-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KwR+sLFtCZwcrOhp+e2x0O/VdFPLAVMbwhiB7jvzc8V5MsZ8I2uos9kmE44C9zeV JAd/LUqx3wVCdLMwl1jhTQ== 0000950148-99-000960.txt : 19990430 0000950148-99-000960.hdr.sgml : 19990430 ACCESSION NUMBER: 0000950148-99-000960 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990429 EFFECTIVENESS DATE: 19990429 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MUSTANG SOFTWARE INC CENTRAL INDEX KEY: 0000940986 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 700204718 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-77287 FILM NUMBER: 99603735 BUSINESS ADDRESS: STREET 1: 6200 LAKE MING RD CITY: BAKERSFIELD STATE: CA ZIP: 93306 BUSINESS PHONE: 8058732500 MAIL ADDRESS: STREET 1: 6200 LAKE MING RD CITY: BAKERSFIELD STATE: CA ZIP: 93306 S-8 1 FORM S-8 (1994 INCENTIVE STK OPTION PURCHASE) 1 As filed with the Securities and Exchange Commission via EDGAR on April 29, 1999 Registration No. 333- _________ SECURITIES AND EXCHANGE COMMISSION Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 MUSTANG SOFTWARE, INC. (Exact Name of Registrant as Specified in Its Charter) California 77-0204718 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 6200 Lake Ming Road Bakersfield, California 93306 (Address of Principal Executive Offices) 1994 INCENTIVE STOCK OPTION PLAN AND NONSTATUTORY STOCK OPTION PLAN (Full Title of the Plan) James A. Harrer, President and C.E.O. Mustang Software Incorporated 6200 Lake Ming Road Bakersfield, California 93306 (805) 873-2500 (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Mark A. Klein, Esq. Freshman, Marantz, Orlanski, Cooper & Klein 9100 Wilshire Boulevard, 8-East Beverly Hills, California 90212 (310) 273-1870 Fax:(310) 274-8357 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]
CALCULATION OF REGISTRATION FEE =================================================================================================================== Proposed Proposed Maximum Maximum Offering Aggregate Amount of Title of Securities to be Amount to be Price per Offering Registration Registered Registered Share(1) Price(1) Fee - ------------------------------------------------------------------------------------------------------------------- Common Stock, no par value 189,266 $ 1.75 $ 331,216 $ 92 - ------------------------------------------------------------------------------------------------------------------- Common Stock, no par value 30,000 $ 2.75 $ 82,500 23 - ------------------------------------------------------------------------------------------------------------------- Common Stock, no par value 45,000 $ 7.47875 $ 336,544 94 - ------------------------------------------------------------------------------------------------------------------- Common Stock, no par value 145,734 $ 8.78125 $1,279,727 356 - ------------------------------------------------------------------------------------------------------------------- Total 410,000 $ 565 ===================================================================================================================
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h)(1). 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing information specified in this Part I are being separately provided to the Registrant's employees, officers, directors and consultants as specified by Rule 428(b)(1). 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in paragraphs (a) through (c) below are hereby incorporated by reference in this Registration Statement. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered herein 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 hereto from the date of filing of such documents. (a) The Registrant's Form 10-KSB for the year ended December 31, 1998 (the "Form 10-K"). (b) All reports filed by Registrant pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the financial statements included in the above-mentioned Form 10-K. (c) The description of the Common Stock contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on March 10, 1995, including any amendment or report filed for the purpose of updating such description. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Articles of Incorporation and By-Laws provide for indemnification of the officers and directors of the Registrant to the full extent permitted by law. The General Corporation Law of the State of California permits a corporation to limit, under certain circumstances, a director's liability for monetary damages and actions brought by or in the right of the corporation. The Registrant's Articles of Incorporation also provide for the elimination of the liability of directors from monetary damages to the full extent permitted by law. The Registrant has entered into agreements to indemnify its directors and officers in addition to the indemnification provided for in its Articles of Incorporation and By-Laws. These agreements, among other things, indemnify the Registrant's directors and officers for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred in any action or proceeding, including any action by or in the right of the Registrant, on account of services as a director or officer of the Registrant, as a director or officer of any subsidiary of the Registrant, or as a director or officer of any other enterprise to which the person provides services at the request of the Registrant. 