-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WsWtj1+qukE9PGCvs6jnT93YHO7KkBoBiyEP78Kv2Z5NPWsul13fj7uI/qvX2OlE wDVqbAbnT2cXc7FfcWcTIg== 0000931763-99-002506.txt : 19990831 0000931763-99-002506.hdr.sgml : 19990831 ACCESSION NUMBER: 0000931763-99-002506 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990830 EFFECTIVENESS DATE: 19990830 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN SOFTWARE INC CENTRAL INDEX KEY: 0000713425 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 581098795 STATE OF INCORPORATION: GA FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-86141 FILM NUMBER: 99702593 BUSINESS ADDRESS: STREET 1: 470 E PACES FERRY RD NE CITY: ATLANTA STATE: GA ZIP: 30305 BUSINESS PHONE: 4042614381 MAIL ADDRESS: STREET 1: 470 EAST PACES FERRY ROAD NE CITY: ATLANTA STATE: GA ZIP: 30305 S-8 1 AMERICAN SOFTWARE, INC. Filed with the Securities and Exchange Commission on August 30, 1999 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 58-109879 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 470 East Paces Ferry Road, N. E. Atlanta, Georgia 30305 (Address of Principal Executive Offices) AMERICAN SOFTWARE, INC. INCENTIVE STOCK OPTION PLAN, NONQUALIFIED STOCK OPTION PLAN, 1991 EMPLOYEE STOCK OPTION PLAN AND DIRECTORS AND OFFICERS 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
==================================================================================================================================== 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 - ------------------------------------------------------------------------------------------------------------------------------------ Class A Common Shares, Par Value $.10 6,246,731 Shs. $4.0625 $5,687,500 $1,581 ====================================================================================================================================
/1/Based upon the aggregate number of Shares presently authorized for issuance under the Plans, less shares already purchased pursuant to options granted under such Plans. Pursuant to General Instruction E, the registration fee is payable only with respect to the additional 1,400,000 shares registered resulting from amendments to two of the Plans. The remaining shares were registered under Registration Statement Numbers 33-42017, 33-67010, 33-83396, 33-62587, 333-14309 333-34637 and/or 333-62529. /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, 1999. /3/Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h). STATEMENT PURSUANT TO GENERAL INSTRUCTION E The contents of Registration Statement No. 33-42017 on Form S-8 of the Registrant are hereby incorporated by reference thereto, except for Items 5 and 8 of Part II, which are revised as set forth below. Such Registration Statement related to the same stock option plans to which this Registration Statement relates. This Registration Statement is being filed to register additional securities, of the same class, registered under Registration Statement No. 33-42017. Item 5. Interests of Named Experts and Counsel. -------------------------------------- The firm of Gambrell & Stolz, L.L.P., Atlanta, Georgia, is general counsel to the Registrant. As of August 3 , 1999, lawyers associated with that firm owned or had options to purchase 65,474 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 8. Exhibits. -------- Exhibit Number Description - -------------- ----------- 4.1 1991 Employee Stock Option Plan (Amended and Restated August 26, 1999). 4.2 Directors and Officers Stock Option Plan (Amended and Restated August 26, 1999). 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 3) 2 SIGNATURES The Registrant. 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 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 26, 1999. AMERICAN SOFTWARE, INC. By:/s/ James C. Edenfield ---------------------------------------- James C. Edenfield, President and 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 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 26, 1999 - ----------------------------- Officer and Director James C. Edenfield /s/ Thomas L. Newberry Chairman of the Board of August 26, 1999 - ----------------------------- Directors Thomas L. Newberry /s/ David H. Gambrell Director August 26, 1999 - ----------------------------- David H. Gambrell /s/ Thomas R. Williams Director August 26, 1999 - ----------------------------- Thomas R. Williams /s/ James M. Modak Chief Financial Officer August 26, 1999 - ----------------------------- James M. Modak /s/ Vincent C. Klinges Principal Accounting August 26, 1999 - ----------------------------- Officer Vincent C. Klinges
