AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 2000.
REGISTRATION NO. 333-37326
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PINNACLE GLOBAL GROUP, INC.
(Exact name of registrant as specified in its charter)
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TEXAS 76-0583569
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
5599 SAN FELIPE, SUITE 555
HOUSTON, TEXAS 77056
(Address of Principal Executive Offices)
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PINNACLE GLOBAL GROUP, INC.
401(k) PLAN
(Full Title of the Plan)
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Name, Address and Telephone Copy of Communications to:
Number of Agent for Service:
CHRIS A. FERAZZI
ROBERT E. GARRISON II PORTER & HEDGES, L.L.P.
5599 SAN FELIPE, SUITE 555 700 LOUISIANA STREET, SUITE 3500
HOUSTON, TEXAS 77056 HOUSTON, TEXAS 77002-2370
(713) 993-4610 (713) 226-0600
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission by Pinnacle Global Group, Inc. are incorporated into this
registration statement by reference:
- Annual report on Form 10-K for the year ended December 31, 1999.
- Quarterly report on Form 10-Q for the three months ended March
31, 2000.
- Current reports on Form 8-K as filed on January 12, February 7,
April 28, June 21, July 14 and July 24, 2000.
- All other reports filed by Pinnacle pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 1999.
- Definitive Proxy Statement on Schedule 14A dated December 6,
1999, as supplemented by the Proxy Statement dated January 12,
2000.
- Definitive Proxy Statement on Schedule 14A dated May 1, 2000.
- The description of the Company's common stock, par value $.01
per share, which is contained in Pinnacle's Registration
Statement on Form S-4 (Registration No. 333-65417).
All documents filed by the Company or the 401(k) Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, subsequent to the filing date of this registration statement and prior
to the filing of a post-effective amendment to this registration statement
which indicates that all securities offered 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 a part
hereof from the date of filing such documents. Pinnacle Global Group, Inc.
will provide without charge to each participant in its 401(k) Plan, upon
written or oral request of such person, a copy (without exhibits, unless such
exhibits are specifically incorporated by reference) of any or all of the
documents incorporated by reference pursuant to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Article 1302-7.06 of the Texas Miscellaneous Corporation Laws
Act, the articles of incorporation of a Texas corporation may provide that a
director of that corporation shall not be liable, or shall be liable only to
the extent
2
provided in the articles of incorporation, to the corporation or its
shareholders for monetary damages for acts or omissions in the director's
capacity as a director, except that the articles of incorporation cannot
provide for the elimination or limitation of a director to the extent that
the director is found liable for (1) a breach of the director's duty of
loyalty to the corporation or its shareholders, (2) acts or omissions not in
good faith that constitute a breach of duty of the director to the
corporation or an act or missions not in good faith that constitute a breach
of duty of the director to the corporation or an act or omission that
involves intentional misconduct or a knowing violation of the law, (3) any
transaction from which the director received an improper benefit, or (4) an
act or omission for which the liability of a director is expressly provided
by an applicable statute. Article IX of Pinnacle's Articles of Incorporation,
as amended, states that a director of Pinnacle shall not be liable to
Pinnacle or its shareholders for monetary damages except to the extent
otherwise expressly provided by the statutes of the State of Texas.
In addition, Article 2.02-1 of the Texas Business Corporation Act
(the "TBCA") authorizes a Texas corporation to indemnify a person who was, or
is threatened to be made a named defendant or respondent in a proceeding,
including any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative
because the person is or was a director. The TBCA provides that unless a
court of competent jurisdiction determines otherwise, indemnification is
permitted only if it is determined that the person (1) conducted himself in
good faith; (2) reasonably believed (a) in the case of conduct in his
official capacity as a director of the corporation, that his conduct was in
the corporation's best interests; and (b) in all other cases, that his
conduct was at least not opposed to the corporation's best interest; and (3)
in the case of any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful. A person may be indemnified under Article 2.02-1 of
the TBCA against judgments, penalties (including excise and similar taxes),
fines, settlements, and reasonable expenses actually incurred by the person
(including court costs and attorneys' fees), but if the person is found
liable to the corporation or is found liable on the basis that personal
benefit was improperly received by him, the indemnification is limited to
reasonable expenses actually incurred and shall not be made in respect of any
proceeding in which the person has been found liable for willful or
intentional misconduct in the performance of his duty to the corporation. A
corporation is obligated under Article 2.02-1 of the TBCA to indemnify a
director or officer against reasonable expenses incurred by him in connection
with a proceeding in which he is named defendant or respondent because he is
or was a director or officer if he has been wholly successful, on the merits
or otherwise, in the defense of the proceeding. Under Article 2.02-1 of the
TBCA a corporation may (1) indemnify and advance expenses to an officer,
employee, agent or other persons who are or were serving at the request of
the corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another entity to the same
extent that it may indemnify and advance expenses to its directors, (2)
indemnify and advance expenses to directors and such other persons identified
in (1) to such further extent, consistent with law, as may be provided in the
corporation's articles of incorporation, bylaws, action of its board of
directors, or contract or as permitted by common law and (3) purchase and
maintain insurance or another agreement on behalf of directors and such other
persons identified in (1) against any liability asserted against him and
incurred by him in such a capacity or arising out of his status as such a
person.
