0000950152-01-504935.txt : 20011019
0000950152-01-504935.hdr.sgml : 20011019
ACCESSION NUMBER: 0000950152-01-504935
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 5
FILED AS OF DATE: 20011011
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: FRONTSTEP 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
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-71434
FILM NUMBER: 1757199
BUSINESS ADDRESS:
STREET 1: 2800 CORPORATE EXCHANGE DR
STREET 2: N/A
CITY: COLUMBUS
STATE: OH
ZIP: 43231
BUSINESS PHONE: 6145237000
MAIL ADDRESS:
STREET 1: 2800 CORPORATE EXCHANGE DR
CITY: COLUMBUS
STATE: OH
ZIP: 43231
FORMER COMPANY:
FORMER CONFORMED NAME: SYMIX SYSTEMS INC
DATE OF NAME CHANGE: 19930328
S-3
1
l90418as-3.txt
FRONTSTEP, INC. S-3
1
As filed with the Securities and Exchange Commission on October 11, 2001
REGISTRATION NO. 333 -
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
FRONTSTEP, 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:
DANIEL P. BUETTIN IVERY D. FOREMAN, ESQ.
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER VORYS, SATER, SEYMOUR AND PEASE LLP
FRONTSTEP, INC. 52 EAST GAY STREET
2800 CORPORATE EXCHANGE DRIVE COLUMBUS, OHIO 43215
SUITE 400 (614) 464-6322
COLUMBUS, OHIO 43231
(614) 523-7136
(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 statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF AMOUNT TO BE REGISTERED (1) PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTRATION
SECURITIES TO BE REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE FEE (3)
(2)
Common Shares,
no par value 687,500 $3.0318 $2,084,362.50 $521.09
(1) Represents the common shares being registered for resale by the selling
shareholder. Pursuant to Rule 416, the common shares being registered hereby
also include such presently indeterminate number of common shares that may be
issued as a result of anti-dilution provisions included in the warrant,
including, among other things, share splits, share dividends and similar
transactions.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Computed in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the average of the high and low
sales prices per share for the Common Shares on October 5, 2001 as reported on
the NASDAQ National Market System.
THE REGISTRANT HEREBY 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 SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES 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 OCTOBER 11, 2001
FRONTSTEP, INC.
2800 CORPORATE EXCHANGE DRIVE
SUITE 400
COLUMBUS, OHIO 43231
614/523-7000
PROSPECTUS
687,500 COMMON SHARES, NO PAR VALUE
On July 17, 2001, we issued a warrant to purchase our common shares to
Foothill Capital Corporation in a private placement. This prospectus is part of
a registration statement that we filed with the SEC. This prospectus relates to
the public offering of up to 687,500 of our common shares by Foothill, the
selling shareholder named in this prospectus, which may be received upon
exercise of the warrant. Foothill, or its pledgees, donees, transferees or other
successors-in-interests, may offer the shares from time to time through public
or private transactions at prevailing market prices, at prices related to
prevailing market prices or at privately negotiated prices. We will not receive
any of the proceeds from the sale of the common shares. However, we will receive
$3.36 per share, subject to adjustments, for each common share issued to the
holder of the warrant upon exercise of the warrant, unless the holder of the
warrant elects a "net share" settlement.
Our common shares are listed on the Nasdaq National Market System under the
symbol "FSTP". On October 5, 2001, the closing sales price of our common shares
on Nasdaq was $3.0318 per share.
FOR RISKS IN CONNECTION WITH AN INVESTMENT IN OUR COMMON SHARES, SEE "RISK
FACTORS" BEGINNING ON PAGE 1.
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 October , 2001.
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TABLE OF CONTENTS
PAGE
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Risk Factors................................................ 1
Forward-Looking Statements.................................. 5
Information About Frontstep................................. 6
Selling Shareholder......................................... 7
Plan of Distribution........................................ 8
Use of Proceeds............................................. 10
Description of Securities................................... 11
Where You Can Find More Information......................... 15
Legal Matters............................................... 16
Experts..................................................... 16
---------------------
We have not authorized anyone to provide you with information different
from that contained or incorporated by reference in this prospectus. The selling
shareholder is offering to sell, and seeking offers to buy, our common shares
only in jurisdictions where offers and sales of our common shares by it are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of common shares.
4
RISK FACTORS
You should carefully consider the following factors in evaluating whether
to invest in our 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 OUR PRODUCTS AND SERVICES COULD CAUSE POTENTIAL
SIGNIFICANT FLUCTUATIONS IN OUR QUARTERLY AND ANNUAL 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 our 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 services net revenues
- the mix of our North American and international net revenues
- dependence on a few very large new license sales in each quarter to meet
our quarterly goals
- general economic conditions and other factors affecting capital
expenditures by our customers
- the size, timing and structure of significant licenses with our customers
- the entry of new competitors and technological advances by competitors
- delays in localizing our products for new markets
- product life cycles
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. In addition, sales through indirect channels, such as through
business partners, are difficult to predict and may have lower profit margins
than direct sales.
Our 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, mostly in the 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 established buying
patterns by our customers or potential customers in the industry. 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.
