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As filed on November 19, 1998
Registration No. _________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------------
REGISTRATION STATEMENT
ON FORM S-8
Under
THE SECURITIES ACT OF 1933
COMMISSION FILE NO. 0-23057
AMERICAN SOFTWARE, INC.
-----------------------
(Exact name of registrant as specified in its charter)
GEORGIA 58-2281338
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
American Software, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
(404) 261-9777
- -------------------------------------------------------------------------------
(Address of registrant's Principal Executive Offices)
American Software, Inc. Employee Stock Purchase Plan
(Full title of the plan)
----------------------------------------
Henry B. Levi
Gambrell & Stolz, L.L.P.
Suite 4300, SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(404) 577-6000
- -------------------------------------------------------------------------------
(Name and address of agent for service)
Copies of all communications to:
Vincent Klinges
Chief Financial Officer
American Software, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
(404) 261-9777
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of each class Proposed maximum Proposed maximum Amount of
of securities to be Amount to be offering price per aggregate offering Registration
registered registered* share* price* Fee
- ----------------------------------------------------------------------------------------------------------
Class A Common 400,000 $2.375 $950,000 $264.10
Shares, $.10 par value
</TABLE>
_____________________
* Calculated pursuant to Rule 457(h)(1) solely for purposes of determining
the amount of the registration fee, based upon the average of the high and
low prices reported on November 18, 1998, on the Nasdaq National Stock
Market.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
2
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to option holders under the Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be, and therefore are not,
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Plan are available without charge by
contacting:
Vincent Klinges
Chief Financial Officer
470 East Paces Ferry Road
Atlanta, Georgia 30305
(404) 261-9777
3
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended April 30, 1998, filed on July 29, 1998;
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since April 30, 1998; and
(c) The description of the Registrant's Class A Common Shares,
contained in the Registrant's Registration Statement on Form S-1
dated August 19, 1985.
All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13 (c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder 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 of
this Registration Statement from the date of filing of such documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the Shares offered hereby will be passed upon for the
Company by Gambrell & Stolz, L.L.P., Suite 4300, SunTrust Plaza, 303 Peachtree
Street, N.E., Attorneys who are partners of or employed by Gambrell & Stolz,
L.L.P. in the aggregate beneficially own less than 50,000 Class A Common Shares
of the Company.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The following summary is qualified in its entirety by reference to the
complete text of the By-Laws and agreements referred to below.
4
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The By-Laws of the Registrant provide that the Registrant shall indemnify
directors and officers against liabilities and expenses incurred on behalf of
the Registrant, provided that the director or officer acted in good faith and in
a manner that he reasonably believed to be in or not opposed to the best
interests of the Registrant. Registrant also has entered into agreements with
its directors, providing for the indemnification of those directors under
certain circumstances.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
Exhibit Number Description
- -------------- -----------
4.1 American Software, Inc. Employee Stock Purchase Plan
5.1 Opinion of Counsel regarding legality
23.1 Independent Auditors' Consent
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained within Signature Page)
Item 9. Undertakings.
------------
(a) 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, 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.
5
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(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, 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.
6
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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 Atlanta, State of Georgia, on this 6th day of
November, 1998.
AMERICAN SOFTWARE, INC.
/s/ James C. Edenfield
---------------------------------------
James C. Edenfield,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James C. Edenfield and Vincent Klinges, or either
of them, his attorney-in-fact, in any and all capacities, to sign any amendments
to this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitute, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Dated
-----
<S> <C> <C>
/s/ James C. Edenfield Director and Chief Executive November 6, 1998
- -------------------------- Officer (Principal Executive Officer)
James C. Edenfield
/s/ Thomas L. Newberry Chairman of the Board of Directors November 13, 1998
- --------------------------
Thomas L. Newberry
/s/ Vincent Klinges Chief Financial Officer and Controller November 17, 1998
- -------------------------- (Principal Financial and Accounting
Vincent Klinges Officer)
/s/ David H. Gambrell Director November 6, 1998
- --------------------------
David H. Gambrell
/s/ Thomas R. Williams Director November 12, 1998
- --------------------------
Thomas R. Williams
</TABLE>
7
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EXHIBIT INDEX
Exhibit Number Description Page
- -------------- ----------- ----
4.1 American Software, Inc. Employee Stock Purchase Plan 9
5.1 Opinion of Counsel regarding legality 21
23.1 Independent Auditors' Consent 23
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained within Signature Page) 7
8
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EXHIBIT 4.1
AMERICAN SOFTWARE, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The American Software, Inc. Employee Stock Purchase Plan (the "Plan") is
intended to encourage employee stock ownership by offering employees of American
Software, Inc. and its subsidiaries Purchase Rights (as such term is defined in
Section 2) to purchase shares of Common Stock.
