COMPLAINT SEEKING INJUNCTIVE AND OTHER RELIEF
Plaintiff United States Securities and Exchange Commission (the "Commission") alleges:
NATURE OF THE ACTION
1. This action concerns false and materially misleading statements made by Pinnacle Business Management Inc. ("Pinnacle") and two of its principal officers, Vincent A. Lo Castro ("Lo Castro") and Jeffrey G. Turino ("Turino"). On April 2, 2002, Pinnacle announced in a press release that it will be spinning off a wholly-owned subsidiary known as All Pro, and that soon thereafter All Pro will apply for a listing on the American Stock Exchange ("AMEX"). Pinnacle materially overstated All Pro's chances of achieving an AMEX listing, and touted an endorsement of its plan by an AMEX floor broker that was falsely procured and materially misleading. By projecting a $4.00 per share price for All Pro, Pinnacle further misled investors into purchasing Pinnacle shares based on the presumption of an 800% windfall in the form of the All Pro dividend. Lo Castro and Turino knew or recklessly disregarded the material facts that there was no reasonable basis for the AMEX listing projections and that they misquoted the AMEX floor broker.
2. By virtue of the acts alleged herein, defendants, among other things, violated, or aided and abetted violations of, statutes and rules prohibiting fraud in the securities markets.
3. This Court has jurisdiction pursuant to Section 22(a) of the Securities Act of 1933 (the "Securities Act") [15 U.S.C. §77v(a)] and Sections 21(d)(3), 21(e) and 27 of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. §§ 78u(d)(3)(A), 78u(e) and 78aa].
4. The defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, or of the mails, or the facilities of a national securities exchange in connection with the acts, practices and courses of business alleged herein.
5. The defendants will, unless enjoined, continue to engage in the acts, practices or course of business alleged herein, or in transactions, acts, practices and courses of business of similar purport and object. The Commission seeks a judgment permanently enjoining defendants from future violations pursuant to Section 20(b) of the Securities Act [15 U.S.C. §77t(b)] and Section 21(d) and (e) of the Exchange Act [15 U.S.C. §78u(d) and (e)]. The Commission also brings this action for an award of civil penalties against Pinnacle, Lo Castro and Turino pursuant to Section 20(d) of the Securities Act [15 U.S.C. §77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. §78t(d)]. Finally, the Commission also seeks an order pursuant to Section 20(e) of the Securities Act [15 U.S.C. §77t(e)] and Section 21(d)(2) of the Exchange Act [15 U.S.C. §78t(d)(2)] barring Lo Castro and Turino from serving as officers or directors of public companies in the future.
6. Pinnacle is a Nevada corporation with a principal place of business at 2963 Gulf to Bay Boulevard in Clearwater, Florida. It operates mainly through All Pro, a wholly owned subsidiary formally known as Lo Castro & Associates. All Pro operates a used car dealership and a wireless telephone sales center in suburban Pittsburgh, Pennsylvania. Pinnacle's common stock was briefly listed on the OTC Bulletin Board in 2000, when it acquired a public shell company and began making Commission filings. Pinnacle's common stock is currently listed on the pink sheets under the symbol "PCBM," after having been removed from the OTC Bulletin Board in December 2000. Pinnacle is one of the most actively traded pink sheet stocks, with tens of millions of shares trading every day. Between April 2001 and the present, Pinnacle's average share price was $0.02. As of May 2, 2002, Pinnacle shares were priced at seven-tenths of one penny ($0.007).
7. Jeffrey G. Turino resides at 3140 Masters Drive in Clearwater, Florida, and has been Pinnacle's Chief Executive Officer and a Director since 1997. According to Pinnacle's most recent Commission filing, Turino is the beneficial owner of 39,502,000 shares of Pinnacle common stock, or approximately 2% of the company.
8. Vincent A. Lo Castro resides in Canonsburg, Pennsylvania, and has been Pinnacle's Chief Operating Officer since 2001. Mr. Lo Castro is also President and former owner of All Pro. According to Pinnacle's most recent Commission filing, Lo Castro and his wife are the beneficial owners of 83,300,000 shares of Pinnacle common stock, or approximately 4% of the company.
9. Pinnacle has not made an annual or quarterly Commission filing since it filed a Form 10-Q on August 20, 2001, reflecting the company's results for the quarter ended June 30, 2001. In that Commission filing, Pinnacle announced that the company had 635,707,064 shares of common stock outstanding.
10. Since August 2001, Pinnacle has not publicly disclosed the number of its issued and outstanding shares of common stock. Pinnacle has never disclosed the number of shares it considered to be in the float of publicly tradable stock.
11. According to Pinnacle's transfer agent records, as of May 1, 2002, Pinnacle had approximately two billion (1,999,707,364) shares of common stock outstanding. Consequently, between Pinnacle's last public statement regarding its share structure in August 2001 and May 2002, Pinnacle's outstanding shares have more than tripled in number, representing a substantial dilution of shareholder value by Pinnacle's management.
12. According to Pinnacle's transfer agent records, as of May 1, 2002, there were 1,401,855,430 common stock shares registered in the name of Cede & Company, indicating a publicly tradable float of at least 1.4 billion shares.
PINNACLE'S MISLEADING PRESS RELEASE
13. On or about April 2, 2002, Pinnacle issued a press release announcing that its board of directors had approved a spin off of All Pro by issuing "a non-cash dividend to eligible PCBM stockholders of record as of the close of market May 31, 2002." (A copy of the press release is attached hereto as Exhibit 1.) According to the release, the dividend will consist of one share of All Pro stock for every fifty shares of Pinnacle stock held by Pinnacle shareholders on the dividend date. The release also stated that Lo Castro and his wife will be issued additional shares "as consideration for deferring principal payments" on a $6 million promissory note that Pinnacle issued to purchase All Pro from Lo Castro.