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ADVERSE ECONOMIC CONDITIONS IN THE GENERAL BUSINESS ECONOMY OR SPECIFICALLY
IN THE MANUFACTURING INDUSTRIES WE SERVE COULD RESULT IN REDUCED PURCHASES OF
OUR PRODUCTS AND SERVICES.
Our customers are primarily discrete manufacturers and industrial products
distributors in discrete manufacturing environments. Our business depends
substantially upon the capital expenditures of our customers. Capital
expenditures by our customers are somewhat dependent upon the demand for their
manufactured products and the strength of their financial condition. A recession
or other adverse economic event in general or one that specifically affects
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 and financial condition.
Industries in which our customers operate have been affected by weakened
demand for their products for approximately one to two years and we believe that
the demand for our products and services has already been significantly
impacted, which has negatively affected our financial results and financial
condition. However, there can be no assurance that economic conditions relating
to our customers or potential customers will not become more severe.
ANY DECREASE IN OUR LICENSING ACTIVITY IS LIKELY TO RESULT IN REDUCED
SERVICES REVENUE IN FUTURE PERIODS.
Our service, maintenance and support revenue is derived from our
installation, implementation, training, consulting, systems integration and
software product maintenance and support services. Typically a decrease in our
service, maintenance and support revenue follows a decrease in our licensed
software installations. Our ability to maintain or increase our service,
maintenance and support revenue depends in large part on our ability to increase
our software licensing activity.
THE MARKET FOR OUR PRODUCTS IS CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE,
EVOLVING INDUSTRY STANDARDS IN COMPUTER HARDWARE AND SOFTWARE TECHNOLOGY,
CHANGES IN CUSTOMER REQUIREMENTS AND FREQUENT NEW PRODUCT INTRODUCTIONS AND
ENHANCEMENTS.
The introduction of products embodying new technologies and the emergence
of new industry standards can cause customers to delay their purchasing
decisions and render existing products obsolete and unmarketable. The life
cycles of our software products are difficult to estimate. Consequently, our
future success will depend, in part, upon our ability to continue to enhance our
existing products and to develop and introduce in a timely manner new products
with technological developments that satisfy customer requirements and achieve
market acceptance. There can be no assurance that we will successfully identify
new product opportunities and develop and bring new products to market in a
timely and cost-effective manner or that products, capabilities or technologies
developed by others will not render our products or technologies obsolete or
noncompetitive or shorten the life cycles of our products. If we are unable to
develop on a timely and cost-effective basis new software products or
enhancement to existing products, or if our products or enhancements do not
achieve market acceptance, our business, operating results and financial
condition may be materially adversely affected.
WE DERIVE A SIGNIFICANT PORTION OF OUR BUSINESS FROM OPERATIONS THAT 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:
- the impact of a recession in foreign countries, particularly in Europe
and the Asia/Pacific regions
- cultural and language difficulties associated with serving customers and
localizing products
- staffing and management problems related to foreign operations
- exchange controls and reduced protection for intellectual property in
some countries
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- political instability
- unexpected changes in foreign regulatory requirements
- difficulties in collecting accounts receivable and longer collection
periods
- restrictions on the repatriation of foreign earnings
- the impact of local economic conditions and practices
- fluctuations in foreign exchange rates
- potential adverse foreign tax consequences
TERMINATION OF AGREEMENT WITH PROGRESS WOULD CAUSE A DISRUPTION OF SERVICE
TO OUR CUSTOMERS AND MAY RESULT IN LOWER OPERATING MARGINS OR A LOSS OF
BUSINESS.
Our core product, SyteLine, is written in Progress, a proprietary
programming language which we license from Progress Software Corporation. 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:
- the failure of Progress to continue its business relationship with us
- the failure of Progress to develop, support or enhance Progress in a
manner that is competitive with enhancements of other programming
languages
- delays in the release of Progress products or product enhancements that
require a delay in the release of our products or product enhancements
- the loss of market acceptance of Progress and its relational database
management system
- our inability to migrate our software products to other programming
languages on a timely basis if Progress is no longer available
CONVERSION OF OUR OUTSTANDING SERIES A PREFERRED SHARES AND EXERCISE OF OUR
OUTSTANDING WARRANTS COULD RESULT IN SUBSTANTIAL DILUTION OF YOUR INVESTMENT, A
DETRIMENTAL EFFECT ON OUR LIQUIDITY AND ABILITY TO RAISE ADDITIONAL CAPITAL, AND
A SIGNIFICANT DECLINE IN THE MARKET VALUE OF OUR COMMON SHARES.
As of September 24, 2001, we had approximately 7,568,218 common shares
outstanding and we had approximately 1,587,412 additional common shares reserved
for issuance upon conversion of our outstanding Series A preferred shares and
upon exercise of our outstanding warrants (excluding the warrants held by the
selling shareholders). Our Series A preferred shares and outstanding warrants
and stock options also contain or are subject to various anti-dilution and
similar provisions which may require us to issue additional common shares in
certain circumstances. If these securities are converted or exercised, other
holders of our common shares may experience significant dilution in the market
value of our common shares held by them. If the holders were to sell all or a
substantial amount of those common shares into the open market, the sales could
have a negative effect on the market price of our common shares. The sales also
might make it more difficult for us to sell equity or equity-related securities
in the future at a price we deem appropriate.
