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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)
CHRISTOPHER B. RECHTSTEINER STOCK OPTIONS
(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
- ----------------------------------------------------------------------------------------------------------------------------
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 75,000 shares $ 1.375 $103,125 $29
- ----------------------------------------------------------------------------------------------------------------------------
(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.
Exhibit
Numbers
-------
4.1 Christopher B. Rechtsteiner Stock Option Agreement
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 Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against
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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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ James A. Harrer April 17, 1999
- ------------------------------- President and Chief Executive Officer and a Director
James A. Harrer (Principal Executive Officer)
/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
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EXHIBIT 4.1
MUSTANG SOFTWARE, INC.
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 10th day of November, 1997
by and between Mustang Software, Inc. (the "Company") and Chris Rechtsteiner
(the "Optionee").
RECITALS
WHEREAS, on October 28, 1997 the Company and Optionee entered into an
Employment Agreement (the "Employment Agreement") under which the Company
employed Optionee as Vice President, Business Development & Strategic Planning,
all as more particularly described in the Employment Agreement.
WHEREAS, in order to induce Optionee to join the Company as an employee
pursuant to the Employment Agreement, the Company agreed to grant upon
Optionee's first day of employment, and the Optionee agreed to accept, options
to purchase shares of Common of Stock of the Company.
WHEREAS, November 10, 1997 was Optionee's first day of employment under
the Employment Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or any
part of an aggregate of 75,000 shares of Common Stock (the "Optioned Shares"),
at the price of $1.375 per share (the "Option Price"), on the terms and
conditions set forth herein.
2. Exercise Dates and Exercise. The Option(s) shall be exercisable as
to the specified number of Optioned Shares on and after the "First" dates, when
such Option(s) shall respectively accrue and become vested, and on or before the
"Last" dates (the "Option Expiration Date") set forth below:
Exercise Dates
--------------------------------------
Number of Shares First Last
---------------- ---------- --------------
25,000 11/10/1998 11/09/2007
25,000 11/10/1999 11/09/2007
25,000 11/10/2000 11/09/2007
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues and
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vests as provided above. Optionee further understands that the Option(s) granted
hereunder shall expire and become unexercisable as provided in Section 3 below.
This Option shall be deemed exercised as to the shares to be purchased
when written notice of such exercise has been given to the Company at its
principal business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by full payment in cash or cash
equivalents of the Option Price.
3. Early Exercise and/or Termination
(a) Notwithstanding the foregoing provisions of Section 2, in the
event the Company or the shareholders of the Company enter into an agreement to
dispose of all or substantially all of the assets or capital stock of the
Company by means of a sale, merger, consolidation, reorganization, liquidation,
or otherwise, this Option shall become immediately exercisable with respect to
the full number of shares subject to this Option during the period commencing as
of the date of execution of such agreement and ending as of the earlier of:
(i) the Option Expiration Date; or
(ii) the date on which the disposition of assets or capital
stock contemplated by the agreement is consummated. The exercise of any Option
made exercisable solely by reason of this Subsection 3(a) shall be conditioned
upon the consummation of the disposition of assets or stock under the above
referenced agreement. Upon the consummation of any such disposition of assets or
stock, any unexercised Options granted hereunder (or any unexercised portion
thereof) shall terminate and cease to be effective.
The Company shall send Optionee at least 30 days' prior written notice
of the date on which the disposition of assets or capital stock contemplated by
the agreement is to be consummated.
(b) Notwithstanding the provisions set forth in Subsection 3(a),
in the event that any such agreement shall be terminated without consummating
the disposition of said stock or assets:
(i) any unexercised non-vested installments that had become
exercisable solely by reason of the provisions of Subsection 3(a) shall again
become non-vested and unexercisable as of said termination of such agreement,
and
(ii) the exercise of any option that had become exercisable
solely by reason of Subsection 3(a) shall be deemed ineffective and such
installments shall again become non-vested and unexercisable as of said
termination of such agreement.
