As filed with the Securities and Exchange Commission on December 13, 2001
Registration No.: 33-79640
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN SOFTWARE, INC.
(Exact name of registrant 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
404/261-4381
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Agent for Service: With Copies to:
Henry B. Levi James C. Edenfield and
Gambrell & Stolz 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: 404/577-6000 Telephone: 404/261-4381
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. /X/
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
EXPLANATORY NOTE
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This Registration Statement (No. 33-79640) as originally filed related to the
offering of 700,000 shares of American Software, Inc. common stock issuable
under the American Software, Inc. Dividend Reinvestment and Stock Purchase Plan
(the "Plan"). Since registering such shares, 60,443 shares have been issued by
American Software, Inc. pursuant to the Plan, leaving 639,557 shares unissued.
This Post-Effective Amendment No. 1 is being filed for the purpose of making
certain disclosures with respect to the Company's change in Agent administering
the Plan, among other things. The registration fees in respect of the common
stock registered underFile No. 33-79640 were paid at the time of the original
filing of the Registration Statement on Form S-3.
PROSPECTUS
AMERICAN SOFTWARE, INC.
DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN
The American Software, Inc. Dividend Reinvestment and Stock Purchase Plan
(the "Plan") provides shareholders of our common stock with a convenient method
of purchasing additional shares of our common stock. As of December 12, 2001,
639,557 shares of our common stock are available for issuance under the Plan. If
you choose to participate in the Plan, you may:
. Automatically reinvest any cash dividends on all of your American
Software common stock.
. Automatically reinvest any cash dividends on less than all of your
American Software shares and continue to receive any cash dividends on
your remaining American Software common stock.
. Make optional cash investments from a minimum of $25 per investment to
a maximum of $2,500 per quarter. Once additional shares are purchased,
they will automatically be enrolled in the dividend reinvestment part
of the Plan.
You must already be a shareholder of American Software, Inc. to participate
in the Plan. You cannot purchase your shares through the Plan, unless you are
already a shareholder of American Software, Inc.
First Union National Bank administers the Plan and is referred to in this
prospectus as the Agent of the Plan. It purchases shares of common stock
directly from us as newly issued shares of common stock.
The price per share is equal to the average of the high and low sales
prices for shares of our Class A Common Stock reported by the Nasdaq National
Market System for the five trading days immediately preceding the purchase date
or, if no trading occurs, for a substantial amount of time during any such
trading day, the Company will determine the purchase per share on the basis of
such market quotations as it deems appropriate.
________________________________________________________________________________
Please read this prospectus carefully and keep it and all account statements for
future reference.
________________________________________________________________________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES AGENCY
HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is December 12, 2001
TABLE OF CONTENTS
PAGE
WHERE YOU CAN FIND MORE INFORMATION 2
AMERICAN SOFTWARE, INC. 3
THE PLAN 4
Purpose 4
Advantages 4
Administration 5
Participation 5
Costs 8
Taxes 8
Reports to Participants 9
Dividends on Fractions of Shares 10
Certificates for Shares 10
Termination of Participation 11
Other Information 12
USE OF PROCEEDS 16
DESCRIPTION OF COMMON STOCK 16
Dividends 16
Voting Rights 16
Conversion 17
Other Rights 17
LEGAL OPINION 17
EXPERTS 18
INDEMNIFICATION 18
________________________________________________________________________________
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement filed with the
Securities and Exchange Commission. We file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and
copy any of these materials we file at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the SEC's public reference room by calling the SEC at
1-800-SEC-0330. Our filings with the SEC are also available to the public over
the Internet at the SEC's web site at http://www.sec.gov.
------------------
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. This prospectus
incorporates by reference the documents set forth below that we have previously
filed with the SEC. We are also incorporating by reference any future filings we
make with the SEC pursuant to sections 13(a), 13(c), 14 or 15(d) under the
2
Securities Exchange Act of 1934 between the date of this prospectus and the date
we sell all the common stock covered by this prospectus. Any of those future
filings will update, supercede and replace information contained in any
documents incorporated by reference in this prospectus at the time of future
filings. These documents contain important information.
. Our Annual Report on Form 10-K for the fiscal year ended April 30,
2001.
. Our definitive Proxy Statement dated August 2, 2001 filed pursuant to
Section 14 of the Exchange Act.
. The description of our Common Stock of the Company contained in the
Registration Statement on Form 10 filed August 26, 1983.
. All other reports filed by us pursuant to Section 13(a) or 15(d) of
the Exchange Act since April 30, 2001, including to date our Quarterly
Report on Form 10-Q for the fiscal quarter ended July 31, 2001.
You can obtain any of the incorporated documents by contacting us or
the SEC. If you request such information in writing or by telephone, we will
provide to you, at no cost, a copy of any or all the information incorporated by
reference in the registration statement of which this prospectus is part.