WE HAVE NO INTENTION OF PAYING CASH DIVIDENDS.
We have never paid any cash dividends on our common shares. We currently
intend to retain all future earnings, if any, for use in our business and we do
not expect to pay any cash dividends in the foreseeable future. In addition,
dividend payments to holders of our common shares are subject to the rights of
holders of our preferred shares. As long as our Series A preferred shares are
outstanding, no
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dividends may be declared or paid on our securities that rank junior to our
Series A preferred shares, including our common shares, unless all required
cumulative dividends are paid or a sum sufficient for the payment of the
dividends is set apart for such payment.
TURNOVER IN OUR SENIOR MANAGEMENT OR OTHER KEY EMPLOYEES COULD HAVE A
MATERIAL ADVERSE EFFECT ON OUR BUSINESS, OPERATING RESULTS AND FINANCIAL
CONDITION.
Our success depends to a significant extent upon senior management and
other key employees. The loss of one or more key employees could have a material
adverse effect on our business. We do not have employment agreements with our
executive officers, except Stephen A. Sasser, our President and Chief Executive
Officer, and we do not maintain key man life insurance on our executive
officers. We believe that our future success will depend in part on our ability
to attract and retain highly skilled technical, managerial, sales, marketing,
service and support personnel. Competition for personnel in the computer
software industry has historically been intense. There can be no assurance that
we will be successful in attracting and retaining key personnel, and the failure
to do so could have a material adverse effect on our business, operating results
and financial condition.
OUR SUCCESS IS DEPENDENT IN PART UPON OUR PROPRIETARY TECHNOLOGY AND OTHER
INTELLECTUAL PROPERTY.
Our ability to compete is dependent in part upon our internally developed
proprietary intellectual property. We regard our products as proprietary trade
secrets and confidential information. We rely largely upon a combination of
copyright, trade secret and trademark laws, license agreements with our
customers, distribution agreements with our distributors, and our own security
systems, confidentiality procedures and employee agreements to maintain the
confidentiality and trade secrecy of our products. In certain cases, we also
seek to protect our programs, documentation and other written materials through
registration of our trademarks and service marks and copyrights of our products
under trademark and copyright laws in the United States and certain other
countries, but we have not secured registration of all our marks and copyrights.
None of our products are patented.
There can be no assurance that our means of protecting our proprietary
rights in the United States or abroad are adequate or that competitors will not
independently develop similar technology. In addition, the laws of some foreign
countries do not protect our proprietary rights as fully as do the laws of the
United States, and effective copyright, trademark and trade secret protection
may not be available in other jurisdictions. Preventing or detecting
unauthorized use of our products is difficult. Despite our efforts, it may be
possible for third parties to copy certain portions or reverse engineer our
products, or to obtain and use our proprietary or confidential information.
We also rely on certain other technology which we license from third
parties, including software that is integrated with internally developed
software and used in our products to perform key functions. No assurance can be
given that the steps taken by us will prevent misappropriation of our technology
or that our license agreements will be enforceable. In addition, litigation may
be necessary in the future to enforce our intellectual property rights, to
protect our trade secrets, to determine the validity and scope of the
proprietary rights of others or to defend against claims of infringement or
invalidity. Any such litigation, even if not meritorious, could result in
substantial costs and diversion of resources and could have a material adverse
effect on our business, operating results and financial condition.
WE MAY BE EXPOSED TO PROPERTY RIGHTS INFRINGEMENT CLAIMS.
Although we do not believe that our products infringe the proprietary
rights of third parties, there can be no assurance that infringement or
invalidity claims, including claims for indemnification resulting from
infringement claims, will not be asserted or prosecuted against us. Regardless
of the validity or the successful assertion of such claims, defending against
such claims could result in significant costs and diversion of resources which
could have a material adverse effect on our business, operating results and
financial condition. In addition, the assertion of such infringement claims
could result in injunctions preventing us from distributing certain products,
which would have a material adverse effect on our business, operating results
and financial condition. If any claims or actions are asserted against us, we
may
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seek to obtain a license to such intellectual property rights. There can be no
assurance, however, that such a license would be available to us on reasonable
terms or at all.
WE MAY BE EXPOSED TO PRODUCT LIABILITY CLAIMS.
Our products may contain undetected operating errors due to the complex
nature of our software. Such operating errors are usually resolved through
regular maintenance and updating processes. However, our products also may
contain more serious operating errors or failures that may not be detected until
the products have been delivered to customers. As a result of serious operating
errors or failures, our customers could suffer major business interruptions or
other problems that could lead to claims for damages against us. Such operating
errors or failures could also delay the scheduled release of new or enhanced
products or diminish the market acceptance of our products. As a result, our
financial results of operations and financial condition may be materially
adversely affected.
OUR FUTURE REVENUE IS SUBSTANTIALLY DEPENDENT UPON OUR INSTALLED CUSTOMER
BASE.
