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EXHIBIT 4.2
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of October
11, 1999, by and among MUSTANG SOFTWARE, INC., a corporation organized under the
laws of the State of California (the "COMPANY"), and the purchasers (the
"PURCHASERS") set forth on the execution pages hereof (the "EXECUTION PAGES").
WHEREAS:
A. The Company and each Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("REGULATION D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "SECURITIES ACT").
B. Each Purchaser desires to purchase, severally and not jointly,
subject to the terms and conditions stated in this Agreement, (i) shares of the
Company's common stock, no par value (the "COMMON STOCK"), and (ii) warrants in
the form attached hereto as Exhibit A (including any warrants issued in
replacement thereof, the "WARRANTS"), to acquire shares of Common Stock. The
shares of Common Stock issuable upon exercise of or otherwise pursuant to the
Warrants are referred to herein as the "WARRANT SHARES."
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
in the form attached hereto as Exhibit B (the "REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"BUSINESS DAY" shall mean any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded as reported by NTMS (as defined below) is open for trading.
"CLOSING PRICE" shall mean for the Common Stock as of any date, the
closing bid price of such security on the principal United States securities
exchange or trading market on which such security is listed or traded as
reported by the Research Service of NASDAQ Trading and Market Services (or a
comparable reporting service of national reputation selected by the Purchasers
as provided in Section 8(o)
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hereof, and reasonably acceptable to the Company if the Research Service of
NASDAQ Trading and Market Services is not then reporting closing bid prices of
such security) (collectively, "NTMS"), or if the foregoing does not apply, the
last reported sale price of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by NTMS, or, if no sale
price is reported for such security by NTMS, the average of the bid prices of
any market makers for such security as reported in the "pink sheets" by the
National Quotation Bureau, Inc., in each case for such date or, if such date was
not a Trading Day (as defined below) for such security, on the next preceding
day which was a Trading Day. If the Closing Price cannot be calculated for a
share of Common Stock as of either of such dates on any of the foregoing bases,
the Closing Price of such security on such date shall be the fair market value
as determined by an investment banking firm selected by the Company and
reasonably acceptable to the Purchasers, with the costs of such appraisal to be
borne by the Company.
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested in the
Company at the Closing pursuant to this Agreement by a Purchaser, as set forth
on the Execution Page hereto executed by such Purchaser.
"MARKET PRICE" shall mean, with respect to any date of determination,
the average Closing Price during the five (5) Trading Days ending on the Trading
Day immediately preceding such date of determination, appropriately adjusted to
reflect any stock dividend, stock split or similar transaction during either
such relevant period.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on (i)
the Securities, (ii) the ability of the Company to perform its obligations
hereunder (including the issuance of the Shares and the Warrants), under the
Warrants (including the issuance of the Warrant Shares) or under the
Registration Rights Agreement or (iii) the business, operations, properties,
prospects or financial condition of the Company.
"PENALTY SHARES" shall mean any shares of Common Stock issued pursuant
to Section 2(c) of the Registration Rights Agreement.
"PRO RATA PERCENTAGE" shall mean, with respect to any Purchaser, a
percentage computed by dividing such Purchaser's Investment Amount by the
aggregate Investment Amounts of all Purchasers.
"SECURITIES" shall mean the Shares, the Warrants and the Warrant
Shares.
"SHARES" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers at the Closing.
"TRADING DAY" shall mean a Business Day on which at least 5,000 shares
of Common Stock are traded on the principal United States securities exchange or
trading market on which such security is listed or traded as reported by NTMS.
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2. PURCHASE AND SALE OF SHARES AND WARRANTS.
a. Generally. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section 6
and Section 7 below, each Purchaser shall purchase the number of Shares and
Warrants determined as provided in this Section 2, and the Company shall issue
and sell such number of Shares and Warrants to each Purchaser for such
Purchaser's Investment Amount as provided below.
b. Number of Closing Shares and Warrants; Form of Payment; Closing
Date.
i. On the Closing Date (as defined below), the Company shall sell
and each Purchaser shall buy (A) the number of Shares as is equal to the
quotient of (I) such Purchaser's Investment Amount divided by $7.3125 and (B)
Warrants exercisable for a number of shares of Common Stock equal to 75% of the
number of Shares referred to in subclause (A) above. On the Closing Date, each
Purchaser shall pay the Company an amount equal to such Purchaser's Investment
Amount.
ii. On the Closing Date, each Purchaser shall pay its Investment
Amount by wire transfer of immediately available funds to the Company, in
accordance with the Company's written wiring instructions against delivery of
certificates representing the Shares and duly executed Warrants being purchased
by such Purchaser, and the Company shall deliver such Shares and Warrants
against delivery of the such Purchaser's Investment Amount.
iii. Subject to the satisfaction (or waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of the
sale of the Shares and the Warrants pursuant to this Agreement (the "CLOSING")
shall be 10:00 a.m. California time on October 14, 1999 or such other date or
time as First Security Van Kasper ("FSVK") and the Company may mutually agree
("CLOSING DATE"). The Closing shall occur at the offices of Freshman, Marantz,
Orlanski, Cooper & Klein, 9100 Wilshire Blvd. Eighth Floor East Tower, Beverly
Hills, California, or at such other place as FSVK and the Company may otherwise
mutually agree.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Each Purchaser severally and not jointly represents and warrants to the
Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the Securities
for the Purchaser's own account and not with a present view towards the
distribution thereof. The Purchaser understands that the Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities or
blue sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering any such Securities other than
as contemplated by the Registration Rights Agreement. Notwithstanding anything
in this Section 3(a) to the contrary, by making the foregoing representation,
the Purchaser does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities
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at any time in accordance with or pursuant to a registration statement or an
exemption from registration under the Securities Act and any applicable state
securities laws.