The Bylaws, as amended, of Pinnacle set forth specific provisions
for indemnification of directors, officers, agents and other persons which
are substantially identical to the provisions of Article 2.02-1 of the TBCA
described above.
Pinnacle maintains directors' and officers' insurance and has
entered into agreements to indemnify each of its directors and certain of its
executive officers regarding liabilities that may result from such officer's
service as an officer of director of Pinnacle.
The above discussion of Pinnacle's Articles of Incorporation and
Bylaws, as amended, and Texas statutes is not intended to be exhaustive and
is qualified in its entirety by such Articles, Bylaws and statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
3
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
+4.1 Pinnacle Global Group, Inc. 401(k) Plan.
5.1 In lieu of an Internal Revenue Service ("IRS") determination
letter that the Plan is qualified under Section 401 of the
Internal Revenue Code, Pinnacle Global Group, Inc. undertakes that
(1) it will submit or has submitted the Plan and any amendments
thereto to the IRS in a timely manner and (2) it will make all
changes required by the IRS in order to maintain the tax-qualified
status of the Plan.
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Cheshier & Fuller, L.L.P.
*23.3 Consent of KPMG LLP.
*23.4 Consent of Grant Thornton LLP. (filed herewith).
+24.1 Power of Attorney (included on signature page of previously filed
Registration Statement No. 333-37326).
- -------------------------
+ Previously filed.
* Filed herewith.
ITEM 9. UNDERTAKINGS
(a) UNDERTAKING TO UPDATE
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, 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 in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
4
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, as amended (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) 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.
(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) UNDERTAKING WITH RESPECT TO DOCUMENTS INCORPORATED BY
REFERENCE
The undersigned 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 (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.
(c) UNDERTAKING WITH RESPECT TO INDEMNIFICATION
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 foregoing provisions, 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.
5
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
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on this 10th day of August, 2000.
PINNACLE GLOBAL GROUP, INC.
By: /s/ ROBERT E. GARRISON II
---------------------------------------
Robert E. Garrison II, President and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on this 10th day of August, 2000.
SIGNATURE TITLE
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/S/ ROBERT E. GARRISON II President, Chief Executive Officer and Director
- ------------------------------- (Principal Executive Officer)
Robert E. Garrison II
/S/ TITUS H. HARRIS, JR. Chairman of the Board and Director
- -------------------------------
Titus H. Harris, Jr.
/S/ DONALD R. CAMPBELL Vice Chairman and Director
- ------------------------------- (Principal Financial and Accounting Officer)
Donald R. Campbell
* Vice Chairman and Director
- -------------------------------
Don A. Sanders
* Director
- -------------------------------
Ben T. Morris
* Director
- -------------------------------
George L. Ball
/S/ STEPHEN M. RECKLING Director
- -------------------------------
Stephen M. Reckling
* Director
- -------------------------------
Peter W. Badger
6
SIGNATURE TITLE
--------- -----
* Director
- -------------------------------
Richard C. Webb
* Director
- -------------------------------
W. Blair Waltrip
* Director
- -------------------------------
John H. Styles
*By: /S/ ROBERT E. GARRISON II
---------------------------
Robert E. Garrison II,
As Attorney-In-Fact
THE PLAN. Pursuant to the requirements of the Securities Act of
1933, the Plan Administrator has duly caused this Post-Effective Amendment
No. 1 to the Registration Statement to be signed on behalf of the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on August 10, 2000.
PINNACLE GLOBAL GROUP, INC. 401(K) PLAN
By: Pinnacle Management & Trust Company,
Plan Administrator
By: /S/ STEPHEN M. RECKLING
------------------------------------
Stephen M. Reckling,
Chairman and Chief Executive Officer
7
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- -------- -----------
+4.1 Pinnacle Global Group, Inc. 401(k) Plan.
5.1 In lieu of an Internal Revenue Service ("IRS") determination
letter that the Plan is qualified under Section 401 of the
Internal Revenue Code, Pinnacle Global Group, Inc. undertakes that
(1) it will submit or has submitted the Plan and any amendments
thereto to the IRS in a timely manner and (2) it will make all
changes required by the IRS in order to maintain the tax-qualified
status of the Plan.
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Cheshier & Fuller, L.L.P.
*23.3 Consent of KPMG LLP.
*23.4 Consent of Grant Thornton LLP.
+24.1 Power of Attorney (included on signature page of previously filed
Registration Statement No. 333-37326).
- ----------------------
+ Previously filed.
* Filed herewith.