In the past, we have depended on our installed customer base for additional
future revenue from services, support and maintenance and licensing of
additional products. Our maintenance and support agreements generally are
renewable annually at the option of the customer. Fees for maintenance and
support services are billed 12 months in advance, and maintenance and support
revenue is deferred and recognized ratably over the term of the maintenance and
support agreement. There can be no assurance that current installed customers
will renew their maintenance and support in future periods, continue to use the
Company for professional services or purchase additional products; each of which
would have a material negative impact on our financial results and financial
condition.
WE MAY NOT BE ABLE TO MAINTAIN OR EXPAND OUR RELATIONSHIPS WITH BUSINESS
PARTNERS.
We believe that we need to maintain and expand our relationships with our
existing business partners and enter into relationships with additional business
partners in order to expand the distribution of our products. Many of our
business partners also sell products that compete with our products. There can
be no assurance that we will be able to maintain effective, long-term
relationships with our business partners or that selected business partners will
continue to meet our sales needs. Further, there can be no assurance that our
business partners will not market software products in competition with our
products in the future or will not otherwise reduce or discontinue their
relationships with us. If we fail to maintain successfully our existing business
partner relationships or to establish new business partner relationships in the
future, our business, operating results and financial condition could be
materially and adversely affected.
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates "forward-looking" statements.
Other written and oral statements made from time to time by us are also "forward
looking" statements, including statements regarding future economic performance
of our business and the plans, objectives and expectations of our management.
You can identify these forward-looking statements by our use of the words
"believes", "anticipates", "expects", "may", "will", "intends", "plans",
"estimates" and similar expressions, whether in the negative or affirmative.
Although we believe that these forward-looking statements reflect our current
plans, intentions, and expectations which are based upon reasonable assumptions,
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 are not obligated to update or revise these forward-looking statements to
reflect new events or circumstances. You are cautioned not to place any undue
reliance on these forward-looking statements, which speak only as of the
respective dates when they were made.
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INFORMATION ABOUT FRONTSTEP
OVERVIEW
Frontstep, Inc. is a leading global provider of integrated enterprise
software solutions for mid-sized manufacturing and distribution companies and
business units of larger companies. Until November 2000, the Company was known
as Symix Systems, Inc. The name was changed to reflect an increasingly more
diverse product offering than historically offered that redefines the business
system needs of mid-market companies as they seek to be more efficient and to
collaborate more effectively with their customers and suppliers in an
increasingly more competitive and global environment. Throughout this document,
we may refer to our company as "Frontstep" or as the "Company".
Frontstep has been one of the mid-market leaders in the enterprise software
industry for more than 20 years, particularly with manufacturing companies and
more recently with distribution companies. We provide our customers with the
software products we have developed, professional consulting services associated
with the installation of our products and related training for customer
personnel.
The software solutions we provide to our customers include a comprehensive
suite of integrated software and services that (1) support the traditional back
office management and resources of an enterprise ("ERP"), (2) support customer
relationship management ("CRM") and other front office business activities and
(3) support an enterprise's supply chain management activities. The software
products associated with each of these solutions typically provide a customer
with a comprehensive business system that is typically their primary system.
Over the last two years, we have advanced the architecture of these products to
include the use of the Internet as a backbone that provides an enterprise the
ability to collaborate effectively with their customers and suppliers in a
global economy. More specifically, we develop, market and support the following
products:
Extended Enterprise Resource Planning. Traditional ERP applications
for discrete manufacturing and industrial distribution with an add-on suite
of products that allows for collaborative operations and financial business
processes across an entire enterprise with analytical capabilities that
turn data into information that support the business management of an
enterprise.
Front office. A suite of products that foster customer loyalty and
retention by combining customer relationship management with order
management capabilities such as configuration, advanced pricing and rapid
order entry.
Supply chain. A suite of products that provide a solution for order
management with inventory and capacity visibility and production scheduling
based on actual material and capacity constraints. These products allow for
dynamic adjustments for unplanned events, exceptions and disruptions.
Enterprise Application Integration. Open applications architecture
that allows for the continued use of legacy systems in a shared, integrated
environment with newer, network-centric processes and systems.
We maintain a worldwide professional services organization of over 200
employees and a network of more than 50 business partners and strategic
alliances which offer to our customers a full range of services to support
installation, ongoing operations and to maximize the benefits of our software
products. These services include, but are not limited to, project management,
implementation support, product education, technical consulting, programming and
system integration services and ongoing maintenance and product support. We
employ our own structured services methodology to manage and support customer
implementation.
We have more than 4,400 customer sites and a worldwide network of 28
offices in 16 countries. Our offices are equipped to provide our services,
support our products and, in several countries around the world, translate our
products into other languages. As of June 30, 2001, we employed 680 persons of
which 213 were employed in international operations. The Company's principal
executive offices are located at 2800 Corporate Exchange Drive, Columbus, Ohio
43231, and its telephone number is (614) 523-7000.
