Exhibit 10.1
AMENDED AND
RESTATED
AMERICAN SOFTWARE,
INC.
2001 STOCK OPTION
PLAN
(Effective November 17,
2008)
American Software, Inc., a Georgia
corporation (the “Company”), hereby establishes the
American Software, Inc. 2001 Stock Option Plan (the
“Plan”), effective as of May 16, 2000, the date on
which this Plan was adopted by the Board of Directors of the
Company. No Options shall be granted under this Plan until
(a) it has been approved by the affirmative vote of
shareholders holding a majority in voting power of the Common Stock
of the Company or (b) September 1, 2000, whichever shall
occur later (the “Commencement Date”). Options may not
be granted under the Plan more than ten years after May 16,
2000.
1.
Purpose . The purpose of the Plan is to attract and retain
the best available talent and encourage the highest level of
performance by officers, employees, directors, advisors and
consultants, and to provide them with incentives to put forth
maximum efforts for the success of the Company’s business in
order to serve the best interests of the Company. Options granted
under the Plan may be Incentive Stock Options or Nonqualified Stock
Options, as such terms are hereinafter defined.
2.
Definitions . The following terms, when used in the Plan
with initial capital letters, will have the following
meanings:
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(a)
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“Act” means the Securities Exchange
Act of 1934 as in effect from time to time.
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(b)
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“Board” means the Board of Directors
of the Company.
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(c)
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“Change
in Control” means the occurrence, prior to the expiration of
an Option, of any of the following events:
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(i)
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the Company is
merged, consolidated or reorganized into or with another
corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than two-thirds of the
combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors (“Voting
Stock”) of such corporation or person immediately after such
transaction are held in the aggregate by the holders of Voting
Stock of the Company immediately prior to such
transaction;
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(ii)
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the Company
sells or otherwise transfers all or substantially all of its assets
to another corporation or other legal person, and as a result of
such sale or transfer less than two-thirds of the combined voting
power of the then-outstanding Voting Stock of such corporation or
person immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company immediately
prior to such sale or transfer;
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(iii)
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there is a
report filed on Schedule 13D or Schedule 14D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the Act,
disclosing that any person (as the term “person” is
used in Section 13(d)(3) or Section 14(d)(2) of the Act)
has become, after the effective date hereof, the direct or indirect
beneficial owner (as the term “beneficial owner” is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Act) of securities representing 50% or more
of the combined voting power of the then-outstanding Voting Stock
of the Company other than by gift or inheritance;
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(iv)
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the Company
files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Act disclosing in response to Form 8-K
or Schedule 14A (or any successor schedule, form or report or item
therein) that a change in control of the Company has occurred or
will occur in the future pursuant to any then-existing contract or
transaction; or
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(v)
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if, during any
period of two consecutive years, individuals who at the beginning
of any such period constitute the directors of the Company cease
for any reason to constitute at least a majority thereof; provided,
however, that for purposes of this clause (v) each director
who is first elected, or first nominated for election by the
Company’s stockholders, by a vote of at least two-thirds of
the directors of the Company (or a committee thereof) then still in
office who were directors of the Company at the beginning of any
such period will be deemed to have been a director of the Company
at the beginning of such period; and provided further that this
clause (v) shall not commence applicability until such time as
at least five directors are serving concurrently on the Board, but
shall apply thereafter regardless of the number of
directors.
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Notwithstanding the foregoing
provisions of clauses (iii) or (iv) above, unless
otherwise determined in a specific case by majority vote of the
Board, a “Change in Control” will not be deemed to have
occurred for purposes of clause (iii) or clause
(iv) above solely because (1) the Company, (2) a
Subsidiary, or (3) any Company-sponsored employee stock
ownership plan or any other employee benefit plan of the Company or
any Subsidiary either files or becomes obligated to file a report
or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) under the Act disclosing beneficial
ownership by it of shares of Voting Stock of the Company, whether
in excess of 50% or otherwise, or because the Company reports that
a change in control of the Company has occurred or will occur in
the future by reason of such beneficial ownership or any increase
or decrease thereof. For purposes of clauses (i), (ii) and
(iii) above, for so long as the entity in question maintains
two classes of common stock substantially as currently maintained
by the Company, the phrase “combined voting power of the
then-outstanding Voting
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Stock” shall be calculated by allocating
to each Class A Common Share one vote and by allocating to
each Class B Common Share three votes.
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(d)
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“Code” means the Internal Revenue
Code of 1986, as in effect from time to time.
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(e)
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“Commencement Date” shall mean
May 1, 2001 or the date the shareholders of the Company
approve the Plan, whichever occurs later.
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(f)
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“Committee” shall refer to either
the Stock Option Committee or the Special Stock Option
Committee.
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(g)
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“Common
Stock” means the Class A Common Shares, $.10 par value,
of the Company or any security into which Class A Common
Shares may be changed by reason of any transaction or event of the
type described in Section 9.
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(h)
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“Date of
Grant” means the date specified by the Stock Option Committee
or the Special Stock Option Committee, as applicable, on which a
grant of Stock Options will become effective (which date will not
be earlier than the date on which such Committee takes action with
respect thereto).
