Electronically transmitted to the Securities and Exchange Commission
on July 27, 2000
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIGHTNING ROD SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1614808
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
7301 Ohms Lane, Suite 600
Edina, Minnesota 55439
(952) 837-4000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Willem J. Ellis
Chief Executive Officer
Lightning Rod Software, Inc.
7301 Ohms Lane, Suite 600
Edina, Minnesota 55439
(952) 837-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
David C. Grorud, Esq.
Melodie R. Rose, Esq.
Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402
(612) 347-7000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being offered 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, please check the following box. [ X ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of 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. [ ]
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================= ==================== ==================== ================== ===============
Title of Securities to be Registered Amount Proposed Maximum Proposed Maximum Amount of
to be Registered Offering Price per Aggregate Registration
Unit(1) Offering Price(1) Fee
======================================= ==================== ==================== ================== ===============
<S> <C> <C> <C> <C>
Common Stock to be offered by Selling 2,095,549 $5.2187 $10,936,041 $2,887
Shareholders
======================================= ==================== ==================== ================== ===============
</TABLE>
(1) For purposes of calculating the registration fee pursuant to Rule
457(c) under the Securities Act of 1933, such amount is based upon the
average of the high and low prices of the registrant's Common Stock on
July 25, 2000 (a date within five business days prior to the date of
filing).
The registrant amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
LIGHTNING ROD SOFTWARE, INC.
2,095,549 Shares of Common Stock
This Prospectus relates to the offer and sale of up to 2,095,549 shares
of common stock, $.01 par value, of Lightning Rod Software, Inc., a Delaware
corporation, that may be offered and sold from time to time by persons who are
currently shareholders of Lightning Rod or who may become shareholders upon
conversion of Notes or exercise of warrants to purchase shares of Lightning Rod
common stock, or by pledgees, donees, transferees, or other successors in
interest that receive such shares as a gift, distribution, or other non-sale
related transfer. The selling shareholders may offer their shares from time to
time through or to brokers or dealers in the over-the-counter market at market
prices prevailing at the time of sale or in one or more negotiated transactions
at prices acceptable to the selling shareholders. We will not receive any
proceeds from the sale of shares by the selling shareholders. See "Plan of
Distribution."
Our common stock is traded on the Nasdaq SmallCap Market under the
symbol "LROD." The closing sale price on July 25, 2000, as reflected on the
Nasdaq SmallCap Market, was $4.8125 per share.
-----------------------
For information concerning certain risks relating
to an investment in Lightning Rod common stock
see "Risk Factors" beginning on page 4.
-----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these shares or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is July 26, 2000
<PAGE>
TABLE OF CONTENTS
Page
ABOUT LIGHTNING ROD......................................................3
RISK FACTORS.............................................................4
USE OF PROCEEDS.........................................................10
SELLING SHAREHOLDERS....................................................10
PLAN OF DISTRIBUTION....................................................14
SECURITIES AND EXCHANGE COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES.......................15
WHERE YOU CAN FIND MORE INFORMATION.....................................16
2
<PAGE>
ABOUT LIGHTNING ROD
Lightning Rod Software, Inc. was organized as a Delaware corporation in
1988 under the name Anubis Corp. In February 1990, we changed our name to CE
Software Holdings, Inc. when we acquired all of the common stock of CE Software,
Inc., an Iowa corporation, which develops computer software products that
enhance communications, connectivity and productivity for businesses and
home-based personal computer users. In April 2000, we distributed to our
shareholders the stock of CE Software, Inc., we merged with ATIO Corporation
USA, Inc., and we changed our name to Lightning Rod Software, Inc. Since the
time of the merger and spin-off, our business has been the business formerly
operated by ATIO.
We are a leader in providing proactive e-business customer service
software to personalize the customer interaction experience and build customer
loyalty. We improve e-business customer loyalty by anticipating customer needs
and providing superior real time customer service response. We implement unique
solutions for both new e-commerce businesses and existing bricks and mortar
companies (collectively, "e-businesses") that market products or services or
engage in business-to-consumer or business-to-business transactions over the
Internet.
Our primary product, Lightning Rod Interaction Manager is an
integrated, modular and scalable customer service solution that delivers
responsive, personalized service and can be tailored to meet specific customer
service center requirements via the customer-preferred communications medium,
including Web callback, chat, e-mail, Web collaboration, Voice over the Web, fax
and telephone. Since the Web is an arena for instant gratification, e-shoppers
recognize that competing Web sites are only a mouse click away. Customer loyalty
can be lost following an unsatisfactory experience with an e-business
transaction. Companies delivering a high level of customer service are more
likely to be successful in building a loyal customer following. We believe that
Lightning Rod Interaction Manager's unique ability to enable customer service
anytime, anywhere, through a variety of media, gives our e-business customers a
competitive edge in their marketplace.
