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As filed with the Securities and Exchange Commission on March 24, 1999
REGISTRATION NO. 333-71357
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SYMIX SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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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)
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WITH A COPY TO:
LAWRENCE W. DELEON IVERY D. FOREMAN
CHIEF FINANCIAL OFFICER VORYS, SATER, SEYMOUR AND PEASE LLP
SYMIX SYSTEMS, INC. 52 EAST GAY STREET
2800 CORPORATE EXCHANGE DRIVE COLUMBUS, OHIO 43215
SUITE 400 (614) 464-6322
COLUMBUS, OHIO 43231
(614) 523-7379
(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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
OF SECURITIES TO BE REGISTERED MAXIMUM MAXIMUM REGISTRATION FEE (2)
REGISTERED OFFERING PRICE PER AGGREGATE OFFERING
SHARE (1) PRICE
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<S> <C> <C> <C> <C>
Common Shares,
no par value 14,650 $16.5625 $242,641 $67.46
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Computed in accordance with Rule 457(c) on the basis of the average of
the high and low sales prices per share for the Common Shares on March 22,
1999 as reported on the NASDAQ National Market System. The filing fee for
95,000 common shares was paid previously to the Commission.
THE REGISTRANT AMENDS THIS REGISTRATION STATEMENT ON THE 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 THE DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 24, 1999
SYMIX SYSTEMS, INC.
2800 CORPORATE EXCHANGE DRIVE
SUITE 400
COLUMBUS, OHIO 43231
PROSPECTUS
109,650 COMMON SHARES
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This prospectus relates to the public offering of up to 109,650 common
shares of Symix Systems, Inc. by our shareholders listed below. The prices
at which the common shares will be sold will be determined by the prevailing
market price for the common shares or in negotiated transactions. We will
not receive any of the proceeds from the sale of the common shares.
Our common shares are listed on the NASDAQ National Market System under
the symbol "SYMX". FOR RISKS IN CONNECTION WITH AN INVESTMENT IN THE COMMON
SHARES, SEE "RISK FACTORS" BEGINNING ON PAGE 3.
----------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
----------------
THE DATE OF THIS PROSPECTUS IS MARCH _____, 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Information About Symix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Dividend Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Where You Can Find More Information. . . . . . . . . . . . . . . . . . . . . . . . 12
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Forward-Looking Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS IN EVALUATING
WHETHER TO INVEST IN THE COMMON SHARES. THESE FACTORS SHOULD BE CONSIDERED
IN CONJUNCTION WITH THE OTHER INFORMATION INCLUDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS.
CHANGES IN DEMAND FOR PRODUCTS AND SERVICES COULD CAUSE FLUCTUATIONS IN OUR
QUARTERLY OPERATING RESULTS.
Our operating results may vary significantly from quarter to quarter.
Our quarterly operating results are affected by a number of factors that
could materially and adversely affect revenues and profitability. These
factors also make estimation of operating results prior to the end of a
quarter extremely uncertain. These factors include:
- demand for our products and services;
- competitive conditions in the software industry;
- the timing of the introduction or market acceptance of new or enhanced
products which we offer or which are offered by our competitors;
- the potential for delay or deferral of customer purchases of our
products in anticipation of product enhancements or new product
offerings by us or our competitors:
- the timing of any acquisitions by us and related write-offs;
- the mix of our product and service net revenues;
- the mix of our North American and international net revenues; and
- general economic conditions and other factors affecting capital
expenditures by our customers.
The purchase of our products and services may involve a significant
commitment of capital and other resources by our customers. As a result, the
sales cycles for our products and services, from initial evaluation to
delivery or performance, vary from customer to customer. The timing of
individual sales is difficult to predict, and sales can occur in quarters
subsequent to those anticipated by us.