2. DEFINITIONS.
"Base Pay" means regular straight-time and overtime earnings received from
the Company, including commission income, but excluding payments for incentive
compensation, bonuses and other special payments.
"Board" means the Board of Directors of American Software, Inc.
"Committee" means the Compensation Committee of the Board.
"Common Stock" or "Stock" means the Common Stock, no par value, of American
Software, Inc., and any other stock or securities (including any other shares or
securities of an entity other than American Software, Inc.) for or into which
the outstanding shares of Stock are hereinafter exchanged or changed.
"Company" means American Software, Inc.
"Custodian" means First Union National Bank of Georgia.
"Effective Date" means September 30, 1998, which date shall be the first
day of a Purchase Period.
"Exercise Date" means the first trading day of the Common Stock after the
end of a Purchase Period (as such term is defined in Section 4(b)), or if it is
not practicable to purchase Common Stock on that date, the earliest practicable
trading day thereafter, on which date all Participants' outstanding Purchase
Rights will automatically be exercised.
"Fair Market Value" means the closing "asked" price of the shares of Stock
in the over-the-counter market on the day on which such value is to be
determined or, if such "asked" price
9
<PAGE>
is not available, the last sales price on such day or, if no shares were traded
on such day, on the next preceding day on which the shares were traded, as
reported by NASDAQ or other national quotation service. If the shares are listed
on a national securities exchange, "fair market value" means the closing price
of the shares on such national securities exchange on the day of which such
value is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National Quotation
Bureau, Inc. or other national quotation service. If at any time shares of
Common Stock are not traded on an exchange or in the over-the-counter market,
Fair Market Value shall be the value determined by the Board of Directors or
Committee administering the Plan, taking into consideration those factors
affecting or reflecting value which they deem appropriate.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"Participant" means an employee of the Company or of a subsidiary of the
Company who has enrolled in the Plan by completing a Participation Form (as such
term is defined in Section 5) with the Plan Administrator. For purposes of the
Plan, a parent means a company that owns a majority interest in the Company and
effectively controls the Company, and a subsidiary means a company in which the
Company owns a majority interest and which the Company effectively controls.
"Plan Administrator" means the Chief Financial Officer of the Company, or
any other person so designated by the Committee.
"Purchase Period" means a fiscal quarter period as defined in Section 4(b).
"Purchase Right" means a Participant's option to purchase shares of Common
Stock that is deemed to be granted to a Participant during a Purchase Period
pursuant to Section 7.
"Section 16(b) Insider" means those persons subject to the requirements of
Section 16(b) of the Securities Exchange Act of 1934, as amended.
"Trading Day" refers to a day during which the market system or exchange on
which the Common Stock is traded at any particular time is available for trading
shares of Common Stock.
3. Eligibility.
(a) Participation in the Plan is voluntary. All full-time employees of the
Company, including officers and directors who are full-time employees but who
are not members of the Committee, who have completed at least one month of
continuous service with the Company are eligible to participate in the Plan. The
employee's entry date in the Plan shall be the first day of
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the Purchase Period immediately following the date the employee has satisfied
the eligibility provisions. Full-time employees mean those employees who work at
least 20 hours per week.
(b) Subject to Committee approval, any employees of a company or other
entity which is acquired directly or indirectly by the Company (whether by
merger, consolidation, stock purchase or otherwise) and becomes a subsidiary of
the Company may, for purposes of determining eligibility to participate in the
Plan under Section 3(a), be granted past service credit for employment with such
company or entity.
4. SECURITIES SUBJECT TO THE PLAN AND PURCHASE PERIODS.
(a) The maximum number of shares that may be purchased under the Plan may
not exceed Four Hundred Thousand (400,000) shares of Common Stock (subject to
adjustment as provided in Section 15), all of which shall be shares bought on
the open market. If any Purchase Right granted shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares of Common
Stock shall again become available for purposes of the Plan, unless the Plan has
been terminated.