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RECENT DEVELOPMENTS
In July, 2001, we entered into a new credit facility arrangement with
Foothill Capital Corporation. The credit facility includes a $15 million,
three-year term note and a $10 million revolving credit facility. Availability
under the revolving credit facility is based on and secured by our qualifying
accounts receivable originating within the United States and Canada. Borrowings
under the revolving credit facility bear interest either at the federal funds
rate, plus 1.5%, or at the Eurodollar market rate, plus 3%. The term note bears
interest at the rate of 10.5%, plus 1.5% per annum added to principal. The term
note is payable in monthly installments commencing October 1, 2001. This credit
facility is subject to customary terms and conditions and includes financial
covenants for maintenance of a minimum tangible net worth, a minimum level of
earnings before interest, taxes, depreciation and amortization and a maximum
ratio of debt to earnings before interest, taxes, depreciation and amortization.
The proceeds from this credit facility were used to repay, in full, our prior
credit facility.
In connection with the new credit facility arrangement with Foothill, we
issued to Foothill a warrant to purchase 550,000 common shares at an initial
exercise price of $3.36 per share, which was the average of the closing bid
price for our common shares for the 10 trading days immediately preceding the
closing date for the new credit facility. The exercise price of the warrant and
the number of common shares issuable upon exercise of the warrant are subject to
adjustments from time to time under the anti-dilution provision contained in the
warrant. The warrant expires on July 17, 2006 and is exercisable at any time
prior to its expiration.
Additionally, in July 2001, we repriced 453,546 existing warrants to
purchase our common shares issued in May 2000, pursuant to the terms of our
agreement with the holders of these warrants from an original exercise price of
$15.00 per share to $3.36 per share.
SELLING SHAREHOLDER
The common shares offered by this prospectus are the common shares issuable
upon exercise of the warrant issued in the July 17, 2001 private placement to
Foothill Capital Corporation, the selling shareholder named in this prospectus,
including 137,500 common shares that may be issued upon certain adjustments
under the terms of the warrant. The following table sets forth information, as
of October 5, 2001, with respect to the selling shareholder and the number of
common shares issuable as of that date upon exercise of the warrant held by the
selling shareholder. No estimate can be given as to the amount or percentage of
common shares that will be held by the selling shareholder after completion of
this offering. The selling shareholder may offer all or some or none of the
common shares. The selling shareholder, in its sole discretion, will determine
from time to time the number of common shares it will sell. There currently are
no agreements, arrangements or understandings regarding the sale of any of the
common shares offered by the selling shareholder by this prospectus. The common
shares offered by this prospectus may be offered from time to time by the
selling shareholder. As of the date of this prospectus, the selling shareholder
does not own beneficially any of our common shares except as described below.
Information about the beneficial ownership of our common shares by the selling
shareholder prior to this offering has been given to us by the selling
shareholder.
SHARES UNDERLYING NUMBER OF
WARRANT SHARES
BENEFICIALLY OWNED REGISTERED
SELLING SHAREHOLDER PRIOR TO OFFERING FOR SALE(1)
------------------- ------------------ -----------
Foothill Capital Corporation.............................. 550,000 550,000
2450 Colorado Avenue
Suite 3000 West
Santa Monica, CA 90404
---------------
(1) This Registration Statement also covers an additional 137,500 common shares
which may be issuable under the warrant pursuant to the antidilution
provisions contained in the warrant and any additional common shares which
become issuable upon exercise of the warrant by reason of any share
dividend,
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share split, recapitalization or other similar transaction. The warrant issued
to the selling shareholder contains a provision limiting the selling
shareholder's ability to exercise the warrant to the extent that such exercise
would result in the selling shareholder and its affiliates owning more than
4.99% of our outstanding common shares. This limitation may be waived by
the selling shareholder by providing to us at least 61 days prior written
notice.
The warrant was issued by us to Foothill in connection with the closing of
our new credit facility with Foothill pursuant to the terms of a Loan and
Security Agreement dated July 17, 2001 among us, certain of our subsidiaries and
Foothill. The warrant is exercisable at a price of $3.36 per share, subject to
adjustments as provided in the form of warrant.
In lieu of the payment in cash of the exercise price for the warrant, the
holder of the warrant may pay the aggregate exercise price for our common shares
issuable upon exercise of the warrant by any one or more, or a combination, of
the following methods:
- by cancellation of all or any part of the unpaid principal amount of,
plus accrued interest on, the outstanding obligations (as defined in the
Loan and Security Agreement) in an amount equal to the aggregate exercise
price; or
- by cancellation of common shares issuable to the holder of the warrant
upon exercise of the warrant such that the excess of the aggregate
Current Market Price (as defined in the warrant) of the cancelled common
shares over the aggregate exercise price attributable to the cancelled
shares equals the aggregate exercise price attributable to the common
shares to be issued to the holder upon exercise of the warrant; or
- by surrender to us for cancellation certificates representing common
shares owned by the holder having a Current Market Price (as defined in
the warrant) on the date of exercise of the warrant equal to the
aggregate exercise price).