Lightning Rod Interaction Manager has won numerous industry awards
including Editor's Choice awards, Judge's Pick, and multiple Product of the Year
awards from leading trade call center and computer telephony publications.
Lightning Rod Interaction Manager provides a single, integrated solution capable
of processing thousands of interactions per hour and is:
o easily deployed;
o modular, for easy configuration;
o scalable;
o capable of real-time and historical reporting on customer
interactions;
o built upon open standards and open systems for easy integration; and
o switch independent.
Lightning Rod Interaction Manager handles interactions efficiently to
increase customer loyalty, integrates with legacy technologies to allow faster
time to market and prioritizes and routes interactions to the most qualified
customer service representative, thus optimizing operational effectiveness.
The market for customer interaction software is projected to grow from
$580 million in 1998 to $3.1 billion in 2003, according to Ovum. We believe that
3
<PAGE>
the strongest target market exists in the e-business arena with customer service
operations between ten and 200 customer service representatives ("CSRs"). We
believe this market segment is underserved by the industry and shows much
greater growth potential than the higher end of the market.
Since the full production launch of Lightning Rod Interaction Manager
3.0 in August 1999, we have licensed our unique solutions to numerous innovative
e-businesses including e-style.com, babystyle.com, Stockwalk.com, Invacare, Gage
Marketing and State Capitol Credit Union. We are focusing on niche e-tailing,
online brokerage, e-customer service and online entertainment providers. Our
distribution strategy is to establish customer reference sites through a direct
sales effort, while establishing strategic relationships with qualified reseller
partners. Our current primary reseller is Norstan Communications. We also
provide our end-user customers and resellers with technical support, training
and professional services.
Our objective is to be the leading provider of customer interaction
software solutions that optimize and personalize the customer interaction
experience and build customer loyalty for growing e-businesses. Our strategy for
achieving this objective incorporates the following key elements:
o expand our leading technology position;
o increase our distribution capabilities;
o build market and brand awareness;
o enhance our product offering; and
o further develop our strategic partnerships.
RISK FACTORS
You should carefully consider the following risk factors, together with
other information contained or incorporated by reference in this prospectus, in
evaluating whether to invest in our shares.
Our business has never generated profitable operations and it is uncertain
whether it ever will be profitable.
Our business has never generated a profit. We have had accumulated
deficit of $14.9 million through March 31, 2000. A number of factors have
influenced our profitability, including the lack of financing, the inability to
invest in growth of reseller partnerships, limited marketing investment, the
substantial competition in the call center software market, the lack of
significant customer experience with Lightning Rod Interaction Manager in the
United States, and the rapidly changing nature of computer telephony technology.
We cannot be certain that these factors will not continue to negatively
influence our profitability. We have a limited history of operations from which
investors can evaluate our business and prospects. We face risks and
uncertainties relating to our ability to successfully implement our business
plan.
There are a number of other companies developing products for the multiple media
call-center market.
Although we believe we have a technologically advanced product, there
are a number of other companies that are developing products to allow
communications in multiple media to be handled by call-center personnel. In
addition, a number of companies offer products that perform some of the same
4
<PAGE>
functions as our software products. Some of our existing competitors, as well as
a number of potential competitors, have larger technical staffs, more
established and larger marketing and sales organizations, and significantly
greater financial resources than us. There can be no assurance that such
competitors will not develop products that are superior to our products or that
achieve greater market acceptance. Our future success will depend significantly
upon our ability to increase our share of our target markets and to license
additional products and product enhancements to existing customers. There can be
no assurance that we will be able to compete with companies that have
significantly greater resources and contacts within the industry, or that
competition will not have a material adverse effect on our results of
operations.
We are dependent on the services of our technical staff and of Willem Ellis, our
CEO, and would be severely affected if Mr. Ellis and such staff were no longer
available.
Our success is dependent in large part upon our ability to attract and
retain key management and operating personnel, as well as technical staff. Such
individuals are in high demand and are often subject to competing offers. In the
future, we will need to hire additional skilled personnel in such areas as
general management, research and development, sales, marketing and
manufacturing. There can be no assurance that we will be able to attract and
retain the qualified personnel needed for our business or that such personnel
will be available locally.
In addition, our future success will depend on our ability to retain
the services of our officers and directors, especially Willem Ellis, our
director, President and Chief Executive Officer. The loss by us of the services
of Mr. Ellis would have a material adverse effect on us.
We may not be able to grow the business as planned if we do not maintain
successful relationships with our reseller partners and continue to recruit and
train additional resellers.