3 EXHIBIT INDEX Exhibit No. Description of Exhibits Page - ------------- ---------------------------------------- ---- 4.1 1991 Employee Stock Option Plan (Amended and Restated August 26, 1999). 5 4.2 Directors and Officers Stock Option Plan (Amended and Restated August 26, 1999). 10 5.1 Opinion of Counsel regarding legality 16 23.1 Independent Auditors' Consent 18 24.1 Power of Attorney 3 4 EX-4.1 2 1991 EMPLOYEE STOCK OPTION PLAN EXHIBIT 4.1 AMERICAN SOFTWARE, INC. 1991 EMPLOYEE STOCK OPTION PLAN (Amended and Restated Effective August 26, 1999) 1. Purpose. This Plan shall be known as the "1991 Employee Stock Option ------- Plan" (hereinafter referred to as "the Plan" or "this Plan"). The purpose of the Plan is to provide certain key employees of American Software, Inc. (the "Company") and its subsidiaries with additional incentive to increase their efforts on the Company's behalf and to remain in the employ of the Company or any of its subsidiaries by granting key employees from time to time options to purchase Class A Common Shares of the Company. The options granted under this Plan may, but need not, constitute "incentive stock options" (referred to herein as "Incentive" options) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). An option granted which does not constitute an Incentive option shall for purposes of the Plan constitute a "Non-Qualified" option. The terms "subsidiary" or "subsidiaries" mean and include any corporation or other entity at least a majority of the outstanding voting shares of which is, at the time, directly or indirectly owned by the Company or by one or more subsidiaries. 2. Shares. The shares to be optioned under the Plan shall be the Company's ------ Class A Common Shares, $0.10 par value (the "Shares"), which Shares may either be authorized but unissued Shares or treasury Shares. The aggregate number of Shares for which options may be granted under the Plan shall (subject to the provisions of paragraph 8) be (i) 4,600,000 Shares (inclusive of the total number of Shares with respect to which no options have been granted under the Company's Incentive Stock Option Plan and Nonqualified Stock Option Plan (collectively the "Prior Plans") on the Effective Date as provided in paragraph 15), plus (ii) the total number of Shares as to which options granted under the Prior Plans or this Plan terminate (including options terminated upon the granting of replacement options or otherwise) or expire without being wholly exercised. New options may be granted under this Plan covering the number of Shares to which such termination or expiration relates. 3. Administration. The Plan shall be administered by the Employee Stock -------------- Option Plan Committee (the "Committee") of the Company's Board of Directors (the "Board"). The Committee shall consist of such members (not less than two) of the Board as shall be appointed from time to time by the Board. No member of the Committee while serving as such shall be eligible for participation in the Plan. Subject to the provisions of the Plan, the Committee shall have exclusive power to select the employees to whom options will be granted under the Plan, to determine the number of options to be awarded to each employee selected and to determine the time or times when options will be awarded. The Committee shall have full power and authority to administer and interpret the Plan and to adopt such rules, regulations, agreements and instruments for implementing the Plan and for the conduct of its business as the Committee deems necessary or advisable. The 1 Committee's interpretation of the Plan, and all determinations made by the Committee pursuant to the powers vested in it hereunder, shall be conclusive and binding on all persons having any interest in the Plan or in any options granted hereunder. 4. Eligibility. Participants in the Plan shall be selected by the ----------- Committee from among key personnel of the Company or a subsidiary; provided, however, that no director, officer or 10% shareholder (as such terms are defined pursuant to Section 16 of the Securities Exchange Act of 1934, as amended) of the Company shall be eligible to participate in the Plan. Options held by a person who subsequently becomes a director, officer or 10% shareholder shall not be affected by this restriction. Options shall be granted to individuals solely in connection with their employment with the Company or a subsidiary. 5. Grant of Options. The Committee may from time to time grant options to ---------------- purchase Shares to such of the eligible employees as may be selected by the Committee and for such number or numbers of shares as may be determined by the Committee. Each grant of an option pursuant to this Plan shall be granted within ten years from the date this Plan is adopted by the Board. Each grant of an option pursuant to this Plan shall be made upon such terms and conditions as may be determined by the Committee at the time of grant, subject to the terms, conditions and limitations set forth in this Plan. An individual optionee may be granted (i) an Incentive option, (ii) a Non- Qualified option, or (iii) an Incentive option and a Non-Qualified option at the same time. 6. Terms, Conditions and Form of Options. Each option shall be evidenced ------------------------------------- by a written agreement ("option agreement") in such form as the Board shall from time to time approve, which agreement shall comply with and be subject to the following terms and conditions: 6.1 Option Effective Date. Each option agreement shall specify an --------------------- effective date, which shall be the date on which the option is granted by the Committee. 