-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JFOvXzaPQ0g9FpTCDJtQVJ71vhPU4BzhtdGTGkirKr8I52k29dKUbw/IA3pz/q5y gl5cTwtGqKpP95PXOQiRag== 0000896463-97-000082.txt : 19970324 0000896463-97-000082.hdr.sgml : 19970324 ACCESSION NUMBER: 0000896463-97-000082 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970321 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYMIX SYSTEMS INC CENTRAL INDEX KEY: 0000872443 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 311083175 STATE OF INCORPORATION: OH FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-23385 FILM NUMBER: 97560497 BUSINESS ADDRESS: STREET 1: 2800 CORPORATE EXCHANGE DR CITY: COLUMBUS STATE: OH ZIP: 43231 BUSINESS PHONE: 6145237000 MAIL ADDRESS: STREET 1: 2800 CORPORATE EXCHANGE DR CITY: COLUMBUS STATE: OH ZIP: 43231 S-3/A 1 As filed with the Securities and Exchange Commission on March 21, 1997 Registration No. 333-23385 ================================================================================ 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 ------------------------------------------------------------------------ (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. ================================================================================ 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. 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. -2- 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. -3- 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. -4- Shares Beneficially Owned Shares Beneficially Owned Prior to the Offering After Offering ------------------------- ------------------------- Beneficial Owner Number Percent Number Percent ---------------- ------ ------- ------ ------- 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 _______________________________
(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 -5- 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 -6- 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. -7- 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. -8- =============================================== ============================== 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 ------- 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 =============================================== ============================== -9- 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 II-1 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: II-2 (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 II-3 (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 II-4 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, II-5 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 II-6 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. II-7 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). II-8 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. II-9 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. II-10 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) 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). EX-5.1 2 (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 E-1 -----END PRIVACY-ENHANCED MESSAGE-----