b. Information. The Purchaser has been furnished all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Securities which have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask questions of
the Company and has received what the Purchaser believes to be satisfactory
answers to any such inquiries. The Purchaser understands that its investment in
the Securities involves a high degree of risk. Neither such inquiries nor any
other due diligence investigation conducted by the Purchaser or its counsel or
any of its representatives shall modify, amend or affect the Purchaser's right
to rely on the Company's representations and warranties contained in Section 4
below.
c. Governmental Review. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
d. Authorization; Enforcement. The Purchaser has the requisite power
and authority to enter into and perform its obligations under this Agreement and
to purchase the Shares and the Warrants in accordance with the terms hereof.
This Agreement has been duly and validly authorized, executed and delivered on
behalf of the Purchaser and is a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
e. Transfer or Resale. The Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be transferred unless (a) subsequently registered thereunder, or (b)
the Purchaser shall have delivered to the Company an opinion of counsel
reasonably acceptable to the Company (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the
effect that the Securities to be sold or transferred may be sold or transferred
under an exemption from such registration, or (c) sold under Rule 144
promulgated under the Securities Act (or a successor rule), or (d) sold or
transferred to an affiliate of the Purchaser pursuant to an exemption under the
Securities Act; and (ii) neither the Company nor any other person is under any
obligation to register such Securities under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder, in each case, other than pursuant to the Registration Rights
Agreement.
f. Legends. The Purchaser understands that the Shares and the Warrants
and, until such time as the Shares and Warrant Shares have been registered under
the Securities Act as contemplated by the Registration Rights Agreement or
otherwise may be sold by the Purchaser under Rule 144, the certificates for the
Shares and Warrant Shares may bear a restrictive legend in substantially the
following form:
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The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended, or the securities laws of any state of the
United States. The securities represented hereby may
not be offered or sold in the absence of an effective
registration statement for the securities under
applicable securities laws unless offered, sold or
transferred under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Security upon which it is
stamped, if (a) the sale of such Security is registered under the Securities Act
or (b) in connection with the resale of such Security, such holder provides the
Company with an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public sale
or transfer of such Security may be made without registration under the
Securities Act or (c) such holder provides the Company with reasonable
assurances that such Security can be sold under Rule 144(k). The Purchaser
agrees to sell all Securities, including those represented by a certificate(s)
from which the legend has been removed, pursuant to an effective registration
statement or under an exemption from the registration requirements of the
Securities Act. The legend shall be removed when such Security is sold pursuant
to an effective registration statement or may be sold by a Purchaser who is not
an "affiliate" of the Company under Rule 144(k).
g. Accredited Investor Status. The Purchaser is an "ACCREDITED
INVESTOR" as that term is defined in Rule 501(a) of Regulation D. The Purchaser
is not registered as a broker or dealer under Section 15(a) of the Securities
Exchange Act of 1934, as amended (THE "EXCHANGE ACT"), affiliated with any
broker or dealer registered under Section 15(a) of the Exchange Act or a member
of the NASD (as defined below).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. The Company is a corporation duly
organized and existing under the laws of the jurisdiction in which it is
incorporated, and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted by it makes such qualification
necessary and where the failure so to qualify would have a Material Adverse
Effect. Schedule 4(a) sets forth the Company's jurisdiction of incorporation.
The Company has no significant subsidiary as such term is defined in Rule 405
under the Securities Act.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, the Warrants and the Registration Rights Agreement, to issue and
sell the Shares and the Warrants in accordance with the terms hereof and to
issue the Warrant Shares upon exercise of the Warrants in accordance with the
terms of the Warrants; (ii) the execution, delivery and performance of this
Agreement, the Warrants and the Registration Rights
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Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the reservation
for issuance and issuance of the Shares and the issuance of the Warrants and the
reservation for issuance and issuance of the Warrant Shares) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors or its shareholders is
required; (iii) this Agreement has been duly executed and delivered by the
Company; and (iv) this Agreement constitutes, and, upon execution and delivery
by the Company and the other parties thereto to the extent required of the
Registration Rights Agreement and the Warrants, such agreements will constitute,
valid and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other laws
affecting creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
c. Capitalization. The capitalization of the Company as of the date
hereof is set forth on Schedule 4(c), including the authorized capital stock,
the number of shares issued and outstanding, the number of shares issuable and
reserved for issuance pursuant to the Company's stock option plans, the number
of shares issuable and reserved for issuance pursuant to securities exercisable
for, or convertible into or exchangeable for any shares of capital stock. All of
such outstanding shares of the Company's capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. Except as set
forth on Schedule 4(c), no shares of capital stock of the Company (including the
Shares and the Warrant Shares) are subject to preemptive rights or any other
similar rights of the shareholders of the Company or any liens or encumbrances.
