<PAGE> 1
As filed with the Securities and Exchange Commission on November 7, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
----------------
MAXSERV, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2707626
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
8317 Cross Park Drive, Suite 350
Austin, Texas 78754
(Address of principal executive offices)
----------------
MaxServ, Inc. 1994 Stock Option Plan
(Full title of the Plan)
----------------
Charles F. Bayless
8317 Cross Park Drive, Suite 350
Austin, Texas 78754
(Name and address of agent for service)
(512) 834-8341
(Telephone number, including area code,
of agent for service)
----------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to Price Per Offering Registration
be Registered be Registered Share Price Fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000
$0.01 par value shares(1) $3.5625(2) $3,562,500(2) $1,228.45
=======================================================================================================
</TABLE>
(1) Issuable upon exercise of additional options available to be granted
under the 1994 Stock Option Plan pursuant to an increase in the number
of shares of Common Stock available for issuance under such Plan from
500,000 to 1,500,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The offering price and registration fee are
computed on the basis of the average of the highest closing bid and
lowest closing asked prices of the Common Stock in the
over-the-counter market, as quoted by the National Association of
Securities Dealers Automated Quotation System on November 3, 1995.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are 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 prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all Common Stock to which this
Registration Statement relates has been sold or that deregisters all Common
Stock to which this Registration Statement relates 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 reports and documents.
Incorporated by reference herein at this time are:
(a) The Registrant's annual report on Form 10-KSB for the
fiscal year ended May 31, 1995, and quarterly report on Form 10-QSB for the
fiscal quarter ended August 31, 1995.
(b) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-B under the Securities Act of
1934 (effective September 29, 1994), including any amendment or report filed
hereafter for the purpose of updating such description.
(c) The Registrant's proxy statement dated September 15,
1995 for the annual meeting of shareholders held on October 19, 1995.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Item 7. Exemption from Registration Claimed.
The contents of the Registration Statement on Form S-8 (Reg.
No. 33-82096), in response to Items 4 through 7 thereof, are incorporated
herein by reference.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
3.1 Certificate of Incorporation (1)
3.2 Bylaws, as amended (2)
4.1 1994 Stock Option Plan, as amended (3)
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (3)
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
15 N/A
23 Consent of Price Waterhouse (3)
24 Power of Attorney (filed as page II-4 of this Registration Statement)
27 N/A
28 N/A
29 None
</TABLE>
- ---------------
(1) Contained in exhibits to the Proxy Statement dated April 1,
1994 for the special meeting of stockholders held on April 29,
1994, as filed with the Securities and Exchange Commission on
March 31, 1994.
(2) Contained in exhibits to the Annual Report on Form 10-KSB for
the fiscal year ended May 31, 1995, as filed with the
Securities and Exchange Commission on August 29, 1995.
(3) Filed herewith.
Item 9. Undertakings.
The contents of the Registration Statement on Form S-8 (Reg.
No. 33-82096), in response to Item 9 thereof, are incorporated
herein by reference.
II-2
<PAGE> 4
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-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Austin, State of Texas
on October 30, 1995.
MAXSERV, INC.
BY: CHARLES F. BAYLESS
-------------------------------------
CHARLES F. BAYLESS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
II-3
<PAGE> 5
POWER OF ATTORNEY
Each person whose signature appears below authorized Charles F.