Requests should be addressed to: Pat McManus, Investor Relations, American
Software, Inc., 470 East Paces Ferry Road, N.E., Atlanta, Georgia 30305, (404)
261-4381.
You should rely only on the information contained or incorporated by
reference in this prospectus. No one has been authorized to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus, as well as
information we filed with the SEC and incorporated by reference, is accurate as
of the date of those documents only. Our business, financial conditions, and
results of operations described in those documents may have changed since those
dates.
AMERICAN SOFTWARE, INC.
We are the issuer of the shares of Class A Common Stock, par value
$.10, offered hereby. Our principal executive offices are at 470 East Paces
Ferry Road, N.E., Atlanta, Georgia 30305; telephone: (404) 261-4381. Unless the
context requires otherwise, the "Company," "we," "us," "our" and "ours" as used
herein refer to American Software, Inc.
This Prospectus relates to 639,557 shares of Class A Common Stock
authorized and remaining available for sale under the American Software Inc.
Dividend Reinvestment and Stock Purchase Plan.
We suggest that you retain this Prospectus for future reference.
3
THE PLAN
The following question-and-answer statements constitute the American
Software, Inc. Dividend Reinvestment and Stock Purchase Plan (the "Plan"). Our
shareholders who do not wish to participate in the Plan will continue to receive
cash dividends, if and when declared and paid. Our current policy is to retain
earnings, rather than declaring dividends to our shareholders. There is no
assurance that we will declare dividends in the future.
Purpose.
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1. What is the purpose of the Plan?
The purpose of the Plan is to provide record holders of our Class A Common
Stock ("Common Stock") with a simple and convenient method of automatically
reinvesting any cash dividends and additional payments in shares of the Common
Stock at a price equal to the average market price without payment of any
brokerage commission or service charge. Since the additional shares will be
purchased from us, we will receive additional funds needed for general corporate
purposes.
2. Does American Software, Inc. currently pay dividends on its Class A Common
Stock?
No. At this time, we do not declare or pay dividends on either of our
classes of common stock. We cannot be sure when, if ever, we will change our
policy about the payment of dividends.
Advantages.
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3. What are the advantages of the Plan?
. The price of shares will be the market price average, as more fully
explained under Question 14.
. You will not be required to pay brokerage commissions or service
charges in connection with purchases under the Plan.
. Your funds will be fully invested because the Plan permits fractions
of shares to be credited to your account. Dividends on such fractions,
as well as on full shares, will be reinvested in additional shares and
such shares credited to your account.
. You will avoid the need for cumbersome safekeeping of stock
certificates for shares credited to your account under the Plan.
. Periodic statements of account reflecting all current activity,
including purchases and latest balance, will simplify your record
keeping.
4
Administration.
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4. Who administers the Plan for participants?
First Union National Bank (the "Agent") administers the Plan, acts as agent
for the participants, keeps records, sends statements of account to each
participant, and performs other duties related to the Plan. Shares purchased for
you under the Plan will be held for you in safekeeping by or through the Agent
until termination of your participation in the Plan or until a written request
is received from you for withdrawal of all or part of your shares.
The Agent also acts as dividend disbursing and transfer agent for our
Common Stock.
The Agent's mailing address is as follows:
Shareholders Services Department
1525 West WT Harris Boulevard, 3C3
Charlotte, NC 28288-1153
The Agent may resign at any time by giving us written notice or be removed
by us upon written notice to the Agent. In the event a vacancy occurs in the
office of Agent, we shall appoint a successor Agent. We may adopt rules and
regulations to facilitate the administration of the Plan.
Participation.
--------------
5. Who is eligible to participate?
If you are a stockholder and you have shares of Common Stock registered in
your name, you are eligible to participate. If your Common Stock is registered
in a name other than your own (e.g., in the name of a broker or bank nominee),
and you want to participate, you must either make appropriate arrangements for
your nominee to do so, or you must become a stockholder of record by having a
part or all of your shares transferred to your own name.
You will not be eligible to participate in the Plan, however, if you reside
in a jurisdiction outside the United States in which it is unlawful for us to
let you participate.
6. How does an eligible stockholder participate?
As a holder of record of our Common Stock, you may join the Plan by signing
an Authorization Card and returning it to the Agent. A return envelope is
provided for this purpose. Where the stock is registered in more than one name
(e.g., joint tenants, trustees, etc.), all registered holders must sign.
5
You may obtain an Authorization Card at any time by writing to the Agent at
the address set forth in Question 4.
