<PAGE> 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)
EMPLOYEE STOCK PURCHASE 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
Telecopy: (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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 50,000 shares $ 8.78125 $439,063 $123
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h)(1).
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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).
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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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Numbers
-------
<S> <C>
4.1 Mustang Software, Inc. Employee Stock Purchase Plan,
as amended (incorporated by reference to Exhibit B
included with Registrant's Definitive Proxy Statement
filed with the Commission on May 8, 1998).
4.2 Form of Subscription Agreement under Employee Stock
Purchase Plan (incorporated by reference to Exhibit
4.2 included with Registrant's Registration Statement
on Form S-8 (file No. 333-07235) 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
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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
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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 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.
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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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/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 April 17, 1999
------------------------------- (Principal Financial and Accounting Officer)
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
</TABLE>
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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
50,000 Shares issuable under Employee
Stock Purchase 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 50,000 shares of Common Stock, no
par value, of the Company (the "Common Stock ") issuable under the Company's
Employee Stock Purchase 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 under the Plan and the purchase price therefor has been paid
pursuant to the provisions of the Plan, 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
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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.
