As filed with the Securities and Exchange Commission on March 21, 1997
Registration No. 333-23385
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________
SYMIX SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
______________________
Ohio 31-1083175
State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
2800 Corporate Exchange Drive, Suite 400, Columbus, Ohio 43231 (614) 523-7000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
______________________
WITH A COPY TO:
Ivery D. Foreman, Esq. Lawrence W. DeLeon
Vorys, Sater, Seymour and Pease Chief Financial Officer
52 East Gay Street Symix Systems, Inc.
Columbus, Ohio 43215 2800 Corporate Exchange Drive
(614) 464-6322 Suite 400
Columbus, Ohio 43231
(614) 523-7379
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
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 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 in connection with dividend or interest
reinvestment plans, 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, 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 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. _____
The Registrant hereby 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 the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
PROSPECTUS
SYMIX SYSTEMS, INC.
125,000 Common Shares
___________________
All of the Common Shares, no par value , of Symix Systems, Inc. ("Symix" or
the "Company") offered hereby are being sold by the Selling Shareholders.
The Company's Common Shares are traded in the over-the-counter market and
are quoted on the National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System under the symbol "SYMX". The market price of
the Common Shares varies from time to time. The last reported sale price of the
Company's Common Shares as reported on the Nasdaq National Market System on
March 12, 1997 was $10.25 per share.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________
The Selling Shareholders may sell the shares being offered hereby in
transactions on the NASDAQ National Market System, in negotiated transactions or
otherwise, at market prices prevailing at the time of the sale or at negotiated
or fixed prices. The Selling Shareholders may sell some or all of the shares in
transactions involving broker-dealers, who may act either as agent or principal.
The aggregate proceeds to the Selling Shareholders from the sale of the Common
Shares will be the selling price of the Common Shares sold less the aggregate
agents' commissions and underwriters' discounts, if any, and other expenses of
issuance and distribution not borne by the Company. The Company will pay
substantially all of the expenses to be incurred, including those to be incurred
by the Selling Shareholders, in connection with the Registration Statement of
which this Prospectus is a part (other than such commissions and discounts),
estimated to be $13,395.36. See "Selling Shareholders" and "Plan of
Distribution" herein for a description of indemnification arrangements between
the Company and the Selling Shareholders. None of the proceeds from the sale of
the Common Shares will be received by the Company.
The Selling Shareholders and any agents, dealers or underwriters that
participate with the Selling Shareholders in the distribution of the Common
Shares may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commissions received by
them and any profit on the resale of the Common Shares purchased by them may be
deemed underwriting commissions or discounts under the Securities Act.
The date of this Prospectus is _________________, 1997.
<PAGE>
AVAILABLE INFORMATION
Symix is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices located at
Northwestern Atrium, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661 and Seven World Trade Center, Suite 1300, New York, New York 10048. Copies
of such material can be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a web site that contains reports, proxy, information
statements and other information regarding registrants that file electronically
with the Commission. The Commission's web site address is: http://www.sec.gov.
The Company's Common Shares are traded on the NASDAQ National Market System.
Reports, proxy statements and other information concerning Symix may be
inspected at the offices of the National Association of Securities Dealers, Inc.
at 1735 K Street, N.W., Washington, D.C. 20006.
Symix has filed a registration statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
Registration Statement and the exhibits filed as part thereof. Statements
contained herein concerning provisions of any document filed as an exhibit are
not necessarily complete and, in each instance, reference is made to the copy of
each document filed as an exhibit to the Registration Statement. Each such
statement is qualified in its entirety by such reference.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Symix are hereby
incorporated by reference in and made a part of this Prospectus:
(a) Symix's Annual Report on Form 10-K for the fiscal year ended June 30,
1996;
(b) Symix's Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1996;
(c) Symix's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1996; and
(d) Symix's Current Report on Form 8-K dated January 9, 1997.