7. When may an eligible stockholder join the Plan?
Eligible stockholders may join the Plan at any time. A stockholder's
participation commences when the Agent receives the stockholder's signed
Authorization Card, provided that for dividend reinvestment the Agent must
receive the Authorization Card at least five business days prior to the record
date for the next dividend payment. Otherwise, participation commences on the
following dividend payment date. See Question 13 for a discussion of Investment
Dates.
Stockholders are cautioned that neither the Plan nor this Prospectus
represent a guarantee that we will resume paying dividends in the future, which
will depend upon the Company's earnings, financial requirements, and other
factors.
8. Are stockholders enrolled in the Plan required to send in a new
Authorization Card annually?
No. Stockholders enrolled in the Plan will continue to be enrolled in the
Plan without further action on their part, unless the stockholder wishes to
change his investment options or terminate his participation. (See Questions 10
and 24-25 for information concerning changing investment options and terminating
participation in the Plan.)
9. What does the Authorization Card provide?
The Authorization Card provides for the purchase of additional shares of
our Common Stock through the following investment options:
A. To reinvest in accordance with the Plan all of your cash dividends on
all shares then or subsequently registered in your name and also make
optional cash payments in amounts ranging from a $25 minimum to a
cumulative $2,500 maximum per quarter per participant;
B. To reinvest any cash dividends on only that number of shares
registered in your name and specified by you in the appropriate space
on the Authorization Card and also make optional cash payments in
amounts ranging from a $25 minimum to a cumulative $2,500 maximum per
quarter per participant;
C. To invest only by making optional cash payments in amounts ranging
from a $25 minimum to a $2,500 maximum per quarter per participant.
You may select one of these options. In case you elect investment option A
or B, cash dividends on all of the shares held by the Agent for your account
under the Plan will be reinvested in accordance with the Plan.
6
10. How may a participant change options under the Plan?
As a participant, you may change your investment options at any time by
requesting a new Authorization Card and returning it to the Agent at the address
set forth in Question 4 (see also Questions 7 and 8). To be effective for a
particular dividend, the new Authorization Card must be received by the Agent at
least five business days prior to the record date for that dividend.
11. How are optional cash payments made?
You can make optional cash payments by check or money order, or by
automatic bank draft. You may make an initial optional cash payment when
enrolling in the Plan by enclosing a check (made payable to "First Union
National Bank") with the Authorization Card. Thereafter, optional cash payments
may be made by using cash payment forms sent to you as part of your account
statements.
Optional cash payments that are made by check or money order need not be in
the same amount each time and there is no obligation to make an optional cash
payment each quarter. However, should you elect to make optional cash payments
through automatic bank draft, the draft must be in the same amount each quarter.
Such draft would continue until you notify the Agent in writing that you wish to
change the amount automatically drafted or terminate the automatic bank draft.
The Agent must receive optional cash payments at least five business days
prior to an Investment Date in order to be invested on that date. (See Question
7.) Optional cash payments received by the Agent less than five days before an
Investment Date will be held until the following Investment Date. No interest is
paid on optional cash payments pending investment. A participant may obtain the
return of any optional cash payment by written request received by the Agent at
least 48 hours before the next Investment Date.
12. What are the limitations on making optional cash payments?
Optional cash payments may not be less than $25 per payment nor more than
$2,500 per quarter. We reserve the right to direct the Agent to refuse any
optional cash payments, which, in the aggregate, exceed $2,500 per quarter with
respect to the aggregate of all of a participant's Plan accounts. Any excess
tendered amount of optional cash payments will be returned to the participant,
without interest.
13. When are shares of Common Stock purchased through the Plan?
Because we currently are not paying dividends on a regular basis, any
optional payments during a particular quarter will be invested by purchasing
shares on the 20/th/ day of March, June, September or December, as the case may
be, during that quarter (the "Investment Date"). If that date is not a business
day, then the Investment Date would fall on the immediately preceding business
day. If we resume paying dividends, we either will pay the dividend between the
20/th/ and 30/th/ day of those months, or we will amend the prospectus to notify
you of a different
7
payment schedule. If we do resume dividend payments, the actual dividend payment
date would become the Investment Date both for optional cash payments or
reinvested dividends.
You become the owner of the shares purchased through the Plan on the
Investment Date. However, for federal income tax purposes, the holding period
for such shares commences on the following day.
14. What will be the price of shares purchased under the Plan?
The purchase price per share of shares purchased by you in the Plan with
your reinvested dividends or with optional cash payments on any Investment Date
will be the average of the daily closing prices of the shares reported on the
Nasdaq National Market System for the five trading days immediately preceding
that Investment Date.
If there is no trading in the shares reported on the Nasdaq National Market
System for a substantial amount of time during any such trading day, the
purchase price per share shall be determined by the Company on the basis of such
market quotations as it shall deem appropriate.