Except for the Securities and as disclosed in Schedule 4(c), as of the date of
this Agreement, (i) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever to which the
Company is a party relating to the issuance by the Company of securities or
rights convertible into or exercisable or exchangeable for, any shares of
capital stock of the Company, or arrangements by which the Company is or may
become bound to issue additional shares of capital stock of the Company, and
(ii) there are no agreements or arrangements under which the Company is
obligated to register the sale of any of its or their securities under the
Securities Act (except the Registration Rights Agreement). The Company has made
available to each Purchaser through its filings with the SEC true and correct
copies of the Company's Articles of Incorporation as in effect on the date
hereof ("CERTIFICATE OF INCORPORATION"), the Company's By-laws as in effect on
the date hereof (the "BY-LAWS") and all other instruments and agreements
governing securities convertible into or exercisable or exchangeable for capital
stock of the Company, except for stock options granted under any employee
benefit plan or director stock option plan of the Company.
d. Issuance of Shares. The Shares are duly authorized and when issued
and paid for in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and encumbrances
(other than those imposed through acts or omissions of the Purchaser thereof),
and will not be subject to preemptive rights or other similar rights of
shareholders of the Company and will not impose personal liability upon the
holder thereof. The Warrant Shares are duly authorized and reserved for
issuance, and, upon exercise of the Warrants in accordance with the terms
thereof, will be validly issued, fully paid and non-assessable and free from all
taxes and liens, claims and encumbrances (other than those imposed through acts
or omissions of the Purchaser thereof), and will not be subject to
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preemptive rights or other similar rights of shareholders of the Company and
will not impose personal liability upon the holder thereof. The Penalty Shares
are duly authorized and reserved for issuance, and, when issued in accordance
with the Registration Rights Agreement will be validly issued, fully paid and
non-assessable and free from all taxes and liens, claims and encumbrances and
will not be subject to preemptive rights or other similar rights of shareholders
of the Company and will not impose personal liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company,
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance and
issuance of the Shares and the Warrant Shares and the issuance of the Warrants)
will not (i) conflict with or result in a violation of the Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of any agreement, indenture or instrument to which the Company is a
party, or result in a violation of any law, rule, regulation, order, judgment or
decree (including (assuming the accuracy of the representations and warranties
of the Purchasers) the United States federal and state securities laws and
regulations) applicable to the Company or by which any property or asset of the
Company is bound or affected (except, with respect to clause (ii), for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect). The Company is not in violation of its Certificate of
Incorporation, By-laws and other organizational documents and the Company is not
in default (and no event has occurred which, with notice or lapse of time or
both, would put the Company in default) under, nor has there occurred any event
giving others (with notice or lapse of time or both) any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, except for actual or possible
violations, defaults or rights as would not, individually or in the aggregate,
have a Material Adverse Effect. The businesses of the Company are not being
conducted in violation of any law, ordinance or regulation of any governmental
entity, except for actual or possible violations, if any, the sanctions for
which either singly or in the aggregate would not have a Material Adverse
Effect. Except as specifically contemplated by this Agreement and as required
under the Securities Act and any applicable state securities laws, the Company
is not required to obtain any consent, approval, authorization or order of, or
make any filing or registration with, any court or governmental agency or any
regulatory or self regulatory agency in order for it to execute, deliver or
perform any of its obligations under this Agreement including without limitation
the issuance and sale of the Shares and Warrants as provided hereby), the
Warrants (including without limitation the issuance of the Warrant Shares) or
the Registration Rights Agreement (including without limitation the issuance of
the Penalty Shares), in each case in accordance with the terms hereof or
thereof. The Company is not in violation of the listing requirements of the
Nasdaq Small Cap Market and, assuming completion of the transactions
contemplated by this Agreement, does not reasonably anticipate that the Common
Stock will be delisted by the Nasdaq Small Cap Market in the foreseeable future
based on its rules (and interpretations thereof) as currently in effect.
f. SEC Documents; Financial Statements. Since October 1, 1998], the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be
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filed by it with the SEC pursuant to the Exchange Act , and has filed all
registration statements and other documents required to be filed by it with the
SEC pursuant to the Securities Act (all of the foregoing filed prior to the date
hereof, and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being hereinafter
referred to herein as the "SEC DOCUMENTS"). The Company has made available to
each Purchaser true and complete copies of the SEC Documents, except for the
exhibits and schedules thereto and the documents incorporated therein. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act or the Securities Act, as the case may be,
and the rules and regulations of the SEC promulgated thereunder applicable to
the SEC Documents, and none of the SEC Documents, at the time they were filed
with the SEC, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Any statements made in any such SEC Documents that are or
were required to be updated or amended under applicable law have been so updated
or amended. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC applicable with respect thereto. Such financial statements have been
prepared in accordance with United States generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may
be otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and fairly present
in all material respects the consolidated financial position of the Company as
of the dates thereof and the results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal and
recurring year-end audit adjustments). Except as set forth in the SEC Documents,
the Company has no liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to the date
of such SEC Documents and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in such SEC Documents, which
liabilities and obligations referred to in clauses (i) and (ii), individually or
in the aggregate, would not have a Material Adverse Effect.
g. Absence of Certain Changes. Except as disclosed in the SEC
Documents, since June 30, 1999, there has been no change or development which
individually or in the aggregate has had or could have a Material Adverse
Effect.
h. Absence of Litigation. Except as disclosed in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its directors or officers in their capacities as such which
would have a Material Adverse Effect.