Our ability to achieve revenue growth in the future will depend in part
on our success in maintaining successful relationships with our existing
resellers and in recruiting, training and retaining additional resellers. We
rely primarily on resellers to market and support our products. We are still
developing and refining our reseller distribution network. We may be unable to
attract additional resellers with the expertise that will be able to market our
products effectively and that will be qualified to provide timely and
cost-effective customer support and service. The loss of specific larger
resellers or a significant number of resellers could materially adversely affect
our business, financial condition or results of operations.
The computer software market is changing rapidly and access to service bureaus
and other distributed computing techniques over the Internet and other wide-area
networks could affect us.
The computer industry is characterized by rapid technological advances,
changes in customer requirements, and frequent new product introductions and
enhancements. Our future success will depend upon our ability to enhance our
current products and to develop and introduce new products that keep pace with
technological developments, respond to evolving customer requirements, and
achieve market acceptance. In particular, although we believe our products are
well suited to support e-commerce, we believe we must continue to respond
quickly to user needs and use of expanding Internet capabilities. Any failure by
us to anticipate or respond adequately to technological developments and
customer requirements, or any significant delays in product development or
introduction, could result in a loss of competitiveness and revenues. There can
be no assurance, however, that we will be successful in developing and marketing
new products or product enhancements on a timely basis or that we will not
experience significant delays in the future which could have a material adverse
5
<PAGE>
effect on our results of operations. In addition, there can be no assurance that
new products or product enhancements developed by us will achieve market
acceptance.
We will rely primarily on trade-secret protection, and we cannot assure you that
a competitor would not copy our software.
Our success may depend in part on our ability to preserve our trade
secrets and to operate without infringing the proprietary rights of third
parties. Although we currently hold trademarks related to our product offerings,
and distribute our software only in object code, there can be no assurances that
such measures would present a substantial barrier to entry by a competitor. We
may lack the financial and legal resources effectively to pursue infringers of
our intellectual property rights. Moreover, we cannot be certain that our
products do not infringe upon proprietary rights held by others, and in the
event there are patent infringement suits by other companies, any litigation
could result in substantial cost to, and diversion of effort by, us.
Several important members of our technical staff and management are neither
citizens nor residents of the United States of America.
A large number of our technical staff and a majority of our current
management are not citizens of the United States of America. Obtaining the
necessary approvals and visas for these personnel to both work in the United
States and to immigrate if necessary is a complicated and lengthy process which
is outside our control. Delay in or refusal to grant appropriate visas to these
personnel, may cause the future development of products or our operations to be
adversely affected. We started the immigration process with the INS in the
fourth quarter of 1999.
Dialogic Corporation may become unwilling or unable to continue to manufacture
and supply us with voice processing boards, requiring us to introduce a
substitute supplier which could prove difficult or costly.
Dialogic Corporation is currently our only supplier of the voice
processing boards that are necessary for the operation of Lightning Rod
Interaction Manager. If Dialogic Corporation becomes unable or unwilling to
continue to manufacture and supply these voice processing boards in the volume,
price and technical specifications we require, then we would have to adapt our
products to a substitute supplier. Introducing a new supplier of voice
processing boards could result in unforeseen additional product development or
customization costs and could also introduce hardware and software operating or
compatibility problems. These problems could affect product shipments, be costly
to correct or damage our reputation in the markets in which we operate, and
could have a material adverse effect on our business, financial condition or
results of operations.
Intel Corporation acquired Dialogic Corporation. While Intel
Corporation does not currently offer a product that competes with Lightning Rod
Interaction Manager, Intel Corporation could potentially develop a competitive
or superior product or attempt to affect our current relationship with
Intel-Dialogic Corporation.
Intel-Dialogic Corporation's CT Media could incorporate into future
releases some of the functionality that Lightning Rod Interaction Manager
provides and consequently could make it easier for competitors or potential
competitors to provide products competitive with ours. If CT Media does not earn
wide spread market acceptance as an industry standard, the Lightning Rod
Interaction Manager architecture may face significant rework.
6
<PAGE>
A decline in market acceptance for Microsoft Corporation technologies on which
our products rely could have a material adverse effect on our operations.
Lightning Rod Interaction Manager currently runs only on Microsoft
Windows NT servers. Our products use other Microsoft technologies, including
Microsoft SQL Server. A decline in market acceptance for Microsoft technologies
or the increased acceptance of other server technologies could cause us to incur
significant development costs and could have a material adverse effect on our
ability to market our current products. Although we believe that Microsoft
technologies will continue to be widely used by businesses, we cannot assure you
that businesses will adopt these technologies as anticipated or will not in the
future migrate to other computing technologies that we do not currently support.
In addition, our products and technologies must continue to be compatible with
new developments in Microsoft technologies.
Additional licenses may be required.
We have one client access license with Microsoft under the assumption
that only one client access license is needed per server. This is because only
the Lightning Rod Interaction Manager software, and not multiple agents,
actually needs to access the database. There is potential that the rules could
be interpreted that each agent must have a client access license.
