As filed with the Securities and Exchange Commission on January 17, 2002
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PINNACLE FINANCIAL PARTNERS, INC.
(Exact name of Registrant as specified in its Charter)
TENNESSEE
(State or other Jurisdiction of Incorporation or Organization)
62-1812853
(I.R.S. Employee Identification Number)
211 COMMERCE STREET, SUITE 300
NASHVILLE, TENNESSEE 37201
(615) 744-3700
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
M. TERRY TURNER
THE COMMERCE CENTER
211 COMMERCE STREET, SUITE 300
NASHVILLE, TENNESSEE 37201
(615) 744-3700
(Name, Address, Including Zip Code, and Telephone Number
Including Area Code, of Agent For Service)
Copy to:
BOB F. THOMPSON
BASS, BERRY & SIMS PLC
315 DEADERICK STREET, SUITE 2700
NASHVILLE, TENNESSEE 37238
(615) 742-6200
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Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this registration statement.
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 being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
If this form is 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 effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
==============================================================================================================
PROPOSED
AMOUNT TO MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE BE AGGREGATE PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(1) PRICE(1) FEE
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Common Stock, $1.00
par value 203,000 $10.00 $2,030,000 $187
==============================================================================================================
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(g) under the Securities Act of 1933 and based upon
a warrant exercise price of $10.00 per share.
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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.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 17, 2002
PROSPECTUS
PINNACLE FINANCIAL PARTNERS, INC.
203,000 SHARES OF COMMON STOCK
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We have outstanding warrants to purchase up to 203,000 shares of our
common stock, par value $1.00 per share. The warrant holders can use this
prospectus to purchase some or all of the shares of common stock they receive by
exercising those warrants. We will receive $10.00 per share of common stock upon
any exercise of a warrant.
Our common stock is traded on the Nasdaq OTC Bulletin Board under the
symbol "PNFP."
BEFORE INVESTING IN OUR STOCK, PLEASE CAREFULLY CONSIDER THE FACTORS
DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 2 OF THIS
PROSPECTUS.
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SHARES OF OUR COMMON STOCK ARE NOT DEPOSITS, SAVINGS ACCOUNTS, OR OTHER
OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY THE APPLICABLE PROSPECTUS SUPPLEMENT
The date of this Prospectus is January 17, 2002.
1
SUMMARY
We are a bank holding company based in the Nashville, Tennessee
metropolitan area. Our sole subsidiary is Pinnacle National Bank, which
commenced operations on October 27, 2000. Pinnacle National has opened branches
in downtown Nashville, the Green Hills area of Nashville and in Brentwood,
Tennessee. We sometimes refer to Pinnacle National Bank in this prospectus as
Pinnacle National.
Our management philosophy focuses on delivering to individuals and
small- to medium-sized businesses exceptional client service and effective
financial advice. We employ highly trained personnel who understand and care
about the broad financial needs and objectives of our clients. Our specific
business strategies involve:
- Capitalizing on our directors' and officers' diverse community
involvement, professional expertise, and personal and business
contacts;
- Retaining our highly experienced and qualified banking and
financial personnel;
- Providing individualized attention with consistent, local
decision-making authority;
- Offering a full line of financial services to include
traditional depository and credit products, as well as
investment and insurance products;
- Capitalizing on customer dissatisfaction with financial
institutions that are not meeting the sophisticated financial
needs of our customer base;
- Utilizing technology and strategic outsourcers to provide a
broad array of sophisticated and convenient products and
services; and
- Executing an aggressive marketing program to promote Pinnacle
National Bank's philosophy and market presence.
Our organizers purchased 406,000 shares of our common stock in our
initial public offering in July, 2000. To compensate them for their risk and to
encourage their continued, active participation in growing our business, we
offered our organizers warrants to purchase one share of our common stock for
every two shares they purchased in our initial public offering, up to an
aggregate total for all purchasers of 203,000 additional shares of our common
stock. Once vested, our organizers may exercise their warrants to purchase the
underlying shares of our common stock at an exercise price of $10.00 per share.
We are registering the shares to be issued upon the exercise of these warrants.
Our company's corporate headquarters is located at 211 Commerce Street,
Suite 300, Nashville, Tennessee 37201 and our telephone number at that address
is (615) 744-3700.