15. How many shares will be purchased for participants?
The number of shares purchased for you depends on the amount of your
dividends or optional cash payments and the purchase price per share. Your
account will be credited with that number of shares, including fractions
computed to four decimal places, equal to your total amount to be invested
divided by the applicable purchase price per share.
Costs.
------
16. Are there any out-of-pocket costs to participants in connection with
purchases under the Plan?
No. We will pay all costs of administration of the Plan. There are no
brokerage fees or commissions on shares purchased under the Plan because shares
are purchased from us.
You will incur charges, however, if you request the Agent to sell shares
held in the Plan (see Question 23).
Taxes.
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17. What are the income tax consequences of participation in the Plan?
If we resume paying dividends, automatically reinvesting any dividends
under the Plan would not relieve you of any income tax that may be payable on
such dividends. For federal income tax purposes, you will realize dividend
income on the dividend payment date in an amount equal to the amount of the cash
dividends that would otherwise have been paid to you. Your tax basis for shares
purchased with such reinvested dividends will equal the purchase price (see
Question 13) at which such shares are actually acquired.
8
You will not realize any taxable income upon investing optional cash
payments in additional shares of Common Stock. The tax basis of shares purchased
directly from us with an optional cash payment will be the amount of such
payment.
Your holding period for shares acquired pursuant to the Plan will begin on
the day following the Investment Date on which such shares were purchased.
You will not realize any taxable income when you receive a certificate for
whole shares credited to your account, either upon your request for issue to you
of a certain number of those shares or upon withdrawal from or termination of
the Plan.
You will realize gain or loss when shares are sold or exchanged, whether
such sale or exchange is pursuant to your request to withdraw from the Plan or
takes place after withdrawal from or termination of the Plan. You will also
realize gain or loss if you withdraw from the Plan and receive a cash payment
for a fraction of a share credited to your account. The amount of such gain or
loss will be the difference between the amount you receive for the shares or
fraction of a share and your tax basis, as defined above.
If you fail to provide us with a certified statement of your taxpayer
identification number, dividends and proceeds from the sale of fractional or
whole shares will be subject to federal income tax withholding. In addition, if
you fail to certify that you are not subject to withholding on dividends as a
result of a failure to report all dividend income on prior tax returns, then
dividends generally will be subject to federal income tax withholding. If
withholding from dividends is required, the appropriate amount of tax will be
withheld and the balance will be reinvested. Certain stockholders (including
most corporations) are exempt from the reporting requirements set forth in this
paragraph.
We urge you to consult your own tax advisor to determine the particular tax
consequences that may result from your participation in the Plan and the
subsequent disposal by you of shares purchased pursuant to the Plan, including
state, local and non-United States consequences and any special tax rules if you
are neither a citizen nor a resident of the United States.
18. How are income tax withholding provisions applied to foreign stockholders?
If you are a foreign stockholder whose dividends are subject to United
States income tax withholding, the amount of the tax to be withheld will be
deducted from the amount of dividends to determine the amount of dividends to
reinvest.
Reports to Participants.
-----------------------
19. What kind of reports will be sent to participants in the Plan?
9
Shareholders who participate in the Plan through the reinvestment of any
dividends or the investment of optional cash payments will be sent a quarterly
statement of their accounts for any quarter in which an investment is made.
These statements of account show any cash dividends reinvested and any optional
cash payments received, the number of shares purchased, the purchase price for
the shares, the number of Plan shares held for the participant by the Agent, the
number of shares registered in the name of the participant reinvesting
dividends, and an accumulation of the transactions for the current calendar year
to date. Quarterly statements are mailed as soon as practicable after each
Investment Date. These statements are your continuing record of the cost of
purchases of shares of Common Stock under the Plan, and you should retain the
last cumulative statement of the year for income tax purposes.
If you request a reconstruction of your Plan transactions, you will be
required to reimburse the Agent for its costs in assembling such data if still
available. The Agent will not retain such records indefinitely.
In addition, you will receive copies of all communications sent to our
shareholders, including quarterly reports, annual reports, notices of annual
meetings and proxy statements and income tax information for reporting
distributions (including dividends) paid by us.
Dividends on Fractions of Shares.
--------------------------------
20. Will participants be credited with dividends on fractions of shares?
Yes. If we resume paying dividends, any dividends on fractions of shares,
as well as on whole shares, will be credited to your account and will be
reinvested in additional shares.
Certificates for Shares.
-----------------------
21. Will certificates be issued for shares purchased?
No. Shares purchased through the Plan will be credited to your account
under your name, but they will not be registered in your name. Certificates will
not be issued to you for shares credited to your account unless you request the
Agent in writing to do so or unless your account is terminated. The number of
shares credited to your account under the Plan will be shown on the periodic
statement of your account. This service eliminates the need for safekeeping by
you to protect against loss, theft or destruction of stock certificates.