(b) Purchase Period means each three-month fiscal quarter period, beginning
on May 1, August 1, November 1 and February 1, with the first such Purchase
Period beginning concurrently with the Effective Date of the Plan.
5. PARTICIPATION.
Eligible employees become Participants in the Plan by authorizing payroll
deductions for the purpose through a "Participation Form" filed with the Plan
Administrator no later than fifteen (15) days prior to the start date of a
Purchase Period. Notwithstanding the above, and subject to Committee approval,
the Plan Administrator may provide for a special election period for
participation in the Plan following the acquisition of a company or other entity
directly or indirectly by the Company (whether by merger, consolidation, stock
purchase or otherwise) which results in such company or entity becoming a
subsidiary of the Company. Subject to Committee approval, all employees of the
Company and its subsidiaries shall be eligible to participate in such special
election period.
6. PAYROLL DEDUCTIONS.
(a) In order to purchase Common Stock each Participant must elect and
indicate on the Participation Form the amount he or she wishes to authorize the
Company to deduct at regular payroll intervals during the Purchase period,
expressed either as (1) an integral percentage amount ranging from one percent
(1%) to fifteen percent (15%) of such Participant's Base Pay for the applicable
payroll period, with a minimum deduction of $20.00 per payday during the
Purchase
11
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Period, or (2) a dollar amount to be deducted pro rata at regular payroll
intervals during the Purchase Period, with a minimum deduction of $20 per payday
and a maximum dollar amount per payday to be set by the Committee. The Committee
shall determine from time to time whether method (1) or (2), or both, shall be
utilized. The Participation Form will include authorization for the Company to
make payroll deductions. If the actual amount of Base Pay of a Participant
available to be withheld during a Purchase Period is less than the fixed amount
designated in accordance with his or her instructions under (2) above, then the
lower amount shall apply.
(b) A Participant may not be granted Purchase Rights under the Plan with
respect to more than Fifteen Thousand Dollars ($15,000.00) worth of Common Stock
for any fiscal year during which such Purchase Rights to purchase Common Stock
are outstanding pursuant to the terms of the Plan. The Fifteen Thousand Dollar
($15,000.00) limit is determined according to the Fair Market Value of the
Common Stock on the first day (the grant date) of the Purchase Period.
Participants will be notified if these limitations become applicable to them.
(c) The amounts deducted from the Participant's compensation shall be
credited to a bookkeeping account established in the Participant's name under
the Plan, but no actual separate account will be established by the Company to
hold such amounts. There shall be no interest paid on the balance credited to a
Participant's account. Amounts deducted from the Participant's Base Pay may be
commingled with the general assets of the Company and may be used for its
general corporate purposes prior to the purchase of Common Stock for a Purchase
Period.
(d) Payroll deductions shall begin on the first payday of each Purchase
Period, and shall end on the last payday of each Purchase Period. Eligible
employees may participate in the Plan and purchase shares only through payroll
deductions. Notwithstanding the above, a Participant on an approved leave of
absence may continue participating in the Plan by making cash payments to the
Company within a normal pay period equal to the amount of the normal payroll
deduction had a leave of absence not occurred. The right of a Participant on an
approved leave of absence to continue participating in the Plan shall terminate
upon the expiration of twelve (12) weeks of leave, unless the Participant's
right to re-employment by the Company after a longer leave is guaranteed by
statute or contract, in which case termination of the right to participate will
occur upon the expiration of such extended period.
(e) So long as a Participant remains an employee of the Company, payroll
deductions will continue in effect from Purchase Period to Purchase Period,
unless at least fifteen (15) calendar days prior to the first day of the next
succeeding Purchase Period the Participant: (i) elects a different rate by
filing a new Participation Form with the Plan Administrator; or (ii) withdraws
from the Plan in accordance with Section 9.
Unless a Participant files with the Plan Administrator a new Participation
Form electing to withdraw prior to fifteen (15) calendar days before the
beginning of the next Purchase Period
12
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as permitted under the Plan, such Participant's payroll deductions will continue
throughout the next Purchase Period and his or her Purchase Right to purchase
Common Stock will be deemed to be fully and automatically exercised on the last
day of such Purchase Period with respect to payroll deductions made during that
Purchase Period, subject to the further withdrawal provisions of Section 9.