RISK FACTORS
You should carefully consider the risks described below, as well as
other information contained in this prospectus and the documents incorporated or
deemed to be incorporated by reference in this prospectus, before purchasing any
shares of our common stock. If any of these events occurs, our business,
financial condition or results of operations could be materially harmed, the
trading price of our common stock could decline and you may lose all or part of
your investment.
UNCERTAIN PROFITABILITY. We have experienced losses since our
organization. Our company reported a net loss in 2000 of approximately $2.26
million and expects to report a net loss in 2001 of approximately $1.14 million.
There can be no assurance that such losses will not continue in 2002, or as to
when, if ever, our operations will be profitable.
NO DIVIDENDS. We do not anticipate paying dividends to our shareholders
for the foreseeable future. In order to pay dividends, we will need to receive
dividends from our bank subsidiary or have other sources of funds. As a national
bank, Pinnacle National will not be able to pay dividends to us until it has a
positive undivided profits account as well as satisfy other regulatory
requirements. At December 31, 2001, Pinnacle National's accumulated deficit was
approximately $3.3 million.
GENERAL ECONOMIC CONDITIONS. General business conditions may adversely
affect our results of operations. We believe that most of Pinnacle National's
commercial lending will be to small- and medium-sized businesses. Periods of
economic weakness may adversely affect these customers more than larger
enterprises.
2
REGULATORY ISSUES OF NEW BANK STATUS. We are subject to certain
regulatory restrictions because Pinnacle National is recently organized. Until
October 2003 regulations require us to maintain a ratio of Tier One Capital
(generally common stock, certain types of preferred stock and trust preferred
securities, less goodwill and certain other intangible assets) of at least 8%
(significantly higher than the 5% level necessary for "well capitalized"
status). During that same period, Pinnacle National has agreed to give the
Office of the Comptroller of the Currency, or the OCC, at least thirty days
prior notice of any significant deviations from its original operating plan as
approved by the OCC. We also have agreed with the Board of Governors of the
Federal Reserve System to obtain the Federal Reserve's approval prior to
incurring any holding company indebtedness. We anticipate that regulatory
approval of Pinnacle National's growth plans and capital requirements from one
or more of these agencies will be required in order to maintain growth at
projected levels. Failure to obtain such approvals could adversely affect our
future growth.
ADDITIONAL CAPITAL NEEDED TO ACCOMPLISH GROWTH OBJECTIVES. Based upon
our current projections, we anticipate that over the next three years, we will
be required to incur borrowings and issue additional securities which qualify
for Tier One or Total Capital status. These steps may be necessary in order to
provide additional capital to Pinnacle National. The terms and conditions of
future borrowings, and the type or terms of future securities, are currently
unknown. However, if future securities are, or are convertible into or involve
rights to acquire, additional shares of common stock you could suffer dilution
of your interest in us.
POSSIBLE FUTURE DILUTION. Circumstances may require us to issue
additional shares of common stock, or securities convertible into, exchangeable
for or representing rights to acquire shares of common stock. The sale of these
shares would dilute your ownership interest. Also, these future sales may be
made at prices lower than the $10.00 price in this offering. In addition,
warrant holders and option holders may exercise their warrants or options to
purchase common stock, which would result in the dilution of your proportionate
interest in us.
COMPETITION. The Nashville area banking market is highly competitive.
In Davidson County, three banks operate each with over $1 billion in deposits in
the market and six more banks each with over $200 million in deposits. All of
these institutions are larger and have more offices than Pinnacle National.
While we believe that local ownership and management and high levels of customer
service will permit us to continue to grow, highly competitive market conditions
may adversely impact profitability. Moreover, some of our competitors are not
subject to the same degree of regulation as we will be and may have greater
resources than will be available to us.
DEPARTURES OF OUR KEY PERSONNEL OR DIRECTORS MAY IMPAIR OPERATIONS. If
any of our executive officers were to leave Pinnacle National, our operations
could suffer due to the costs associated with recruiting new personnel and
orienting them to our business. Particularly, we believe M. Terry Turner, Robert
A. McCabe, Jr. and Hugh M. Queener are important to our success, and if they
terminate their employment with us, our financial condition and results of
operations may be adversely affected. While we have entered into three-year
employment agreements with Mr. Turner, Mr. McCabe and Mr. Queener, their
agreements do not contain non-competition or non-solicitation provisions;
therefore, we cannot be assured of their continued service. Additionally, our
directors' community involvement, diverse backgrounds and extensive local
business relationships are important to our success. If any of our directors
discontinue his or her relationship with us for whatever reason, or if the
composition of our board of directors changes materially, our growth could be
adversely affected.