Revenues in any quarter are substantially dependent on orders signed and
shipped in that quarter. Typically, we realize higher revenues in our second
and fourth fiscal quarters. Generally we record a majority of our quarterly
revenues in the third month of each quarter, primarily in the
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latter half of the third month. We believe that the fluctuations in our
operating results is caused primarily by the budgeting cycles of our
customers and the structure of our sales commission and bonus programs. As a
result, our quarterly operating results are difficult to predict. In
addition, delays in product delivery or in closings of sales near the end of
a quarter could cause our quarterly operating results to fall substantially
short of anticipated levels.
TERMINATION OF AGREEMENT WITH PROGRESS WOULD REQUIRE US TO MIGRATE OUR
PRODUCT TO A DIFFERENT PROGRAMMING LANGUAGE AND COULD RESULT IN A LOSS OF
BUSINESS.
Our core product, SyteLine, is written in PROGRESS, a proprietary
programming language which we license from Progress Software Corporation. We
depend upon the license of PROGRESS to our customers and the acceptance of
PROGRESS by our customers. We market and distribute PROGRESS in connection
with the sale of our products under a non-exclusive agreement with Progress.
The agreement may be terminated by either party upon 90 days written notice
to the other party. In addition, the agreement may be terminated immediately
by either party if a material breach of the agreement by the other party
continues after 30 days' written notice. Our relationship with Progress
involves other risks which could have a material adverse effect on our
business, operating results or financial condition, including the following:
(1) the failure of Progress to continue its relationship with us;
(2) the failure of Progress to develop, support or enhance PROGRESS
in a manner which is competitive with enhancements of other
programming languages;
(3) the loss of market acceptance of PROGRESS and its relational
database management system; and
(4) our inability to migrate our software products to other
programming languages on a timely basis if PROGRESS is no longer
available.
WE DERIVE A SIGNIFICANT PORTION OF OUR BUSINESS FROM OPERATIONS WHICH ARE
SUBJECT TO FOREIGN ECONOMIC CONDITIONS AND CURRENCY FLUCTUATIONS.
We derive a significant portion of our business from international
sales. We expect to continue to expand our international operations, which
will require significant management attention and financial resources. Our
international operations are subject to various risks, including the
following:
(1) the impact of a recession in foreign countries, particularly in
Europe and the Asia/Pacific regions;
(2) cultural and language difficulties associated with serving
customers, localizing and translating products;
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(3) staffing and management problems related to foreign operations;
(4) exchange controls and reduced protection for intellectual
property;
(5) political instability; and
(6) fluctuations in foreign exchange rates.
ADVERSE ECONOMIC CONDITIONS IN THE MANUFACTURING INDUSTRY COULD RESULT IN
REDUCED PURCHASES OF OUR PRODUCTS.
Our customers are primarily manufacturers. Our business depends
substantially upon the capital expenditures of our customers. Capital
expenditures by our customers depend upon the demand for manufactured
products. A recession or other adverse economic event affecting manufacturers
could cause them to curtail or delay capital expenditures for computer
software products. Any significant changes in the timing or amount of capital
expenditures by manufacturers could have a material adverse effect on our
business, operating results or financial condition.
PRODUCT DEFECTS COULD RESULT IN A LOSS OF MARKET SHARE OR MATERIAL DELAYS IN
THE RELEASE OF NEW OR ENHANCED PRODUCTS.
Software programs are complex. Upon release, our products may contain
undetected errors or bugs which are usually resolved through the regular
maintenance and updating process. However, our products also may contain
more serious errors, failures or bugs which may not be detected until the
product has been delivered to customers. As a result of serious errors,
failures or bugs:
(1) our customers could suffer major business interruptions or other
problems which could lead to claims for damages against us;
(2) our customers may delay their purchase of our products until they
are satisfied that the problems have been resolved;
(3) we may experience delays in the scheduled release of new or
enhanced products;
(4) our customers may decide not to purchase the defective products
or our other products;
(5) we may have to devote significant financial and product
development resources to fix defective products; and
(6) market acceptance of our products may be reduced.