i. Intellectual Property. The Company owns or is licensed to use all
patents, patent applications, trademarks, trademark applications, trade names,
service marks, copyrights, copyright applications, licenses, permits, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) and other similar rights and
proprietary knowledge (collectively, "INTANGIBLES") necessary for the conduct of
its business as now being conducted and as proposed to be conducted. The Company
has not received written notice that it is infringing upon or
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in conflict with any third party Intangibles. The Company has not entered into
any consent, indemnification, forbearance to sue or settlement agreements with
respect to the validity of the Company's ownership or right to use its
Intangibles. The Intangibles are valid and enforceable in all material respects,
and no material registration relating thereto has lapsed, expired or been
abandoned or canceled or is the subject of cancellation or other adversarial
proceedings, and all material applications therefor are pending and in good
standing. The Company has complied in all material respects with its contractual
obligations relating to the protection of the Intangibles used pursuant to
licenses. To the Company's knowledge, no person is infringing on or violating
the Intangibles owned or used by the Company, which infringement or violation,
individually or in the aggregate, would have a Material Adverse Effect.
j. Environment. Except as disclosed in the SEC Documents (i) there is
no environmental liability, nor factors likely to give rise to any environmental
liability, affecting any of the properties of the Company that, individually or
in the aggregate, would have a Material Adverse Effect and (ii) neither the
Company has violated any environmental law applicable to it now or previously in
effect, other than such violations or infringements that, individually or in the
aggregate, have not had and will not have a Material Adverse Effect.
k. Title. Except as disclosed in the SEC documents, the Company has
good title to all personal property owned by it which is material to its
business, free and clear of all liens, encumbrances and defects except for such
defects in title that, individually or in the aggregate, could not have a
Material Adverse Effect. Any real property and facilities held under lease by
the Company are held by the Company under valid, subsisting and enforceable
leases with such exceptions which have not had and will not have a Material
Adverse Effect.
l. Insurance. The Company maintains such insurance relating to its
business, operations, assets, key-employees and officers and directors as is
appropriate to its business, assets and operations, in such amounts and against
such risks as are customarily carried and insured against by owners of
comparable businesses, assets and operations, and such insurance coverages will
be continued in full force and effect to and including the Closing Date other
than those insurance coverages in respect of which the failure to continue in
full force and effect could not reasonably be expected to have a Material
Adverse Effect.
m. Acknowledgment Regarding the Purchasers' Purchase of the Securities.
The Company acknowledges and agrees that no Purchaser is acting as a financial
advisor or is acting as a fiduciary of the Company (or in any similar capacity)
with respect to this Agreement or the transactions contemplated hereby, and the
relationship between the Company and the Purchasers is "arms length" and that
any statement made by any Purchaser or any of its representatives or agents in
connection with this Agreement and the transactions contemplated hereby is not
advice or a recommendation and is merely incidental to such Purchaser's purchase
of Securities and, except for the representations, warranties and covenants of
Purchaser expressly contained in this Agreement, has not been relied upon by the
Company, its officers or directors in any way. The Company further represents to
the Purchaser that the Company's decision to enter into this Agreement has been
based solely on an independent evaluation by the Company and its
representatives.
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n. No Brokers. The Company has not engaged any person to which or to
whom brokerage commissions, finder's fees, financial advisory fees or similar
payments are or will become due in connection with this Agreement or the
transactions contemplated hereby except for FSVK, whose commissions and fees
will be paid by the Company.
o. Tax Status. The Company has made or filed all material federal,
state and local income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject (unless and only to the
extent that the Company has set aside on its books provisions adequate for the
payment of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provisions adequate
for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no material unpaid taxes
claimed to be due by the taxing authority of any jurisdiction. The Company has
not executed a waiver with respect to any statute of limitations relating to the
assessment or collection of any federal, state or local tax.
p. No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Securities being offered
hereby.
q. Securities Laws. Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf, has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration of the Securities being
offered hereby under the Securities Act or cause this offering of Securities to
be integrated with any prior offering of securities of the Company for purposes
of the Securities Act or any applicable stockholder approval provisions,
including, without limitation, Rule 4310(25)(h) of the National Association of
Securities Dealers ("NASD") or any similar rule.
r. Year 2000. Except as disclosed in the SEC Documents or for matters
that will not have a Material Adverse Effect, to the Company's knowledge: (i)
all hardware and software products used by the Company and its in the
administration and the business operations of the Company will be able to
process date data (including, but not limited to, calculating, comparing and
sequencing) in a consistent manner from, into and between the twentieth century
(through 1999), the year 2000 and the twenty-first century, including leap year
calculations, when used in accordance with the product documentation
accompanying such hardware and software products; (ii) all software developed
and sold by the Company (other than third party software) will be able to
process date data (including, but not limited to, calculating, comparing and
sequencing) in a consistent manner from, into and between the twentieth century
(through 1999), the year 2000 and the twenty-first century, including leap year
calculations, when used in accordance with the product documentation
accompanying such software.