6.2 Option Term. (a) An option shall in no event be exercisable ----------- after the expiration of ten years from the effective date of the option. In addition, and in limitation of the above, the option period of any option shall terminate three months after the termination of the option holder's employment by the Company for any reason except the Retirement (as hereinafter defined), death or disability of the option holder-employee (the "optionee"). (b) (i) The term "Retirement" means the voluntary termination of employment by an option holder whose age and/or years of employment qualify that employee for normal retirement under the policies of the Company in effect from time to time. (ii) For any option granted on or before August 23, 1994, the Committee may in its discretion amend that option, on an individual basis, to permit the exercise of such option beyond the date of Retirement, through the expiration date of the option. 2 (iii) The Committee may in its discretion provide in standard option grant agreements that any option granted after August 23, 1994 may be exercised after the date of Retirement, through the expiration date of the option. (iv) Notwithstanding the foregoing, no option may be exercised after the expiration of ten years from the effective date of the option, nor may an option be exercised beyond the amount which is vested as of the date of Retirement. (c) In the event of termination of employment due to the death or disability of an optionee, the option period of the option held by him upon the date of such termination shall terminate upon the earlier of (a) twelve months after the date of the optionee's death or termination due to disability, as the case may be, or (b) the date of termination of such option as determined by his option agreement. In the event of termination of an optionee's employment due to the death of the optionee, such optionee's options may be exercised during the 12-month period by his estate or by the person who acquired the right to exercise such options through bequest or inheritance. As used herein, "disability" shall mean the inability of the employee to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or has lasted or can be expected to last for a continuous period of at least twelve months. No transfer of an option by an optionee by will or by the laws of descent and distribution shall be effective unless the Company shall have been furnished with written notice thereof and a copy of the will and/or such other evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the successor-in-interest or successors-in- interest of the terms and conditions of the option. (d) If an optionee is placed on leave of absence status by the Company or any subsidiary, any then exercisable option shall be suspended at such time. If an optionee is placed on lay-off status by the Company or any subsidiary, any then exercisable option may be exercised during the following period of three months and shall be suspended thereafter. In either case, the unexercised portion of the option shall either (i) terminate three months after the optionee's termination of employment with the Company and its subsidiaries or (ii) be reinstated upon such optionee being re-employed from leave of absence or lay-off status by the Company or any subsidiary. 6.3 Exercise Price. The exercise price of options shall be the -------------- price per share fixed by the Committee (the "Exercise Price"); provided, however, that the Exercise Price per Share for Incentive options shall not be less than the fair market value of a Share on the date the option is granted. In the event that the Shares are then listed on an established stock exchange, such fair market value shall be deemed to be the closing price of the Shares on such stock exchange on the day the option is granted or, if no sale of the Shares shall have been made on any stock exchange on that day, the fair market value shall be determined as such price for the next preceding day 3 upon which a sale shall have occurred. In the event that the Shares are not listed upon an established exchange but are quoted on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the fair market value shall be deemed to be the closing price for the Shares as quoted on NASDAQ on the day the option is granted. If no sale of the Shares shall have been made on NASDAQ on that day, the fair market value shall be determined by such prices on the next preceding day on which a sale shall have occurred. In the event that the Shares are neither listed on an established stock exchange nor quoted on NASDAQ, the fair market value on the day the option is granted shall be determined by the Committee. 6.4 Nontransferability of Options. An option shall not be ----------------------------- transferable by the optionee otherwise than by will, by the laws of descent and distribution or by a qualified domestic relations order, and shall be exercised during the lifetime of the optionee only by the optionee or by his guardian or legal representative. No option or interest therein may be transferred, assigned, pledged or hypothecated by the optionee during his lifetime, whether by operation of law or otherwise, or be made subject to execution, attachment or similar process. 