GOVERNMENT REGULATION MAY ADVERSELY AFFECT PROFITABILITY AND GROWTH. We
are subject to extensive government supervision and regulation. Our ability to
achieve profitability and to grow could be adversely affected by state and
federal banking laws and regulations. These regulations are intended primarily
to protect depositors, not shareholders. In addition, the burden imposed by
federal and state regulations may place us at a competitive disadvantage
compared to competitors who are less regulated. Future legislation or government
policy may also adversely affect the banking industry or our operations. In
particular, with the enactment of the Gramm-Leach-Bliley Act, many federal and
state laws barring affiliations between banks, securities firms, insurance
companies and other financial services providers have been eliminated. We
believe the removal of these barriers may significantly increase competition in
our industry.
INTEREST RATES MAY DECREASE NET INTEREST INCOME. Our profitability
depends substantially on Pinnacle National's net interest income, which is the
difference between the interest income earned on its loans and other assets and
the interest expense paid on its deposits and other liabilities. A large change
in interest rates may significantly decrease or eliminate our profitability.
While we intend to take measures to minimize the effect that changes in interest
rates will have on Pinnacle National's net interest income and profitability,
these measures may not be effective.
3
DIRECTORS AND EXECUTIVE OFFICERS COULD HAVE ABILITY TO INFLUENCE
SHAREHOLDER ACTIONS IN A MANNER ADVERSE TO YOUR PERSONAL INVESTMENT OBJECTIVES.
Together, our directors and executive officers may be able to influence the
outcome of director elections or block a significant transaction, such as a
merger or acquisition, that might otherwise be approved by the shareholders. For
example, to be elected, a director nominee generally must receive more votes
than any other nominee for the same seat on the board of directors. Further, a
merger or acquisition not adopted by two-thirds of our board of directors
generally must be approved by a two-thirds vote of the shareholders; and, most
other matters generally require that more shares be voted for rather than
against the proposal. Consequently, our directors and executive officers, as a
group, may hold enough shares to effectively block a potential merger or
acquisition, or any other important matter requiring the affirmative vote of
two-thirds of our outstanding common stock, and may significantly influence the
outcome of a vote on any other matter.
STATE LAW AND CHARTER MAY PROHIBIT PREMIUM PRICE. In many cases,
shareholders receive a premium for their shares when a company is purchased by
another. Under Tennessee law, however, no bank holding company may acquire
control of us until Pinnacle National has been incorporated for five years. In
addition, state and federal law and our charter make it difficult for anyone to
purchase us without approval of our board of directors. These provisions include
the existence of preferred stock, staggered terms for the directors,
restrictions on the ability to change the number of directors or to remove a
director, supermajority voting requirements and flexibility in considering
acquisition proposals.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated or deemed to be
incorporated by reference in this prospectus contain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. Forward-looking statements, which are
based on assumptions and estimates and describe our future plans, strategies and
expectations, are generally identifiable by the use of the words "anticipate,"
"will," "believe," "estimate," "expect," "intend," "seek," or similar
expressions. These forward-looking statements may address, among other things,
the anticipated effects of the offering of the securities hereunder, our
anticipated earnings, capital expenditures, contributions to our net sales by
acquired companies, sales momentum, customer and product sales mix, expected
efficiencies in our business and our ability to realize expected synergies from
acquisitions. These forward-looking statements are subject to risks,
uncertainties and assumptions including governmental monetary and fiscal
policies, deposit levels, loan demand, loan collateral values, securities
portfolio values, interest rate risk management, the effects of competition in
the banking business from other commercial banks, thrifts, mortgage banking
firms, consumer finance companies, credit unions, securities brokerage firms,
insurance companies, money market funds and other financial institutions
operating in our market area and elsewhere, including institutions operating
through the Internet, changes in governmental regulation relating to the banking
industry, including regulations relating to branching and acquisitions, failure
of assumptions underlying the establishment of reserves for loan losses,
including the value of collateral underlying delinquent loans and other factors.
Important factors that could cause actual results to differ materially from the
forward-looking statements we make or incorporate by reference in this
prospectus are described under "Risk Factors" and in the documents incorporated
or deemed to be incorporated by reference in this prospectus.
If one or more of these risks or uncertainties materialize, or if any
underlying assumptions prove incorrect, our actual results, performance or
achievements may vary materially from future results, performance or
achievements expressed or implied by these forward-looking statements. All
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements in this
section. We undertake no obligation to publicly update or revise any
forward-looking statements to reflect future events or developments.