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If our products contain serious defects, failures or errors, our business,
results of operations or financial condition may be materially adversely
affected.
YEAR 2000 COULD SHIFT CUSTOMERS' SOFTWARE PRODUCT PURCHASES AWAY FROM OUR
PRODUCTS.
Many currently installed computer software products use only two digits,
rather than four digits, to represent a particular year. Starting in the
year 2000, these products will need to accept four digit entries to recognize
twenty-first century dates. The failure of these products to process dates
beyond the year 1999 may result in miscalculations or system failures.
Embedded systems, including environmental systems controls, elevators and
other products that use microprocessors or computer chips, also may have year
2000 compliance problems. As a result, these products and systems may need to
be upgraded or replaced to comply with year 2000 requirements.
We believe that the current version of our products are year 2000
compliant. We do not intend to make all prior versions of our products year
2000 compliant. We have notified our customers as to which versions of our
products will and will not be year 2000 compliant. We also have advised our
customers of available upgrades or new releases of our older products which
are year 2000 compliant.
We are in the process of assessing the year 2000 readiness of our
selected key suppliers, subcontractors, business partners and customers. We
have confirmed that products and proprietary technology of others used in our
products are year 2000 compliant.
We also are in the process of reviewing our internal computer
information system and non-computer systems with embedded computer
technology, such as telecommunications equipment and building elevators, for
year 2000 compliance. We believe that such systems are year 2000 compliant.
We are subject to various risks related to year 2000 compliance issues,
including:
- customers have allocated significant portions of their information
technology budgets to year 2000 compliance which could diminish demand
for our products;
- some of our products may contain undetected year 2000 problems; and
- the failure of others who provide external services to us, including
public utilities, to be year 2000 ready could adversely impact our
operations.
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INFORMATION ABOUT SYMIX
We design, develop, market and support enterprise application software
that serves the manufacturing and financial requirements of discrete
manufacturers. Discrete manufacturers produce individual items in lots or
batches. Our products are designed to improve;
- customer service;
- planning and scheduling of manufacturing resources;
- production and inventory management; and
- financial management.
In addition to generating revenue from licensing and supporting our
software, we provide implementation and training services to our customers.
Our principal customers are manufacturers with annual revenues up to $500
million and individual manufacturing sites or divisions of larger
manufacturers.
Our two primary products, SyteLine and SyteCentre, target different
vertical markets. SyteLine is focused on serving make-to-order manufacturers
of highly configured industrial products. The targeted vertical markets of
SyteLine are:
- industrial equipment;
- fabricated metals;
- industrial electronic equipment;
- furniture and fixtures; and
- containers and packaging.
SyteCentre was initially released in February 1999 and serves repetitive
and make-to-stock manufacturers of consumer products. The targeted vertical
markets of SyteCentre are:
- consumer electronics;
- consumer durable goods; and
- computers and related peripherals.
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We also market and support products provided by third party software
vendors that are integrated with SyteLine and SyteCentre. These products
provide additional functionality, including:
- sales order configuration and pricing;
- electronic and web commerce; and
- business analysis and reporting tools.
Approximately 80% of our license fee revenue is generated from our
world-wide direct sales organization. We also have approximately 40 business
partners throughout the world that sell and service our products. We have 24
sales and support offices in North America, Europe and Asia with about 25% of
our revenue being generated from outside of North America.
We were incorporated in 1984 in Ohio. Our principal executive offices
are located at 2800 Corporate Exchange Drive, Columbus, Ohio 43231, and our
telephone number is (614) 523-7000. Our web site address is symix.com.
RECENT DEVELOPMENTS
On February 24, 1999, we entered into an agreement to acquire
Distribution Architects International, Inc., a Texas corporation ("DAI").
DAI markets and sells supply chain management software applications for
distribution organizations. We expect to issue up to 610,000 common shares
in exchange for all of the outstanding common stock of DAI. We also intend
to file a registration statement with the SEC to register the common shares.