At any time you may request in writing that the Agent send you a
certificate for all or part of the Common Stock that is credited to your
account. The request should be mailed to the address set forth in Question 4.
Any remaining whole shares and fractions of a share will continue to be
credited to your account.
10
Shares credited to your account under the Plan may not be pledged or
assigned and any such purported pledge or assignment shall be void. If you want
to pledge or assign such shares, you must request that a certificate of such
shares be issued in your name.
We will not issue certificates for fractional shares under any
circumstances.
An institution that is participating in the Plan and is required by law to
maintain physical possession of certificates may request a special arrangement
regarding the issuance of certificates for shares purchased under the Plan. This
request should be mailed to the Agent at the address set forth in Question 4.
22. In whose name will certificates be registered when issued to participants?
Accounts under the Plan are maintained in the name in which your shares are
registered at the time you enter the Plan. Consequently, certificates for whole
shares purchased under the Plan will be similarly registered when issued to you
upon your request. This would constitute reregistration, and you would be
responsible for any transfer taxes that may be due and for compliance with any
applicable transfer requirements. While shares are held in the Plan, they will
be registered in the name of the Agent or in the name of its nominee.
23. May shares held in the Plan be sold or transferred by a participant?
Yes. If you wish to sell any of your shares held in the Plan, you may do so
by submitting to the Agent a written request bearing your signature. Any cash
payment from the sale is reduced by brokerage fees and expenses applicable to
such sale, as well as any applicable transfer tax. Sales are executed weekly.
Proceeds will be forwarded within ten business days after the sale.
If you wish to transfer any number of your shares held under the Plan, you
may do so by submitting to the Agent a written request bearing your signature,
guaranteed by a bank, trust company or member firm of a principal stock
exchange. Certificates will be forwarded within ten business days after the
request is received.
Termination of Participation.
----------------------------
24. How does a participant terminate participation in the Plan?
In order to terminate your participation in the Plan, you must notify the
Agent in writing that you wish to do so. Such notice should be addressed to the
address set forth in Question 4.
Upon termination, you may elect to receive: (a) stock certificates for full
shares held for your account in the Plan, plus a check for the proceeds from the
sale of any fractional share; or (b) a check for the proceeds from the sale of
all shares held for your account, including any fractional share, less any
brokerage fees or commissions and any applicable transfer tax. The sale will be
made by the Agent for your account, at market, as soon as possible after the
Agent receives said notice. The gross proceeds from the sale of shares will be
reported to the Internal Revenue Service and to you.
11
The price used for payment of fractional shares will be the closing price
of the Common Stock on the Nasdaq National Market System on the date the Agent
receives the notice of termination is received by the Agent or on the next
preceding business day on which it is so traded, if there is no trading on the
date of receipt.
25. When may a participant terminate participation in the Plan?
You may terminate your participation in the Plan at any time.
If the request to terminate is received at least five business days prior
to the record date for a dividend, any cash dividend paid on that dividend
payment date will be paid to you by check. The request for termination will then
be processed as promptly as possible following such dividend payment date.
Any subsequent dividends will be paid to you by check unless you re-enroll
in the Plan, which you may do at any time.
The Agent may terminate your account by mailing a 30-day notice of
termination to you at your last address of record with the Agent.
Other Information.
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26. What happens when a participant sells or transfers all of the shares
registered in his name?
If you dispose of all shares registered in your name, the Agent will
continue to reinvest the dividends on shares credited to your account under the
Plan, subject to your right to withdraw from the Plan at any time.
27. What happens when a participant sells or transfers some but not all of the
shares registered in his name?
If you are reinvesting the cash dividends on all of the shares registered
in your name (i.e., if you have elected Option A described in Question 9), and
you dispose of a portion of such shares, the Agent will continue to reinvest any
future dividends on the remainder of the shares registered in your name.
28. What happens if the Company issues a dividend payable in stock or declares
a stock split?
Any dividend payable in stock or split shares distributed by us on shares
credited to your account under the Plan will be added to your account.
12
Stock dividends or split shares distributed on shares registered in your
name will be mailed directly to you in the same manner as to stockholders who
are not participating in the Plan.
29. If the Company has a rights offering, how will the rights on the Plan
shares be handled?
In the event of a rights offering, rights on shares of Common Stock
credited to your account under the Plan will be sold by the Agent. The proceeds
of the sale will be credited to your account and used as an optional cash
payment to purchase Common Stock for your account on the first dividend payment
date following the sale.