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(c) Notwithstanding the provisions set forth in Subsection 3(a),
the Board of Directors of the Company may, at its election and subject to the
approval of the corporation purchasing or acquiring the stock or assets of the
Company (the "surviving corporation"), arrange for Optionee to receive upon
surrender of Optionee's Option a new option covering shares of the surviving
corporation in the same proportion, at an equivalent option price and subject to
the same terms and conditions as the old Option. For purposes of the preceding
sentence, the excess of the aggregate fair market value of the shares subject to
such new option immediately after consummation of such disposition of stock or
assets over the aggregate option price of such shares of the surviving
corporation shall not be more than the excess of the aggregate fair market value
of all shares subject to the old Option immediately before consummation of such
disposition of stock or assets over the aggregate Option Price of such shares of
the Company, and the new option shall not give the Optionee additional benefits
which such Optionee did not have under the old Option or deprive the Optionee of
benefits which the Optionee had under the old Option. If such substitution of
options is effectuated, the Optionee's rights under the old Option shall
thereupon terminate.
(d) In the event that the Employment Agreement or employment
between the Company and Optionee is terminated for any reason, (i) any unaccrued
non-vested installments of the Option granted hereunder shall expire and become
unexercisable as of the date of such termination; and (ii) any unexercised
accrued vested installments of the Option granted hereunder shall expire and
become unexercisable as of the date which is ninety (90) calendar days following
the date of termination.
4. Representations and Warranties; Registration of Shares Underlying
Options. In the event the Optioned Shares have not been registered under the
Securities Act of 1933 at the time of the exercise of any portion of this
Option, as a condition to the exercise of any portion of this Option, the
Company may require the Optionee to make any representation and/or warranty to
the Company as may, in the judgment of counsel to the Company, be required under
any applicable law or regulation, including but not limited to a representation
and warranty that the shares are being acquired only for investment and without
any present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required under the Securities
Act of 1933 or any other applicable law, regulation or rule of any governmental
agency. Optionee hereby represents to the Company that each of the Option
evidenced hereby and the shares purchasable upon exercise thereof are being
acquired only for investment and without any present intention to sell or
distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised during the
lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to
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the Option(s) may not be sold, pledged, hypothecated, assigned, encumbered,
gifted or otherwise transferred in any manner, either voluntarily or
involuntarily by operation of law, except by will or the laws of descent or
distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement shall
be construed to confer upon the Optionee any right to continued employment with
the Company or to restrict in any way the right of the Company to terminate his
employment subject to the terms of any applicable agreement (including the
Employment Agreement) . Optionee acknowledges that in the absence of an express
written employment agreement to the contrary, Optionee's employment with the
Company may be terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to withhold,
in accordance with any applicable law, from any amounts payable to Optionee any
taxes required to be withheld by federal, state or local law as a result of the
grant of the Option(s) or the issuance of stock pursuant to the exercise of such
Option(s).
8. Laws Applicable to Construction; Choice of Jurisdiction and Forum.
This Agreement shall be construed and enforced in accordance with the laws of
the State of California, without reference to the conflict of laws provisions of
any jurisdiction. The parties hereby submit to the exclusive jurisdiction of and
venue in the state courts of the State of California or the federal courts
located within or the Central District of California with respect to any
disputes concerning the subject matter of this agreement.
9. Agreement Binding on Successors. The terms of this Agreement shall
be binding upon the executors, administrators, heirs, successors, transferees
and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment ln any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and execute
and deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
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12. Counterparts. For convenience this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Adjustments upon Changes in Capitalization. If the outstanding
shares of Common Stock of the Company are increased, decreased, changed into or
exchanged for a different number or kind of shares of the Company through
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, then an appropriate and proportionate adjustment shall
be made in the number or kind of shares which may be issued upon exercise of the
Options granted under this Agreement.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
"The Company" "Optionee"
MUSTANG SOFTWARE, INC
By /s/ James A. Harrer /s/Chris Rechtsteiner
------------------------------- -------------------------------
James A. Harrer, Chris Rechtsteiner
President
Mustang Software 227 Partridge Court
6200 Lake Ming Road Algonquin, Il 60102
Bakersfield CA 93306