All reports and other documents filed by Symix with the Commission (File
No. 0-19024) pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(except information included in any such document in response to Item 402(i),
402(k) or 402(l) of Regulation S-K under the Securities Act) subsequent to the
date of this Prospectus and prior to the termination of the offering of the
Common Shares hereby are incorporated herein by reference. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as modified or superseded, to constitute a part of this
Prospectus.
Symix will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the information which are incorporated herein by reference, other than
exhibits to documents incorporated herein (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
Symix Systems, Inc., 2800 Corporate Exchange Drive, Suite 400, Columbus, Ohio
43231, Attention: Chief Financial Officer, telephone (614) 523-7379.
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<PAGE>
THE COMPANY
Symix is a global provider of open, client server manufacturing software
for mid-range discrete manufacturers. Symix designs, develops, markets and
supports a fully integrated manufacturing, planning and financial software
system that addresses the Enterprise Resource Planning (ERP) requirements of
manufacturers. The SYMIX(R) solutions are developed for manufacturers who must
optimize the rigorous demands of make-to-order and mixed-mode production
requirements, including reducing time-to-market, shortening order cycles and
reducing product costs. Among the key industries which use the Symix
applications are industrial equipment, fabricated metals, electronic equipment
and furniture/fixtures. The Company's target market includes primarily mid-range
discrete manufacturing companies with sites having annual revenue between $10
and $350 million.
Symix's primary ERP application product, Symix SyteLine, was released in
March, 1996 and combines the robust functionality of a complex manufacturing
system, including multi-site capabilities, with the speed and ease-of-use of
graphical user interface products. Symix also continues to market, sell and
enhance its heritage host terminal, character based ERP application product,
SYMIX (R) Version 4.0, to customers not readily able to fully migrate to a
client/server environment. The Symix applications are sold through both a direct
sales channel and approximately 40 software and service partners in 17
countries.
Symix focuses on consulting, implementation and education services as
critical aspects of its business. These services are provided through either
direct Symix consultants, third party software and service partners, system
integrators or consulting/accounting firms.
Symix was organized in 1979, incorporated under the laws of the State of
Ohio in 1984 and became a public company trading on NASDAQ in 1991. The
Company's principal executive offices are located at 2800 Corporate Exchange
Drive, Columbus, Ohio 43231 (telephone: 614/523-7000). As used in this
Prospectus, the term "Symix" or the "Company" refers to Symix Systems, Inc. and
its subsidiaries, unless the context otherwise requires.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Shares. The Common Shares are being offered by the Selling Shareholders. See
"Selling Shareholders".
SELLING SHAREHOLDERS
All of the Common Shares being offered hereby are being sold by two
individuals, Richard Smart and Philip Smart (herein referred to collectively as
the "Selling Shareholders" and individually as a "Selling Shareholder"). The
following table shows certain information regarding the beneficial ownership of
Common Shares by each of the Selling Shareholders as of the date of this
Prospectus.
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<PAGE>
<TABLE>
Shares Beneficially Owned Shares Beneficially Owned
Prior to the Offering After Offering
------------------------- -------------------------
Beneficial Owner Number Percent Number Percent
---------------- ------ ------- ------ -------
<S> <C> <C> <C> <C>
Philip Smart 125,000(1) 2.1% 62,500(1) 1.0%
3430 South Service Road
Burlington, Ontario L7N 3T9
Canada
Richard Smart 125,000(1) 2.1% 62,500(1) 1.0%
3430 South Service Road
Burlington, Ontario L7N 3T9
Canada
_______________________________
</TABLE>
(1) Includes 62,500 shares which are subject to issuance upon conversion of
62,500 Class A Preference Shares of Symix Systems (Ontario) Inc., a
subsidiary of Symix. The Class A Preference Shares may be converted to
Symix common shares at any time prior to December 31, 2006 by the holder of
the Class A Preference Shares.