The acquisition is expected to be accounted for as a pooling of interests.
The parties intend to close the transaction within the next 90 days.
USE OF PROCEEDS
Our shareholders, Richard Smart and Philip Smart, will receive all of
the proceeds from the sale of the common shares offered by this prospectus.
Accordingly, we will not receive any proceeds from the sale of the common
shares.
DIVIDEND POLICY
We have never declared or paid cash dividends on our common shares. We
currently intend to retain all or our future earnings, if any, for use in our
operations and the growth and development of our business. Accordingly, we
do not currently expect to pay cash dividends on our common shares in the
foreseeable future.
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SELLING SHAREHOLDERS
All of the common shares being offered by this prospectus are
beneficially-owned by two shareholders, Richard and Philip Smart. The
following table shows information regarding their beneficial ownership of
common shares as of the date of this prospectus. We are unable to estimate
the amount of shares that will be held by them after completion of the
offering because they may sell all or some of the shares and there currently
are no agreements, arrangements or understandings with respect to the sale of
any of the shares. Richard and Philip Smart each beneficially own less than
1% of the outstanding common shares of Symix.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES REGISTERED
BENEFICIAL OWNER PRIOR TO THE OFFERING FOR SALE
---------------- ------------------------- ---------------------------
<S> <C> <C>
Philip Smart................. 54,825 54,825
3430 South Service Road
Burlington, Ontario L7N 3T9
Canada
Richard Smart................ 54,825 54,825
3430 South Service Road
Burlington, Ontario L7N 3T9
Canada
</TABLE>
Under a share purchase agreement dated December 31, 1996, through a
subsidiary, we acquired all of the issued and outstanding shares of Visual
Applications Software, Inc. ("VAS") from Richard and Philip Smart in exchange
for shares of the subsidiary and $1,000,000 (Canadian) in cash.
In connection with the acquisition, we entered into a share exchange
agreement with the Smarts dated January 9, 1997. Under the terms of the
exchange agreement, we agreed to exchange Symix common shares for shares of
the subsidiary on a one-for-one basis. We also agreed to register the Symix
common shares received by them with the SEC at our expense.
In January, 1999, the Smarts requested that we register a total of
95,000 Symix common shares issued to them under the exchange agreement. On
March 19, 1999, the Smarts requested that we register an additional 14,650
common shares issued to them under the exchange agreement.
PLAN OF DISTRIBUTION
All of the common shares being offered by this prospectus will be sold
by Richard and Philip Smart for their own accounts. We will not receive any
of the proceeds from the sale of the shares. They have agreed to indemnify
Symix and its officers and directors against liabilities under the Securities
Act which result from our reliance upon information included in this
prospectus and furnished to us by either of them, or if they fail to satisfy
the prospectus delivery requirement under the Securities Act.
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The Smarts may sell the common shares 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 Smarts 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 them or the purchaser of the
shares or both.
The Smarts and any underwriters, dealers or agents that participate in
the distribution of the common shares may be deemed to be "underwriters"
under the Securities Act. Any profit on the sale of the common shares by
them and any discounts, commissions or concessions received by any of them
may be deemed to be "underwriting discounts and commissions" under the
Securities Act.
The Smarts have advised us that no agreement exists with any
broker-dealer with respect to the sale of the common shares. We will file a
supplement to this prospectus, if required, pursuant to Rule 424 (b) under
the Securities Act, upon notice from either of them that any material
arrangement has been entered into with a broker-dealer for the sale of the
shares through a block trade, special offering, exchange distribution or
secondary distribution. The supplement will disclose 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, any discounts,
commissions or concessions allowed or reallowed or paid to dealers, the
proposed selling price to the public and other facts material to the
transaction.