Bayless and Neil A. Johnson, and each of them, each of whom may act without
joinder of the other, to execute in the name of each person who is then an
officer or director of the Registrant, and to file any amendments to this
Registration Statement necessary or advisable to enable the Registrant to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Commission, in respect thereof, in connection with the
registration of the securities which are the subject of this Registration
Statement, which amendments may make such changes in such Registration
Statement as such attorney may deem appropriate.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
CHARLES F. BAYLESS President, Chief Executive Officer October 30, 1995
- -------------------------- and Director (Principal Executive
Charles F. Bayless Officer)
NEIL A. JOHNSON Senior Vice President, Finance October 30, 1995
- -------------------------- Treasurer and Secretary (Principal
Neil A. Johnson Financial Officer)
JAMES F. LEARY Director October 31, 1995
- --------------------------
James F. Leary
PATRICK A. RIVELLI Director October 31, 1995
- --------------------------
Patrick A. Rivelli
NATHANIEL P. TURNER Director October 27, 1995
- --------------------------
Nathaniel P. Turner
STEPHEN J. KEANE Director October 27, 1995
- --------------------------
Stephen J. Keane
WILLIAM L. SALTER Director October 30, 1995
- --------------------------
William L. Salter
DANIEL A. MIHALOVICH Director October 27, 1995
- --------------------------
Daniel A. Mihalovich
STEVEN A. MARTIN Director October 27, 1995
- --------------------------
Steven A. Martin
</TABLE>
II-4
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
3.1 Certificate of Incorporation (1)
3.2 Bylaws, as amended (2)
4.1 1994 Stock Option Plan, as amended (3)
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (3)
15 N/A
23 Consent of Price Waterhouse (3)
24 Power of Attorney (filed as page II-4 of this Registration Statement)
27 N/A
28 N/A
29 None
</TABLE>
- ---------------
(1) Contained in exhibits to the Proxy Statement dated April 1,
1994 for the special meeting of stockholders held on April 29,
1994, as filed with the Securities and Exchange Commission on
March 31, 1994.
(2) Contained in exhibits to the Annual Report on Form 10-KSB for
the fiscal year ended May 31, 1995, as filed with the
Securities and Exchange Commission on August 29, 1995.
(3) Filed herewith.
II-5
<PAGE> 1
EXHIBIT 4.1
1994 STOCK OPTION PLAN, AS AMENDED*
OF
MAXSERV, INC.
1. PURPOSE. The purpose of this Plan is to promote the interest
of MaxServ, Inc. (the "Company") and its stockholders by providing an effective
means to attract, retain and increase the commitment of certain individuals and
to provide such individuals with additional incentive to contribute to the
success of the Company.
2. ELIGIBILITY. Options may be granted under the Plan to
employees, outside directors, advisors, and outside consultants of the Company,
or of any parent or subsidiary of the Company (if any) provided, in the case of
consultants or advisors, that such grant be in consideration of bona fide
services rendered by such consultant or advisor and such services not be in
connection with the offer or sale of securities in a capital-raising
transaction. The Board of Directors or the Committee (defined below), as the
case may be, shall select from such eligible class the individuals to whom
Options shall be granted from time to time.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
a Committee consisting of at least two directors (the "Committee"). No member
of the Committee shall have been, during the one year period prior to service
as an administrator of the Plan, nor shall be, during service as an
administrator, granted or awarded options, rights, or equity securities under
the Plan or under any other plan of the Company or its affiliates except as
permitted under Rule 16b-3 under the Securities Exchange Act of 1934, as
amended. A quorum of any such Committee shall consist of a majority of the
members of such Committee, or as may be otherwise provided in the Company's
bylaws. The Committee shall hold meetings at such times and places and conduct
its business at such meetings as it may determine, subject to any express
provisions of the Company's bylaws. Acts of a majority of the Committee
members attending at a meeting at which a quorum is present, or such acts as
are reduced to or approved in writing by the majority of the members of the
Committee, shall be the valid acts of the Committee. The Committee shall from
time to time in its discretion determine which individuals shall be granted
Options, the amount of shares covered by such Options, and certain other
specific terms and conditions of such Options subject to the terms and
conditions contained herein, including those concerning outside director
Options as set forth in Section 5(F).