Pursuant to a Share Purchase Agreement dated December 31, 1996 (the
"Purchase Agreement"), Symix Systems (Ontario) Inc., a subsidiary of the Company
("Symix Ontario"), acquired all of the issued and outstanding shares of Visual
Applications Software, Inc. ("VAS") from the Selling Shareholders in exchange
for 250,000 Class A Preference Shares of Symix Ontario (the "Class A Shares"),
50,000 Class B Preference Shares of the Symix Ontario (the "Class B Shares") and
$1,000,000 (Canadian) in cash. The Class B Shares are redeemable by the holders
at any time after January 2, 1998 for a price of $1.00 (Canadian) per share.
Under the terms of the Purchase Agreement, Symix has agreed to purchase all of
the Class B Shares from the Selling Shareholders in the event that Symix Ontario
does not or cannot redeem such shares upon presentation for redemption by the
Selling Shareholders.
In connection with the acquisition, the Company entered into a Share
Exchange Agreement with the Selling Shareholders dated January 9, 1997 (the
"Exchange Agreement"). Under the terms of the Exchange Agreement, the Company
agreed to exchange Symix common shares (the "Exchange Shares") for the Class A
Shares on a one-for-one basis and, at the Company's expense, from time to time
until December 31, 2006, to register the Exchange Shares with the Commission
upon receipt of written demand for such registration from one or both of the
Selling Shareholders. The Selling Shareholders agreed to sell or transfer the
Exchange Shares only pursuant to a registration statement covering such shares
which is effective with the Commission or an opinion of counsel acceptable to
Symix.
On January 9, 1997, the Selling Shareholders notified Symix that they were
exercising their exchange privilege under the Exchange Agreement with respect to
62,500 Class A Shares each and their demand registration rights with respect to
the Exchange Shares issued to them as a result of such exercise.
In connection with the acquisition of VAS, the Company, VAS and Symix
Systems Ontario entered into a separate Employment Agreement dated January 9,
1997 with each of the Selling Shareholders. In addition, the Selling
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<PAGE>
Shareholders, Symix, Symix Ontario and Symix Computer Systems, Inc., a
wholly-owned subsidiary of the Company ("SCSI"), entered into an Unanimous
Shareholder Agreement dated January 9, 1997 (the "Shareholder Agreement")
pursuant to which Symix Ontario agreed to pay a corresponding cash dividend to
the holders of the Class A Shares in the event that Symix pays a cash dividend
to its shareholders. The Shareholder Agreement also imposes certain restrictions
on the sale or transfer of the Class A Shares and the Class B Shares by the
Selling Shareholders.
Until the acquisition of VAS by Symix Ontario in January, 1997, Philip
Smart served as President and a Director, and Richard Smart served as
Secretary/Treasurer and a Director, of VAS.
PLAN OF DISTRIBUTION
The Common Shares being offered hereby will be sold by the Selling
Shareholders for their own accounts. The Company will not receive any of the
proceeds from the sale of such shares. The Selling Shareholders have agreed to
indemnify the Company and its officers and directors against any losses, claims
or damages arising out of any untrue or alleged untrue statement of a material
fact contained in this Prospectus or omission or alleged omission to state a
material fact required to be contained herein, to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in this Prospectus in reliance upon information furnished to the Company by one
or more of the Selling Shareholders, or the failure of the Selling Shareholders
to satisfy the prospectus delivery requirement under the Securities Act.
The Selling Shareholders may sell the Common Shares being offered hereby
from time to time in the over-the-counter market on the NASDAQ National Market
system, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated or fixed prices. The Selling Shareholders may
sell some or all of the shares in transactions involving broker-dealers who may
act either as agent or principal, and who may receive compensation in the form
of discounts, commissions or concessions from one or both of the Selling
Shareholders or the purchaser of the shares for whom such broker-dealers act as
agent or to whom they sell as principal, or both.