We have a lengthy product sales cycle.
The risk of revenue fluctuation is heightened by our historically
lengthy sales cycle. Our product sales cycle has averaged approximately three to
nine months. This lengthy cycle is partly a result of the unique characteristics
of our products. A decision to license our products often is made only after
executive level decision making. We believe that many companies currently are
not aware of the benefits of our software products and capabilities. To respond
to this lack of familiarity, we have provided considerable amounts of education
to prospective end-user customers about the benefits of our products. The
combined processes of education and executive decision-making can take many
months. As a result, sales cycles for end-user customer orders vary
substantially from customer to customer. Excessive delays in product sales could
materially adversely affect our business, financial condition and results of
operations.
The length of the sales cycle for end-user customer orders depends on a
number of other factors over which we will have little or no control, including:
o an end-user customer's budgetary constraints;
o the timing of an end-user customer's budget cycles;
o impact on multiple areas of the customer organization;
o concerns by end-user customers about the introduction of new
mission critical products by us or our competitors; and
o potential downturns in general economic conditions, including
reductions in demand for customer service centers.
7
<PAGE>
Our quarterly operating results have varied significantly.
Our operating results have varied significantly from quarter to quarter
and may continue to do so in the future. As a result, we believe that
period-to-period comparisons of our operating results are not necessarily
meaningful, and you should not rely on them as an indication of our future
performance. Fluctuations in operating results in the future could also cause
the price of our common stock to fluctuate.
The fluctuations in our operating results have been caused by a number
of factors, including many that are beyond the company's control. For example,
we do not know when our potential end-user customers will place orders and
finalize contracts. Revenue is generally recognized in the same quarter that an
order producing that revenue is received. As a result, quarterly revenues and
operating results depend primarily on the size, quantity and timing of orders
received for our products during each quarter. If a large number of orders or
several large orders do not occur or are deferred or delayed, revenues in a
quarter can be substantially reduced.
Our limited number of products, changes in pricing policies and the
timing of the development, announcement and sale of new or upgraded versions of
our products and a lengthy sales cycle are additional factors that could cause
our revenues and operating results to vary significantly from quarter to quarter
in the future.
We may be unable to successfully manage our growth or our increasingly complex
third party relationships.
We grew revenues from $697,000 in calendar year 1998 to $2,095,000 in
calendar year 1999. We intend to continue to grow business operations
significantly in the future. Our existing management, operational, financial and
human resources and management information systems and controls may be
inadequate to support future operations. In addition, as the complexity of
product technology and reseller and other third-party relationships have
increased, the management of those relationships and the negotiation of
contractual terms sufficient to protect our rights and limit our potential
liabilities has become more complicated. We expect this trend to continue in the
future. As a result, our inability to successfully manage these relationships or
negotiate sufficient contractual terms could have a material adverse effect on
our business, financial condition and results of operations.
Our future business prospects depend in part on our ability to maintain and
improve our current products and develop new products.
We believe that our future business prospects depend in large part on
our ability to maintain and improve our current products and to develop new
products on a timely basis. Our products will have to achieve market acceptance,
maintain technological competitiveness and meet an expanding range of end-user
customer requirements. As a result of the complexities inherent in our products,
major new products and product enhancements may require long development and
testing periods. We may not be successful in developing and marketing, on a
timely and cost effective basis, product enhancements or new products that
respond to technological change, evolving industry standards or end-user
customer requirements. We may also experience difficulties that could delay or
prevent the successful development, introduction or marketing of product
enhancements, and our new products and product enhancements may not achieve
market acceptance. Significant delays in the general availability of new
8
<PAGE>
releases of products or significant problems in the installation or
implementation of new releases of products could have a material adverse effect
on our business, financial condition or results of operations.
Our products could have defects for which we are potentially liable and which
could result in loss of revenue, increased costs or loss of our credibility or
delay in acceptance of our products in the market.
Our existing products as well as new products to be developed,
including components supplied by others, may contain errors or defects,
especially when first introduced or when new versions are released. Errors in
new products or releases could be found after commencement of commercial
shipments, and this could result in additional development costs, diversion of
technical and other resources from our other development efforts, or the loss of
credibility with current or future end-user customers. This could result in a
loss of revenue or delay in market acceptance of the products, which could have
a material adverse effect upon our business, financial condition or results of
operations.
Our license agreements with our end-user customers typically contain
provisions designed to limit our exposure to potential product liability and
some contract claims. However, not all of these agreements contain these types
of provisions and, where present, these provisions vary as to their terms and
may not be effective under the laws of some jurisdictions. A product liability,
warranty, or other claim brought against us could have a material adverse effect
on our business, financial condition and results of operations.
We may not be able to obtain adequate financing.