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s. Form S-3 Eligibility. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. To the Company's knowledge, there exist no facts or
circumstances (including without limitation any required approvals or waivers of
any circumstances that may delay or prevent the obtaining of accountant's
consents) that would prohibit the timely preparation and filing of a
registration statement on Form S-3 with respect to the Registrable Securities
(as defined in the Registration Rights Agreement).
t. Disclosure. The information relating to or concerning the Company
set forth in this Agreement or provided to the Purchaser pursuant to Section
3(b) hereof and otherwise in connection with the transactions contemplated
hereby does not contain an untrue statement of material fact nor omits to state
a material fact necessary in order to make the statements made herein or
therein, in light of the circumstances under which they were made, not
misleading. Except as otherwise indicated in writing with a particular
purchaser, the Company has not disclosed or provided, and without such
Purchaser's consent thereto, will not hereafter disclose or provide to any
Purchaser, any information that (i) if disclosed, would, or could reasonably be
expected to have, a material effect on the price of the Common Stock or (ii)
according to applicable law, rule or regulation, should have been disclosed
publicly by the Company but which has not been disclosed.
5. COVENANTS.
a. Satisfaction of Conditions. The parties shall use their commercially
reasonable efforts to satisfy in a timely manner each of the conditions set
forth in Section 6 and Section 7 of this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D. The Company shall, on
or before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchasers
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States or obtain exemption therefrom.
c. Reporting Status. So long as a Purchaser beneficially owns any
Securities or has the right to acquire any Securities pursuant to this
Agreement, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act, and shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would permit such termination.
d. Use of Proceeds. The Company shall use the net proceeds from the
sale of the Shares and the Warrants for the purposes set forth on Schedule 5(d),
but in no event shall the Company use such net proceeds to repurchase any
outstanding securities of the Company.
e. Expenses. At the Closing, the Company shall reimburse FSVK for the
out-of-pocket expenses reasonably incurred by FSVK and its affiliates and
advisors in connection with the negotiation, preparation, execution and delivery
of this Agreement, the Registration Rights Agreement, the Warrants and the other
agreements to be executed in connection herewith, including, without limitation,
in conducting
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FSVK's and its affiliates' and advisors' reasonable due diligence and FSVK's and
its affiliates' reasonable attorneys' fees and expenses (the "EXPENSES").
Notwithstanding the foregoing, the Company shall not be obligated to reimburse
FSVK for more than $25,000.00 of Expenses pursuant to this Section 5(e).
f. Financial Information. For a period of two (2) years following the
Closing, the Company agrees to send to each Purchaser (i) within ten days after
the filing with the SEC, to the extent not available through the SEC's EDGAR
system, a copy of its Annual Report on Form 10-K, its Quarterly Reports on Form
10-Q, its proxy and information statements and any Current Reports on Form 8-K.
g. Reservation of Shares. The Company has and shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the issuance of the Shares as provided in
Section 2 hereof, and the full exercise of the Warrants and the issuance of the
Warrant Shares in connection therewith and as otherwise required hereby and by
the Warrants and the issuance of the Penalty Shares in accordance with the
Registration Rights Agreement. The Company shall not reduce the number of shares
of Common Stock reserved for issuance under this Agreement (except as a result
of the issuance of the Shares hereunder), the Warrants (except as a result of
the issuance of the Warrant Shares upon the exercise of the Warrants) or the
Registration Rights Agreement (except as a result of the termination or the
Company's obligations to issue Penalty Shares), without the consent of the
Purchasers.
h. Listing. On the Closing Date, the Company shall have applied for the
listing of the Shares and Warrant Shares, in each case, upon each national
securities exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed or quoted and shall maintain, so long as any other
shares of Common Stock shall be so listed, such listing of all Shares from time
to time issuable hereunder and all Warrant Shares from time to time issuable
upon exercise of the Warrants. The Company shall use its commercially reasonable
efforts to continue the listing and trading of its Common Stock on The Nasdaq
Stock Market and to comply in all respects with the Company's reporting, filing
and other obligations under the bylaws or rules of NASDAQ or any exchanges, as
applicable.
i. Additional Equity Capital. The Company agrees that during the period
beginning on the date hereof and ending on the date which is 90 days following
the Closing Date the Company will not, without the prior written consent of the
Purchasers or their designees, such consent not to be unreasonably withheld,
contract with any party to obtain additional financing in which any equity or
equity-linked securities are issued (including any debt financing with an equity
component) (an "EQUITY FINANCING") pursuant to any offering exempt from the
registration requirements of the Securities Act which grants any registration
rights exercisable within six months of the Closing Date. The limitations
referred to in this Section 5(i) shall not apply to (i) any transaction
involving issuances of securities as consideration in a merger, consolidation or
acquisition of assets, or in connection with any strategic partnership,
collaboration or joint venture (the primary purpose of which is not to raise
equity capital), or as consideration for the acquisition of a business, product
or license by the Company, (ii) the issuance of securities pursuant to an
underwritten public offering, (iii) the issuance of securities upon exercise or
conversion of the Company's options, warrants or other convertible securities
outstanding as of the date hereof as set forth in Schedule 4(c) or (iv) the
grant of additional options or warrants, or the issuance of additional
securities, under any duly authorized Company
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stock option, stock purchase or restricted stock plan for the benefit of the
Company's employees, consultants or directors.
j. No Integrated Offerings. The Company shall not make any offers or
sales of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the
Securities Act or cause this offering of Securities to be integrated with any
other offering of securities by the Company for purposes of any state securities
or blue sky law.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Shares and
Warrants to a Purchaser at the Closing hereunder is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions thereto;
provided, however, that these conditions are for the Company's sole benefit and
may be waived by the Company at any time in its sole discretion.
a. The applicable Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Company.
b. The applicable Purchaser shall have delivered such Purchaser's
Investment Amount in accordance with Section 2(b) above.
c. The representations and warranties of the applicable Purchaser shall
be true and correct as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a specific date, which representations and warranties shall be true and
correct as of such date), and the applicable Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the applicable Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND
WARRANTS.The obligation of each Purchaser hereunder to purchase Shares and
Warrants to be purchased by it hereunder is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
a. The Company shall have executed the signature pages to this
Agreement and the Registration Rights Agreement, and delivered the same to the
Purchaser.