7. Exercise of Options. An option granted pursuant to this Plan shall be ------------------- exercisable at any time within the option period, subject to the terms and conditions of such option. Exercise of any option shall be made by the delivery, during the period that such option is exercisable, to the Company in person or by mail of (i) written notice from the optionee stating that he is exercising such option and (ii) the payment of the aggregate purchase price of all Shares as to which such option is then exercised. Such aggregate purchase price shall be paid to the Company at the time of exercise. Payment shall normally be made by cash or check; provided, however, that in its sole discretion the Committee may approve of payment in whole or in part by the giving of a note with adequate stated interest or by the surrender of common stock. Upon the exercise of an option in compliance with the provisions of this paragraph, and upon the receipt by the Company of the payment for said Shares, the Company shall (i) deliver or cause to be delivered to the optionee so exercising his option a certificate or certificates for the number of Shares with respect to which the option is so exercised and payment is so made, and (ii) register or cause such Shares to be registered in the name of the exercising optionee. 8. Changes in Capital Structure. Appropriate adjustments shall be made ---------------------------- to the price of the Shares and the number of Shares subject to outstanding options and the number of Shares issuable under this Plan if there are any changes in the Shares by reason of stock dividends, stock splits, reverse stock splits, mergers, recapitalizations or consolidations. 9. Controlling Terms. Option agreements pertaining to options granted ----------------- pursuant hereto may include conditions that are more (but not less) restrictive to the optionee than the conditions contained herein and, in such event, the more restrictive conditions shall apply. 10. Termination of the Plan. This Plan shall terminate upon the close of ----------------------- business of the day preceding the tenth anniversary of the approval of this Plan by the Board unless it shall have been sooner terminated by the Board or by reason of there having been granted and fully exercised 4 stock options covering all of the Shares subject to this Plan. Upon such termination, no further options may be granted hereunder. If, after termination of this Plan upon the tenth anniversary hereof or by Board action as provided above, there are outstanding options which have not been fully exercised, such options shall remain in effect in accordance with their terms and shall remain subject to the terms of this Plan. 11. Amendment or Discontinuance of Plan. The Board may amend, suspend or ----------------------------------- discontinue this Plan at any time without restriction; provided, however, that the Board may not alter, amend, discontinue, revoke or otherwise impair any outstanding options which have been granted pursuant to this Plan and which remain unexercised, except in the event that there is secured the written consent of the holder of the outstanding option proposed to be so altered or amended. Nothing contained in this paragraph, however, shall in any way condition or limit the termination of an option, as hereinabove provided, where reference is made to termination of employment of an optionee, or as provided in an option agreement. 12. Limitation of Rights. -------------------- 12.1 No Implied Employment Agreement. Neither this Plan nor the ------------------------------- granting of an option nor any other action taken pursuant to this Plan, shall constitute or be evidence of any agreement or understanding, express or implied, that the Company or any subsidiary will retain any person as an employee for any period of time. 12.2 No Rights as Shareholder. An optionee shall have no rights as a ------------------------ shareholder with respect to Shares covered by his option until the date of exercise of the option, and, except as provided in paragraph 8, no adjustment will be made for dividends or other rights for which the record date is before the date of such exercise. 13. Liquidation of the Company. In the event of the complete -------------------------- liquidation or dissolution of the Company, other than as an incident to a merger, reorganization or other adjustment referred to in paragraph 8, any options granted pursuant to this Plan and remaining unexercised shall be deemed canceled without regard to or limitation by any other provisions of this Plan. 14. Intention of Construction. To the extent options granted hereunder ------------------------- are intended to constitute Incentive options and comply with Section 422 of the Code and all provisions of this Plan, all such options and all option agreements relating thereto shall be construed in such a manner as to effectuate that intent. 15. Shareholder Approval; Effective Date. This Plan shall become ------------------------------------ effective on the date it is approved by the shareholders of the Company (the "Effective Date"). 