<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION VIA EDGAR ON
NOVEMBER 24, 1999
REGISTRATION NO. 333-90841
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MUSTANG.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
California 7371 77-0204718
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
6200 Lake Ming Road
Bakersfield, California 93306
(661) 873-2500
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
JAMES A. HARRER
President and Chief Executive Officer
Mustang.com, Inc.
6200 Lake Ming Road
Bakersfield, California 93306
(661) 873-2500 Extension 1000
(661) 873-2457 (Fax)
(Name, Address, Including Zip Code, 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, CA
90212-3480
Telephone: (310) 273-1870
Facsimile: (310) 274-8357
Approximate date of commencement of proposed sale to public: From time
to time 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, check the following box and
list the Securities Act registration statement number of 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 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
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<CAPTION>
================================================================================================================
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Each Class of Amount to Be Price per Offering Registration
Securities to Be Registered Registered (1) Unit (2) Price (2) Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, no par value per share (3) 765,908 $ 6.71875 $5,145,944 $ 1,430
- ----------------------------------------------------------------------------------------------------------------
Common stock, no par value per share (4)(5) 57,443 $ 7.31250 $ 420,052 117
- ----------------------------------------------------------------------------------------------------------------
Common stock, no par value per share (5)(6) 617,513 $ 8.77500 $5,418,677 1,505
Total $ 3,052
================================================================================================================
</TABLE>
(1) The shares of common stock being registered hereunder are being registered
for resale by the selling shareholders named in the prospectus (the
"selling shareholders") and consist of an aggregate of 765,908 shares of
outstanding common stock the selling shareholders own outright and an
aggregate of 674,956 shares issuable to the selling shareholders upon
exercise of outstanding warrants.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) and (g) based on the average
between the high and low prices on The Nasdaq SmallCap Market on November
8, 1999.
(3) Consists of shares owned outright by the selling shareholders.
(4) Consists of shares issuable upon exercise of outstanding warrants at
$7.3125 per share.
(5) Registrant is also registering for resale hereunder an indeterminate number
of additional shares that may be issued to the selling shareholders
pursuant to applicable anti-dilution provisions of the corresponding
warrants.
(6) Consists of shares of common stock issuable upon exercise of outstanding
warrants at $8.775 per share.
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, as amended, or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses payable by the
Registrant in connection with the sale of the Common Stock being registered
hereby, other than underwriting commissions and discounts, all of which are
estimated except for the SEC filing fee and Nasdaq additional listing fee.
<TABLE>
<CAPTION>
Item Amount
---- -------
<S> <C>
SEC registration fee $ 3,052
Nasdaq Additional Listing Fee 7,500
Printing and engraving expenses 8,000
Legal fees and expenses 15,000
Accounting fees and expenses 2,500
Transfer Agent and registrar fees 2,500
Miscellaneous expenses 1,448
-------
Total $40,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Articles of Incorporation and Amended and
Restated Bylaws of Mustang.com, Inc., (the "Company") require the Company to
indemnify officers and directors of the Company to the fullest extent
permissible under California law. Section 317 of the California General
Corporation Law makes provision for the indemnification of officers, directors
and other corporate agents in terms sufficiently broad to indemnify such
persons, under certain circumstances, for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act of 1933, as amended (the
"Act").
The Company has enter into an agreement with the selling shareholders
(specifically the agreement included as Exhibits 4.3 to this Registration
Statement) under which such selling shareholders agree to indemnify and hold
harmless each officer of Mustang who signed this Registration Statement, each
director of Mustang and each person, if any, who controls Mustang within the
meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934 for
any losses, claims, damages or liabilities to which any of them may become
subject, to the extent that any such loss, claim, damage or liability arises out
of or is based upon any statement or omission in the Registration Statement or
any prospectus forming a part thereof made in reliance upon and in conformity
with written information furnished to Mustang by such selling shareholder
specifically for use in the Registration Statement or prospectus
1
<PAGE> 3
ITEM 16. EXHIBITS
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<S> <C>
4.1 Form of Common Stock certificate (incorporated by reference to Exhibit
4.1 of the Company's Registration Statement of Form SB-2 (file no.
33-89900-LA)).
4.2* Securities Purchase Agreement dated as of October 11, 1999 between the
Company and the purchasers set forth on the execution pages thereof
4.3* Registration Rights Agreement dated as of October 14, 1999 between the
Company and the investors named therein.
4.4* Form of Common Stock Purchase Warrant issued to the investors named in
Exhibit 4.2.
4.5* Form of Warrant #1 issued to the placement agent.