4 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit Numbers ------- 4.1 1994 Incentive Stock Option Plan and Nonstatutory Stock Option Plan, as amended (incorporated by reference to Exhibit A included with Registrant's Definitive Proxy Statement filed with the Commission on May 8, 1998). 4.2 Form of Stock Option Agreement under the 1994 Incentive Stock Option Plan and Nonstatutory Stock Option Plan (incorporated by reference to Exhibit 4.2 included with Registrant's Registration Statement on Form S-8 (file No. 333-07269) filed with the Commission on June 28, 1996). 5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein. 24.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included in Exhibit 5). 24.2 Consent of Independent Public Accountants ITEM 9. UNDERTAKINGS. 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 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. (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. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification by the Registrant for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referenced in Item 6 of this Registration 5 Statement 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 hereunder, 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. 6 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Saugus, State of California, on this 27th day of April, 1999. MUSTANG SOFTWARE, INC. By: /s/ James A. Harrer ------------------------------------- James A. Harrer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ James A. Harrer President and Chief Executive Officer and a Director April 17, 1999 ------------------------------- (Principal Executive Officer) James A. Harrer /s/ Donald M. Leonard Vice President Finance and Chief Financial Officer ------------------------------- (Principal Financial and Accounting Officer) April 17, 1999 Donald M. Leonard /s/ Stanley A. Hirschman Chairman of the Board of Directors April 17, 1999 ------------------------------- Stanley A. Hirschman /s/ Michael Noling Director April 17, 1999 ------------------------------- Michael Noling /s/ Phillip E. Pearce Director April 17, 1999 ------------------------------- Phillip E. Pearce /s/ Michael D. Greenbaum Director April 17, 1999 ------------------------------- Michael D. Greenbaum /s/ Anthony Mazzarella Director April 26, 1999 ------------------------------- Anthony Mazzarella
EX-5 2 EXHIBIT 5 1 EXHIBIT 5 [LETTERHEAD OF FRESHMAN, MARANTZ, ORLANSKI COOPER & KLEIN, a Law Corporation] April 26, 1999 Mustang Software 6200 Lake Ming Road Bakersfield CA 93306 Re: Mustang Software, Inc. Registration Statement on Form S-8 10,000 Shares issuable upon exercise of options granted under 1994 Incentive and Nonstatutory Stock Option Plan Dear Sirs: We are counsel to Mustang Software, Inc. a California (the "Company"). We have assisted the Company in its preparation of a Registration Statement (the "Registration Statement") on Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), registering 410,000 shares of Common Stock, no par value of the Company (the "Common Stock ") issuable upon exercise of options granted and to be granted under the Company's 1994 Incentive and Nonstatutory Stock Option Plan (the "Plan"). In rendering this opinion, we have considered such questions of law and examined such statutes and regulations, corporate records, certificates and other documents and have made such other examinations, searches and investigations as we have considered necessary. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or as photocopies or telecopies. We have not made an independent examination of the laws of any jurisdiction other than California and the Federal Law of the United States. and we do not express or imply any opinions in respect to the laws of any other jurisdiction. The opinions expressed herein are based on legislation and regulations in effect on the date hereof. Based on and subject to the foregoing we are of the opinion that the Common Stock, when issued pursuant to the exercise of options under the Plan and the purchase price therefor has been paid, will be duly and validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Very truly yours, /s/ Freshman, Marantz, Orlanski, Cooper & Klein, FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN, A Law Corporation EX-24.2 3 EXHIBIT 24.2 1 EXHIBIT 24.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference of our report dated January 29, 1999 included in Form 10-KSB of Mustang Software, Inc. for the year ended December 31, 1998 into this Registration Statement on Form S-8. It should be noted that we have not audited any financial statements of Mustang Software, Inc. subsequent to December 31, 1998 or performed any audit procedures subsequent to the date of our report. /s/ ARTHUR ANDERSEN LLP ARTHUR ANDERSEN LLP Los Angeles, California April 28, 1999. -----END PRIVACY-ENHANCED MESSAGE-----