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b. The Company shall have delivered to the Purchaser duly executed
certificates representing the number of Shares and duly executed Warrants as
provided in Section 2(b) above.
c. The Shares shall be authorized for quotation on NASDAQ and trading
in the Common Stock (or on NASDAQ generally) shall not have been suspended or be
under threat of suspension by the SEC or NASDAQ.
d. The representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior
to the Closing Date. The Purchaser shall have received a certificate, executed
on behalf of the Company by its Chief Financial Officer, dated as of the Closing
Date, to the foregoing effect and attaching true and correct copies of the
resolutions adopted by the Company's Board of Directors authorizing the
execution, delivery and performance by the Company of its obligations under this
Agreement, the Warrants and the Registration Rights Agreement.
e. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
f. The Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, relating to the matters set forth in
Exhibit C attached hereto.
g. From the date of this Agreement through the Closing Date, there
shall not have occurred any Material Adverse Effect.
8. GOVERNING LAW MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York. Each of the parties
irrevocably consents to the jurisdiction of the United States federal courts and
the state courts located in the State of California in any suit or proceeding
based on or arising under this Agreement and irrevocably agrees that all claims
in respect of such suit or proceeding may be determined in such courts. Each of
the parties, irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. Each of the parties further agrees that
service of process upon such party mailed by first class mail to the address set
forth in Section 8(f) shall be deemed in every respect effective service of
process upon such party in any such suit or proceeding. Nothing herein shall
affect the right of any Purchaser to serve process in any other manner permitted
by law. Each of the parties,
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agrees that a final non-appealable judgment in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on such
judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and, by the Purchasers as
provided in Section 8(o) hereof. Any waiver by the Purchasers, on the one hand,
or the Company, on the other hand, of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision of or any breach of any other provision of this
Agreement. The failure of the Purchasers, on the one hand, or the Company, on
the other hand to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
15
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If to the Company:
Mustang Software, Inc.
6200 Lake Ming Road
Bakersfield CA 93306
Telephone No.: (661) 873-2580
Facsimile No.: (661) 873-2474
Attention: Donald M Leonard, Vice President Finance
and Chief Financial Officer
With a copy to:
Freshman, Marantz, Orlanski, Cooper & Klein
9100 Wilshire Boulevard, Eighth Floor, East Tower
Beverly Hills, CA 90212-3480
Telephone No.: (310) 273-9710
Facsimile No.: (310) 274-8357
Attention: Mark A. Klein, Esq.
If to the Purchaser, to the address set forth under the Purchaser's name on the
Execution Page hereto executed by such Purchaser, with a copy to:
First Security Van Kasper
600 California Street, Suite 1700
San Francisco, CA 94108
Telephone No.: (415) 675-2490
Facsimile No.: (415) 954-8309
Attention: Ronald F. Richards
Senior Vice President
Each party hereto may from time to time change its address or facsimile number
for notices under this Section 8 by giving at least ten (10) days' prior written
notice of such changed address or facsimile number, in the case of the
Purchasers to the Company, and in the case of the Company to all of the
Purchasers.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers, such consent not to be
unreasonably withheld
16
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or delayed. No Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Company, such
consent not to be unreasonably withheld or delayed, except to an affiliate of
such Purchaser, and provided further, that any such assignee shall agree in
writing with the Company to be bound by the terms and conditions hereof and of
the Registration Rights Agreement.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by any other person.
i. Survival. The representations and warranties of the Company shall
survive for three (3) years from the Closing Date and the agreements and
covenants of the Company shall survive the Closing subject to any applicable
statute of limitations notwithstanding any due diligence investigation conducted
by or on behalf of the Purchasers. Moreover, none of the representations and
warranties made by the Company herein shall act as a waiver of any rights or
remedies a Purchaser may have under applicable federal or state securities laws.
The Company agrees to indemnify and hold harmless each Purchaser and each of
such Purchaser's officers, directors, employees, partners, members, agents and
affiliates for loss or damage relating to the Securities purchased hereunder
arising as a result of or related to any breach by the Company of any of its
representations or covenants set forth herein, including advancement of expenses
as they are incurred.
j. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
k. Termination. In the event that the Closing Date shall not have
occurred on or before October 21, 1999, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date. Notwithstanding
any termination of this Agreement, any party not in breach of this Agreement
shall preserve all rights and remedies it may have against another party hereto
for a breach of this Agreement prior to or relating to the termination hereof.
l. Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement, the Registration
Rights Agreement and the Warrants. As such, the language used herein and therein
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party to this Agreement, the Registration Rights Agreement or the Warrants.
m. Equitable Relief. Each party acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by such party of the provisions of this Agreement, that the
other parties shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond or
other security being required.