The Selling Shareholders and any underwriters, dealers or agents that
participate in the distribution of the Common Shares offered hereby may be
deemed to be "underwriters" under the Securities Act, and any profit on the sale
of the Common Shares by them and any discounts, commissions or concessions
received by any such underwriters, dealers or agents may be deemed to be
"underwriting discounts and commissions" under the Securities Act.
The Selling Shareholders have advised the Company that no agreement exists
with any broker-dealer with respect to the sale of the Common Shares offered
hereby. At the time a particular offer of the Common Shares is made and upon
receipt of notice of the same by the Company from the Selling Shareholders, a
supplement to this Prospectus will be filed, if required, pursuant to Rule 424
(c) under the Securities Act, which will set forth the aggregate number of
Common Shares being offered and the material terms of the offering, including
the name or names of any underwriters, dealers or agents, the purchase price to
be paid by any underwriter or dealer for the Common Shares purchased from the
Selling Shareholders, any discounts, commissions or concessions allowed or
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<PAGE>
reallowed or paid to dealers, the proposed selling price to the public and other
facts material to the transaction.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 21,000,000 shares,
of which 20,000,000 shares are Common Shares, each without par value, and
1,000,000 shares are preferred shares, each without par value. At March 6, 1997,
there were 5,837,056 Symix Common Shares outstanding held of record by
approximately 100 shareholders. No preferred shares are currently outstanding.
The outstanding Common Shares are, and the shares to be outstanding upon
completion of this offering will be, fully paid and nonassessable.
Holders of Common Shares are entitled to one vote for each share held of
record on each matter submitted to a vote of shareholders. Shareholders have no
cumulative voting rights, which means that the holders of shares entitled to
exercise more than fifty percent (50%) of the voting power are able to elect all
of the directors.
Common Shares
Holders of Common Shares are entitled to receive dividends when and if
declared by the Board of Directors out of funds legally available therefor,
subject to the rights of holders of any preferred shares that may be issued, as
described below, and to any contractual restrictions on the payment of
dividends. The Company currently intends to continue to retain earnings for use
in its business and to pay no cash dividends in the foreseeable future.
Under Ohio law and the Company's Amended Articles, the affirmative vote of
the holders of shares entitled to exercise at least two-thirds (2/3) of the
voting power of the Company is necessary for certain corporate actions,
including merger or consolidation with another corporation, combination or
majority share acquisition, sale or other disposition of all or substantially
all of the Company's property and assets, voluntary dissolution of the Company
or amendment of the Company's Amended Articles.
Upon dissolution, liquidation or sale of all or substantially all the
assets of the Company, after payment in full of all amounts required to be paid
to creditors and to holders of outstanding preferred shares, if any, the holders
of Common Shares will be entitled to receive pro rata the remaining assets of
the Company available for distribution.
The holders of Common Shares do not have preemptive, subscription,
redemption or conversion rights.
Preferred Shares
The Company's Amended Articles authorize the Board of Directors to issue
preferred shares from time to time in one or more series. Holders of preferred
shares are entitled to one vote for each share held on each matter submitted to
a vote of shareholders. The Board of Directors is authorized to fix and
determine the relative rights and preferences of the shares of any series so
established with respect to dividend or distribution rights, the dates of
payments of dividends or distributions and the dates from which they are
cumulative, liquidation price, redemption rights and price, sinking fund
requirements, conversion rights and restrictions on the issuance of shares of
any class or series.
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<PAGE>
The Board of Directors, without shareholder approval, could issue preferred
shares with voting and conversion rights which could adversely affect the voting
power of the holders of Common Shares. The Company has no present plans to issue
any preferred shares.
Certain Statutory Provisions
Section 1701.831 of the Ohio Revised Code generally provides that certain
"control share acquisitions" of shares of an "issuing public corporation" may be
made only with the prior authorization of the shareholders of the corporation,
unless the articles or code of regulations of the corporation otherwise provide.