We have not registered or qualified offers and sale of the common shares
under the laws of any foreign country. The Smarts will offer and sell the
common shares in various states only through registered or licensed brokers
or dealers, if required, and otherwise in accordance with applicable state
securities and blue sky laws.
We will bear all costs, expenses and fees in connection with the
registration of the common shares. The Smarts will bear all commissions and
discounts, if any, attributable to the sale of the common shares.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock 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 17, 1999,
there were 6,713,869 common shares outstanding. No preferred shares are
currently outstanding. The outstanding common shares are fully paid and
nonassessable.
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COMMON SHARES
Our common shareholders are entitled to one vote for each common share
held of record on each matter submitted to a vote of shareholders. Our
shareholders have no cumulative voting rights, which means that the holders
of shares entitled to exercise more than fifty percent of the voting power
are able to elect all of the directors.
Our common shareholders on the applicable record date are entitled to
receive dividends on a pro rata basis when and if declared by our board of
directors out of funds legally available for dividends on our common shares.
Dividend payments to holders of common shares are subject to the rights of
any preferred shareholders and to any contractual restrictions.
Under Ohio law and our articles of incorporation, the affirmative vote
of the shareholders entitled to exercise at least two-thirds of the voting
power of Symix is required for major corporate actions, including merger or
consolidation with another corporation, combination or majority share
acquisition, sale or other disposition of all or substantially all of our
property and assets, our voluntary dissolution or amendment of our articles
of incorporation.
Upon dissolution, liquidation or sale of all or substantially all our
assets, after required payments to our creditors and preferred shareholders,
if any, our common shareholders are entitled to receive pro rata our
remaining assets available for distribution.
Our common shareholders do not have preemptive, subscription, redemption
or conversion rights and are not subject to further calls or assessments.
PREFERRED SHARES
Our articles of incorporation authorize our board of directors to issue
preferred shares from time to time in one or more series. Our articles of
incorporation limit the voting rights of preferred shareholders to one vote
for each preferred share held on each matter submitted to a vote of preferred
shareholders. Our board of directors is authorized to fix and determine the
relative rights and preferences of the shares of any series of preferred
shares with respect to:
- dividend or distribution rights;
- the dates from which they are cumulative;
- liquidation price;
- redemption rights and price;
- sinking fund requirements;
- conversion rights and restrictions; and
- restrictions on the issuance of shares of any class or series.
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Our board of directors, without shareholder approval, could issue
preferred shares with voting and conversion rights which could adversely
affect the voting power of our common shareholders. We have no present plans
to issue any preferred shares.
TRANSFER AGENT
Our transfer agent for the common shares is Fifth Third Bank, N.A.,
Cincinnati, Ohio.
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
with the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Room. Our SEC filings are also available
to the public at the SEC's web site 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
we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934. This prospectus is part of a registration
statement we filed with the SEC (Registration No. 333- 71357). The documents
we incorporate by reference are:
1. Our annual report on Form 10-K, Form 10-K/A No. 1 and Form 10-K/A No.
2 for the fiscal year ended June 30, 1998;
2. Our quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 1998;
3. Our quarterly report on Form 10-Q for the fiscal quarter ended
December 31, 1998;
4. Our definitive proxy statement filed with the SEC in connection with
our 1998 annual meeting of shareholders.
All reports and other documents we subsequently file pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and prior to the termination of this
offering will be deemed to be incorporated by reference and to be a part of
this prospectus from the date of filing. Any statement incorporated into
this prospectus is modified or superseded to the extent that a statement
contained in this prospectus or in any other subsequently filed document
incorporated by reference in this prospectus modifies or supersedes
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that statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
We will provide a copy of any or all of these filings to you without charge
upon your request. However, we will not provide to you copies of exhibits to
a filing unless the exhibits are specifically incorporated by reference into
the filing. Requests for these filings should be made to Symix Systems,
Inc., 2800 Corporate Exchange Drive, Suite 400, Columbus, Ohio 43231,
Attention: Chief Financial Officer or by telephone at (614) 523-7379.