7. GRANT OF PURCHASE RIGHT.
(a) At 5:01 p.m. Eastern Standard Time, on the last day of each Purchase
Period (the Exercise Date), each Participant who has not withdrawn from the Plan
pursuant to Section 9 shall be deemed to have been granted a Purchase Right as
of the first day of the Purchase Period to purchase as many full shares of
Common Stock as can be purchased with the balance credited to such Participant's
account as of the Exercise Date.
(b) The price at which each Purchase Right to purchase Common Stock shall
be exercised is the lower of (i) 85% of the Fair Market Value of the Common
Stock on the NASDAQ National Market System on the first Trading Day of a
Purchase Period; or (ii) 85% of the Fair Market Value of the Common Stock on the
NASDAQ National Market System on the last Trading Day of such Purchase Period.
(c) The number of shares purchasable by each Participant per Purchase
Period will be the number of whole and fractional shares obtained by dividing
the amount credited to the Participant's Account as of the Exercise Date in the
Purchase Period by the purchase price in effect for the Purchase Period.
(d) A Participant may not purchase shares of Stock with a Fair Market Value
exceeding Three Thousand, Seven Hundred and Fifty Dollars ($3,750) for any
particular Purchase Period. The Committee has the power, exercisable at any time
prior to the start of a Purchase Period, to increase or decrease the dollar
value maximum for that Purchase Period, subject to the limitations in Section
6(b). The maximum, as thus adjusted, will continue in effect from Purchase
Period to Purchase Period until the Committee once again exercises its power to
adjust the maximum.
8. EXERCISE OF PURCHASE RIGHT.
(a) Each outstanding Purchase Right shall be deemed automatically exercised
as of 5:01 p.m. on the Exercise Date. The exercise of the Purchase Right is
accomplished by applying the balance credited to each Participant's account as
of the Exercise Date to the purchase on the Exercise Date of whole and
---
fractional shares of Common Stock at the purchase price in effect for the
Purchase Period.
13
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(b) If a Participant purchases the maximum share amount set forth in
Section 7(d), any amount not applied to the purchase of Common Stock for that
Purchase Period will be held for the purchase of Stock in the next Purchase
Period.
(c) If the number of Shares for which Purchase Rights are exercised exceeds
the number of Shares available in any Purchase Period under the Plan, the Shares
available for exercise will be allocated by the Plan Administrator pro rata
among the Participants in such Purchase Period in proportion to the relative
amounts credited to their accounts. Any amounts not thereby applied to the
purchase of Common Stock under the Plan will be refunded to the Participants
after the end of the Purchase Period.
9. WITHDRAWAL AND TERMINATION OF PURCHASE RIGHTS DURING PURCHASE PERIOD.
(a) A Participant may withdraw from the Plan during a Purchase Period by
providing written notice to the Plan Administrator on or before 5:00 p.m. on the
15th day prior to the last business day of such Purchase Period. Such withdrawal
will become effective upon receipt by the Plan Administrator of such notice,
payroll deductions will cease as soon as is administratively feasible from the
date of such notice, and no additional payroll deductions will be made on behalf
of such Participant during the Purchase Period. Such notice shall be on a form
(the "Withdrawal Form") provided by the Plan Administrator for that purpose. The
Withdrawal Form will permit such a Participant to elect to receive all
accumulated payroll deductions as a refund without penalty or to exercise such
Participant's outstanding Purchase Rights to purchase Stock on the following
Exercise Date in the amount of all payroll deductions withheld during the
Purchase Period prior to the Participant's withdrawal.
(b) Any Participant who withdraws from the Plan pursuant to Section 9(a)
will not be eligible to rejoin the Plan until the second (2nd) Purchase Period
following the Purchase Period of withdrawal. A Participant wishing to resume
participation may re-enroll in the Plan by completing and filing a new
Participation Form for a subsequent Purchase Period by following the applicable
enrollment procedures.
(c) To the extent, if any, required by Section 16(b) of the Securities
Exchange Act of 1934, as amended, and the rules, regulations, decisions and no
action positions thereunder, in the event a Participant who is a Section 16(b)
Insider ceases participation in the Plan, whether as a result of withdrawal
during a Purchase Period or of such Participant's decision to discontinue his or
her enrollment for subsequent Purchase Periods, such insider may not re-enroll
in the Plan until the Purchase Period beginning coincident with or immediately
following the expiration of a six (6) month period beginning upon the effective
date of such Section 16(b) Insider's withdrawal from the Plan.