4.6* Form of Warrant #2 issued to the placement agent.
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein, a law
corporation
23.1* Consent of Arthur Andersen LLP.
23.2 Consent of Freshman, Marantz, Orlanski, Cooper & Klein, a law
corporation (contained in Exhibit 5)
24.1* Power of Attorney
</TABLE>
- ------------
* Previously filed.
2
<PAGE> 4
ITEM 17. 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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this 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.
(c) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
provided, however, that the undertakings set forth in paragraph (a) and (b)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
this 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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 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.
For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective. For the purpose of
determining any liability under the Securities Act of 1933, each post-effective
that contains a form of prospectus 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
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bakersfield, State of California, on the 24th of
November, 1999.
MUSTANG.COM, INC.
By: /s/ James A. Harrer
-------------------------------------
James A. Harrer, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James A. Harrer and Donald M. Leonard,
and each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution for him in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their 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 on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James A. Harrer President and Chief Executive Officer
- -------------------------------- and a Director November 24, 1999
James A. Harrer (Principal Executive Officer)
/s/ Donald M. Leonard Vice President Finance and Chief
- -------------------------------- Financial Officer (Principal Financial November 24, 1999
Donald M. Leonard and Accounting Officer)
/s/ Stanley A. Hirschman*
- -------------------------------- Chairman of the Board of Directors November 24, 1999
Stanley A. Hirschman
/s/ Michael Noling*
- -------------------------------- Director November 24, 1999
Michael Noling
/s/ Phillip E. Pearce*
- -------------------------------- Director November 24, 1999
Phillip E. Pearce
/s/ Anthony Mazzarella*
- -------------------------------- Director November 24, 1999
Anthony Mazzarella
*By /s/ Donald M. Leonard
- --------------------------------
Donald M. Leonard
Attorney-in-fact
</TABLE>
<PAGE> 1
EXHIBIT 5
[FRESHMAN, MARANTZ, ORLANSKI COOPER & KLEIN LETTERHEAD]
489.162449-4
November 23, 1999
Mustang.com, Inc.
6200 Lake Ming Road
Bakersfield, CA 93306
Re: Mustang.com, Inc.
Registration Statement on Form S-3
SEC 333-90841
Dear Sirs:
We have acted as special counsel to Mustang.com, Inc., a California corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of the Registration Statement on Form S-3,
File No. 333-90841, together with Amendment No. 1 thereto (collectively, the
"Registration Statement"), of the Company, with exhibits as filed in connection
therewith and the form of prospectus contained therein, for registration for
resale under the Securities Act of 1933, as amended, of 1,440,864 shares of the
Company's common stock, no par value (the "Common Stock").
For purposes of this opinion, we have examined such matters of law and
originals, or copies certified or otherwise identified to our satisfaction, of
such documents, corporate records and other instruments as we have deemed
necessary. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of the originals of all
such latter documents. We have also assumed the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof. We have relied upon certificates of public officials and
certificates of officers of the Company for the accuracy of material, factual
matters contained therein that were not independently established.
Based on the foregoing an on all other instruments, documents and matters
examined for the rendering of this opinion, it is our opinion that
1. in the case of the shares of Common Stock that are outstanding at the
date hereof and registered pursuant to the Registration Statement, such shares
are legally issued, fully paid and non-assessable shares of the Common Stock of
the Company; and
<PAGE> 2
Mustang.com, Inc.
November 23, 1999
Page 2
2. in the case of the shares of Common Stock registered pursuant to the
Registration Statement issuable upon exercise of warrants, such shares will be,
upon exercise of the warrants and payment of the applicable exercise price
therefor, legally issued, fully paid and non-assessable shares of the Common
Stock.
We express no opinion as to the applicability or effect of any laws, orders or
judgments of any state or jurisdiction other than the substantive laws of the
State of California. Further, our opinion is based solely upon existing laws,
rules and regulations, and we undertake no obligation to advise you of any
changes that may be brought to our attention after the date hereof.
We consent to the use of our name under the caption "Legal Matters" in the
Prospectus, constituting part of the Registration Statement, and to the filing
of this opinion as an exhibit to the Registration Statement.
By giving you this opinion and consent, we do not admit that we are experts
with respect to any part of the Registration Statement or Prospectus within the
meaning of the term expert as used in Section 11 of the Securities Act, or the
rules and regulations promulgated thereunder by the SEC, nor do we admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
/s/ Freshman, Marantz, Orlanski
Cooper & Klein
FRESHMAN, MARANTZ, ORLANSKI
COOPER & KLEIN