Successful implementation of our growth strategy will likely require
continued access to capital. If we do not generate sufficient cash from
operations, growth could be limited unless we are able to obtain capital through
additional debt or equity financings. We cannot assure you that debt or equity
financings will be available as required for acquisitions or other needs. Even
if financing is available, it may not be on terms that are favorable to us or
sufficient for our needs. If we are unable to obtain sufficient financing, we
may be unable to fully implement our growth strategy.
We may pursue acquisitions that by their nature present risks and that may not
be successful.
In the future we may pursue acquisitions to diversify our product
offerings and customer base or for other strategic purposes. We have no prior
history of making acquisitions and we cannot assure you that any future
acquisitions will be successful. The following are some of the risks associated
with acquisitions that could have a material adverse effect on our business,
financial condition or results of operations:
o We cannot ensure that any acquired businesses will achieve
anticipated revenues, earnings or cash flow.
o We may be unable to integrate acquired businesses successfully and
realize anticipated economic, operational and other benefits in a
timely manner. If we are unable to integrate acquired businesses
successfully, we could incur substantial costs and delays or other
operational, technical or financial problems.
o Acquisitions could disrupt our ongoing business, distract
management, divert resources and make it difficult to maintain our
current business standards, controls and procedures.
9
<PAGE>
o We may finance future acquisitions by issuing common stock for
some or all of the purchase price. This could dilute the ownership
interests of our stockholders. We may also incur additional debt
or be required to recognize amortization expense related to
goodwill and other intangible assets purchased in future
acquisitions.
o We would be competing with other firms, many of which have greater
financial and other resources, to acquire attractive companies. We
believe this competition will increase, making it more difficult
to acquire suitable companies on acceptable terms.
USE OF PROCEEDS
Lightning Rod is not selling any of the shares being offered by this
prospectus and will not receive any proceeds from the sale of the shares offered
by the selling shareholders.
SELLING SHAREHOLDERS
Set forth below are the names of the selling shareholders, the number
of shares of Lightning Rod common stock beneficially owned by each of them on
the date hereof, the number of shares offered hereby and the percentage of
common stock to be owned if all shares registered hereunder are sold by the
selling shareholders. To our knowledge, none of the selling shareholders has had
within the past three years any material relationship with us except as set
forth on the footnotes to the following table. The shares offered hereby shall
be deemed to include shares offered by any pledgee, donee, transferee or other
successor in interest of any of the selling shareholders listed below, provided
that this prospectus is amended or supplemented if required by applicable law.
10
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------- ------------------- ---------------------- ------------- -------------
Number of Shares %
Beneficially Owned Number of Owned
------------------------------------------ Shares After
Option, Warrant & Offered Offering
Name Shares Conversion Shares (1) Hereby (2)
--------------------------------------------- ----------------- ------------------------ ------------- -------------
<S> <C> <C> <C> <C>
Casandra Mihalchick Rollover IRA 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Curtis W. Lack and Curtis W. Lack SEP IRA
(3) 8,145 8,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gerald L. Anderson Trust 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
John C. Ostdiek Rev Trust Dtd 05/23/96 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Steven Streeter 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Vickie L. Kress Trust Dtd May 6, 1999 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Dennis LaValle 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jon Gutierrez & Kelly Gutierrez 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jack W. Brodt Agency Inc. Profit Sharing
Plan 3,000 3,000 6,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Elmer R. Salovich Revocable Living Trust
U/A Dtd 12/16/96 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Lisa Saline & Roger Saline 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Sheldon T. Fleck (4) 195,211 114,748 200,859 ___%
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Frances S. Fleck 12,500 12,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jeffrey S. Halpern 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
H. Vincent O'Connell III 53,000 53,000 106,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Harry V. Hull III 12,500 12,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
David Kuperberg & Jeanne Kuperberg 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Thomas J. Kubinski 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gary Troyer & Leslie Troyer 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Randolph K. Geissler 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Kirtland C. Woodhouse 31,250 31,250 62,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Chris H. Qualen & Paula J. Qualen 8,750 8,750 17,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Donald Bohn 2,500 2,500 5,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Insulation Distributors, Inc. 50,000 50,000 100,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Ryan C. Thomas & Kristin K. Thomas 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
John T. Kubinski 47,125 47,125 94,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
John C. Tsatsos & Hatsue Tsatsos 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jeffrey Lahay 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Tyrone K. Thayer & Kathleen J. Thayer 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark G. Hawkinson 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Thomas J. Schrade & Frances Schrade 12,500 12,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
David M. Thymian & Susan M. Thymian 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark L. Bartholomay & Tanis Bartholomay 1,250 1,250 2,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
William W. Prain & Judith S. Prain 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Lawrence B. Meacham 2,500 2,500 5,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Intermed Anstalt AG 3,375 3,375 6,750 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Courtney W. Brown 2,500 2,500 5,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Joel P. Bachul 2,500 2,500 5,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Phillip T. Levin 12,500 12,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
John P. Dirksen & Emily W. Dirksen 8,750 8,750 17,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gregory G. Freitag & Shari Pomeroy 1,250 1,250 2,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------- ------------------- ---------------------- ------------- -------------
Number of Shares %
Beneficially Owned Number of Owned
------------------------------------------ Shares After
Option, Warrant & Offered Offering