The Amended Articles of the Company provide that Section 1701.831 of the Ohio
Revised Code does not apply to control share acquisitions of the Company. In
addition, Ohio has adopted Chapter 1704 of the Ohio Revised Code. Chapter 1704
is a "merger moratorium" statute which generally prohibits a wide range of
business combinations and transactions between or involving an issuing public
corporation that is a reporting company under the Securities Exchange Act of
1934 and a person who, alone or with others, beneficially owns ten percent or
more of the voting power of the corporation. A corporation may provide in its
articles of incorporation that Chapter 1704 does not apply to the corporation,
and the Company's Amended Articles so provide.
Transfer Agent
The transfer agent for the Common Shares is The Huntington National Bank,
Columbus, Ohio.
LEGAL MATTERS
Certain legal matters relating to the sale of the Common Shares being
offered hereby will be passed upon for the Company by Vorys, Sater, Seymour and
Pease, Columbus, Ohio, counsel to the Company. As of March 3, 1997, the partners
of and attorneys employed by Vorys, Sater, Seymour and Pease, together with
members of such partners' and attorneys' immediate families, owned in the
aggregate approximately 103,922 Symix Common Shares.
EXPERTS
The consolidated financial statements of the Company as of June 30, 1996
and 1995 and for each of the three years in the period ended June 30, 1996
incorporated by reference herein, and the related consolidated financial
statement schedule, incorporated by reference herein have been audited by Ernst
& Young LLP, independent auditors, as stated in their reports which are
incorporated by reference herein (which reports express an unqualified opinion),
and have been so incorporated by reference in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
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<PAGE>
=============================================== ==============================
No person has been authorized in
connection with any offering made hereby to
give any information or to make any
representation not contained in this
Prospectus, and, if given or made, such
information or representation must not be
relied upon as having been authorized by the
Company or any Selling Shareholder. This
Prospectus does not constitute an offer to 125,000 Common Shares
buy any security other than the securities
offered hereby, nor does it constitute an
offer to sell or a solicitation of an offer Symix Systems, Inc.
to buy any of the securities offered hereby
to any person in any jurisdiction in which it
is unlawful to make such an offer or
solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall
under any circumstances create any _______
implication that the information contained
herein is correct as of any time subsequent PROSPECTUS
to the date hereof.
__________, 1997
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TABLE OF CONTENTS
Page
Available Information.................. 2
Incorporation of Certain Documents
by Reference...................... 3
The Company............................ 4
Use of Proceeds........................ 4
Selling Shareholders................... 4
Plan of Distribution................... 6
Description of Capital Stock........... 7
Legal Matters.......................... 8
Experts................................ 8
=============================================== ==============================
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated (except for Commission
registration fee and National Association of Securities Dealers, Inc. filing
fee) fees and expenses payable by Symix in connection with the distribution of
the Common Shares.
Securities and Exchange Commission registration fee.................. $ 395.36
Legal fees and expenses.............................................. $10,000.00
Accountants' fees and expenses....................................... $ 2,500.00
Miscellaneous expenses............................................... $ 500.00
Total............................................................. $13,395.36
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorneys' fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he 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, with respect to any criminal action or proceeding,
if he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create
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<PAGE>
a presumption that the person did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that,
the court of common pleas or the court in which such action or suit
was brought determines, upon application, that, despite the
adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper.