As set forth in the warrant, Current Market Price means the average of the
daily Market Price for our common shares during the 10 consecutive trading days
before the specified date, except if our common shares are not listed or
admitted for trading on any national securities exchange or quoted on Nasdaq,
the Current Market Price is the Market Price on the specified date. Market Price
is defined in the warrant to mean the last reported trading price per share for
our common shares as reported on Nasdaq for the specified date or, if there has
been no trading on the specified date, the average of the closing bid and asked
prices per share of our common shares on the specified date as shown on the
Nasdaq automated quotation system.
PLAN OF DISTRIBUTION
We are registering all of our common shares offered by this prospectus on
behalf of the selling shareholder. The common shares will be issued by us upon
exercise of the warrant we issued to Foothill in July, 2001, except that up to
137,500 of the common shares covered by this prospectus will be issued only if
required as a result of any increase in the number of common shares issuable
upon exercise of the warrant made under the anti-dilution provisions contained
in the form of warrant. The common shares may be offered from time to time for
resale by the selling shareholders. We will not receive any of the proceeds from
the sale of the shares by the selling shareholder.
The term "selling shareholder" as used in this prospectus includes donees,
pledgees, transferees or other successors-in-interest selling common shares
issued upon exercise of the warrant and received by them after the date of this
prospectus from the selling shareholder as a gift, pledge, partnership
distribution or other transfer. The selling shareholder will act independently
of us in making decisions with respect to the time, manner and size of each
sale. The sales may be made, from time to time, by one or more, or a
combination, of the following methods:
- on any U.S. securities exchange on which our common shares may be listed
at the time of such sale;
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- in the over-the-counter market;
- in transactions other than on the Nasdaq National Market or in the
over-the counter market;
- through brokers or dealers or in direct transactions with purchasers;
- in privately negotiated transactions;
- in connection with short sales;
- by pledge to secure debts and other obligations; or
- in connection with the writing of options, in hedge transactions, and in
settlement of other transactions in standardized or over-the-counter
options.
The selling shareholder may sell the common shares at prevailing market prices,
at prices related to prevailing market prices, at negotiated prices, or at fixed
prices. There is no assurance that the selling shareholder will sell any or all
of the common shares.
The selling shareholder may enter into hedging transactions with
broker-dealers in connection with distributions of the common shares or
otherwise. In these transactions, broker-dealers may engage in short sales of
the common shares in the course of hedging the positions they assume with the
selling shareholder. The selling shareholder also may sell the common shares
short and redeliver the common shares to close out the short positions. The
selling shareholder may enter into options or other transactions with one or
more broker-dealers which require the delivery to the broker-dealers of the
common shares. The broker-dealers then may resell or otherwise transfer the
common shares pursuant to this prospectus. The selling shareholder also may loan
or pledge the common shares to one or more broker-dealers. The broker-dealers
may sell the common shares so loaned or, upon a default, the broker-dealers may
sell the pledged common shares pursuant to this prospectus.
The selling shareholder may use broker-dealers or agents to sell the common
shares. In that case, broker-dealers or agents may receive compensation in the
form of commissions, discounts or concessions from the selling shareholder.
Broker-dealers or agents also may receive compensation from the purchasers of
the common shares for whom they act as agents or to whom they sell as
principals, or both. Compensation as to a particular broker-dealer might be in
excess of customary commissions and will be in amounts to be negotiated in
connection with the sale. Broker-dealers or agents and any other participating
broker-dealers or the selling shareholder may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act of 1933 in connection
with sales of the common shares. Accordingly, any commission, discount or
concession received by them and any profit on the resale of the common shares
purchased by them may be deemed to be underwriting discounts or commissions
under the Securities Act of 1933. Because the selling shareholder may be deemed
to be an "underwriter" within the meaning of Section 2(11) of the Securities Act
of 1933, the selling shareholder may be subject to the prospectus delivery
requirements of the Securities Act of 1933.
The selling shareholder has advised us that, as of the date of this
prospectus, it has not entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the sale of the
securities covered by this prospectus.
In addition, any securities covered by this prospectus which qualify for
sale pursuant to Rule 144 or Rule 144A of the Securities Act of 1933 may be sold
under Rule 144 or Rule 144A rather than pursuant to this prospectus. There is no
assurance that the selling shareholder will sell any or all of the common shares
described in this prospectus, and the selling shareholder may transfer, devise
or gift such securities by other means not described in this prospectus.
The common shares will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In addition, in
some states the common shares may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
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Under applicable rules and regulations under the Securities Exchange Act of
1934, as amended, any person engaged in the distribution of the common shares
may not simultaneously engage in market making activities with respect to our
common shares for a period of two business days prior to the commencement of the
distribution. In addition, the selling shareholder will be subject to applicable
provisions of the Securities Exchange Act of 1934, as amended, and the
associated rules and regulations, including Regulation M, which may limit the
timing of purchases and sales of the common shares by the selling shareholder.
We will make copies of this prospectus available to the selling shareholder and
we have informed it of the need for delivery of copies of this prospectus to
purchasers at or prior to the time of any sale of the common shares.