5 EX-4.2 3 DIRECTORS AND OFFICERS STOCK OPTION PLAN EXHIBIT 4.2 AMERICAN SOFTWARE, INC. DIRECTOR AND OFFICER STOCK OPTION PLAN (Amended and Restated Effective August 26, 1999) 1. Purpose. This Plan shall be known as the "Director and Officer Stock ------- Option Plan" (hereinafter referred to as "the Plan" or "this Plan"). The purpose of the Plan is to provide directors and officers of American Software, Inc. (the "Company") and its subsidiaries with additional incentive to increase their efforts on the Company's behalf and to remain in the employ of the Company or any of its subsidiaries or to remain as directors of the Company by granting to such persons from time to time options to purchase Class A Common Shares of the Company. The options granted under this Plan may, but need not, constitute "incentive stock options" (referred to herein as "Incentive" options) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). An option granted which does not constitute an Incentive option shall for purposes of the Plan constitute a "Non-Qualified" option. The terms "subsidiary" or "subsidiaries" mean and include any corporation or other entity at least a majority of the outstanding voting shares of which is, at the time, directly or indirectly owned by the Company or by one or more subsidiaries. 2. Shares. The shares to be optioned under the Plan shall be the ------ Company's Class A Common Shares, $0.10 par value (the "Shares"), which Shares may either be authorized but unissued Shares or treasury Shares. The aggregate number of Shares for which options may be granted under the Plan shall (subject to the provisions of paragraph 8) be 1,600,000 Shares, plus the total number of Shares as to which options granted under this Plan terminate (including options terminated upon the granting of replacement options or otherwise) or expire without being wholly exercised. New options may be granted under this Plan covering the number of Shares to which such termination or expiration relates. 3. Administration. The Plan shall be administered by the Director and -------------- Officer Stock Option Plan Committee (the "Committee") of the Company's Board of Directors (the "Board"). The Committee shall consist of such members (not less than two) of the Board as shall be appointed from time to time by the Board and who shall be "disinterested persons" as defined in Rule 16b-3 under the Securities Exchange Act of 1934, as amended. No member of the Committee while serving as such shall be eligible for participation in the Plan and no member of the Board may serve on the Committee if he or she received a grant of an option under this Plan or any other stock option plan of the Company within twelve months prior to serving on the Committee or while serving on the Committee, except for options granted pursuant to paragraph 5(b). Subject to the provisions of the Plan, the Committee shall have exclusive power to select the persons to whom options will be granted under the Plan, to determine the number of options to be awarded to each employee selected and to determine the time or times when options will be 1 awarded. The Committee shall have full power and authority to administer and interpret the Plan and to adopt such rules, regulations, agreements and instruments for implementing the Plan and for the conduct of its business as the Committee deems necessary or advisable. The Committee's interpretation of the Plan, and all determinations made by the Committee pursuant to the powers vested in it hereunder, shall be conclusive and binding on all persons having any interest in the Plan or in any options granted hereunder. 4. Eligibility. Participants in the Plan shall be selected by the ----------- Committee from among the directors and officers of the Company and its subsidiaries. 5. Grant of Options. ---------------- (a) the Committee may from time to time grant options to purchase Shares to such of the directors and officers of the Company and its subsidiaries as may be selected by the Committee and for such number or numbers of shares as may be determined by the Committee. Each grant of an option pursuant to this Plan shall be granted within ten years from the date this Plan is adopted by the Board. Each grant of an option pursuant to this Plan shall be made upon such terms and conditions as may be determined by the Committee at the time of grant, subject to the terms, conditions and limitations set forth in this Plan. An individual optionee may be granted (i) an Incentive option, (ii) a Non-Qualified option, or (iii) an Incentive option and a Non-Qualified option at the same time. (b) (i) Commencing October 31, 1994 and continuing on each April 30 and October 31 thereafter during the term of this Plan, each member of the Board of Directors then in office who is not a full-time employee of the Company, including members of the Committee, shall receive on each such October 31 and April 30 an automatic grant of Non-Qualified options to purchase 5,000 Shares, reduced pro rata to the extent that the director shall have served as a director of the Company for less than six full months prior to such date. This 5000-Share amount shall be adjusted automatically to reflect any stock dividends, stock splits or similar events occurring after August 23, 1994. (ii) The option price for each such grant shall be equal to the closing market price of the Shares on the date of grant (or the next preceding business day if the date of grant is not a business day). (iii) The options shall not be exercisable until one year after the date of grant, at which time the options shall be exercisable in full and shall remain exercisable until ten years after the date of grant, regardless of whether the option holder remains a director of the Company. In the event of the death or disability of the option holder, the option may be exercised by his or her heirs or personal representatives for the remaining term of the option. 