Name Shares Conversion Shares (1) Hereby (2)
--------------------------------------------- ----------------- ------------------------ ------------- -------------
<S> <C> <C> <C> <C>
Paul R. Braun 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark Margolis 13,125 13,125 26,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark Ravich 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Steven D. Johnson & Jean A. Johnson 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Roland Isaacson 28,375 28,375 56,750 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Stanley G. Eilers & Carol R. Eilers 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Engelkes Abels Funeral Home 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
James S. Murphy 4,000 4,000 8,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Richard G. Hubers & Diane Lynn Hubers 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Martin Lackner 4,375 4,375 8,750 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Marlin F. Torguson 18,750 18,750 37,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
River Edge Partners Inc. 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Willard C. Rehbein & Kathy A. Rehbein 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gregory H. Mohn 1,250 1,250 2,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Michael P. Nagel 1,250 1,250 2,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Lee S. Chapman IRA 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Ben Trainer 1,250 1,250 2,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Alvin S. Zelickson 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Elayne H. Walensky & Harold Goldfine 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Tony Hallada 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Source Capital Assoc Inc. Defined Benefit
Pension Plan 2,375 2,375 4,750 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Paul D. Geiwitz 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Alan R. Geiwitz 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark B. Peterson & Teresa M. Peterson 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Josephine R. Hanson & James C. Hanson 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Michael A. Strobel & Shelley D. Strobel 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jane M. Steinhagen & James Peterson 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Mark A. Schaffer & Elizabeth K. Schaffer 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Craig A. Bongart & Monica Bongart 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jane H. Carter 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Randall E. Kahnke & Elisabeth A. Kahnke 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Sandra J. Hardilek & Thomas A. Hardilek 10,625 10,625 21,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Philip O. Isaacson 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Boxercraft Incorporated 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Perry A. Mills 3,125 3,125 6,250 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jeffrey S. Resnick 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Leonard F. Berg 8,750 8,750 17,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Jon Miller 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Tom Helgeson & Ann S. Helgeson 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Richard Bernstein 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Stanford M. Baratz Revocable Trust 25,000 25,000 50,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Thomas J. Patin & Lynne Patin (5) 8,000 8,000 16,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Debra Jo Leaf 6,000 6,000 12,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------- ------------------- ---------------------- ------------- -------------
Number of Shares %
Beneficially Owned Number of Owned
------------------------------------------ Shares After
Option, Warrant & Offered Offering
Name Shares Conversion Shares (1) Hereby (2)
--------------------------------------------- ----------------- ------------------------ ------------- -------------
<S> <C> <C> <C> <C>
Robert J. Eibensteiner 8,750 8,750 17,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Prairie Group, Inc. (6) 12,500 12,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gopal Sadagopal 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Christian F. Gurney (7) 23,045 35,625 21,750 ___%
--------------------------------------------- ----------------- ------------------------ ------------- -------------
George I. Kosmides 8,750 8,750 17,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Robert L. Gearou 22,500 22,500 25,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Bill McGuigan 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Robert M. Sinko 4,000 4,000 8,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Todd Wind 1,000 1,000 2,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Gregory J. Wilson 10,000 10,000 20,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
David J. Lundquist (8) 15,250 11,150 12,500 ___%
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Roland B. Knapton 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
David C. Cowley 4,000 4,000 8,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
James G. Hynes & Carol Y. Hynes 5,000 5,000 10,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Richard A. Skeie & Pamela L. Skeie (9) 104,306 10,850 12,500 ___%
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Dave Cowley Incentives, Inc. Pension Trust 4,000 4,000 8,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Thomas W. Gearou 6,250 6,250 12,500 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Bob, Inc. 15,000 15,000 30,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Robert D. Gearou & Jodi Gearou 2,500 2,500 5,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
HMH of St. Paul, Inc. 3,000 3,000 6,000 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
CC Management, LLC 30,474 63,281 93,755 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
John Mason 2,415 0 2,415 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Keith Bares 2,415 0 2,415 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Ira Kleiman 2,415 0 2,415 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Charles P. Brink 5,420 0 5,420 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
CLC Equipment LLC
As successor in interest to
CLC Equipment Company 24,776 0 24,776 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Patrick Conlin c/o Milestone Financial
Services 8,671 8,437 17,108 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
MSF 93, L.P. 26,012 25,312 51,324 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Milestone Hotel Investment, Inc. 8,671 8,437 17,108 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Harry V. Hull III, Trustee, Sheldon T. and
Terry K. Fleck 1992 Irrevocable Children's
Trust FBO Samuel T. Fleck 18,024 8,203 26,227 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
Harry V. Hull III, Trustee, Sheldon T. and
Terry K. Fleck 1992 Irrevocable Children's
Trust FBO Alissa R. Fleck 18,024 8,203 26,227 *
--------------------------------------------- ----------------- ------------------------ ------------- -------------
</TABLE>
* Less than 1%
(1) Shares that may be purchased upon conversion of Notes or exercise of
options and warrants which are convertible or exercisable as of the
date hereof or within 60 days of such date.