The Committee shall have the sole authority and power, subject
to the express provisions and conditions hereof, to construe this Plan and the
Options granted hereunder, and to adopt, prescribe, amend, and rescind rules
and regulations relating to this Plan, and to make all determinations necessary
or advisable for administering this Plan. The interpretation by the Committee
of any provision of this Plan with respect to any incentive stock option
granted hereunder shall be in accordance with Section 422 of the Internal
Revenue Code of 1986 and the Regulations issued thereunder, as such Section 422
or Regulations may be amended from time to time, in order that the incentive
stock options granted hereunder ("Incentive Stock Options") shall constitute
"incentive stock options" within the meaning of Section 422. Options granted
under the Plan which are not intended to be Incentive Stock Options are
referred to herein as "Nonqualified Stock Options". The term "Options" as used
herein shall refer to Incentive Stock Options and Nonqualified Stock Options,
either collectively or without distinction. The interpretation and
construction by the Committee, if any, of any provisions of the Plan or of any
Option granted hereunder shall be final and conclusive. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option granted hereunder.
4. SHARES SUBJECT TO THE PLAN. Subject to the provisions of
Paragraph 6, the number of shares subject to Options granted hereunder shall
not exceed One Million Five Hundred Thousand (1,500,000) shares of the
Company's authorized but unissued or reacquired Common Stock (the "Common
Stock"). Such number of shares shall be subject to adjustment from time to
time as provided in Section 6.
- --------------------------
* The Plan was amended by the Board of Directors and stockholders,
effective October 19, 1995, to increase the number of shares issuable
under the Plan from 500,000 to 1,500,000.
1
<PAGE> 2
Shares that by reason of the expiration, termination,
cancellation or surrender of an Option are no longer subject to purchase
pursuant to an Option granted under the Plan (other than by reason of exercise
of such Option) may be reoptioned hereunder.
5. TERMS AND CONDITIONS.
(A) OPTION PRICE. Each Option shall state the number of
shares that may be purchased thereunder, shall expressly designate such Option
as an Incentive Stock Option or a Nonqualified Stock Option, and shall state
the option price per share (the "Option Price") which shall be paid in the
manner specified in this Section 5(A) in order to exercise such Option, which
Option Price shall not be less than one hundred percent (100%) of the fair
market value of the shares on the day the Option is granted with respect to any
Incentive Stock Option granted hereunder, and not less than eighty-five percent
(85%) of the fair market value of the shares on the day the Option is granted
with respect to any Nonqualified Stock Option.
For purposes of the Plan, the fair market value per
share of the Company's Common Stock on any date shall be deemed to be the
average closing price of the Company's Common Stock over a five-business day
period on the principal national securities exchange on which the Company's
Common Stock is then listed or admitted to trading, if the Company's Common
Stock is then listed or admitted to trading on any national securities
exchange. The closing price shall be the last reported sale price regular way,
or, in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, as reported by said exchange. If the
Company's Common Stock is not then so listed on a national securities exchange,
the fair market value per share of the Company's Common Stock on any date shall
be deemed to be the average closing price (the last reported sale price regular
way) over a five-business day period in the over-the-counter market as reported
by the NASDAQ National Market System, if the Company's Common Stock closing
price is then reported on NASDAQ National Market System, or, if the Common
Stock closing price of the Company's Common Stock is not then reported by
NASDAQ National Market System, shall be deemed to be the average over such
five- business day period of the mean of the highest closing bid and lowest
closing asked price each day of the Company's Common Stock in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or, if the Company's Common Stock
is not then quoted by NASDAQ, as furnished by any member of the National
Association of Securities Dealers, Inc. selected from time to time by the
Company for that purpose. If no member of the National Association of
Securities Dealers, Inc. furnishes quotes with respect to the Common Stock of
the Company, such fair market value shall be determined by resolution of the
Company's Board of Directors. Notwithstanding the foregoing provisions of this
Section 5(A), if the Board of Directors shall at any time determine that it is
impracticable to apply the foregoing methods of determining fair market value,
the Board of Directors is empowered to adopt other reasonable methods for such
purpose. The Board or the Committee may, if it deems it appropriate, engage
the services of an independent qualified expert or experts to appraise the
value of the Common Stock.