LEGAL MATTERS
Legal matters regarding whether the common shares are validly issued,
fully paid and nonassessable will be passed upon for us by Vorys, Sater,
Seymour and Pease LLP, Columbus, Ohio, our legal counsel. As of January 25,
1999, the partners of and attorneys employed by Vorys, Sater, Seymour and
Pease LLP, together with members of their immediate families, owned in the
aggregate approximately 145,165 common shares.
EXPERTS
Our consolidated financial statements and schedule appearing in our
Annual Report (Form 10-K) for the year ended June 30, 1998, have been audited
by Ernst & Young LLP, independent auditors, as set forth in their report
included in the Annual Report and incorporated in this prospectus by
reference. The consolidated financial statements and schedule are
incorporated in this prospectus by reference in reliance upon their report
given upon the authority of that firm as experts in accounting and auditing.
FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS CONTAINS OR INCORPORATES FORWARD-LOOKING STATEMENTS.
YOU CAN IDENTIFY THESE FORWARD-LOOKING STATEMENTS BY OUR USE OF THE WORDS
"BELIEVES", "ANTICIPATES", "EXPECTS", "MAY", "WILL", "INTENDS", "ESTIMATES",
AND SIMILAR EXPRESSIONS, WHETHER IN THE NEGATIVE OR AFFIRMATIVE. ALTHOUGH WE
BELIEVE THAT THESE FORWARD-LOOKING STATEMENTS REFLECT OUR PLANS, INTENTIONS,
AND EXPECTATIONS REASONABLY, WE CAN GIVE NO ASSURANCE THAT WE ACTUALLY WILL
ACHIEVE THESE PLANS, INTENTIONS OR EXPECTATIONS. OUR ACTUAL RESULTS COULD
DIFFER MATERIALLY FROM THE PLANS, INTENTIONS OR EXPECTATIONS DISCLOSED IN THE
FORWARD-LOOKING STATEMENTS WE MAKE. WE UNDERTAKE NO OBLIGATION TO PUBLICLY
UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENT OR ANY INFORMATION CONTAINED
IN ANY FORWARD-LOOKING STATEMENT. YOU ARE CAUTIONED NOT TO PLACE ANY UNDUE
RELIANCE ON THESE FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THEIR
DATES.
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WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR TO MAKE ANY
STATEMENT OR REPRESENTATION THAT DIFFERS FROM WHAT IS IN THIS PROSPECTUS. IF
ANY PERSON DOES MAKE A STATEMENT THAT DIFFERS FROM WHAT IS IN THIS
PROSPECTUS, YOU SHOULD NOT RELY ON IT. THIS PROSPECTUS IS NOT AN OFFER TO
SELL, NOR IS IT SEEKING AN OFFER TO BUY, THESE SECURITIES IN ANY STATE IN
WHICH THE OFFER OR SALE IS NOT PERMITTED. THE INFORMATION IN THIS PROSPECTUS
IS COMPLETE AND ACCURATE AS OF ITS DATE, BUT THE INFORMATION MAY CHANGE AFTER
THAT DATE.
--------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
109,650 COMMON SHARES
SYMIX SYSTEMS, INC.
-------------
PROSPECTUS
____________, 1999
_______
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
14
<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 SEC
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.
<TABLE>
<S> <C>
SEC registration fee......................... $ 614.00
Legal fees and expenses...................... $ 7,500.00
Accountants' fees and expenses............... $ 4,000.00
NASDAQ fee................................... $ 2,000.00
Miscellaneous expenses....................... $ 500.00
--------------
Total..................................... $ 14,614.00
--------------
--------------
</TABLE>
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 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
II-1
<PAGE>
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:
(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
II-2
<PAGE>
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
(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
II-3
<PAGE>
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 may be 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 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 Symix's Amended Regulations governs indemnification and
provides further as follows:
II-4
<PAGE>
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, 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.
