<PAGE>
As filed with the Securities and Exchange Commission on January 13, 2000
Registration Statement No. 333-94049
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PINNACLE HOLDINGS INC.
(Exact name of registrant as specified in its governing instruments)
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1549 Ringling Boulevard, Third Floor
Sarasota, Florida 34236
(941) 364-8886
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Steven Day
Vice President, Chief Financial Officer and Secretary
Pinnacle Holdings Inc.
1549 Ringling Boulevard, 3rd Floor
Sarasota, Florida 34236
(941) 364-8886
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies of communications to:
CHESTER E. BACHELLER, ESQ. WILLIAM M. HARTNETT, ESQ.
Holland & Knight LLP Cahill Gordon & Reindel
400 North Ashley Drive, Suite 80 Pine Street
2300 New York, New York 10005
Tampa, Florida 33602 (212) 701-3000
(813) 227-8500
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [_]
If this form is a filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.^[_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the
same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered hereunder. All
such fees and expenses shall be borne by the undersigned registrant (the
"Company").
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $ 98,063
NASD filing fee................................................. $ 30,500
Nasdaq listing fee.............................................. $ 17,500
Printing and engraving expenses................................. $ 100,000
Accounting fees and expenses.................................... $ 250,000
Legal fees and expenses......................................... $ 300,000
Blue Sky fees and expenses...................................... $ 5,000
Transfer Agent's fees and expenses.............................. $ 5,000
Miscellaneous................................................... $ 193,937
----------
Total......................................................... $1,000,000*
==========
</TABLE>
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*Estimated
Item 15. Indemnification of Directors and Officers.
The Company'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 Company'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 Company
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 (the "Securities Act").
II-1
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement+
3.1.1 Amended and Restated Certificate of Incorporation of the Company**
3.1.2 Bylaws of the Company*
4.1 Indenture dated as of March 20, 1998 among the Company and The
Bank of New York, as Trustee*
4.2 Exchange and Registration Rights Agreement dated as of March 20,
1998 by and among the Company and each of the Purchasers referred
to therein*
4.3 Specimen Stock Certificate**
4.4 Registration Agreement**
4.5 Recapitalization Agreement**
5.1 Opinion of Holland & Knight LLP
8.1 Tax Opinion of Holland & Knight LLP
23.1 Consent of Holland & Knight LLP (contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent certified
public accountants+
23.3 Consent of Arthur Andersen LLP, independent public accountants+
23.4 Consent of Ernst & Young LLP, independent public accountants+
23.5 Consent of KPMG LLP, independent public accountants+
24.1 Powers of Attorney+
</TABLE>
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+ Previously filed.
* Incorporated by reference to the Company's Registration Statement on Form
S-4 (SEC file no. 333-49147), as amended, filed with the Securities and
Exchange Commission on April 1, 1998.
** Incorporated by reference to the Company's Registration Statement on Form
S-11 (SEC file no. 333-59297), as amended, filed with the Securities and
Exchange Commission on July 17, 1998.
Item 17. Undertakings.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this 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. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions described in Item 15, or otherwise, the Company 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 Company of expenses
incurred or
II-2
<PAGE>
paid by a director, officer or controlling person of the Company 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 Company 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.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Company pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
PINNACLE HOLDINGS INC., a Delaware corporation, has duly caused this Pre-
Effective Amendment No. 1 to this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Sarasota,
State of Florida, on January 13, 2000.
Pinnacle Holdings Inc.
/s/ Steven Day
By: __________________________________
Steven Day
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Pre-Effective Amendment No. 1 to this Registration Statement has been
signed by the following persons in the capacities indicated on January 13,
2000.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
* Chief Executive Officer, January 13, 2000
- -------------------------------------- President, Chief
Robert Wolsey Operating Officer and
Director
/s/ Steven Day Vice President, Chief January 13, 2000
- -------------------------------------- Financial Officer,
Steven Day Secretary and Director
* Director January 13, 2000
- --------------------------------------
G. Peter O'Brien
* Director January 13, 2000
- --------------------------------------
Andrew Banks
* Director January 13, 2000
- --------------------------------------
Peni Garber
* Director January 13, 2000
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Peggy Koenig
* Director January 13, 2000
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Royce Yudkoff
*By: /s/ Steven Day January 13, 2000
---------------------------------
Steven Day
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
1.1 Form of Underwriting Agreement+
3.1.1 Amended and Restated Certificate of Incorporation of the Company**
3.1.2 Bylaws of the Company*
4.1 Indenture dated as of March 20, 1998 among the Company and The
Bank of New York, as Trustee*
4.2 Exchange and Registration Rights Agreement dated as of March 20,
1998 by and among the Company and each of the Purchasers referred
to therein*
4.3 Specimen Stock Certificate**
4.4 Registration Agreement**
4.5 Recapitalization Agreement**
5.1 Opinion of Holland & Knight LLP
8.1 Tax Opinion of Holland & Knight LLP
23.1 Consent of Holland & Knight LLP (contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent certified
public accountants+
23.3 Consent of Arthur Andersen LLP, independent public accountants+
23.4 Consent of Ernst & Young LLP, independent public accountants+
23.5 Consent of KPMG LLP, independent public accountants+
24.1 Powers of Attorney+
</TABLE>
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+ Previously filed.