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(d) If a Participant ceases to be an employee of the Company for any reason
during a Purchase Period, his or her outstanding Purchase Right will immediately
terminate, and all sums previously collected from such Participant during such
Purchase Period under the terminated Purchase Right shall be refunded to the
Participant.
10. RIGHTS AS SHAREHOLDER.
(a) When at least one whole share of Common Stock is deemed purchased for a
Participant's account, the Participant will have all of the rights or privileges
of a stockholder of the Company with respect to whole or fractional shares
purchased under the Plan whether or not certificates representing full shares
are issued. Any cash or stock dividend or other distribution on Common Stock
held in a Participant's account will be credited to the account. Any such cash
dividends will be utilized to purchase additional shares of Common Stock. Proxy
information will be provided for each meeting of the Company's stockholders so
that each Participant may vote his other shares in accordance with his or her
instructions. If no written instructions are received on a timely basis, the
voting of shares in the account will be governed by the rules of the Securities
and Exchange Commission and the rules and policies of any applicable stock
exchange or quotation system.
(b) Upon a written request made to the Custodian, the Participant will be
entitled to receive, as soon as practicable after the Exercise Date, a stock
certificate for the number of purchased shares. The Custodian may impose upon,
or pass through to, the Participant a reasonable fee for the transfer of shares
of Common Stock in the form of stock certificates from the Custodian to the
Participant. It is the responsibility of each Participant to keep his or her
address current with the Company through the Plan Administrator and with the
Custodian.
11. SALE OF COMMON STOCK ACQUIRED UNDER THE PLAN.
(a) Participants may sell the shares of Common Stock they acquire under the
Plan only in compliance with the restrictions set forth below.
(i) Section 16(b) Insiders may be subject to certain restrictions in
connection with their transactions under the Plan and with
respect to the sale of shares of Stock obtained under the Plan or
other shares of Stock, including, but not limited to, the
Company's Insider Trading Policy.
(ii) Sales of Stock obtained under the Plan by a Participant must
comply with the Company's Insider Trading Policy, as the same may
exist from time to time.
15
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(iii) No Participant purchasing shares of Common Stock under the Plan
shall be entitled to sell such shares of Stock until the first
day of the second (2nd) Purchase Period immediately following the
Purchase Period in which the shares of Stock were obtained. For
purposes of this restriction, the Company may, at its option,
include the following legend on any certificates representing the
Stock so purchased:
"The shares represented by this Certificate are subject to
certain restrictions on sale and disposition contained in the
American Software, Inc. Employee Stock Purchase Plan, a copy of
which is on file with the Corporation."
(b) The Participant understands and agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent.
(c) The Company is authorized to withhold from any payment to be made to a
Participant, including any payroll and other payments not related to the Plan,
amounts of withholding and other taxes due in connection with any transaction
under the Plan, and a Participant's enrollment in the Plan will be deemed to
constitute his or her consent to such withholding.
12. PLAN ADMINISTRATION.
(a) The Plan shall be administered by the Committee. No member of the Board
will be eligible to participate in the Plan during his or her period of
Committee service.
(b) The Committee shall have the plenary power, subject to and within the
limited of the express provisions of the Plan:
(i) to determine the commencement and termination date of the
offering of Common Stock under the Plan; and
(ii) to interpret the terms of the Plan, establish and revoke rules
for the administration of the Plan and correct or reconcile any
defect or inconsistency in the Plan.
(c) The Committee may delegate all or part of its authority to administer
the Plan to the Plan Administrator, who may in turn delegate the day-to-day
operations of the Plan to the Custodian. The Custodian will establish and
maintain, as agent for the Participants, accounts for
16
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the purpose of holding shares of Common Stock as may be necessary or desirable
for the administration of the Plan.
(d) The Committee may waive or modify any requirement that a notice or
election be made or filed under the Plan a specified period in advance in an
individual case or by adoption of a rule or regulation under the Plan, without
the necessity of an amendment to the Plan.
13. TRANSFERABILITY.
(a) Any account maintained by the Custodian for the benefit of a
Participant with respect to shares acquired pursuant to the Plan may only be in
the name of the Participant; provided, however, that the Participant may elect
to maintain such account with right of joint ownership with such Participant's
spouse. Such election may only be made on a form (the "Joint Account Form")
provided by the Company.