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(1) or (2)
of this section. Such determination shall be made as follows:
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(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this section
is not obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal
counsel other than an attorney, or a firm having associated with it an
attorney, who has been retained by or who has performed services for
the corporation or any person to be indemnified within the past five
years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten
days after receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, the articles or the regulations of a
corporation state, by specific reference to this division, that the
provisions of this division do not apply to the corporation and unless
the only liability asserted against a director in an action, suit, or
proceeding referred to in division (E)(1) or (2) of this section is
pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit,
or proceeding shall be paid by the corporation as they are incurred,
in advance of the final disposition of the action, suit, or
proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding
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(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, may be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding,
as authorized by the directors in the specific case, upon receipt of
an undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if it
ultimately is determined that he is not entitled to be indemnified by
the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance maybe
purchased from or maintained with a person in which the corporation
has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the payment
of expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5), (6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not
create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of
such a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in
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the same position under this section with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
Article Five of the Company's Amended Regulations provides further as
follows:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any
action threatened or instituted by or in the right of the
corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer,
employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he 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 with respect to any criminal action or proceeding, he
had no reasonable cause to believe this conduct was unlawful. A person
claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for
indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of
the corporation, and with respect to any criminal matter, to have had
no reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director
of the corporation who was a party to any completed action or suit
instituted by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer,
employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable
for acting with reckless disregard for the best interests of the
corporation or misconduct (other than negligence) in the performance
of his duty to the corporation unless and only to the extent that the
Court of Common Pleas of Franklin County, Ohio or the court in which
such action or suit was brought shall determine upon application that,
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<PAGE>
despite such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably entitled to
such indemnity as such Court of Common Pleas or such other court shall
deem proper and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been
successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Section 5.01, or in defense of any claim,
issue or matter therein, he shall be promptly indemnified by the
corporation against expenses (including, without limitation, attorneys
fees, filing fees, court reporters' fees and transcript costs)
actually and reasonably incurred by him in connection therewith.
Section 5.04 Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made
by the corporation only upon a determination that such indemnification
of the officer or director is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 5.01.
Such determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding,
or (B) if such a quorum is not obtainable or if a majority of a quorum
of disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation, or any person to be
indemnified, within the past five years, or (C) by the shareholders,
or (D) by the Court of Common Pleas of Franklin County, Ohio or (if
the corporation is a party thereto) the court in which such action,
suit or proceeding was brought, if any; any such determination may be
made by a court under division (D) of this Section 5.04 at any time
[including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under
consideration by or have been denied or disregarded by the
disinterested directors under division (A) or by independent legal
counsel under division (B) or by the shareholders under division (C)
of this Section 5.04]; and no failure for any reason to make any such
determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal
counsel under division (B) of this Section 5.04 to make
indemnification in respect of any claim, issue or matter asserted in
an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who
threatened or brought such action or suit, and within ten (10) days
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<PAGE>
after receipt of such notification such person shall have the right to
petition the Court of Common Pleas of Franklin County, Ohio or the
court in which such action or suit was brought, if any, to review the
reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding to
or on behalf of the officer or director promptly as such expenses are
incurred by him, but only if such officer or director shall first
agree, in writing, to repay all amounts so paid in respect of any
claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on
the merits or otherwise:
(A) if it shall ultimately be determined as provided in Section
5.04 that he is not entitled to be indemnified by the corporation as
provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted
by or in the right of the corporation in such action or suit, he shall
have been adjudged to be liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation, unless
and only to the extent that the Court of Common Pleas of Franklin
County, Ohio or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of
liability, and in view of all the circumstances, he is fairly and
reasonably entitled to all or part of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be exclusive of, and shall be
in addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles or the Regulations
or any agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be an officer or director of the
corporation and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance or furnish similar protection, including but not
limited to trust funds, letters of credit, or self-insurance, on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of
another corporation (domestic or foreign, nonprofit or for profit) ,
partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the obligation or the power to indemnify him
against such liability under the provisions of this Article Five.
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<PAGE>
Insurance may be purchased from or maintained with a person in which
the corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this Article
Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5 shall
be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 5.01,
or in defense of any claim, issue or other matter therein, if such
action, suit or proceeding shall be terminated as to such person, with
or without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine
upon him and without his payment or agreement to pay any amount in
settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims
made against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" within the meaning
of that term as used in this Article Five.