2 (iv) The options shall be represented by option grants in substantially the same forms as are used from time to time for other Non- Qualified options granted under this Plan, subject only to the terms set forth above. 6. Terms, Conditions and Form of Options. Each option shall be evidenced ------------------------------------- by written agreement ("option agreement") in such form as the Board shall from time to time approve, which agreement shall comply with and be subject to the following terms and conditions: 6.1 Option Effective Date. Each option agreement shall specify an --------------------- effective date, which shall be the date on which the option is granted by the Committee. 6.2 Option Term. ----------- (a) An option shall in no event be exercisable after the expiration of ten years from the effective date of the option. In addition, and in limitation of the above, the option period of any option, other than an option granted pursuant to paragraph 5(b), shall terminate three months after the termination of the option holder's employment (or service as a director) with the Company or subsidiary for any reason except the Retirement (as hereinafter defined), death or disability of the option holder (the "optionee"). An option granted pursuant to paragraph 5(b) shall terminate in accordance with paragraph 5(b)(iii). (b) (i) The term "Retirement" means the voluntary termination of employment by an option holder whose age and/or years of employment qualify that employee for normal retirement under the policies of the Company in effect from time to time. (ii) For any option granted on or before August 23, 1994, the Committee may in its discretion amend that option, on an individual basis, to permit the exercise of such option beyond the date of Retirement, through the expiration date of the option. (iii) The Committee may in its discretion provide in standard option grant agreements that any option granted after August 23, 1994 may be exercised after the date of Retirement, through the expiration date of the option. (iv) Notwithstanding the foregoing, no option may be exercised after the expiration of ten years from the effective date of the option, nor may an option be exercised beyond the amount which is vested as of the date of Retirement. (c) In the event of termination of employment (or service as a director) due to the death or disability of an optionee, the option period of the option held by him upon the date of such termination shall terminate upon the earlier of (i) twelve months after the date of the optionee's death or termination due to disability, as the case may be, or (ii) the date of termination of such option as determined by his option agreement. In the event of termination of an optionee's employment due to the death of the optionee, such optionee's options may be exercised during the 3 12-month period by his estate or by the person who acquired the right to exercise such options through bequest or inheritance. As used herein, "disability" shall mean the inability of the employee to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or has lasted or can be expected to last for a continuous period of at least twelve months. No transfer of an option by an optionee by will or by the laws of descent and distribution shall be effective unless the Company shall have been furnished with written notice thereof and a copy of the will and/or such other evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the successor-in-interest or successors-in- interest of the terms and conditions of the option. (d) If an optionee is placed on leave of absence status by the Company or any subsidiary, any then exercisable option shall be suspended at such time. If an optionee is placed on lay-off status by the Company or any subsidiary, any then exercisable option may be exercised during the following period of three months and shall be suspended thereafter. In either case, the unexercised portion of the option shall either (i) terminate three months after the optionee's termination of employment with the Company and its subsidiaries or (ii) be reinstated upon such optionee being re-employed from leave of absence or lay-off status by the Company or any subsidiary. 