(b) Neither payroll deductions credited to a Participant's account nor any
Purchase Rights or other rights to acquire Common Stock under the Plan may be
assigned, transferred, pledged or otherwise disposed of by Participants other
than by will or the laws of descent and distribution and, during the lifetime of
a Participant, Purchase Rights may be exercised only by the Participant.
14. MERGER OR LIQUIDATION OF THE COMPANY.
In the event the Company merges with another corporation and the Company is
not the surviving entity, or in the event all or substantially all of the stock
or assets of the Company is acquired by another company, or in the event of
certain other similar transactions, the Committee may, in its sole discretion
and in connection with such transaction, cancel each outstanding Purchase Right
and refund all sums previously collected from Participants under the canceled
outstanding Purchase Rights, or, in its discretion, cause each Participant with
outstanding Purchase Rights to have his or her outstanding Purchase Right
exercised immediately prior to such transaction and thereby have the balance of
his or her account applied to the purchase of whole and fractional shares of
Common Stock (subject to the maximum dollar limitation of Section 7(d)) at the
purchase price in effect for the Purchase Period, which would be treated as
ending with the effective date of such transaction. The balance of the account
not so applied with be refunded to the Participant. In the event of a merger in
which the Company is the surviving entity, each Participant is entitled to
receive, for each share as to which such Participant's Outstanding Purchase
Rights are exercised as nearly as reasonably may be determined by the Committee,
in its sole discretion, the securities or property that a holder of one share of
Common Stock was entitled to receive upon the merger.
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15. ADJUSTMENT FOR CHANGES IN CAPITALIZATION.
To prevent dilution or enlargement of the rights of Participants under the
Plan, appropriate adjustments may be made in the event any change is made to the
Company's outstanding Common Stock by reason of any stock dividend, stock split,
combination of shares, exchange of shares or other change in the Common Stock
effected without the Company's receipt of consideration. Adjustments may be made
to the maximum number and class of securities issuable under the Plan, the
maximum number and class of securities purchasable per outstanding Purchase
Right and the number and class of securities and price per share in effect under
each outstanding Purchase Right. Any such adjustments may be made retroactively
effective to the beginning of the Purchase Period in which the change in
capitalization occurs, and any such adjustment will be made by the Committee in
its sole discretion.
16. AMENDMENT AND TERMINATION.
The Board may terminate or amend the Plan at any time; provided, however,
that no termination or amendment of the Plan shall change or affect Purchase
Rights previously granted under the Plan without the consent of the affected
Participant. If not sooner terminated by the Board, the Plan shall terminate at
the time Purchase Rights have been exercised with respect to all shares of
Common Stock reserved for grant under the Plan.
17. NO EMPLOYMENT RIGHTS.
Participation in the Plan will not impose any obligations upon the Company
to continue the employment of the Participant for any specific period and will
not affect the right of the Company to terminate such person's employment at any
time, with or without cause.
18. COSTS.
Except as set forth in Section 10(b), all costs and expenses incurred in
the administration of the Plan and the maintenance of accounts with the
Custodian will be borne by the Company. Any brokerage fees and commissions for
the purchase of Common Stock under the Plan (including shares of Common Stock
purchased upon reinvestment of dividends and distributions) will be borne by the
Company. Each Participant shall be responsible for any brokerage commissions and
other expenses incurred in connection with the sale of Common Stock from his or
her own account.
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19. REPORTS.
After the close of each Purchase Period, each Participant in the Plan will
receive a report from the Custodian indicating the amount of the Participant's
contributions to the Plan during the Purchase Period, the amount of the
contributions applied to the purchase of Common Stock for the Purchase Period,
the purchase price per share in effect for the Purchase Period, the amount of
the contributions (if any) carried over to the next Purchase Period and the
total number of shares of Stock held in the Participant's account.
20. GOVERNING LAW.
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan will be determined in accordance with laws of
the State of Georgia, without giving effect to principles of conflicts of laws,
and applicable Federal law.
21. COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS.
The Plan, the granting and exercising of Purchase Rights hereunder, and the
other obligations of the Company, the Plan Administrator and the Custodian under
the Plan will be subject to all applicable federal and state laws, rules, and
regulations, and to such approvals by any regulatory or governmental agency as
may be required. The Company may, in its discretion, postpone the purchase or
delivery of shares of Common Stock upon exercise of Purchase Rights until
completion of such registration or qualification of such shares of Common Stock
or other required action under any federal or state law, rule, or regulation,
listing or other required action with respect to any automated quotation system
or stock exchange upon which the shares of Common Stock or other Company
securities are designated or listed, or compliance with any other contractual
obligation of the Company, as the Company may consider appropriate, and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of shares of Common Stock in compliance with applicable laws, rules,
and regulations, designation or listing requirements, or other contractual
obligations.
22. TAX STATUS OF PLAN.
The purchase of shares of Common Stock under the Plan will be made with
"after-tax" dollars of Participants. The amount deducted from a Participant's
paycheck or invested in a lump sum will have been subject previously to
withholding of applicable income and employment taxes.
The Plan is not a qualified plan under the Internal Revenue Code. Shares of
Common Stock purchased under the Plan on behalf of Participants will be
purchased in the open market and
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will not be issued or sold directly by the Company to the Participant.
Consequently, Participants will realize income equal to the amount of the
difference between the Fair Market Value of the Common Stock on the Exercise
Date and the purchase price. Participants also may realize a gain or loss on the
sale of any Common Stock purchased under the Plan. EACH EMPLOYEE IS ADVISED TO
CONSULT WITH HIS OR HER OWN TAX ADVISORS PRIOR TO PARTICIPATION IN THE PLAN.
The Company may make such provisions as it deems appropriate for
withholding by the Company pursuant to federal or state tax laws of such amounts
as the Company determines it is required to withhold in connection with the
purchase or sale by a Participant of any Common Stock acquired pursuant to the
Plan. The Company may require a Participant to satisfy any relevant tax
requirements before authorizing any issuance of Common Stock to the Participant.
23. ERISA.
The Plan is not subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
24. EFFECT OF PLAN.
The provisions of the Plan shall, in accordance with its terms, be binding
upon and inure to the benefit of, all successors of each employee participating
in the Plan, including, without limitation, such employee's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such employee.
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EXHIBIT 5.1
OPINION OF COUNSEL REGARDING LEGALITY AND CONSENT OF COUNSEL
[LETTERHEAD OF GAMBRELL & STOLZ, L.L.P.]
November 19, 1998
American Software, Inc.
470 East Paces Ferry Road, N.E.
Atlanta, Georgia 30305
Re: American Software, Inc. Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to American Software, Inc. (the "Company") in
connection with the registration with the Securities and Exchange Commission on
Form S-8 of 400,000 shares of the Company's Class A Common Stock, $.10 par value
(the "Shares"), which may be purchased in the open market on behalf of
participants under the above-referenced plan (the "Plan"). In connection with
that registration, we have reviewed the proceedings of the Board of Directors of
the Company relating to the registration and proposed open market purchases of
the common stock, the Articles of Incorporation of the Company and all
amendments thereto, the Bylaws of the Company and all amendments thereto, and
such other documents and matters as we have deemed necessary to the rendering of
the following opinion.
Based upon that review, it is our opinion that the Shares, when purchased
in conformance with the terms and conditions of the Plan, will have been legally
issued, fully paid and nonassessable under the Georgia Business Corporation
Code.
We do not find it necessary for the purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
blue sky laws of the various states as to the purchase of the Shares on the open
market on behalf of participants.
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American Software, Inc.
- -----------------------------
We consent to the use of this opinion in the registration statement filed
with the Securities and Exchange Commission in connection with the registration
of the Shares and to the reference to our firm under the heading "Interests of
Named Experts and Counsel" in the registration statement.
Very truly yours,
GAMBRELL & STOLZ, L.L.P.
By: /s/ Henry B. Levi
-----------------
Henry B. Levi
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
American Software, Inc.
We consent to incorporation by reference in the registration statement on
Form S-8 of American Software, Inc. of our reports dated June 19, 1998, relating
to the consolidated balance sheets of American Software, Inc. and subsidiaries
as of April 30, 1998 and 1997, and the related consolidated statements of
operations, shareholders' equity, and cash flows for each of the years in the
three-year period ended April 30, 1998, and related schedule, which reports
appear in the April 30, 1998 annual report on Form 10-K of American Software,
Inc.
KPMG Peat Marwick LLP
Atlanta, Georgia
November 17, 1998