USE OF PROCEEDS
Upon the exercise of any warrant, we will receive $10.00 per share of
common stock issued as a result of the exercise of the warrant. We will use
these proceeds for general corporate purposes, including contributing the
proceeds to Pinnacle National to provide additional capital to support its
growth.
4
PLAN OF DISTRIBUTION
In the event of the exercise of any or all of the warrants by the
warrant holders, we will receive $10.00 multiplied by the number of shares
exercisable pursuant to the warrant. In exchange for the consideration, we will
issue the shares of our common stock to the exercising warrant holder. We will
not use an underwriter in connection with these issuances of common stock. Upon
issuance, the shares will be freely tradable subject, in the case of exercise
by affiliates of Pinnacle, to Rule 144 promulgated under the Securities Act.
LEGAL MATTERS
The legality of the securities offered by this prospectus will be
passed upon for Pinnacle by Bass, Berry & Sims PLC.
EXPERTS
The consolidated financial statements of Pinnacle Financial Partners,
Inc. and subsidiary incorporated by reference in this prospectus and elsewhere
in the registration statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of Arthur
Andersen LLP as experts in giving these reports.
OTHER EVENTS
In addition to the directors named in our Proxy Statement dated
April 6, 2001, two additional directors have been added to our Board of
Directors subsequent to our Annual Meeting of Shareholders. Gregory L. Burns and
Linda E. Rebrovick were both added to the board on June 17, 2001.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We have elected to "incorporate by reference" certain information into
this prospectus. By incorporating by reference, we can disclose important
information to you by referring you to another document we have filed separately
with the SEC. The information incorporated by reference is deemed to be part of
this prospectus, except for information incorporated by reference that is
superseded by information contained in this prospectus, any prospectus
supplement or any document we subsequently file with the SEC that is
incorporated or deemed to be incorporated by reference into this prospectus.
Likewise, any statement in this prospectus or any document which is incorporated
or deemed to be incorporated by reference herein will be deemed to have been
modified or superseded to the extent that any statement contained in any
document that we subsequently file with the SEC that is incorporated or deemed
to be incorporated by reference herein modifies or supersedes that statement.
This prospectus incorporates by reference the documents set forth below that we
have previously filed with the SEC:
- Our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000;
- Our Quarterly Reports on Form 10-QSB, filed with the SEC on
May 4, 2001, August 14, 2001 and November 7, 2001;
- Our Current Report on Form 8-K, filed with the SEC on
October 5, 2001;
- The description of the Registrant's Common Stock, par value
$1.00 per share, contained in the Registrant's Registration
Statement on Form 8-A, filed with the Commission and dated
August 3, 2000, including all amendments and reports filed for
purposes of updating such description; and
- All other reports that we file with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act between the date of this prospectus and the termination of
the offering.
We will provide to each person, including any beneficial owner to whom
this prospectus is delivered, a copy of any or all of the information that we
have incorporated by reference into this prospectus but not delivered with this
prospectus. To receive a free copy of any of the documents incorporated by
reference in this prospectus, other than exhibits, unless they are specifically
incorporated by reference in those documents, call or write to our Corporate
Secretary, Pinnacle Financial Partners, Inc., 211 Commerce Street, Suite 300,
Nashville, Tennessee 37201 (telephone (615) 744-3700). The information contained
in this prospectus does not purport to be comprehensive and should be read
together with the information contained in the documents incorporated or deemed
to be incorporated by reference in this prospectus.
AVAILABLE INFORMATION
We are subject to the information requirements of the Securities
Exchange Act of 1934, as amended, and we therefore file periodic reports, proxy
statements and other information with the SEC relating to our business,
financial statements and other matters. The reports, proxy statements and other
information we file may be inspected and copied at prescribed rates at the SEC's
Public Reference Room at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the SEC's Public Reference
Room by
5
calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet site that
contains reports, proxy statements and other information regarding issuers like
us that file electronically with the SEC. The address of the SEC's Internet site
is http://www.sec.gov.
This prospectus constitutes part of a registration statement on
Form S-3 filed under the Securities Act of 1933, as amended, with respect to the
securities. As permitted by the SEC's rules, this prospectus omits some of the
information, exhibits and undertakings included in the registration statement.