Options under the Plan may be exercised by payment of
the Option Price in cash, by delivery of the equivalent fair market value of
Common Stock or by a "cashless exercise" procedure in which an Optionee is
permitted to exercise an Option by arranging with the Company and his or her
broker to deliver the appropriate Option Price from the concurrent market sale
of the acquired shares, or a combination of the foregoing. An employee's
withholding tax due upon exercise of a Nonqualified Stock Option may be
satisfied either by a cash payment or the retention from the exercise of a
number of shares of Common Stock with a fair market value equal to the required
withholding tax, as the Optionee and Board or Committee may agree. For
Optionees who are subject to the reporting and other provisions of Section 16
under the Exchange Act, the election of a partial cash settlement of an Option
in order to satisfy the tax withholding requirements upon exercise of a
Nonqualified Stock Option may be made only during a ten-day "window" period
each fiscal quarter beginning on the third business day following the date of
release of the Company's financial data for the quarter and ending on the
twelfth business day following such date, and shall be subject to the approval
of the Committee.
In addition, with respect to the exercise of any
Nonqualified Stock Option, the Board or the Committee shall advise the
Optionee, upon receipt of notice of intent to exercise such Option, of the
income tax withholding consequences to such Optionee of such exercise, the
amount of the appropriate
2
<PAGE> 3
withholding tax and any other payments due by reason thereof. Such Optionee
must satisfy all of the preceding payment requirements in order to receive
stock upon exercise of such Option.
(B) OPTION PERIOD. Any Options granted pursuant to this
Plan must be granted within ten (10) years from March 2, 1994, the date the
Plan was adopted by the Board of Directors of the Company.
Each Option shall state the date upon which it is
granted. Each Option shall be exercisable during such period as is provided
under the terms of the Option, but in no event shall an Option be exercisable
after the expiration of ten (10) years from the date of grant. Except in the
case of death or disability, Incentive Stock Options may be exercised within
three months (or for such shorter period as may be specified in the particular
option) after termination of employment provided such Options were exercisable
at the date of termination, and Nonqualified Stock Options may be exercised
after termination of employment and/or other service to the Company for such
period as may be specified in the particular Option. In the event of the
disability of an Optionee, Incentive Stock Options exercisable at the date of
disability may be exercised for up to one (1) year thereafter. Nonqualified
Stock Options may be exercised following the Optionee's death or disability and
Incentive Stock Options may be exercised following the Optionee's death by such
Optionee or by his or her estate, heirs, or devisees for such period thereafter
as may be specified in the particular Option.
(C) ASSIGNABILITY. An Option granted pursuant to this
Plan shall be exercisable during his or her lifetime only by the Optionee and
shall not be assignable or transferable by such person (except with the Board's
or Committee's prior written approval, and only in any such additional
circumstances as shall not affect the Plan's qualification with the
requirements of the incentive stock option provisions of the Internal Revenue
Code, the Rule 16b- 3 requirements under the Exchange Act, or the plan
eligibility requirements for the use of Form S-8 under the Securities Act of
1933), and shall not be subject to levy, attachment or similar process. Upon
any other attempt to transfer, assign, pledge or otherwise dispose of Options
granted under this Plan, such Options shall immediately terminate and become
null and void.
(D) LIMIT ON 10% SHAREHOLDERS. No Incentive Stock Option
may be granted under this Plan to any individual who would, immediately after
the grant of such Incentive Stock Option directly or indirectly own more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company unless (i) such Incentive Stock Option is granted at an Option
Price not less than one hundred ten percent (110%) of the fair market value of
the shares on the date the Incentive Stock Option is granted, and (ii) such
Incentive Stock Option expires on a date not later than five (5) years from the
date the Incentive Stock Option is granted.
(E) LIMITS ON OPTIONS. An individual may be granted one
or more Options, provided that the aggregate fair market value (determined as
of the time the Option is granted) of Common Stock for which an individual may
be granted Incentive Stock Options that are first exercisable in any calendar
year (under all stock option plans of the Company and any parent or subsidiary
corporations, if any) may not exceed $100,000.