We will file a supplement to this prospectus, if required, pursuant to Rule
424(b) under the Securities Act of 1933 upon being notified by the selling
shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of common shares through a block trade, special or
underwritten offering, exchange distribution or secondary distribution or a
purchase by a broker or dealer. The supplement will disclose:
- the name of the selling shareholder and of the participating
broker-dealer(s);
- the number of common shares involved;
- the price at which the common shares were sold;
- the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
- that the broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus; and
- other facts material to the transaction.
In connection with the private placement of the warrant, we entered into a
Registration Rights Agreement with the selling shareholder named in this
prospectus. The Registration Rights Agreement requires us to file a registration
statement within 90 days after the closing date of the loan transaction with
Foothill to register an amount of our common shares equal to at least 125% of
the common shares then issuable upon exercise of the warrant, subject to
adjustments, for resale by the selling shareholder under applicable federal and
state securities laws. We also agreed to use our best efforts to cause the
registration statement to be declared effective by the Securities and Exchange
Commission as soon as practicable, but in no event later than 180 days after the
closing date of the loan transaction with Foothill, and to remain effective
until all of the Registrable Shares, as defined in the Registration Rights
Agreement, are sold.
The Registration Rights Agreement provides for cross-indemnification of the
selling shareholder and us and the parties' respective directors, officers,
employees, partners, members shareholders, affiliates, advisers, attorneys and
agents and their respective controlling persons, against specific liabilities in
connection with the offer and sale of the shares covered by this prospectus,
including liabilities under the Securities Act of 1933.
We will pay all of the expenses incurred by the selling shareholder and us
incident to the offering and sale of the common shares underlying the warrant by
the selling shareholder, excluding any underwriting discounts or commissions.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of our common shares
by the selling shareholder.
We have reserved up to 687,500 common shares for issuance upon exercise of
the warrant, without giving effect to additional common shares that may be
issued pursuant to applicable anti-dilution or other provisions.
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The warrant is exercisable at an initial exercise price of $3.36 per share,
subject to adjustments. We cannot be sure that the holder of the warrant will
exercise the warrant and thus, we may not receive any proceeds from the exercise
of the warrant. However, if the warrant is exercised in full for cash for
550,000 of the common shares offered for resale pursuant to this prospectus,
upon the exercise of the warrant, we will receive proceeds of approximately
$1,848,000 based on the current exercise price of $3.36 per share.
If we do receive proceeds from the exercise of the warrant, we plan to use
the net proceeds for general corporate purposes, including:
- working capital;
- acquisitions of other businesses and/or technologies; and
- our Frontstep initiative.
Pending use of the net proceeds for any of these purposes, we may invest the net
proceeds in short-term investment grade instruments, interest-bearing bank
accounts, certificates of deposit, money market securities, U.S. government
securities, or mortgage-backed securities guaranteed by federal agencies.
DESCRIPTION OF SECURITIES
The following description of our securities does not purport to be complete
and is qualified in all respects by reference to the detailed provisions of our
amended articles of incorporation, a copy of which was filed with the Securities
Exchange Commission as Exhibit 3(a)(4) to our Quarterly Report on Form 10-K for
the fiscal quarter ended March 31, 2000.
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. As of September 24, 2001,
there were 7,568,218 common shares and 566,933 preferred shares, designated
Series A Convertible Participating Preferred Shares outstanding. As of the date
of this prospectus, there were 213 record holders of our common shares and five
record holders of our Series A preferred shares.
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 of our
shareholders 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 our common shares are subject to the rights of
our preferred shareholders, including the holders of our Series A preferred
shares, and to any contractual restrictions.
Under Ohio law and our amended articles of incorporation, as amended, the
affirmative vote of the shareholders entitled to exercise at least two-thirds of
the voting power of our shareholders is required for major corporate actions,
including merger or consolidation with another corporation, sale or other
disposition of all or substantially all of our property and assets, our
voluntary dissolution or amendment of our amended articles of incorporation.
Upon dissolution, liquidation or sale of all or substantially all of our
assets, after required payments to our creditors and preferred shareholders, 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. Our
common shares outstanding are duly authorized, validly issued, fully paid and
non assessable.
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SERIES A PREFERRED SHARES
Our amended articles of incorporation, as amended, authorize our board of
directors to issue preferred shares from time to time in one or more series. Our
amended 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 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 rate;
- the dates of payment 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.
Each of our outstanding Series A preferred shares presently is convertible
into two common shares at the initial base conversion price of $12.00 per common
share, subject to adjustments. The terms of our Series A preferred shares are
complex and are only briefly summarized in this prospectus. To obtain further
information concerning the rights, preferences and terms of our Series A
preferred shares, please refer to the full description contained in our amended
articles of incorporation, as amended, included as Exhibit 3(a)(4) to our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2000 as
filed with the Securities and Exchange Commission.