14. The April 2 press release also stated that Pinnacle had entered into a contract with Roy Lerman, who is identified as a "senior floor broker on the American Stock Exchange" and as a partner and director of SDO Securities. Lerman is quoted in the release, as follows:
I feel very confident that All Pro will be a success and will be accepted for trading on the exchange. . . . All Pro's authorized shares will be initially priced at $4 per share, which is above the minimum price established by the American Stock Exchange guidelines.
15. Mr. Lo Castro is also quoted in the release, as follows:
We are now beginning the process to fill out necessary applications and provide requested information and documentation to the American Stock Exchange. I believe that with the expertise of Mr. Roy Lerman and R.I.P. Consultants we should be able to accomplish this task and be trading sometime in June 2002.
16. The April 2 press release is false and materially misleading because, contrary to what it states, there is no basis for pricing All Pro shares at $4.00. On April 2, Pinnacle had approximately 1.7 billion shares of common stock outstanding, which would equate to a dividend of approximately 34 million All Pro shares (exclusive of the additional shares to be provided to Lo Castro and his wife as described in the release). The press release thus contemplated an initial All Pro market capitalization of at least $130 million, as of April 2. Since the date of the release, Pinnacle has issued nearly 300 million more shares, which would create approximately 40 million shares of All Pro with an initial market capitalization of $160 million, not including additional Lo Castro shares. The press release thus contemplates a minimum All Pro market capitalization of between $130 and $160 million when All Pro begins trading on the AMEX. Given that Lo Castro sold All Pro to Pinnacle in December 2000 for approximately $8 million, and All Pro has not disclosed any news indicating 2000% growth in its value over the past year, the $4.00 initial price per share projection is baseless.
17. Moreover, Pinnacle failed to disclose that All Pro's financial condition does not meet the AMEX's "Regular Financial Guidelines" for listing. Those guidelines require, among other things, a minimum pre-tax income of $750,000 in the latest fiscal year or two of the most recent three fiscal years.
18. Similarly, Pinnacle failed to disclose that All Pro would not likely meet AMEX's "Alternative Financial Guidelines." Those guidelines require, among other things, a $3.00 price per share, which would amount to an All Pro market capitalization of at least $120 million. As noted above, there is no reasonable basis to conclude that All Pro has achieved the type of growth needed to support that value.
19. Finally, the press release's purported endorsement by AMEX floor broker Roy Lerman is materially misleading because it omits information that would call that conclusion into question. Specifically, Pinnacle failed to disclose that Lerman is not the source of the $4.00 share price projection. Lo Castro simply told Lerman that All Pro could trade at $4.00. Pinnacle failed to disclose that Lerman's "confidence" in All Pro's ability to become listed on the AMEX was conditioned on All Pro first meeting the AMEX's listing standards. Pinnacle also failed to disclose that it never even gave the basis for the $4.00 share price projection to Lerman so that he could form his own conclusion. The implication that a senior AMEX floor broker endorsed All Pro's chances for success on the AMEX was concocted by Lo Castro, and is false and materially misleading. [See Exhibit 2 hereto, Declaration of Roy Lerman, which is filed contemporaneously with this Complaint.]
20. The April 2 press release was drafted and approved by Lo Castro and Turino.
Violations of Section 17(a) of the Securities Act [15 U.S.C. § 77q(a)]
21. Paragraphs 1 through 20 are realleged and incorporated herein by reference.
22. Section 17(a) of the Securities Act prohibits the making of materially false or misleading statements or omissions in connection with the offer or sale of any security. A person violates this provision by intentionally or recklessly making material misstatements or omissions in Commission filings, press releases, or in other statements disseminated to investors.
23. By reason of the foregoing, defendants violated Section 17(a) of the Securities Act [15 U.S.C. § 77q(a)].
Violations of Section 10(b) of the Exchange Act [15 U.S.C. §78j(b)] and Rule 10b-5 [17 C.F.R. § 240.10b-5] Promulgated Thereunder
24. Paragraphs 1 through 23 are realleged and incorporated herein by reference.
25. Section 10(b) of the Exchange Act and Rule 10b-5 thereunder prohibit the making of materially false or misleading statements or omissions in connection with the purchase or sale of any security. A person violates these provisions by intentionally or recklessly making material misstatements or omissions in Commission filings, press releases, or in other statements disseminated to investors.
26. By reason of the foregoing, defendants violated Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5 [17 C.F.R. § 240.10b-5] promulgated thereunder.
PRAYER FOR RELIEF
WHEREFORE, the Commission respectfully requests that this Court enter a judgment:
(a) permanently enjoining defendants Pinnacle, Lo Castro and Turino from directly or indirectly violating Section 17(a)(1), (2) and (3) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder;
(b) ordering defendants Pinnacle, Lo Castro and Turino to pay civil penalties pursuant to Section 20(d) of the Securities Act and Section 21(d)(3) of the Exchange Act;
(c) barring Lo Castro and Turino from acting as an officer or director of any issuer required to file reports under Sections 12(b), 12(g) or 15(d) of the Exchange Act, pursuant to Section 20(e) of the Securities Act and Section 21(d)(2) of the Exchange Act; and
(d) granting such other relief as this Court may deem just and proper.
Attorneys for Plaintiff
Dated: May 7, 2002