30. How is a participant's Plan account handled when a participant dies?
Your account will be held by the Agent and any cash dividends will be
reinvested as usual until the Agent receives a death certificate and written
instructions from the legal representative of your estate to withdraw the
shares. The certificate delivered to your representative will be registered in
the exact name as indicated in the account. No optional cash payments may be
made in your name after death. These same procedures will be followed in the
event you are adjudicated incompetent.
31. How will a participant's shares held by the Agent be voted at stockholders'
meetings?
Shares held by the Agent for you will be voted as you direct.
A proxy card will be sent to you in connection with any annual or special
meeting of stockholders as in the case of stockholders not participating in the
Plan. This proxy will apply to all whole shares registered in your own name, if
any, as well as to all whole shares credited to your account under the Plan and,
if properly signed, will be voted in accordance with the instructions that you
give on the proxy card.
As in the case of non-participating stockholders, if no instructions are
indicated on a properly signed and returned proxy card, all of your whole shares
- those registered in your name, if any, and those credited to your account
under the Plan - will be voted in accordance with the recommendations of our
management. If the proxy card is not returned or is returned but not properly
signed, your shares would be voted only if you or a duly appointed
representative vote in person at the meeting.
32. What are the responsibilities of the Company and the Agent under the Plan?
Neither we nor the Agent will be liable under the Plan for any act done in
good faith or for any good faith omission to act, including, without limitation,
any claim of liability arising out of failure to terminate your account upon
your death, the prices at which shares are purchased for your account, the times
when purchases are made, or fluctuation in market value of the Common Stock.
13
33. Does participation in the Plan involve risk?
The Plan itself creates no risk. The risk to you is the same as with any
other investment in shares of the Common Stock. Since purchase prices are
established on the Investment Date, you lose any advantage otherwise available
from being able to select the timing of investments. You should recognize that
neither we nor the Agent can assure a profit or protect against a loss on shares
of Common Stock purchased under the Plan. We have included a summary of various
important potential risks in our Annual Report on Form 10-K, which we have filed
with the Securities and Exchange Commission.
34. Who interprets and regulates the Plan?
We reserve the right, acting in good faith, to interpret and regulate the
Plan as deemed desirable or necessary in connection with the Plan's operations.
35. Do I need to notify the Agent if my address is changed?
Yes. You should promptly notify the Agent of address changes by letter
addressed to the Agent as set forth in Question 4.
36. May the Plan be changed or discontinued?
Notwithstanding any other provision of the Plan, our Board of Directors
reserves the right to amend, modify, suspend or terminate the Plan at any time,
including the period between a record date and a dividend payment date. We will
mail to all participants notice of any material amendment or modification, or of
any suspension or termination. Unless otherwise required by law, amendments will
be effective no sooner than 30 days after written notice to participants.
Upon termination of the Plan, a certificate for whole shares credited to
your account under the Plan will be issued and a cash payment will be made for
any fraction of a share credited to your account. Such cash payment will be
based on the closing price of the Common Stock reported on the Nasdaq National
Market System for such dates as are set forth in the notice of termination.
We intend to use our best efforts to maintain the effectiveness of the
Registration Statement filed with the Securities and Exchange Commission
covering the offer and sale of Common Stock under the Plan. However, we have no
obligation to offer, issue or sell Common Stock to participants under the Plan
if, at the time of the offer, issuance or sale, such Registration Statement is
not effective for any reason. Also, we may elect not to offer or sell Common
Stock under the Plan to participants residing in any jurisdiction or foreign
country where, in our judgment, the burden of expense of compliance with
applicable blue sky or securities laws make such offer or sale there
impracticable or inadvisable. In any of these circumstances, dividends, if and
when declared, will be paid in the usual manner to the shareholders and any
optional cash payments received from such shareholder will be returned to him or
her, without interest.
14
37. What happens if the Agent cannot make purchases?
If we determine not to sell that number of shares required to invest funds
available for investment, neither we nor the Agent shall be accountable for the
inability to make purchases at such times. The Agent will promptly mail to the
participant a check payable to the participant's order in the amount of any
unapplied funds, without interest.
38. How may stockholders obtain answers to other questions regarding the Plan?
Any additional questions should be addressed to:
First Union National Bank
Shareholders Services Department
1525 West WT Harris Boulevard, 3C3
Charlotte, NC 28288-1153
Stockholders should mention American Software, Inc. in their correspondence
and, if applicable, furnish Plan account numbers. Inquiries may be made to the
Agent by telephone at 1-800-829-8432.
39. What is sufficient notice to a participant?
Any notice, statement, or report which by any provision of the Plan is
required to be given to the participant shall be in writing and shall be deemed
to have been sufficiently given by being deposited, postage prepaid in a post
office letter box addressed to the participant at the participant's address as
it shall last appear on the Agent's records.