6.3 Exercise Price. The exercise price of options shall be the price -------------- per share fixed by the Committee (the "Exercise Price"); provided, however, that the Exercise Price per Share for Incentive options shall not be less than the fair market value of a Share on the date the option is granted. In the event that the Shares are then listed on an established stock exchange, such fair market value shall be deemed to be the closing price of the Shares on such stock exchange on the day the option is granted or, if no sale of the Shares shall have been made on any stock exchange on that day, the fair market value shall be determined as such price for the next preceding day upon which a sale shall have occurred. In the event that the Shares are not listed upon an established exchange but are quoted on the National Association of Securities Dealers Automated Quotation System ("Nasdaq"), the fair market value shall be deemed to be the closing price for the Shares as quoted on Nasdaq on the day the option is granted. If no sale of the Shares shall have been made on Nasdaq on that day, the fair market value shall be determined by such prices on the next preceding day on which a sale shall have occurred. In the event that the Shares are neither listed on an established stock exchange nor quoted on Nasdaq, the fair market value on the day the option is granted shall be determined by the Committee. 6.4 Ten Percent Shareholder. Notwithstanding the above, in regard to ----------------------- a director or officer who possesses more than 10% of the total combined voting power of all classes of stock of the Company or of its subsidiaries and who receives an Incentive option, the exercise price hereunder shall not be less than 110% of the fair market value of Common Stock on the date 4 the Incentive option is granted and the option by its terms shall not be exercisable after the expiration of five years from the date such option is granted. 6.5 Nontransferability of Options. An option shall not be ----------------------------- transferable by the optionee otherwise than by will, by the laws of descent and distribution or by a qualified domestic relations order, and shall be exercised during the lifetime of the optionee only by the optionee or by his guardian or legal representative. No option or interest therein may be transferred, assigned, pledged or hypothecated by the optionee during his lifetime, whether by operation of law or otherwise, or be made subject to execution, attachment or similar process. 7. Exercise of Options. An option granted pursuant to this Plan shall be ------------------- exercisable at any time within the option period, subject to the terms and conditions of such option. Exercise of any option shall be made by the delivery, during the period that such option is exercisable, to the Company in person or by mail of (i) written notice from the optionee stating that he is exercising such option and (ii) the payment of the aggregate purchase price of all Shares as to which such option is then exercised. Such aggregate purchase price shall be paid to the Company at the time of exercise. Payment shall normally be made by cash or check; provided, however, that in its sole discretion the Committee may approve of payment in whole or in part by the giving of a note with adequate stated interest or by the surrender of common stock. Upon the exercise of an option in compliance with the provisions of this paragraph, and upon the receipt by the Company of the payment for said Shares, the Company shall (i) deliver or cause to be delivered to the optionee so exercising his option a certificate or certificates for the number of Shares with respect to which the option is so exercised and payment is so made, and (ii) register or cause such Shares to be registered in the name of the exercising optionee. 8. Changes in Capital Structure. Appropriate adjustments shall be made to ---------------------------- the price of the Shares and the number of Shares subject to outstanding options and the number of Shares issuable under this Plan if there are any changes in the Shares by reason of stock dividends, stock splits, reverse stock splits, mergers, recapitalizations or consolidations. 9. Controlling Terms. Option agreements pertaining to options granted ----------------- pursuant hereto may include conditions that are more (but not less) restrictive to the optionee than the conditions contained herein and, in such event, the more restrictive conditions shall apply. 10. Termination of the Plan. This Plan shall terminate upon the close of ----------------------- business of the day preceding the tenth anniversary of the approval of this Plan by the Board unless it shall have been sooner terminated by the Board or by reason of there having been granted and fully exercised stock options covering all of the Shares subject to this Plan. Upon such termination, no further options may be granted hereunder. If, after termination of this Plan upon the tenth anniversary hereof or by Board action as provided above, there are outstanding options which have not been fully exercised, such options shall remain in effect in accordance with their terms and shall remain subject to the terms of this Plan. 5 11. Amendment or Discontinuance of Plan. The Board may amend, suspend or ----------------------------------- discontinue this Plan at any time without restriction; provided, however, that the Board may not alter, amend, discontinue, revoke or otherwise impair any outstanding options which have been granted pursuant to this Plan and which remain unexercised, except in the event that there is secured the written consent of the holder of the outstanding option proposed to be so altered or amended. Nothing contained in this paragraph, however, shall in any way condition or limit the termination of an option, as hereinabove provided, where reference is made to termination of employment of an optionee, or as provided in an option agreement. Notwithstanding the foregoing, Section 5(b), which provides that nonemployee directors are eligible to receive stock options and specifies the amount, option price and timing of stock option grants, may be amended no more than once every six months except to comply with changes in the Code, the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations thereunder. 