Committee may
consider such factors as it deems pertinent in selecting Recipients and
in determining the types and sizes of their Awards. Recipients may
include persons who previously received stock, stock options or other
benefits under the Plan or another plan of the Company or a Subsidiary,
whether or not the previously granted benefits have been fully
exercised or vested. An Award will not enlarge or otherwise affect a
Recipient's right, if any, to continue to serve the Company and its
Subsidiaries in any capacity, and will not restrict the right of the
Company or a Subsidiary to terminate at any time the Recipient's
employment.
6. OPTIONS. The Committee may grant Options to purchase Common Stock to
Recipients in such amounts as the Committee determines in its sole
discretion. Subject to the provisions of Section 9 of the Plan, during
any 12-month period, the Committee may not grant to any Recipient
Options to purchase more than a total of 1,000,000 Shares. An Option
Award may be in the form of an Incentive Stock Option or a Nonqualified
Stock Option. The Committee may grant an Option alone or in addition to
another Award for the same Recipient. Each Option will satisfy the
following requirements:
a. WRITTEN AGREEMENT. Each Option granted to a Recipient will be
evidenced by an Option Agreement. The terms of the Option
Agreement need not be identical for different Recipients or
for different Awards. The Option Agreement will contain such
provisions as the Committee deems appropriate and will include
a description of the substance of each of the requirements in
this Section 6.
b. NUMBER OF SHARES. Each Option Agreement will specify the
number of Shares that the Recipient may purchase upon exercise
of the Option.
c. EXERCISE PRICE.
i. INCENTIVE STOCK OPTION. Except as provided in
subsection 6(l) of the Plan, the exercise price of
each Share subject to an Incentive Stock Option will
equal the exercise price designated by the Committee,
but will not be less than the Fair Market Value of
the Share on the Date of Grant.
ii. NONQUALIFIED STOCK OPTION. The exercise price of each
Share subject to a Nonqualified Stock Option will
equal the exercise price designated by the Committee.
d. DURATION OF OPTION.
i. INCENTIVE STOCK OPTION. Except as otherwise provided
in this Section 6, an Incentive Stock Option will
expire on the earlier of the tenth anniversary of the
Date of Grant or the date set by the Committee on the
Date of Grant.
ii. NONQUALIFIED STOCK OPTION. Except as otherwise
provided in this Section 6, a Nonqualified Stock
Option will expire on the tenth anniversary of its
Date of Grant or, at such earlier or later date set
by the Committee on the Date of Grant.
e. VESTING OF OPTION. Each Option Agreement will specify the
vesting schedule applicable to the Option. The Committee, in
its sole discretion, may accelerate the vesting of any Option
at any time.
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<PAGE>
f. DEATH.
i. INCENTIVE STOCK OPTION. If a Recipient dies, an
Incentive Stock Option granted to the Recipient will
expire on the one-year anniversary of the Recipient's
death, or if earlier, the date specified in or
pursuant to subsection 6.d. of the Plan, unless the
Committee sets an earlier expiration date on the Date
of Grant.
ii. NONQUALIFIED STOCK OPTION. If a Recipient dies, a
Nonqualified Stock Option granted to the Recipient
will expire on the one-year anniversary of the
Recipient's death, or if earlier, the date specified
in or pursuant to subsection 6.d. of the Plan, unless
the Committee sets an earlier or later expiration
date on the Date of Grant, or a later expiration date
subsequent to the Date of Grant but prior to the
one-year anniversary of the Recipient's death.
g. DISABILITY.
i. INCENTIVE STOCK OPTION. If the Recipient terminates
employment with the Company because of his
Disability, an Incentive Stock Option granted to the
Recipient will expire on the one-year anniversary of
the Recipient's last day of employment, or, if
earlier, the date specified in or pursuant to
subsection 6.d. of the Plan.
