As filed on November 19, 1998
Registration No. _________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
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(Address of registrant's Principal Executive Offices)
American Software, Inc. Employee Stock Purchase Plan
(Full title of the plan)
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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
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
_____________________
* 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
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.
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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
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.
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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.
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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.
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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 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.
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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.
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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
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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.
Dated
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/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
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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