12. Limitation of Rights. -------------------- 12.1 No Implied Employment Agreement. Neither this Plan nor the ------------------------------- granting of an option nor any other action taken pursuant to this Plan, shall constitute or be evidence of any agreement or understanding, express or implied, that the Company or any subsidiary will retain any person as an employee for any period of time. 12.2 No Rights as Shareholder. An optionee shall have no rights as a ------------------------ shareholder with respect to Shares covered by his option until the date of exercise of the option, and, except as provided in paragraph 8, no adjustment will be made for dividends or other rights for which the record date is before the date of such exercise. 13. Liquidation of the Company. In the event of the complete liquidation -------------------------- or dissolution of the Company, other than as an incident to a merger, reorganization or other adjustment referred to in paragraph 8, any options granted pursuant to this Plan and remaining unexercised shall be deemed cancelled without regard to or limitation by any other provisions of this Plan. 14. Intention of Construction. To the extent options granted hereunder ------------------------- are intended to constitute Incentive options and comply with Section 422 of the Code and all provisions of this Plan, all such options and all option agreements relating thereto shall be construed in such a manner as to effectuate that intent. 15. Shareholder Approval; Effective Date. This Plan shall become ------------------------------------ effective on the date it is approved by the shareholders of the Company (the "Effective Date"). 6 EX-5.1 4 CONSENT OF GAMBRELL & STOLZ, L.L.P. EXHIBIT 5.1 August 27, 1999 Board of Directors American Software, Inc. 470 East Paces Ferry Road Atlanta, Georgia 30305 Gentlemen: We are familiar with the proceedings taken and proposed to be taken by American Software, Inc., a Georgia corporation (the "Company"), in connection with its Amended and Restated Incentive Stock Option Plan, its Amended and Restated Nonqualified Stock Option Plan, its Amended and Restated 1991 Employee Stock Option Plan and its Amended and Restated Directors and Officers Stock Option Plan (collectively, the "Plans"), the granting of options to purchase 6,246,731$.10 par value Class A Common Shares of the Company (the "Shares") pursuant to the Plans and the issuance of the Shares upon exercise of such options. We understand that as of the date of this opinion the aggregate number of Class A Common Shares that may be issued after the date hereof pursuant to options granted under the Plans is 6,246,731. We have assisted in the preparation of the Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission for the purpose of registering the Shares under the Securities Act of 1933, as amended. In connection therewith, we have examined, among other things, such records and documents as we have deemed necessary to express the opinions hereinafter set forth. Based upon the foregoing, we are of the opinion that: (1) The Company is a duly organized and legally existing corporation under the laws of the State of Georgia. Board of Directors American Software, Inc. August 27, 1999 Page 2. - ------------------------- (2) When options for the purchase of the Shares have been granted to eligible employees under the Plans, without exceeding the limits of the individual Plans, such options will be legally constituted and obligations of the Company in accordance with their terms. (3) When the Shares have been delivered by the Company upon the exercise of options under the Plans against payment of the purchase price therefor, without exceeding the limits of the individual Plans, the Shares will be validly issued and outstanding, fully paid and nonassessable. This opinion assumes compliance with applicable federal and state securities laws and with proper corporate procedures regarding the issuance of the Shares. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm included therein. Very truly yours, GAMBRELL & STOLZ, L.L.P. By: /s/ Henry B. Levi --------------------------------- Henry B. Levi EX-23.1 5 INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors American Software, Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 of American Software, Inc. of our reports dated June 23, 1999, relating to the consolidated balance sheets of American Software, Inc. and subsidiaries as of April 30, 1999 and 1998, 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, 1999, and related schedule, which reports appear in the April 30, 1999 Annual Report on Form 10-K of American Software, Inc. /s/ KPMG LLP Atlanta, Georgia August 27, 1999 -----END PRIVACY-ENHANCED MESSAGE-----