Section 5.09. Venue. Any action, suit or proceeding to determine
a claim for indemnification under this Article Five may be maintained
by the person claiming such indemnification, or by the corporation, in
the Court of Common Pleas of Franklin County, Ohio. The corporation
and (by claiming such indemnification) each such person consent to the
exercise of jurisdiction over its or his person by the Court of Common
Pleas of Franklin County, Ohio in any such action, suit or proceeding.
In addition, the Company has purchased a directors' and officers' liability
insurance policy insuring directors and officers with respect to certain
liabilities.
Item 16. EXHIBITS
5.1 Opinion of Vorys, Sater, Seymour and Pease as to the
legality of the Common Shares being offered.
23.2 Consent of Vorys, Sater, Seymour and Pease (included in
Exhibit 5.1).
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<PAGE>
Item 17. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) 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, unless the information required to be included in such
post-effective amendment is contained in a periodic report filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 and incorporated herein by reference;
(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,
represent a fundamental change in the information set forth in the Registration
Statement, unless the information required to be included in such post-effective
amendment is contained in a periodic report filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
incorporated herein by reference; and
(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;
(b) 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 in the
initial bona fide offering thereof;
(c) 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; and
(d) 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 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.
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<PAGE>
2. 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 provisions described under Item 15 above, 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. 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 the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on the 21st day of
March, 1997.
SYMIX SYSTEMS, INC.
By: /s/ Lawrence W. DeLeon
_______________________________________
Lawrence W. DeLeon
Vice President, Chief Financial
Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
------------- --------- --------
Lawrence J. Fox* Chairman of the Board of March 21, 1997
_________________________ Directors, Chief Executive Officer
Lawrence J. Fox (Principal Executive Officer)
Stephen A. Sasser* President, Chief Operating March 21, 1997
_________________________ Officer and Director
Stephen A. Sasser
/s/ Lawrence W. DeLeon Vice President, March 21, 1997
_________________________ Chief Financial Officer
Lawrence W. DeLeon and Secretary (Principal
Financial and
Accounting Officer)
Larry L. Liebert* Director March 21, 1997
_________________________
Larry L. Liebert
Duke W. Thomas* Director March 21, 1997
_________________________
Duke W. Thomas
John T. Tait* Director March 21, 1997
_________________________
John T. Tait
James A. Rutherford* Director March 21, 1997
_________________________
James A. Rutherford
* By /s/ Lawrence W. DeLeon
________________________________
Lawrence W. DeLeon
(Attorney-in-Fact)
<PAGE>
INDEX OF EXHIBITS
PAGE
5.1 Opinion of Vorys, Sater, Seymour and Pease
as to the legality of the Common Shares being
offered (to be filed by amendment). E-1
23.2 Consent of Vorys, Sater, Seymour and Pease
(included in Exhibit 5.1).
(614) 464-6400
March 21, 1997
Board of Directors
Symix Systems, Inc.
2800 Corporate Exchange Drive
Columbus, Ohio 43231
Gentlemen :
We are familiar with the proceedings taken and proposed to be taken by
Symix Systems, Inc., an Ohio corporation (the "Company"), in connection with the
registration of 125,000 common shares, no par value, of the Company (the "Common
Shares") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"). The Common Shares are being registered for resale by certain selling
shareholders of the Company.
In connection with rendering this opinion, we have examined, among other
things, the Amended Articles of Incorporation and Amended Regulations of the
Company, each as amended to date; such records of the corporate proceedings of
the Company as we deemed to be material; a registration statement on Form S-3
under the Securities Act relating to the Common Shares, as amended to date (the
"Registration Statement") and the prospectus contained therein (the
"Prospectus"); and such other certificates, records and documents as we have
considered necessary in order to express the opinion hereinafter set forth.
Based upon the foregoing, and assuming compliance with applicable federal
and state securities laws, we are of the opinion that the Common Shares are
validly issued, fully paid and nonassessable and when sold by the selling
shareholders as specified in the Prospectus, will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ VORYS, SATER, SEYMOUR AND PEASE
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