40. What law governs the Plan?
The terms of the Plan and its operation are governed by the laws of the
State of North Carolina, subject to the Georgia Business Corporation Code, as
necessary, and to any federal laws regulating the Company and the Agent.
15
USE OF PROCEEDS
We do not know either the number of shares that will ultimately be
purchased under the Plan or the prices at which such shares will be sold. We
intend to add any proceeds we receive from sales of our shares to our general
funds to be available for general corporate purposes, including capital
expenditures. We are unable to estimate the amount of the proceeds that will be
devoted to any specific purpose.
DESCRIPTION OF COMMON STOCK
Our authorized common stock consists of 50,000,000 shares of Class A Common
Stock ($.10 par value) and 10,000,000 shares of Class B Common Stock ($.10 par
value).
Dividends.
---------
No cash or property dividend may be paid to holders of shares of Class B
Common Stock during any fiscal year unless a dividend of $.05 per share has been
paid in such year on each outstanding share of Class A Common Stock. This $.05
per share annual dividend preference is noncumulative. Dividends per share of
Class B Common Stock during any fiscal year may not exceed dividends paid per
share of Class A Common Stock during such year. Dividends, other than stock
dividends, may be declared and paid on shares of Class A Common Stock without
being declared and paid on shares of Class B Common Stock. Otherwise each class
has identical dividend rights.
A distribution paid in shares of Class A Common Stock or Class B Common
Stock may only be paid as follows: (a) shares of Class A Common Stock may be
paid only to holders of shares of Class A Common Stock and shares of Class B
Common Stock may be paid only to holders of shares of Class B Common Stock; and
(b) the same number of shares shall be paid in respect of each outstanding share
of Class A or Class B Common Stock. See "Description of Common Stock - Other
Rights" for other restrictions on issuance of Class B Common Stock. The Company
may not subdivide or combine shares of either class without at the same time
proportionately subdividing or combining shares of the other class.
Voting Rights.
-------------
Except for the election or removal of Directors and except for class votes
as required by law or our Articles of Incorporation, holders of both classes of
common stock vote as a single class on all matters, with each share of Class A
Common Stock entitled to cast one-tenth vote per share and each share of Class B
Common Stock entitled to cast one vote per share. Neither class has cumulative
voting rights.
16
Holders of Class A Common Stock, as a class, are entitled to elect 25% of
the Board of Directors (rounded up to the nearest whole number of Directors) if
the number of outstanding shares of Class A Common Stock is at least 10% of the
number of outstanding shares of both classes of common stock. Currently, under
this formula, the holders of Class A Common Stock are entitled, as a class, to
elect two directors of the Company, and the holders of the Class B Common Stock
are entitled, as a class, to elect six directors. Directors may be removed, with
or without cause, by the holders of the class of common stock that elected them.
The holders of a majority of the Class B Common Stock can and will continue to
be able to elect a majority of the directors and thereby control us, regardless
of the number of shares of Class B Common Stock outstanding from time to time.
In the future, if the outstanding shares of Class A Common Stock constitute
less than 10% of the total shares of both classes of common stock outstanding,
the holders of Class A Common Stock would lose the right to elect 25% of the
Board of Directors. Instead, such holders would be entitled to cast one-tenth
vote per share for all Directors, and the holders of Class B Common Stock would
be entitled to cast one vote per share for all Directors.
Conversion.
----------
Each share of Class B Common Stock is convertible at any time into one
share of Class A Common Stock at the option of the holder.
Other Rights.
------------
Our Class A Stockholders have no preemptive or other rights to subscribe
for additional shares. Class B Stockholders have preemptive rights only as to
Class B Common Stock. Class B Common Stock is subject to the restriction that it
may not be issued or sold without the approval of holders of a majority of the
Class B Common Stock. Accordingly, the Board of Directors must seek approval of
the Class B Stockholders in order to enter into certain transactions which would
involve issuance of additional shares of Class B Common Stock, such as a stock
dividend. On liquidation, the Class A Stockholders are entitled to a
preferential distribution of the par value of such shares ($.10 per share)
before any distribution is made to the Class B Stockholders. No shares of either
class are subject to redemption.
LEGAL OPINION
The legality of the securities offered hereby has been passed upon for us
by Gambrell & Stolz, L.L.P., Suite 4300, SunTrust Plaza, 303 Peachtree Street,
N.E., Atlanta, Georgia 30308. Gambrell & Stolz, L.L.P. is general counsel to the
Company. David H. Gambrell is a partner in that firm, and a Director of the
Company. In addition, certain lawyers of such firm are shareholders of the
Company, beneficially owning 60,000 shares of the Class A Common Stock.
17
EXPERTS
The financial statements and schedules of American Software, Inc. as of
April 30, 2001 and 2000, and for each of the years in the three-year period
ended April 30, 2001, incorporated by reference herein and elsewhere in the
registration statement have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
auditors, incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing.