13
<PAGE>
(2) The percentage of shares beneficially owned by each selling
shareholder is based on 3,269,509 shares of common stock outstanding
as of the date hereof.
(3) Mr. Lack was Chief Financial Officer of the company prior to its
merger with ATIO.
(4) Mr. Fleck was a director of the company prior to its merger with ATIO.
(5) Mr. Patin is a director and General Counsel of Lightning Rod.
(6) Prairie Group, Inc. is a corporation owned by John S. Kirk, the
Secretary/Treasurer and a director of the company prior to its merger
with ATIO.
(7) Mr. Gurney was President, Chief Executive Officer and a director of
the company prior to its merger with ATIO.
(8) Mr. Lundquist was a director of the company prior to its merger with
ATIO.
(9) Mr. Skeie was a Vice President and director of the company prior to
its merger with ATIO.
PLAN OF DISTRIBUTION
The selling shareholders may sell the shares of common stock on the
Nasdaq Stock Market or otherwise at prices and on terms then prevailing or at
prices related to the then current market price, or in negotiated transactions.
When used in this prospectus, "selling shareholder" includes donees and pledgees
selling shares received from the named selling shareholder after the date of
this prospectus. We will pay all expenses associated with registering the
selling shareholder's shares, including legal fees incurred by the selling
shareholder. The selling shareholder will pay any brokerage commissions and
similar expenses attributable to the sale of the shares. The common stock may be
sold in:
- a block trade, where a broker or dealer will try to sell the common
stock as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
- transactions where a broker or dealer acts as principal and resells
the common stock for its account pursuant to this prospectus;
- an exchange distribution in accordance with the rules of such
exchange; and
- ordinary brokerage transactions and transactions in which the
broker solicits purchases.
The common stock may also be sold through short sales of shares, put or
call option transactions, loans or pledges of the shares, hedging or similar
transactions, or a combination of such methods. The selling shareholders may or
may not involve brokers or dealers in any of these transactions. In effecting
sales, brokers or dealers engaged by the selling stockholders may arrange for
other brokers or dealers to participate. The selling stockholders may, from time
to time, authorize underwriters acting as its agent to offer and sell the common
stock upon such terms and conditions as shall be set forth in a prospectus
supplement. Underwriters, brokers or dealers will receive commissions or
discounts from the selling stockholders in amounts to be negotiated immediately
prior to sale. Offers and sales may also be made directly by the selling
stockholders, or other bona fide owner of the common stock, so long as an
applicable exemption from state broker-dealer registration requirements is
14
<PAGE>
available in the jurisdiction of sale. The selling stockholders, underwriters,
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act in connection with
these sales, and any discounts and commissions received by them and any profit
realized by them on the resale of the common stock may be deemed to be
underwriting discounts and commissions under the Securities Act.
All or any portion of the shares of common stock covered by this
prospectus that qualify for sale under Rule 144 under the Securities Act may be
sold under Rule 144 rather than pursuant to this prospectus.
There is no assurance that the selling shareholders will offer for sale
or sell any or all of the shares of common stock covered by this prospectus.
SECURITIES AND EXCHANGE COMMISSION POSITION
ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The General Corporation Law of Delaware provides that a corporation has
the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful, provided that, in the case
of actions brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances. Lightning Rod's Certificate of Incorporation provides that
Lightning Rod shall indemnify its directors and officers to the fullest extent
permitted by the General Corporation Law of Delaware.
Lightning Rod's Certificate of Incorporation also provides that no
director shall be liable to Lightning Rod or its stockholders for monetary
damages for breach of his fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to Lightning Rod or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or (iv) for any transaction in which the
director derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
15
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's website at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings (File
No. 000-18809) we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934:
1. Annual Report on Form 10-KSB for the fiscal year ended September
30, 1999;
2. Quarterly Report on Form 10-QSB for the quarter ended December 31,
1999;
3. Proxy Statement for the 2000 Annual Meeting of Shareholders;
4. Quarterly Report on Form 10-QSB for the quarter ended March 31,
2000;
5. Current Report on Form 8-K dated April 4, 2000;
6. Current Report on Form 8-K dated April 28, 2000;
7. Current Report on Form 8-K dated May 15, 2000;
8. Current Report on Form 8-K dated July 25, 2000; and
9. The description of Lightning Rod common stock which is
incorporated by reference in the Registration Statement on
Form 8-A filed on September 6, 1990.