* Incorporated by reference to the Company's Registration Statement on Form
S-4 (SEC file no. 333-49147), as amended, filed with the Securities and
Exchange Commission on April 1, 1998.
** Incorporated by reference to the Company's Registration Statement on Form
S-11 (SEC file no. 333-59297), as amended, filed with the Securities and
Exchange Commission on July 17, 1998.
II-5
<PAGE>
Exhibit 5.1
January 13, 2000
Pinnacle Holdings Inc.
1549 Ringling Boulevard
Third Floor
Sarasota, Florida 34236
Re: Registration Statement on Form S-3
(File No. 333-94049)
Gentlemen:
We refer to the Registration Statement on Form S-3 (File No. 333-94049)
(the "Registration Statement"), filed by Pinnacle Holdings Inc. (the "Company")
with the Securities and Exchange Commission for the purpose of registering under
the Securities Act of 1933 (the "Securities Act") an aggregate of 9,200,000
shares of common stock, par value $.001 per share (the "Common Stock"), of the
Company being offered to the public pursuant to an underwriting agreement (the
"Underwriting Agreement"), by and among the Company, the selling stockholders
named therein, and Deutsche Bank Securities Inc., Goldman, Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Raymond James & Associates, Inc.,
Salomon Smith Barney Inc., and Banc of America Securities LLC, as
representatives of the underwriters.
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 all such corporate records of the Company, certificates of
public officials and representatives of the Company, and other documents as we
deemed it necessary to require as a basis for the opinion hereafter expressed.
Based upon the foregoing, and having regard for legal considerations that
we deem relevant, it is our opinion that the Common Stock will be, when and if
sold in accordance with the Underwriting Agreement, duly authorized, legally
issued and fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement, and to the reference to this firm under the caption
"Legal Matters" contained in the prospectus filed as part thereof. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
Very truly yours,
HOLLAND & KNIGHT LLP
<PAGE>
Exhibit 8.1
January ___, 2000
Pinnacle Holdings Inc.
1549 Ringling Boulevard, Third Floor
Sarasota, FL 34236
Re: Registration Statement on Form S-3
Registration No. 333-94049
Ladies and Gentlemen:
We have acted as counsel to Pinnacle Holdings Inc., a Delaware corporation
(the "Company"), in connection with an offering of the Common Stock, as more
fully described in the Company's Registration Statement on Form S-3 (the
"Registration Statement," which includes the "Prospectus"), filed with the
Securities and Exchange Commission on or about the date hereof. In connection
therewith, we have been asked to provide an opinion regarding certain federal
income tax matters related to the Company. Capitalized terms used in this letter
and not otherwise defined herein have the meaning set forth in the Prospectus.
The opinions set forth in this letter are based on relevant provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
thereunder (including proposed and temporary Regulations), and interpretations
of the foregoing as expressed in court decisions, legislative history, and
existing administrative rulings, policies and practices of the Internal Revenue
Service (the "Service") including its practices and policies indicated in
private letter rulings (which rulings are not binding on the Service except, in
the case of each such ruling, with respect to the specific taxpayer that
receives such ruling), all as of the date hereof. These provisions and
interpretations are subject to changes, which may or may not be retroactive in
effect, which changes could adversely affect the opinions rendered herein and
the tax consequences to the Company and the investors in the Common Stock.
In rendering this opinion, we have examined the following documents:
(1) the Registration Statement and the facts and descriptions set forth therein
of the
<PAGE>
Pinnacle Holdings Inc.
Page 2
January ___, 2000
Company and its investments, activities, operations and governance; (2)
the Company's Certificate of Incorporation, as amended, Bylaws and stock
ownership information; (3) the quarterly and annual REIT qualification testing
schedules prepared by the Company with the assistance of the Company's
accountants, PricewaterhouseCoopers LLP, through and including June 30, 1999;
and (4) the Stockholders Agreement, Lock-Up Agreements, Prior Lock-Up
Agreements, and Restrictive Legends. The opinions set forth in this letter also
are premised on certain additional information and representations obtained
through consultation with officers of the Company and the Company's accountants,
PricewaterhouseCoopers LLP, including those contained in the Company's
management representation certificate to us dated January ____, 2000 (the
"Management Representation Certificate") regarding certain facts and other
matters (including among other things, the Company's stock ownership, assets,
acquisitions, revenues, and distributions) as are germane to the Company's
qualification as a REIT under the Code.