INDEMNIFICATION
Article IV, Section 11(a) of our Bylaws provide for indemnification of our
directors and officers. Such indemnification provisions and the controlling
provisions of the Georgia Business Corporation Code may be sufficiently broad to
permit indemnification for liabilities arising under the Securities Act of 1933.
Rights to indemnification, defense and insurance include and are in
addition to any rights to indemnification, defense and insurance as may now or
hereafter be provided by Georgia law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, we have 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.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
-------------------------------------------
*Agent's Fees and Service Charges $ 5,000
*Legal Fees and Expenses $ 5,000
*Accountant's Fees and Expenses $ 1,500
*Printing Costs $ 2,500
Total Expenses $14,000
___________________
*Estimated through one year from the date of the Prospectus.
Item 15. Indemnification of Directors and Officers
-----------------------------------------
Under Article IV, Section 11(a) of Registrant's By-Laws, provision is made
for indemnification of Registrant's directors and officers. Such indemnification
provisions and the controlling provisions of the Georgia Business Corporation
Code may be sufficiently broad to permit indemnification for liabilities arising
under the Securities Act of 1933.
Under Article IV, Section 11(d) of the Registrant's By-Laws, the Registrant
may furnish its directors and officers with directors and officers liability
insurance. The Registrant has obtained Directors and Officers Liability
Insurance coverage for liability incurred by its directors and officers for
"Wrongful Acts" actually or allegedly incurred before or during the policy
coverage. The coverage, which has certain deductibles and exclusions, includes
liability incurred by a director or officer and for which the Registrant would
be required or permitted to indemnify the director or officer.
The Registrant has entered into indemnity contracts with its directors and
has the authority to enter into such contracts with its officers. Such contracts
obligate the Registrant to indemnify the contracting director or officer to the
full extent permitted by law to the extent not covered by liability insurance.
Rights to indemnification, defense and insurance include and are in
addition to any rights to indemnification, defense and insurance as may now or
hereafter be provided by Georgia law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, the Company 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.
II-1
Item 16. Exhibits
--------
The following exhibits are filed herewith or incorporated herein by reference:
4.1 The Company's Amended and Restated Articles of Incorporation, and
amendments hereto, included as Exhibit 3.1 to the Company's Form
10-Q for the quarter ended October 31, 1990, and incorporated
herein by this reference.
4.2 The Company's Amended and Restated By-Laws dated November 13,
1989, included as Exhibit 3.1 to the Form 10-Q for the quarter
ended January 31, 1990, and incorporated herein by this
reference.
4.3 Dividend Reinvestment and Stock Purchase Plan of American
Software, Inc., included within the Prospectus.
5.1 Opinion of Counsel.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (included within Exhibit 5.1).
24.1 Power of Attorney (included on Page II-4 hereof).
Item 17. Undertakings
------------
The 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:
(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,
represents a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and 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 the purpose of determining any liability under the Securities
Act of 1933, 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.
(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.
(4) 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 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.
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-3 and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 to be
signed on its behalf by the undersigned thereunto duly authorized in the City of
Atlanta, State of Georgia, on December 3, 2001.
AMERICAN SOFTWARE, INC.
By: /s/ James C. Edenfield
--------------------------------------------
James C. Edenfield, President and
Chief Executive Officer
II-3
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 true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully 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 December 3, 2001
-------------------------------- Officer, Treasurer and Director
James C. Edenfield
/s/ Thomas L. Newberry Chairman of the Board of December 3, 2001
-------------------------------- Directors
Thomas L. Newberry
/s/ J. Michael Edenfield Director, Executive December 3, 2001
-------------------------------- Vice President
J. Michael Edenfield
/s/ David H. Gambrell Director December 3, 2001
--------------------------------
David H. Gambrell
/s/ W. Dennis Hogue Director December 3, 2001
--------------------------------
W. Dennis Hogue
/s/ John J. Jarvis Director December 3, 2001
--------------------------------
John J. Jarvis
/s/ Thomas L Newberry, V Director December 3, 2001
--------------------------------
Thomas L. Newberry, V
/s/ Thomas R. Williams Director December 3, 2001
--------------------------------
Thomas R. Williams
/s/ Vincent C. Klinges Chief Financial Officer December 3, 2001
--------------------------------
Vincent C. Klinges
/s/ Deirdre J. Lavender Controller and Principal December 3, 2001
-------------------------------- Accounting Officer
Deirdre J. Lavender
II-4
EXHIBIT INDEX
Exhibit
Number Exhibit Description
5.1 Opinion of Counsel.
23.1 Consent of Independent Auditors.
24.1 Power of Attorney (included on Page II-4 hereof).
II-5