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Filed with the Securities and Exchange Commission on August 29, 2000
Registration No.: 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AMERICAN SOFTWARE, INC.
(Exact name of issuer as specified in its charter)
Georgia 58-1098795
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
470 East Paces Ferry Road, N. E.
Atlanta, Georgia 30305
(Address of Principal Executive Offices)
AMERICAN SOFTWARE, INC. INCENTIVE STOCK OPTION PLAN,
1991 EMPLOYEE STOCK OPTION PLAN, DIRECTORS AND OFFICERS STOCK OPTION PLAN AND
2001 STOCK OPTION PLAN (COLLECTIVELY, THE "PLANS")
(Full Title of the Plans)
Agent for Service: With Copies to:
Henry B. Levi, Esq. James C. Edenfield and
Gambrell & Stolz, L.L.P. Vincent C. Klinges
Suite 4300, SunTrust Plaza American Software, Inc.
303 Peachtree Street, N.E. 470 East Paces Ferry Road, N.E.
Atlanta, Georgia 30308 Atlanta, Georgia 30305
Telephone Number of Agent for Service: 404/577-6000
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
Proposed
Maximum
Proposed Aggregate
Amount Maximum Offering Price Amount of
Title of Securities to be Offering Price of Additional Registration
to be Registered Registered/1/ Per Share/2/ Shares/2/3/ Fee
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<S> <C> <C> <C> <C>
Class A Common Shares, Par Value $.10 5,833,583 Shs. $4.4845 $8,969,000 $1,794
=======================================================================================================
</TABLE>
/1/Based upon the options outstanding under the Incentive Stock Option Plan, the
1991 Employee Stock Option Plan and the Directors and Officers Stock Option
Plan plus the shares authorized for issuance under the 2001 Stock Option
Plan. Pursuant to General Instruction E, the registration fee is payable only
with respect to the additional 2,000,000 shares registered resulting from
adoption of the 2001 Stock Option Plan. The remaining shares were registered
under Registration Statement Numbers 33-42017, 33-67010, 33-83396, 33-62587,
333-14309 333-34637, 333-62529 and/or 333-86141.
/2/Based upon the average of the high and low prices of the Class A Common
Shares reported on the Nasdaq National Market on August 25, 2000.
/3/Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h).
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Items 1 and 2 of Part
I of Form S-8 will be sent or given to plan participants as specified in Rule
428(b)(1) and, in accordance with the instructions to Part I, are not filed with
the Securities and Exchange Commission (the "Commission") as part of this
Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents and information previously filed with the
Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report filed on Form 10-K for the fiscal year
ended April 30, 2000;
(b) The Registrant's Proxy Statement for the 2000 Annual Meeting of
Shareholders;
(c) The description of the Registrant's Common Stock to be offered hereby
contained in the Registrant's Registration Statement on Form S-1
(Registration No. 2-81444) filed with the Commission on January 21,
1983, pursuant to Section 12 of the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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The firm of Gambrell & Stolz, L.L.P., Atlanta, Georgia, is general counsel
to the Registrant. As of August 23, 2000, lawyers associated with that firm
owned or had options to purchase 66,000 Class A Common Shares of the Registrant.
David H. Gambrell and James R. McGuone, partners in that firm, are a Director of
the Registrant and the Secretary of the Registrant, respectively.
Item 6. Indemnification of Directors and Officers.
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O.C.G.A. Section 14-2-851 authorizes a corporation to indemnify a director
against liability incurred in a proceeding if the director acted in good faith
and reasonably believed that, in the case of conduct in his or her official
capacity, that such conduct was in the best interest of the corporation or, in
all other cases, that such conduct was at least not opposed to the best
interests of the corporation and, in the case of a criminal proceeding, that the
director had no reasonable cause to believe such conduct was unlawful.
O.C.G.A. Section 14-2-857 authorizes a corporation to indemnify an officer
to the same extent as a director and, if the officer is not also a director, to
such further extent as may be provided by the articles of incorporation, the
bylaws, a resolution of the board of directors or contract, except for liability
arising out of appropriation of any business opportunity of the company, acts or
omissions involving intentional misconduct or a knowing violation of the law,
liabilities arising from unlawful distributions, or receipt of an improper
personal benefit.
Article IV, Section 11 of the Registrant's Bylaws and Article VII of the
Registrant's Articles of Incorporation provide for indemnification of its
directors, officers, agents and employees, to the extent permissible under
Georgia law, including liabilities that may arise under the Securities Act of
1933. In addition, the Registrant has entered into indemnification agreements
with its directors and has purchased directors and officers insurance.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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4.1 2001 Stock Option Plan (Effective September 1, 2000).
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 (included on page 6)
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Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment of this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(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) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing
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of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be
governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
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the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing 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 August 24, 2000.
AMERICAN SOFTWARE, INC.
By: /s/ James C. Edenfield
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James C. Edenfield, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints James C. Edenfield and Vincent C. 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.
Name Capacity Date
/s/ James C. Edenfield President, Chief Executive August 24, 2000
------------------------ Officer and Director
James C. Edenfield
/s/ Thomas L. Newberry Chairman of the Board of August 24, 2000
------------------------ Directors
Thomas L. Newberry
/s/ David H. Gambrell Director August 24, 2000
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David H. Gambrell
/s/ Thomas R. Williams Director August 24, 2000
------------------------
Thomas R. Williams
/s/ Vincent C. Klinges Chief Financial Officer August 24, 2000
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Vincent C. Klinges
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EXHIBIT INDEX
Exhibit No. Description of Exhibits Page
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4.1 2001 Stock Option Plan (Effective 8
September 1, 2000).
5.1 Opinion of Counsel regarding legality 20
23.1 Independent Auditors' Consent 22
24.1 Power of Attorney 6
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