You may read and copy the information omitted from this prospectus but contained
in the registration statement, as well as the periodic reports and other
information we file with the SEC, at the public reference facilities maintained
by the SEC in Washington, D.C., New York, New York and Chicago, Illinois.
6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC filing fee.................................................................. $ 187.00
Legal fees*..................................................................... 7,000.00
Accounting Fees*................................................................ 250.00
Printing Expenses*.............................................................. 250.00
Miscellaneous*.................................................................. .00
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Total*................................................................. $7,687.00
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's bylaws provide that its directors and officers will be
indemnified against expenses that they actually and reasonably incur if they are
successful on the merits of a claim or proceeding. In addition, the bylaws
provide that the Registrant will advance to its directors and officers
reasonable expenses of any claim or proceeding, so long as the director or
officer furnishes the Registrant with (1) a written affirmation of his or her
good faith belief that he or she has met the applicable standard of conduct and
(2) a written statement that he or she will repay any advances if it is
ultimately determined that he or she is not entitled to indemnification.
When a case or dispute is settled or otherwise not ultimately
determined on its merits, the indemnification provisions provide that the
Registrant will indemnify its directors and officers when they meet the
applicable standard of conduct. The applicable standard of conduct is met if the
director or officer acted in a manner he or she in good faith believed to be in
or not opposed to the Registrant's best interests and, in the case of a criminal
action or proceeding, if the insider had no reasonable cause to believe his or
her conduct was unlawful. The Registrant's board of directors, shareholders or
independent legal counsel determines whether the director or officer has met the
applicable standard of conduct in each specific case.
The Registrant's bylaws also provide that the indemnification rights
contained in the bylaws do not exclude other indemnification rights to which a
director or officer may be entitled under any bylaw, resolution or agreement,
either specifically or in general terms approved by the affirmative vote of the
holders of a majority of the shares entitled to vote. The Registrant can also
provide for greater indemnification than is provided for in the bylaws if the
Registrant chooses to do so, subject to approval by its shareholders and the
limitations provided in the Registrant's charter as discussed in the subsequent
paragraph.
The Registrant's charter eliminates, with exceptions, the potential
personal liability of a director for monetary damages to the Registrant and its
shareholders for breach of duty as a director. There is, however, no elimination
of liability for:
- a breach of the director's duty of loyalty to the Registrant
or its shareholders;
- an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of law; or
- any payment of a dividend or approval of a stock repurchase
that is illegal under the Tennessee Business Corporation Act
(the "TBCA").
II-1
The Registrant's charter does not eliminate or limit the Registrant's
right or the right of its shareholders to seek injunctive or other equitable
relief not involving monetary damages.
The indemnification provisions of the bylaws specifically provide that
the Registrant may purchase and maintain insurance on behalf of any director or
officer against any liability asserted against and incurred by him or her in his
or her capacity as a director, officer, employee or agent, whether or not the
Registrant would have had the power to indemnify against such liability.
The Registrant's bylaws further provide that, under similar limitations
and conditions specified above for its directors and officers, the Registrant is
obligated to provide indemnification for its organizers and may provide
indemnification for its employees and agents.
The TBCA provides that a corporation may indemnify any of its directors
and officers against liability incurred in connection with a proceeding if (a)
such person acted in good faith; (b) in the case of conduct in an official
capacity with the corporation, he reasonably believed such conduct was in the
corporation's best interests; (c) in all other cases, he reasonably believed
that his conduct was at least not opposed to the best interests of the
corporation; and (d) in connection with any criminal proceeding, such person had
no reasonable cause to believe his conduct was unlawful. In actions brought by
or in the right of the corporation, however, the TBCA provides that no
indemnification may be made if the director or officer was adjudged to be liable
to the corporation. The TBCA also provides that in connection with any
proceeding charging improper personal benefit to an officer or director, no
indemnification may be made if such officer or director is adjudged liable on
the basis that such personal benefit was improperly received. In cases where the
director or officer is wholly successful, on the merits or otherwise, in the
defense of any proceeding instigated because of his or her status as a director
or officer of a corporation, the TBCA mandates that the corporation indemnify
the director or officer against reasonable expenses incurred in the proceeding.
The TBCA provides that a court of competent jurisdiction, unless the
corporation's charter provides otherwise, upon application, may order that an
officer or director be indemnified for reasonable expenses if, in consideration
of all relevant circumstances, the court determines that such individual is
fairly and reasonably entitled to indemnification, notwithstanding the fact that
(a) such officer or director was adjudged liable to the corporation in a
proceeding by or in the right of the corporation; (b) such officer or director
was adjudged liable on the basis that personal benefit was improperly received
by him; or (c) such officer or director breached his duty of care to the
corporation.