(F) OUTSIDE DIRECTORS OPTIONS. All outside directors of
the Company (that is, directors who are not also employees of the Company and
are not affiliated with any entity directly or indirectly owning 5% or more of
any class of stock of the Company) shall be automatically granted Nonqualified
Options for 5,000 shares on an annual basis on the fifth business day following
the first public announcement, filing or release of its net income for the
Company's preceding fiscal year. Such annually awarded Options shall become
exercisable in whole or in part from time to time upon the first anniversary
following the date of grant. In addition to such automatic annual awards, each
new outside director elected or appointed to the Company's Board of Directors
on or after March 2, 1994 shall receive upon such election or appointment an
automatic award of Nonqualified Options for 15,000 shares of Common Stock,
which shall become exercisable in five equal installments, beginning on the
first anniversary of the date of grant, with additional installments becoming
exercisable on each of the next four anniversaries. All of the foregoing
Options, once granted and to the extent they have become exercisable, shall
remain exercisable throughout their term, regardless of whether the holder
continues to serve as a director, and such term shall expire on the tenth
anniversary following the date of grant. To the extent any such Option is not
yet exercisable upon termination of service, such Option shall be terminated.
The Option Price for all such
3
<PAGE> 4
automatic awards shall be equal to 100% of the fair market value of the covered
shares of Common Stock at the time of grant.
The provisions of this Section 5(F) shall not be
amended more than once every six months, other than to comport with changes in
the Internal Revenue Code, Employment Retirement Income Security Act of 1974,
or the rules thereunder.
(G) RIGHTS AS SHAREHOLDER. An Optionee, or a transferee
by will or inheritance of an Option, shall have no rights with respect to any
shares covered by an Option until the date of the issuance of a stock
certificate for such shares and the recording of such issuance upon the
Company's stock ledger by its duly appointed, regular transfer agent. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to such date, except as provided in Section 6 hereof.
(H) ADDITIONAL PROVISIONS. The Options authorized under
this Plan shall contain such other provisions as the Board or Committee shall
deem advisable, including, without limitation, further restrictions upon the
exercise of the Option. Any Incentive Stock Option shall contain such
limitations and restrictions upon the exercise of the Option as shall be
necessary in order that the Option shall be an "incentive stock option" as
defined in Section 422 of the Internal Revenue Code of 1986.
(I) COMPLIANCE WITH SECURITIES LAWS. At the time of
exercise of any Option, the Company may require the Optionee to execute any
documents or take any action which may then be necessary to comply with the
Securities Act of 1933 and the rules and regulations adopted thereunder, or any
other applicable federal or state laws regulating the sale and issuance of
securities, and the Company may, if it deems necessary, include provisions in
the Options to assure such compliance. The Company may from time to time
change its requirements with respect to enforcing compliance with federal and
state securities laws, including the request for, or insistence upon, letters
of investment intent, such requirements to be determined by the Company in its
judgment as necessary to assure compliance with said securities laws. Such
changes may be made with respect to any particular Option or to any stock
issued upon exercise thereof.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
any change in the number of issued and outstanding shares of Common Stock of
the Company which results from a stock split, reverse stock split, the payment
of a stock dividend or any other change in the capital structure of the
Company, such as a merger, consolidation, reorganization or recapitalization,
the Board or Committee shall appropriately adjust (a) the maximum number of
shares which may be issued under this Plan, (b) the number of shares subject to
each outstanding Option, and (c) the Option Price per share thereof, so that
upon exercise of the Option the Optionee shall receive the same number of
shares he or she would have received had he or she been the holder of all
shares subject to such outstanding Options immediately before the effective
date of such change in the number of issued shares of the Common Stock of the
Company. Any such adjustment shall not result in or entitle the Optionee to
the issuance of fractional shares. Instead, appropriate adjustments to any
such Option and, in the aggregate, all other options of the Company of the same
class (that is, Incentive Stock Options or Nonqualified Options) held by each
Optionee shall be made so that such Option and other options of the same class,
if any, held by any such Optionee cover the greatest whole number of shares of
the Company's Common Stock which does not exceed the number of shares which
would be covered applying such adjustments in the absence of any restriction on
the issuance of fractional shares. Any excess fractional share shall be
redeemed in cash at the then-current fair market value of the Common Stock
(determined as provided in Section 5(A) hereof) multiplied by the appropriate
fraction of a share.