ii. NONQUALIFIED STOCK OPTION. If the Recipient
terminates employment with the Company because of his
Disability, a Nonqualified Stock Option granted to
the Recipient will expire on the one-year anniversary
of the Recipient's last day of employment, or, if
earlier, the date specified in or pursuant to
subsection 6.d. of the Plan, unless the Committee
sets an earlier or later expiration date on the Date
of Grant or a later expiration date subsequent to the
Date of Grant but prior to the one-year anniversary
of the Recipient's last day of employment.
h. RETIREMENT OR INVOLUNTARY TERMINATION.
i. INCENTIVE STOCK OPTION. If the Recipient terminates
employment with the Company as a result of his
retirement in accordance with the Company's normal
retirement policies, or if the Company terminates the
Recipient's employment other than for Cause, an
Incentive Stock Option granted to the Recipient will
expire 90 days following the last day of the
Recipient's employment, or, if earlier, the date
specified in or pursuant to subsection 6.d. of the
Plan, unless the Committee sets an earlier expiration
date on the Date of Grant.
ii. NONQUALIFIED STOCK OPTION. If the Recipient
terminates employment with the Company as a result of
his retirement in accordance with the Company's
normal retirement policies, or if the Company
terminates the Recipient's employment other than for
Cause, a Nonqualified Stock Option granted to the
Recipient will expire 90 days following the last day
of the Recipient's employment, or, if earlier, the
date specified in or pursuant to subsection 6.d. of
the Plan, unless the Committee sets an earlier or
later expiration date on the Date of Grant or a later
expiration date subsequent to the Date of Grant but
prior to 90 days following the Recipient's last day
of employment.
i. TERMINATION OF SERVICE. If the Recipient's employment with the
Company terminates for any reason other than the reasons
described in Sections 6.f, 6.g., 6.h., or 6.j. of the Plan, an
Option granted to the Recipient will expire 30 days following
the last day of the Recipient's employment with the Company,
or, if earlier, the date specified in or pursuant to
subsection 6.d. of the Plan, unless the Committee sets an
earlier or later expiration date on the Date of Grant or a
later expiration date subsequent to the Date of Grant but
prior to the 30th day following the Recipient's last day of
employment. The Committee may not delay the expiration of an
Incentive Stock Option more than 90 days after termination of
the Recipient's employment. During any delay of the expiration
date, the Option will be exercisable only to the extent it is
exercisable on the date the Recipient's employment terminates,
subject to any adjustment under Section 9 of the Plan.
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<PAGE>
j. CAUSE. Notwithstanding any provisions set forth in the Plan,
if the Company terminates the Recipient's employment for
Cause, any unexercised portion(s) of the Recipient's Option(s)
will expire immediately upon the earlier of the occurrence of
the event that constitutes Cause or the last day the Recipient
is employed by the Company.
k. CONDITIONS REQUIRED FOR EXERCISE. An Option is exercisable
only to the extent it is vested according to the terms of the
Option Agreement. Furthermore, an Option is exercisable only
if the issuance of Shares upon exercise would comply with
applicable securities laws. Each Agreement will specify any
additional conditions required for the exercise of the Option.
l. TEN PERCENT SHAREHOLDERS. An Incentive Stock Option granted to
an individual who, on the Date of Grant, owns stock possessing
more than 10 percent of the total combined voting power of all
classes of stock of either the Company or any parent or
Subsidiary, will have an exercise price of 110 percent of Fair
Market Value on the Date of Grant and will be exercisable only
during the five-year period immediately following the Date of
Grant. For purposes of calculating stock ownership of any
person, the attribution rules of Code Section 424(d) will
apply, and any stock that such person may purchase under
outstanding options will not be considered.
m. MAXIMUM OPTION GRANTS. The aggregate Fair Market Value,
determined on the Date of Grant, of Shares with respect to
which any Incentive Stock Options under the Plan and all other
plans of the Company or its Subsidiaries become exercisable by
any individual for the first time in any calendar year will
not exceed $100,000.
n. METHOD OF EXERCISE. An Option will be deemed exercised when
the person entitled to exercise the Option (i) delivers
written notice to the President of the Company (or his
delegate, in his absence) of the decision to exercise, (ii)
concurrently tenders to the Company full payment for the
Shares to be purchased pursuant to the exercise, and (iii)
complies with such other reasonable requirements as the
Committee establishes pursuant to Section 8 of the Plan.