You may request a copy of these filings, at no cost, by writing or
telephoning our Chief Financial Officer at the following address:
Jeffrey D. Skie
Chief Financial Officer
Lightning Rod Software, Inc.
7301 Ohms Lane, #600
Edina, Minnesota 55439
(952) 837-4000
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide information other than that
provided in this prospectus. We have authorized no one to provide you with
different information. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the front of the
document.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses will be paid by Lightning Rod in connection with
the distribution of the shares registered hereby. Lightning Rod is paying all of
the selling shareholders' expenses related to this offering, except the selling
shareholders will pay any applicable broker's commissions and expenses as well
as fees and disbursements of counsel and experts for the selling shareholders.
All of such expenses, except for the SEC Registration Fee, are estimated.
SEC Registration Fee ............................$ 2,915
Legal Fees and Expenses ..........................10,000
Accountants' Fees and Expenses ....................2,000
Printing Expenses .................................1,000
Miscellaneous .....................................1,085
Total ..................................$17,000
Item 15. Indemnification of Directors and Officers.
The General Corporation Law of Delaware provides that a corporation has
the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful, provided that, in the case
of actions brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances. Lightning Rod's Certificate of Incorporation provides that
Lightning Rod shall indemnify its directors and officers to the fullest extent
permitted by the General Corporation Law of Delaware.
Lightning Rod's Certificate of Incorporation also provides that no
director shall be liable to the Lightning Rod or its stockholders for monetary
damages for breach of his fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to Lightning Rod or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or (iv) for any transaction in which the
director derived an improper personal benefit.
Lightning Rod and the selling shareholders listed herein have agreed to
indemnify each other, under certain conditions, against certain liabilities
arising under the Securities Act.
Item 16. Exhibits
See Exhibit Index on page following signatures.
II-1
<PAGE>
Item 17. Undertakings.
(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:
(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;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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 purposes 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable.
II-2
<PAGE>
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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.
II-3
<PAGE>
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
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Edina, State of Minnesota, on July 27, 2000.
LIGHTNING ROD SOFTWARE, INC.
By /s/ Willem J. Ellis
Willem J. Ellis, Chief Executive Officer
POWER OF ATTORNEY
The undersigned each hereby constitutes and appoints any one or both of
Willem J. Ellis and Thomas J. Patin 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 and perform any acts
necessary to file any or all amendments (including post-effective amendments) to
the Registration Statement on Form S-3 of Lightning Rod Software, Inc. with all
exhibits thereto, and any and all registration statements, prospectuses,
instruments or other documents as a part of or in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact or his substitute may lawfully do or
cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the date stated.
Signature Title Date
--------- ----- ----
/s/ Willem J. Ellis Chief Executive Officer and
Willem J. Ellis Director July 27, 2000
/s/ Jeffrey D. Skie Chief Financial Officer July 27, 2000
Jeffrey D. Skie
/s/ Thomas J. Patin General Counsel and Director July 27, 2000
Thomas J. Patin
/s/ Thomas F. Madison Director July 27, 2000
Thomas F. Madison
/s/ James E. Ousley Director July 27, 2000
James E. Ousley
/s/ Sven A. Wehrwein Director July 27, 2000
Sven A. Wehrwein
II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
EXHIBITS
to
Form S-3 Registration Statement
----------------
Lightning Rod Software, Inc.
(Exact name of Registrant as specified in its charter)
----------------
INDEX
Exhibit
2 Amended and Restated Agreement and Plan of Merger dated as of December
28, 1999 among the Registrant, Lightning Rod Software, Inc. (formerly
ATIO Corporation USA, Inc.) and certain shareholders of Lightning Rod
Software, Inc., together with Exhibits 1.1.4, 1.2, 5.4, 7.3, 7.8, 7.10
and 7.11 thereto -- incorporated by reference to Appendix A on pages
A-1 to A-55 of the Registrant's Definitive Proxy Statement for the
April 27, 2000 Annual Meeting of Shareholders.
3.1 Certificate of Incorporation as amended to date.
3.2 Bylaws--incorporated by reference to the Company's Registration
Statement on Form S-18, File No. 33-36008C.
5.1 Opinion and Consent of Fredrikson & Byron, P.A.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1).
24.1 Power of attorney from directors (included in signature page of this
Registration Statement).
II-5