We have made such factual and legal inquiries, including the procedures
described above and examination of the documents set forth above, as we have
deemed necessary or appropriate for purposes of our opinion. For purposes of
rendering our opinion, however, we have not made an independent investigation or
audit of the facts set forth in the above-referenced documents, including the
Registration Statement and the Management Representation Certificate. We
consequently have relied upon the representations in the Management
Representation Certificate and that the information presented therein and in
such documents or otherwise furnished to us is accurate, and we have assumed
that the information presented in such documents or otherwise furnished to us is
accurate and complete with respect to all material facts relevant to our
opinion.
In our review, we have assumed, with your consent, that all of the
representations and statements set forth in the documents that we reviewed
(including, without limitation, the Management Representation Certificate) are
true and correct, and each of the obligations imposed by any such document on
the parties thereto, including obligations imposed under the Certificate of
Incorporation of the Company, have been and will be performed or satisfied in
accordance with their terms. Moreover, we have assumed that the Company and each
QRS Corporation has been and will continue to be operated in the manner
described in the relevant certificate of incorporation or other organizational
documents and in the Prospectus. We assume for the purposes of this opinion that
<PAGE>
Pinnacle Holdings Inc.
Page 3
January ___, 2000
the Company and each QRS is validly organized and duly incorporated under the
laws of the jurisdiction of its incorporation. We also have assumed the
genuineness of all signatures, the proper execution of all documents, the
authenticity of all documents submitted to us as originals, the conformity to
originals of documents submitted to us as copies, and the authenticity of the
originals from which any copies were made.
Based upon, subject to, and limited by the assumptions and qualifications
set forth herein, in the discussion in the Prospectus under the caption "Certain
Federal Income Tax Considerations " (which is incorporated herein by reference),
and the discussion herein, we are of the opinion that:
(a) the Company was organized and has operated in conformity with the
requirements for qualification and taxation as a real estate investment trust
("REIT") pursuant to Sections 856 through 860 of the Code for its taxable years
ended December 31, 1995, December 31, 1996, December 31, 1997 and December 31,
1998, and the continued operation of the Company in years subsequent to the
foregoing in a manner consistent with the statements made in the Management
Representation Certificate and the requirements for REIT qualification as
described in the Prospectus has enabled and will enable it to continue to meet
the requirements for qualification and taxation as a REIT; and
(b) the descriptions of the law and the legal conclusions contained in the
Prospectus under the caption "Certain Federal Income Tax Considerations" are
correct in all material respects and the discussion thereunder fairly summarizes
the federal income tax considerations that are likely to be material to a holder
of Common Stock.
We assume no obligation to advise you of any changes in our opinion
subsequent to the delivery of this opinion letter, and we do not undertake to
update the opinion letter. The Company's qualification and taxation as a REIT
depends upon the Company's ability to meet on a continuing basis, through actual
annual operating and other results, the various requirements under the Code and
described in the Prospectus with regard to, among other things, the sources of
its gross income, the composition of its assets, the level of its distributions
to stockholders, and the diversity of its stock ownership. Holland & Knight LLP
will not review the Company's compliance with these requirements on a continuing
basis. Accordingly, no assurance can be given that the actual results of the
<PAGE>
Pinnacle Holdings Inc.
Page 4
January ___, 2000
operations of the Company and the QRS Corporations, including without limitation
the sources of their income, the nature of their assets, the nature of their
stock ownership, and the level of the Company's distributions to stockholders,
for any given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT. In addition, as noted above, our opinions
are based solely on the documents that we have examined, the additional
information that we have obtained, and the representations that have been made
to us, and cannot be relied upon if any of the facts contained in such documents
or in such additional information is, or later becomes, inaccurate or if any of
the representations made to us is, or later becomes, inaccurate. In addition, as
noted on the Prospectus, the Company may voluntarily revoke its REIT election or
may acquire assets or engage in business activities which may have the effect of
terminating the tax status of the Company as a REIT, with possible retroactive
effect.
An opinion of counsel merely represents counsel's best judgment with
respect to the probable outcome on the merits if certain tax matters are
contested by the Service, and it is not binding on the Service or any courts. In
certain instances with respect to matters for which there is no relevant
authority, including the effect of certain transfer restrictions under the
Lock-Up Agreements, the Prior Lock-Up Agreements, the Stockholders Agreement and
the Restrictive Legends on the ability of the Company to satisfy the requirement
for REIT qualification that its shares be transferable, our opinion is based on
authorities which we have considered to be analogous even though certain such
authorities have been rendered obsolete for unrelated reasons by subsequent
authorities. There can be no assurance that positions contrary to our opinions
will not be taken by the Service, or that a court considering the issues would
not hold contrary to our opinions.
This opinion letter has been prepared solely for your use in connection
with the filing of the Registration Statement on the date of this opinion letter
and should not be quoted in whole or in part or otherwise referred to, nor filed
with or furnished to any governmental agency or other person or entity, without
the prior written consent of this firm.
<PAGE>
Pinnacle Holdings Inc.
Page 5
January ___, 2000
We hereby consent to the filing of our opinion as Exhibit 8.1 to the
Registration Statement and to the use of the name of our firm in the
Registration Statement. In giving this consent, however, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
HOLLAND & KNIGHT LLP