Payment for Shares with respect to which an Option is
exercised may be made (i) in cash, (ii) by certified check,
(iii) if permitted by the Committee in the case of such
exercise, in the form of Common Stock having a Fair Market
Value equal to the exercise price, or (iv) by delivery of a
notice instructing the Company to deliver the Shares to a
broker subject to the broker's delivery of cash to the Company
equal to the exercise price. No person will have the rights of
a shareholder with respect to Shares subject to an Option
granted under the Plan until a certificate or certificates for
the Shares have been delivered to him. A partial exercise of
an Option will not affect the holder's right to exercise the
remainder of the Option from time to time in accordance with
the Plan.
o. LOAN FROM COMPANY TO EXERCISE OPTION. The Committee may, in
its discretion and subject to the requirements of applicable
law, recommend to the Company that it lend the Recipient the
funds needed by the Recipient to exercise an Option. The
Recipient will apply to the Company for the loan, completing
the forms and providing the information required by the
Company. The loan will be secured by such collateral as the
Company may require, subject to its underwriting requirements
and the requirements of applicable law. The Recipient will
execute a promissory note and any other documents deemed
necessary by the Company.
p. DESIGNATION OF BENEFICIARY. Each Recipient may file with the
Company a written designation of a beneficiary to receive the
Recipient's Options in the event of the Recipient's death
prior to full exercise of such Options. If the Recipient does
not designate a beneficiary, or if the designated beneficiary
does not survive the Recipient, the Recipient's estate will be
his beneficiary. Recipients may, by written notice to the
Company, change a beneficiary designation.
q. NONTRANSFERABILITY OF OPTION. An Option granted under the Plan
is not transferable except by will or the laws of descent and
distribution. During the lifetime of the Recipient, all rights
of the Option are exercisable only by the Recipient.
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7. RESTRICTED STOCK. The Committee may grant Restricted Stock Shares to
Recipients in such amounts as the Committee determines in its sole
discretion. The Committee may grant Restricted Stock alone or in
addition to another Award. Each Restricted Stock Award granted to a
Recipient will satisfy the following requirements:
a. WRITTEN AGREEMENT. Each Restricted Stock Award granted to a
Recipient will be evidenced by a Restricted Stock Agreement.
The terms of the Restricted Stock Agreement need not be
identical for different Recipients. The Restricted Stock
Agreement will specify the Period(s) of Restriction. In
addition, the Restricted Stock Agreement will include a
description of the substance of each of the requirements in
this Section 7 and will contain such provisions as the
Committee deems appropriate.
b. NUMBER OF SHARES. Each Agreement will specify the number of
Restricted Stock Shares granted to the Recipient.
c. TRANSFERABILITY. Restricted Stock Shares may not be sold,
transferred, pledged, assigned or otherwise alienated or
hypothecated until the end of the applicable Period of
Restriction, or upon earlier satisfaction of any other
conditions, as specified in the Restricted Stock Agreement.
d. OTHER RESTRICTIONS. The Committee will impose on Restricted
Stock Shares any other restrictions that the Committee deems
advisable, including, without limitation, vesting
restrictions, restrictions based upon the achievement of
specific Company-wide, Subsidiary, individual performance
goals and/or any other criteria that the Committee may select,
and/or restrictions under applicable federal or state
securities laws, and may require that the certificate
representing Restricted Stock carry a legend to give
appropriate notice of such restrictions. The Committee may
also require that Recipients make cash payments at the time of
grant and/or upon expiration of restrictions. Any such cash
payments will equal an amount not less than the par value of
the Restricted Stock Shares.
e. CERTIFICATE LEGEND. In addition to any legends placed on
certificates pursuant to subsection 8.d. of the Plan, each
certificate representing Restricted Stock Shares will bear the
following legend:
"The sale or other transfer of the Shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to
certain restrictions on transfer as set forth in the
Pinnacle Holdings Inc. Stock Incentive Plan, as
amended, and in a Restricted Stock Agreement dated
___________. A copy of the Plan and the Restricted
Stock Agreement may be obtained from the Chief
Financial Officer of Pinnacle Holdings Inc."