ITEM 16. EXHIBITS
Exhibit No. Exhibit Description
- ----------- -------------------
4.1 Bylaws (previously filed as Exhibit 3.2 to the Company's Registration Statement on Form SB-2
dated May 30, 2000 (Registration No. 333-38018 and incorporated herein by reference).
4.2 Charter, as amended and restated, previously filed as Exhibit 3.1 to the Company's
Registration Statement on Form SB-2 dated May 30, 2000 (Registration No. 333-38018 and
incorporated herein by reference).
4.3 Form of Pinnacle Financial Partners, Inc. Organizers' Warrant Agreement, previously filed
as Exhibit 10.4 to the Company's Registration Statement on Form SB-2 dated May 30, 2000
(Registration No. 333-38018 and incorporated herein by reference).
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
II-2
ITEM 17. 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
which, individually or together, 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
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8 and 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 Commission by
the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the 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 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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer 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 these liabilities, other than our payment of
expenses incurred or paid by one of our directors, officers, or
controlling persons in the successful defense of any action, suit or
proceeding, is asserted by that director, officer or controlling person
in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by a controlling
precedent, submit to a court of appropriate jurisdiction the question
whether this indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of these issues.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashville, State of Tennessee, on the 15th day
of January, 2002.
PINNACLE FINANCIAL PARTNERS, INC.
By: /s/ M. Terry Turner
--------------------------------------------
M. Terry Turner
President, Chief Executive Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints M. Terry Turner and Robert A.
McCabe, Jr. and each of them his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her 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 the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or his substitute or
substitutes, may lawfully 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 as of the dates indicated.
Signature Title Date
- ------------------------------------- --------------------------------------------- -----------------
/s/ M. Terry Turner President, Chief Executive Officer, and January 15, 2002
- ------------------------------------- Director (Principal executive officer)
M. Terry Turner
/s/ Hugh M. Queener Executive Vice President, Chief January 15, 2002
- ------------------------------------- Administrative Officer (Principal financial
Hugh M. Queener and accounting officer)
/s/ Robert A. McCabe, Jr. Chairman of the Board of Directors January 15, 2002
- ------------------------------------
Robert A. McCabe, Jr.
/s/ Sue G. Atkinson Director January 15, 2002
- ------------------------------------
Sue G. Atkinson
/s/ Gregory L. Burns Director January 15, 2002
- ------------------------------------
Gregory L. Burns
/s/ Colleen Conway-Welch Director January 15, 2002
- ------------------------------------
Colleen Conway-Welch
II-4
Signature Title Date
- ------------------------------------- --------------------------------------------- -----------------
/s/ Clay T. Jackson Director January 15, 2002
- ------------------------------------
Clay T. Jackson
/s/ John E. Maupin, Jr. Director January 15, 2002
- ------------------------------------
John E. Maupin, Jr.
/s/ Robert E. McNeilly, Jr. Director January 15, 2002
- ------------------------------------
Robert E. McNeilly, Jr.
/s/ Dale W. Polley Director January 15, 2002
- ------------------------------------
Dale W. Polley
/s/ Linda E. Rebrovick Director January 15, 2002
- ------------------------------------
Linda E. Rebrovick
/s/ James L. Shaub, II Director January 15, 2002
- ------------------------------------
James L. Shaub, II
/s/ Reese L. Smith, III Director January 15, 2002
- ------------------------------------
Reese L. Smith, III
II-5
EXHIBIT INDEX
Exhibit No. Exhibit Description
- ----------- -------------------
4.4 Bylaws (previously filed as Exhibit 3.2 to the Company's Registration Statement on Form SB-2
dated May 30, 2000 (Registration No. 333-38018 and incorporated herein by reference).
4.5 Charter, as amended and restated, previously filed as Exhibit 3.1 to the Company's
Registration Statement on Form SB-2 dated May 30, 2000 (Registration No. 333-38018 and
incorporated herein by reference).
4.6 Form of Pinnacle Financial Partners, Inc. Organizers' Warrant Agreement, previously filed
as Exhibit 10.4 to the Company's Registration Statement on Form SB-2 dated May 30, 2000
(Registration No. 333-38018 and incorporated herein by reference).
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
II-6