II-5
<PAGE>
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 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
II-6
<PAGE>
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.
Insurance may be purchased from or maintained with a person in which the
corporation has a financial interest.
SECTION 5.08. 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
II-7
<PAGE>
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, Symix has purchased directors' and officers' liability
insurance coverage under policies which insure its directors and officers with
respect to liabilities.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP as to the
legality of the common shares being offered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Vorys, Sater, Seymour and Pease LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney
</TABLE>
ITEM 17. UNDERTAKINGS
1. The undersigned Registrant undertakes:
II-8
<PAGE>
(a) to file, during any period in which offers or sales are being made
of the securities registered by this registration statement, 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 in this registration statement 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 in this registration statement 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.
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
II-9
<PAGE>
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.
II-10
<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 of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
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 24th day of March, 1999.
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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
LAWRENCE J. FOX* Chairman of the Board of March 24, 1999
- ----------------------- Directors, Chief Executive Officer
LAWRENCE J. FOX
STEPHEN A. SASSER* President, Chief Executive March 24, 1999
- ----------------------- Officer and Director
STEPHEN A. SASSER (Principal Executive Officer)
Vice President,
/s/ LAWRENCE W. DELEON
- -----------------------
LAWRENCE W. DELEON Chief Financial Officer March 24, 1999
and Secretary (Principal
Financial and
Accounting Officer)
LARRY L. LIEBERT* Director March 24, 1999
- -----------------------
LARRY L. LIEBERT
DUKE W. THOMAS* Director March 24, 1999
- -----------------------
DUKE W. THOMAS
JOHN T. TAIT* Director March 24, 1999
- -----------------------
JOHN T. TAIT
JAMES A. RUTHERFORD* Director March 24, 1999
- -----------------------
JAMES A. RUTHERFORD
*By /s/ LAWRENCE W. DELEON
-----------------------
LAWRENCE W. DELEON
(ATTORNEY-IN-FACT)
</TABLE>
II-11
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
PAGE
<S> <C>
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP as to the
legality of the common shares being offered (to be filed
by amendment) II-13
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Vorys, Sater, Seymour and Pease LLP (included
in Exhibit 5.1).
24.1 Powers of Attorney*
</TABLE>
- ----------
* Previously filed
II-12
<PAGE>
Exhibit 5.1
(614) 464-6400
March 24, 1999
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 109,650 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,
Registration No. 333-71357 (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.
In our examinations and in rendering the opinions set forth below, we
have assumed, without independent investigation or examination, (a) the
genuineness of all signatures, the authenticity and completeness of all
documents submitted to us as copies and the authenticity of such originals of
such latter documents; (b) that the final, executed copy of each document
submitted to us in draft form will not differ in any material respect from the
draft form of such document submitted to us; and (c) that, with respect to
documents executed by parties other than the Company, such parties had the
power, corporate or otherwise, to enter into and perform all obligations
thereunder and that such documents were duly authorized by all requisite action,
corporate or otherwise, of such parties, that such documents were duly executed
and delivered by such parties and that such documents are the valid and binding
agreements of such parties. As to the facts material to our opinions expressed
herein which were not independently established or verified, we have relied upon
oral or written statements and representations of officers and other
representatives of the Company and others.
<PAGE>
Based upon and subject to the foregoing, and the further qualifications and
limitations set forth below, 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
nonassessable.
We are members of the Bar of the State of Ohio and do not purport to be
experts in the laws of any jurisdiction other than the laws of the State of Ohio
and the United States of America.
We hereby consent to the use of our name in the Registration Statement
under the caption "Legal Matters" and to the filing of this opinion as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
admit that we come within the category of persons whose consent is required
under Section 7 of the Act or the Rules and Regulations.
Very truly yours,
/s/VORYS, SATER, SEYMOUR AND PEASE LLP