f. REMOVAL OF RESTRICTIONS. Except as otherwise provided in this
Section 7, Restricted Stock Shares will become freely
transferable by the Recipient after the Period of Restriction
expires. The Recipient will be entitled to removal of the
legend required by subsection 8.e. of the Plan following the
expiration of the Period of Restriction.
g. VOTING RIGHTS. During the Period of Restriction, Recipients
holding Restricted Stock Shares may exercise full voting
rights with respect to such Shares.
h. DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of
Restriction, Recipients holding Restricted Stock Shares will
be entitled to receive all dividends and other distributions
paid with respect to such Shares. If any such dividends or
distributions are paid in Shares, such Shares will be subject
to the same restrictions on transferability and forfeitability
as the Restricted Stock Shares with respect to which they were
paid.
i. TERMINATION OF SERVICE. If the Recipient ceases employment
with the Company, the Recipient will forfeit immediately all
nonvested Restricted Stock Shares held by the Recipient to the
Company. The Committee may, in its sole discretion and upon
such terms and conditions as it deems proper, provide for
expiration of the restrictions on Restricted Stock Shares
following termination of employment.
j. DESIGNATION OF BENEFICIARY. Each Recipient may file with the
Company a written designation of a beneficiary to receive the
Recipient's Restricted Stock Shares in the event of the
Recipient's death
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prior to removal of all restrictions on such Shares. If the
Recipient does not designate a beneficiary, or if the
designated beneficiary does not survive the Recipient, the
Recipient's estate will be his beneficiary. Recipients may, by
written notice to the Company, change a beneficiary
designation.
8. TAXES; COMPLIANCE WITH LAW; APPROVAL OF REGULATORY BODIES; LEGENDS. The
Company will have the right to withhold from payments otherwise due and
owing to the Recipient or his beneficiary or to require the Recipient
or his beneficiary to remit to the Company in cash upon demand an
amount sufficient to satisfy any federal (including FICA and FUTA
amounts), state, and/or local withholding tax requirements at the time
the Recipient or his beneficiary recognizes income for federal, state,
and/or local tax purposes with respect to any Award under the Plan.
The Committee may grant Awards and the Company may deliver Shares under
the Plan only in compliance with all applicable federal and state laws
and regulations and the rules of all stock exchanges on which the
Company's stock is listed at any time. An Option is exercisable only if
either (i) a registration statement pertaining to the Shares to be
issued upon exercise of the Option has been filed with and declared
effective by the Securities and Exchange Commission and remains
effective on the date of exercise, or (ii) an exemption from the
registration requirements of applicable securities laws is available.
The Plan does not require the Company, however, to file such a
registration statement or to assure the availability of such
exemptions. Any certificate issued to evidence Shares issued under the
Plan may bear such legends and statements, and will be subject to such
transfer restrictions, as the Committee deems advisable to assure
compliance with federal and state laws and regulations and with the
requirements of this Section 8. No Option may be exercised, and Shares
may not be issued under the Plan, until the Company has obtained the
consent or approval of every regulatory body, federal or state, having
jurisdiction over such matters as the Committee deems advisable.
Each person who acquires the right to exercise an Option or to
ownership of Shares by transfer, bequest or inheritance may be required
by the Committee to furnish reasonable evidence of ownership of the
Option as a condition to his exercise of the Option or receipt of
Shares. In addition, the Committee may require such consents and
releases of taxing authorities as the Committee deems advisable.