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(i)
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“Disability” means (i) with
respect to a Grantee who is eligible to participate in the
Company’s program of long-term disability insurance, a
condition with respect to which the Grantee is entitled to commence
benefits under such program of long-term disability insurance, and
(ii) with respect to all Grantees generally (including a
Grantee who is eligible to participate in the Company’s
program of long-term disability insurance), a disability as
determined under procedures established by the relevant Committee
or in any Option Grant Agreement.
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(j)
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“Grantee” means a person who is
selected by the Stock Option Committee or the Special Stock Option
Committee, as applicable, to receive Stock Options and who is at
that time (i) an executive officer or other key employee of
the Company or any Subsidiary, (ii) an advisor or consultant
to the Company or any Subsidiary, or (iii) a member of the
Board.
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(k)
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“Incentive Stock Option” means an
Option granted in accordance with Section 422 of the
Code.
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(l)
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“Market
Value” means last sale price as reported on any national
securities exchange or automated quotation system on which the
Common Stock is listed on the Date of Grant if such date is a
trading day and, if such date is not a trading day, on the
immediately preceding date which is a trading day.
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(m)
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“Nonemployee Director” means a
member of the Board who is not an employee of the Company or any
Subsidiary and who qualifies as a “Non-Employee
Director” within the meaning of Rule 16b-3.
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(n)
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“Nonqualified Stock Option” means an
Option other than an Incentive Stock Option.
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(o)
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“Option
Grant Agreement” means the instrument by which the Company
grants an Option to a Grantee, which instrument contains the
particular terms of such Option in addition to the terms set forth
in the Plan.
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(p)
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“Option
Price” means the purchase price per share payable on exercise
of an Option.
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(q)
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“Rule
16b-3” means Rule 16b-3 under Section 16 of the Act, as
such Rule is in effect from time to time.
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(r)
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“Special
Stock Option Committee” means a committee that at all times
consists of at least two Nonemployee Directors and all of whose
members qualify as “outside directors” within the
meaning of Section 162(m) of the Code, appointed by the Board
to grant and administer Options granted under
Section 5.
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(s)
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“Option” means the right to purchase
shares of Common Stock upon exercise of Stock option granted
pursuant to Section 4, Section 5 or
Section 6.
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(t)
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“Stock
Option Committee” means the stock option committee appointed
by the Board to grant and administer Options granted under
Section 4.
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(u)
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“Subsidiary” means any corporation,
partnership, joint venture or other entity in which the Company
owns or controls, directly or indirectly, not less than 50% of the
total combined voting power or equity interests represented by all
classes of stock issued by such corporation, partnership, joint
venture or other entity.
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(v)
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“10-Percent Shareholder” means any
person who at the time of the grant of an Option owns capital stock
of the Company possessing more than 10% of the combined voting
power of all classes of capital stock of the Company.
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3. Shares
Available Under Plan . The shares of Common Stock that may be
issued under the Plan will not exceed in the aggregate 5,275,000
shares, subject to adjustment as provided in Section 9. Such
shares may be shares of original issuance or treasury shares or a
combination of the foregoing. Any shares of Common Stock that are
subject to Stock Options that are terminated, expire unexercised,
are forfeited or are surrendered will again be available for
issuance under the Plan.
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4. Stock
Options for Grantees - Nonexempt Grants . The Stock Option
Committee may from time to time authorize Option grants to any
Grantee to purchase shares of Common Stock upon such terms and
conditions as such Committee may determine in accordance with the
provisions set forth below. Grants made by the Stock Option
Committee pursuant to this Section 4 are not intended to
comply with or otherwise satisfy the requirements of Rule
16b-3.
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(a)
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Each Option
Grant Agreement shall specify the number of shares of Common Stock
to which it pertains.
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(b)
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Each Option
Grant Agreement shall specify the Option Price, which, in the case
of a Nonqualified Stock Option or an Incentive Stock Option, shall
be not less than 100% of the Market Value per Share on the Date of
Grant or, in the case of an Incentive Stock Option granted to a 10%
Shareholder, not less than 110% of the Market Value per Share on
the Date of Grant.
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(c)
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Each Option
Grant Agreement shall specify whether the Stock Option is intended
to be an Incentive Stock Option or a Nonqualified Stock
Option.
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(d)
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Each Option
Grant Agreement may specify whether the Option Price will be
payable (i) in cash or by check acceptable to the Company,
(ii) by the transfer to the Company of shares of Common Stock
owned by the Grantee for at least six months having an aggregate
fair market value per share at the date of exercise equal to the
aggregate Option Price, or (iii) by a combination of such
methods of payment; provided, however, that the payment method
described in clause (ii) shall not be available at any time
that the Company is prohibited from purchasing or acquiring such
shares of Common Stock. In the absence of any such specification,
only the payment method in clause (i) shall be permitted. Any
Option Grant Agreement may provide for deferred payment of the
Option Price from the proceeds of sale through a bank or broker of
some or all of the shares to which such exercise
relates.
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(e)
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Each Option
Grant Agreement shall specify the term of the Stock Option, which
in the case of an Incentive Stock Option granted to a 10%
Shareholder shall not be greater than five years and for all other
Stock Options shall not be greater than ten years.
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(f)
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Each Option
Grant Agreement shall specify the required period or periods (if
any) of continuous service by the Grantee with the Company or any
Subsidiary and any other conditions to be satisfied b
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