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n. Determinations. Except as otherwise expressly provided herein, all
consents, approvals and other determinations to be made by the Purchasers
pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement prior to the Closing Date to be binding upon a
Purchasers shall be made by such Purchaser and except as otherwise expressly
provided herein, all consents, approvals and other determinations (other than
amendments to the terms and provisions of this Agreement) to be made by the
Purchasers pursuant to this Agreement and all waivers and amendments to or of
any provisions in this Agreement after the Closing Date shall be made by
Purchasers (excluding Purchasers who are affiliates of the Company) that have
invested more than seventy-five percent (75%) of the aggregate Investment
Amounts invested by all Purchasers (excluding Purchasers who are affiliates of
the Company).
o. Public Disclosure. The Company shall have the right to approve the
issuance of any press release (including any "tombstone" advertisement) or any
other public statements with respect to the transactions contemplated hereby.
p. California Corporate Securities Law. THE SALE OF THE SECURITIES THAT
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
q. Aggregation of Securities. All of the Shares, Warrants, Warrant
Shares and Securities, as the case may be, held or acquired by affiliated
entities or persons shall be aggregated together for the purpose of determining
the availability of rights under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By: /s/ James A. Harrer
-------------------------------
Name: James A. Harrer
------------------------------
Title: President
-----------------------------
By: /s/ Donald M. Leonard
-------------------------------
Name: Donald M. Leonard
------------------------------
Title: Chief Financial Officer
-----------------------------
THE PURCHASER:
[ ]
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Investment Amount: $
----------------------
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address:
----------------------------------
------------------------------------------
------------------------------------------
Telephone No.: ( )
---------------------
Telecopy No.: ( )
---------------------
Attention:
--------------------------------
with copies of all notices to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Telephone No.:( )
-----------------------
Telecopy No.: ( )
-----------------------
Attention:
-------------------------------
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Special Situations Fund III, L.P.
By: /s/ David Greenhouse
--------------------------------------
Name: David Greenhouse
------------------------------------
Title: Managing Director
------------------------------------
Investment Amount: $1,000,000
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: 153 East 53rd Street
NY NY 10011
-------------------------------
Telephone No.: (212) 832-5300
Telecopy No.: (212) 832-6141
Attention:
--------------------------------
with copies of all notices to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Telephone No.:( )
-----------------------
Telecopy No.: ( )
-----------------------
Attention:
--------------------------------
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21
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Special Situations Cayman Fund, L.P.
By: /s/ David Greenhouse
--------------------------------------
Name: David Greenhouse
------------------------------------
Title: Managing Director
-----------------------------------
Investment Amount: $200,000
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: 153 East 53rd St
NY NY 10011
--------------------------------
Telephone No.: (212) 832-5300
Telecopy No.: (212) 832-6141
Attention:
--------------------------------
with copies of all notices to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Telephone No.:( )
----------------
Telecopy No.: ( )
----------------
Attention:
------------------------
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Special Situations Private
Equity Fund, L.P.
By: /s/ David Greenhouse
--------------------------------------
Name: David Greenhouse
------------------------------------
Title: Managing Director
-----------------------------------
Investment Amount: $800,000
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: 153 East 53rd St
NY NY 10011
--------------------------------
Telephone No.: (212) 832-5300
Telecopy No.: (212) 832-6141
Attention:
--------------------------------
with copies of all notices to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Telephone No.:( )
-----------------------
Telecopy No.: ( )
-----------------------
Attention:
-------------------------------
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23
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Special Situations Technology Fund,
L.P.
By: /s/ David Greenhouse
--------------------------------------
Name: David Greenhouse
------------------------------------
Title: Managing Director
-----------------------------------
Investment Amount: $300,000
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: 153 East 53rd Street
NY NY 10011
-------------------------------
Telephone No.: (212) 832-5300
Telecopy No.: (212) 832-6141
Attention:
--------------------------------
with copies of all notices to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Telephone No.:( )
-----------------------
Telecopy No.: ( )
-----------------------
Attention:
--------------------------------
Attention:
--------------------------------
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24
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Core Technology Fund Inc.
By: /s/ Seymour L. Goldblatt
--------------------------------------
Name: Seymour L. Goldblatt
------------------------------------
Title: Managing Director
-----------------------------------
Investment Amount: $322,481.25
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: NSCC NY Window -
Bear Stearns 55
--------------------------------
Water Street Concourse Level
------------------------------------------
South Building
------------------------------------------
New York, N.Y. 10041
------------------------------------------
Telephone No.: (212) 309-8328
---------------------------
Telecopy No.: (212) 309-8967
---------------------------
Attention: Rich Layh
-------------------------------
with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
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25
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Executive Technology LP
By: /s/ Seymour L. Goldblatt
--------------------------------------
Name: Seymour L. Goldblatt
------------------------------------
Title: President of S Squared Technology
-----------------------------------
which is General Partner of Exec Tech
------------------------------------------
Investment Amount: $114,806.25
Residence:
--------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Address: NSCC NY Window - Bear Stearns 55
---------------------------------
Water Street Concourse Level
------------------------------------------
South Building
------------------------------------------
New York, N.Y. 10041
------------------------------------------
Telephone No.: (212) 309-8328
--------------------------
Telecopy No.: (212) 309-8967
--------------------------
Attention: Rich Layh
-------------------------------
with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
25
26
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Matrix Technology Group NV
By: /s/ Seymour L. Goldblatt
--------------------------------------
Name: Seymour L. Goldblatt
------------------------------------
Title: Managing Director
-----------------------------------
Investment Amount: $61,425
Residence:
--------------------------------
------------------------------------------
------------------------------------------
Address: NSCC NY Window -
Bear Stearns
------------------------------------------
55 Water Street Concourse Level
------------------------------------------
South Building
------------------------------------------
New York, N.Y. 10041
------------------------------------------
Telephone No.: (212) 309-8328
--------------------------
Telecopy No.: (212) 309-8967
--------------------------
Attention: Rich Layh
-------------------------------
with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
26
27
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
THE PURCHASER:
Sci-Tech Investment Partners L.P.