With respect to persons subject to Section 16 of the 1934 Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the 1934 Act, as such Rule may be
amended from time to time, or its successor under the 1934 Act. To the
extent any provision of the Plan or action by the Committee or the
Company fails to so comply, it will be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
9. ADJUSTMENT UPON CHANGE OF SHARES. If a reorganization, merger,
consolidation, reclassification, recapitalization, combination or
exchange of shares, stock split, stock dividend, rights offering, or
other expansion or contraction of the Common Stock occurs, the
Committee will equitably adjust the number and class of Shares for
which Awards are authorized to be granted under the Plan, the number
and class of Shares then subject to Awards previously granted to
Employees under the Plan, and the price per Share payable upon exercise
of each Award outstanding under the Plan. To the extent deemed
equitable and appropriate by the Board, subject to any required action
by shareholders, any Award will pertain to the securities and other
property to which a holder of the number of Shares of stock covered by
the Award would have been entitled to receive in connection with any
merger, consolidation, reorganization, liquidation or dissolution.
10. LIABILITY OF THE COMPANY. Neither the Company, its parent nor any
Subsidiary that is in existence or hereafter comes into existence will
be liable to any person for any tax consequences incurred by a
Recipient or other person with respect to an Award.
11. AMENDMENT AND TERMINATION OF PLAN. The Board may alter, amend, or
terminate the Plan from time to time without approval of the
shareholders of the Company. The Board may, however, condition any
amendment on the approval of the shareholders of the Company if such
approval is necessary or advisable with respect to tax, securities or
other laws applicable to the Company, the Plan, Recipients or Eligible
Persons. Any amendment, whether with or without the approval of
shareholders of the Company, that alters the terms or provisions of an
Award granted before the amendment (unless the alteration is expressly
permitted under the Plan) will be effective only with the consent of
the Recipient of the Award or the holder currently entitled to exercise
the
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Award. Without the consent of any such Recipient or holder, the Board
may establish a date or event upon which the Plan and all unexercised
Options will terminate; provided, however, that the Board must provide
to the Recipients of the unexercised Options or the holders currently
entitled to exercise the Options written notice of the termination of
the Plan and all outstanding Options no less than 30 days prior to the
date or event upon which the Plan and all unexercised Options will
terminate.
12. EXPENSES OF PLAN. The Company will bear the expenses of administering
the Plan.
13. DURATION OF PLAN. Awards may be granted under the Plan only during the
10 years immediately following the original effective date of the Plan.
14. NOTICES. All notices to the Company will be in writing and will be
delivered to the President of the Company. All notices to a Recipient
will be delivered personally or mailed to the Recipient at his address
appearing in the Company's personnel records. The address of any person
may be changed at any time by written notice given in accordance with
this Section 14.
15. APPLICABLE LAW. The validity, interpretation, and enforcement of the
Plan are governed in all respects by the laws of Florida and the United
States of America.
16. EFFECTIVE DATE. The effective date of the Plan will be the earlier of
(i) the date on which the Board adopts the Plan or (ii) the date on
which the Shareholders approve the Plan.
8
EXHIBIT 5.1
February 29, 2000
Pinnacle Holdings Inc.
1549 Ringling Boulevard
Sarasota, Florida 34236
Re: Registration Statement on Form S-8
Gentlemen:
We refer to the Registration Statement (the "Registration Statement")
on Form S-8 filed today by Pinnacle Holdings Inc. (the "Company") with the
Securities and Exchange Commission, for the purpose of registering under the
Securities Act of 1933 an aggregate of 3,000,000 shares (the "Shares") of the
authorized common stock, par value $.001 per share, of the Company being offered
to certain of the Company's directors, officers, employees, consultants and
independent contractors pursuant to the Pinnacle Holdings Inc. Stock Incentive
Plan (the "Plan").
In connection with the foregoing registration, we have acted as counsel
for the Company and have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, and representatives of the Company, and other documents as we deemed
necessary to deliver the opinion expressed below.
Based upon the foregoing, and having regard for legal considerations
that we deem relevant, it is our opinion that the Shares will be, when and if
issued in accordance with the exercise of options granted under the Plan, duly
authorized, validly issued, and fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ HOLLAND & KNIGHT LLP
------------------------
HOLLAND & KNIGHT LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Pinnacle Holdings Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 27, 2000 relating to the
financial statements and financial statement schedules of Pinnacle Holdings
Inc., which appears in Pinnacle Holdings Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1999.
PricewaterhouseCoopers, LLP
February 28, 2000
Tampa, Florida