7. TERMINATION OR AMENDMENT OF THE PLAN. The Board of Directors
may at any time suspend, amend, or terminate this Plan without stockholder
approval, provided that, except as set forth in Section 6 hereof, no amendment
may be adopted without stockholder approval that will: (a) increase the number
of shares reserved for Options under this Plan; (b) change the requirement that
the Option Price be at least a specified percentage of the fair market value of
the Company's Common Stock, or (c) change the provisions required for
compliance with Section 422 of the Internal Revenue Code of 1986 and
regulations issued thereunder except to conform to a change in the requirements
of such law or regulations. The Board shall not amend this
4
<PAGE> 5
Plan so as to materially increase the benefits accruing to Optionees under the
Plan or materially modify the requirements for eligibility for participation in
the Plan without the approval of the shareholders of the Company. No amendment
or termination of the Plan shall, without the consent of the Optionee, alter or
impair any rights or obligations under any Option previously granted under the
Plan.
5
<PAGE> 1
EXHIBIT 5
November 6, 1995
MaxServ, Inc.
8317 Cross Park Drive
Suite 350
Austin, Texas 78754
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to MaxServ, Inc. (the "Company") in
connection with the preparation for filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended. The Registration
Statement relates to an additional 1,000,000 shares of the Company's Common
Stock, $.01 par value (the "Common Stock"), issuable upon exercise of options
to be granted under the MaxServ, Inc. 1994 Stock Option Plan (the "Plan"). The
Plan was recently amended to increase the number of shares issuable thereunder
from 500,000 to 1,500,000. The shares to be issued upon exercise of the
options to be granted under the Plan are hereinafter collectively referred to
as the "Option Shares."
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law
as we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents, instruments, records
and certificates submitted to us as originals.
We have further assumed that:
(i) options which may be granted pursuant to the Plan will be
granted at an exercise price per share in excess of the $0.01
par value of the Common Stock;
(ii) on the date of exercise, the options granted under the Plan
(and the option agreements related thereto) will be duly
executed, authorized, issued and delivered, will constitute
the valid and binding obligations of the Company,
<PAGE> 2
MaxServ, Inc.
November 6, 1995 -- Page 2
enforceable in accordance with their respective terms, and
will be entitled to the benefits provided by the Plan;
(iii) all applicable state securities laws will have been complied
with, as of any exercise date;
(iv) at the time of issuance of the shares of Common Stock issuable
upon exercise of the options granted under the Plan, the
Company will have sufficient duly authorized and unissued
shares of Common Stock available for issuance;
(v) the options granted under the Plan will be exercised in
accordance with the terms of their controlling agreements and
the Plan;
(vi) the shares of Common Stock issued upon exercise of options
granted under the Plan will be evidenced by appropriate
certificates properly executed and delivered; and
(vii) the Plan was duly adopted in accordance with applicable law
and all options were granted in accordance with the terms of
the Plan.
Based upon the foregoing, we are of the opinion that the Option Shares
will, if, as, and when the options granted pursuant to the Plan are exercised,
and upon issuance and delivery of the Option Shares against payment therefor in
the manner contemplated by the Plan, be validly issued, fully paid and
non-assessable shares of Common Stock of the Company.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P
---------------------------------------------
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 19, 1995 which appears on page
F-2 of the Company's Annual Report on Form 10-KSB for the fiscal year ended May
31, 1995.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Austin, Texas
October 31, 1995