By: /s/ Seymour L. Goldblatt
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Name: Seymour L. Goldblatt
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Title: President of S Squared
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which is the General Partner
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of Sci-Tech
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Investment Amount: $199,631.25
Residence:
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Address: NSCC NY Window -
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Bear Stearns 55
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Water Street Concourse Level
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South Building
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New York, N.Y. 10041
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Telephone No.: (212) 309-8328
Telecopy No.: (212) 309-8967
Attention: Rich Layh
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with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE PURCHASER:
SG Partners LP
By: /s/ Seymour L. Goldblatt
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Name: Seymour L. Goldblatt
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Title: President of S Squared Technology
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which is General Partner of S.G. Partners
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Investment Amount: $436,556.25
Residence:
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Address: NSCC NY Window - Bear Stearns 55
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Water Street Concourse Level
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South Building
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New York, N.Y. 10041
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Telephone No.: (212) 309-8328
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Telecopy No.: (212) 309-8967
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Attention: Rich Layh
-------------------------------
with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
-------------------------------
Name:
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Title:
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By:
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Name:
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Title:
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THE PURCHASER:
Yale University
By: /s/ Seymour L. Goldblatt
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Name: Seymour L. Goldblatt
------------------------------------
Title:
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Investment Amount: $778,781.25
Residence:
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Address: Bankers Trust
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14 Wall Street 4th Floor Window 43-44
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New York, NY 10005
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Telephone No.: (212) 835-3779
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Telecopy No.: (212) 835-3620
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Attention: Lewis Keller
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with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE PURCHASER:
Yale University Retirement Plan for
Staff Employees
By: /s/ Seymour L. Goldblatt
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Name: Seymour L. Goldblatt
------------------------------------
Title: President of S Squared Technology
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which is Investment Advisor for
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Yale University
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Investment Amount: $87,018.75
Residence:
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------------------------------------------
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Address: State Street Bank & Trust
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1 Enterprise Drive, Solaman Willard Bldg.
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W2c/GIMS
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Quincy, MA 02171
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Telephone No.: (617) 985-2950
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Telecopy No.: (617) 984-2855
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Attention: Heather Mazarel
--------------------------------
with copies of all notices to:
S Squared Technology Corp.
Suite 4200
515 Madison Avenue
New York, NY 10022-5474
Telephone No.: (212) 421-2155
Telecopy No.: (212) 838-3783
Attention: Sy Goldblatt
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
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Name:
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Title:
-----------------------------
By:
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Name:
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Title:
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THE PURCHASER:
C. S. L. Associates, L.P.
By: /s/ Charles S. Lipson
--------------------------------------
Name: CHARLES S. LIPSON
------------------------------------
Title: General Partner
-----------------------------------
Investment Amount: $300,000
Residence:
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Address:
880 Third Ave
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NY, NY 10022
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Telephone No.: (212) 350-7244
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Telecopy No.: (212) 350-7277
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Attention: Charles Lipson
--------------------------------
with copies of all notices to:
Monica Bermeo
880 Third Ave
NY, NY 10022
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Telephone No.: (212) 350-7244
Telecopy No.: (212) 350-7277
Attention: Monica Bermeo
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
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Name:
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Title:
-----------------------------
By:
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Name:
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Title:
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THE PURCHASER:
Edward O. Thorp
By: /s/ Edward O. Thorp
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Name: Edward O. Thorp
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Title:
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Investment Amount: $500,000
Residence: 21 Ridgeline Drive
Newport Beach, CA 92600
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Address: Edward O. Thorp & Associates
620 Newport Center Drive Suite 880
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Newport Beach, CA 92660
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Telephone No.: (949) 720-0130
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Telecopy No.: (949) 720-1649
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Attention: Mr. Edward O. Thorp
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
MUSTANG SOFTWARE, INC.
By:
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Name:
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Title:
-----------------------------
By:
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Name:
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Title:
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THE PURCHASER:
Schottenfeld Associates LP
By: /s/ Richard Schottenfeld
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Name: Richard Schottenfeld
------------------------------------
Title: President of GP
-----------------------------------
Investment Amount: $500,000
Residence:
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Address: 880 Third Ave. 16th Fl
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New York, NY 10022
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Telephone No.: (212) 350-7200
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Telecopy No.: (212) 350-7277
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Attention: Richard Schottenfeld/Danielle
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DeFelitta
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with copies of all notices to:
Danielle DeFelitta
880 Third Ave. 16th Fl
New York, NY 10022
Telephone No.: (212) 350-7217
Telecopy No.: (212) 350-7277
Attention: Danielle DeFelitta
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