Voting rights. The holders of our Series A preferred shares are entitled
to vote with our common shareholders as a single class on all matters submitted
for a vote of common shareholders. They also have special voting rights with
respect to certain major matters that may adversely affect them. As long as any
Series A preferred shares are outstanding, without the approval of the holders
of at least 75% of our Series A preferred shares then outstanding, we may not:
- create or authorize the creation of any additional class or series of
shares other than shares which rank junior to our Series A preferred
shares;
- increase the authorized amount of Series A preferred shares or any other
class or series of shares except shares which rank junior to our Series A
preferred shares;
- create or authorize any obligation or security convertible into Series A
preferred shares or shares of any other class or series except shares
which rank junior to our Series A preferred shares;
- amend, alter, restate or repeal our amended articles of incorporation, as
amended, or our amended code of regulations, as amended, to the extent
the amendment would adversely affect the rights of the holders of our
Series A preferred shares, except solely to authorize or create any
additional class or series of shares which rank junior to our the Series
A preferred shares; or
- redeem or acquire any shares which rank junior to our Series A preferred
shares except our common shares pursuant to stock restriction agreements
as defined in our amended articles of incorporation, as amended.
Our preferred shareholders also have special rights with respect to liquidation,
dividends, and conversion and redemption of our Series A preferred shares.
Liquidation preference. Our Series A preferred shares have a liquidation
preference per share equal to the greater of (i) $24 per share, subject to
adjustment for share dividends, combinations or splits, plus accumulated, but
unpaid dividends, if any, or (ii) the amount a holder of our common shares
underlying a Series A preferred share would have received if the Series A
preferred share was converted into common
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shares immediately prior to the liquidation or winding up. At the election of
the holders of 75% or more of our Series A preferred shares then outstanding,
the holders of our Series A preferred shares also will be entitled to receive
the liquidation preference amount per share if:
- we merge or consolidate with another entity and our outstanding shares
are exchanged for securities or other consideration issued or paid by the
other entity or its affiliate; except if
- the merger is solely to reincorporate us in a different
jurisdiction; or
- we are the surviving entity in the merger or consolidation and our
voting shares outstanding immediately prior to the merger or
consolidation constitute more than 50% of the merged entity's voting
shares after the merger or consolidation;
- we sell or transfer all or substantially all of our assets to a person or
entity other than one or more of our subsidiaries; or
- any person or group of persons acquire beneficial ownership, as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, of more than 50%
of our shareholder voting power, except as the result of a reduction of
authorized and issued shares.
Dividends. Holders of our Series A preferred shares are entitled to
receive cash dividends when and if declared by our board of directors at the
same time that cash dividends are declared and paid on our common shares. Cash
dividends declared by our board of directors on our Series A preferred shares
are payable in an amount equal to the cash dividend per share payable on our
common shares times the conversion rate then in effect for each Series A
preferred share. Also we are required to use our reasonable best efforts to
cause a registration statement covering the Series A Preferred Shares to become
effective and to maintain the effectiveness of the registration statement with
the Securities and Exchange Commission under the Investor Rights Agreement
between us and the holders of our Series A preferred shares. If we breach our
obligation, the holders of our Series A preferred shares will be entitled to
receive cash dividends during the time that the breach continues at an annual
rate of $3.36 per share when and if declared by our board of directors. As long
as our Series A preferred shares are outstanding, no dividends may be declared
or paid on our securities which rank junior to our Series A preferred shares,
including our common shares, unless all cumulative dividends have been or at the
same time are declared and paid or set aside for payment on our Series A
preferred shares for all dividend periods ending on or before the dividend
payment date for the junior securities.
Consolidation, merger or sale of assets. Each holder of our Series A
preferred shares may convert the shares to the securities, cash and other
property which a holder of the number of common shares into which the Series A
preferred shares held by it are convertible would have been entitled to receive
if we:
- merge into or consolidate with another person or entity which results in
a reclassification, conversion, exchange or cancellation of our
outstanding common shares, or
- sell or transfer all or substantially all of our assets
and our Series A preferred shares had been converted immediately prior to the
merger, consolidation, sale or transfer. These rights to convert our Series A
preferred shares do not apply in certain cases described, and are subject to the
liquidation provisions contained, in our amended articles of incorporation, as
amended.
OTHER MATTERS
Under the Investor Rights Agreement between us and the initial holders of
our Series A preferred shares, each such holder has certain contractual
preemptive rights to, among other things, purchase all or
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any portion of any equity securities, or any securities which may be converted
into or exchanged or exercised for any equity securities, which we or any or our
subsidiaries offer in an amount equal to:
- the number of securities being offered, multiplied by,
- a fraction, the numerator of which is the number of our common shares
held by the holder and the denominator of which is the number of our
common shares held by all of our shareholders, including the holder.
WARRANT ISSUED TO FOOTHILL
In connection with the credit facility arrangement with Foothill, the
selling shareholder named in this prospectus, which is described above, we
issued to the selling shareholder a warrant to purchase an aggregate of 550,000
common shares, no par value, at an initial exercise price of $3.36 per share,
subject to adjustments. The warrant is exercisable at any time prior to 5:00
p.m., New York City time, on July 17, 2006. In lieu of a cash payment to us upon
exercise of the warrant, the warrant holder may elect to pay all or part of the
aggregate exercise price of the warrant by a non-cash payment as described under
the section of this prospectus captioned "Selling Shareholder" above.
The warrant is transferable, in whole or in part, at any time subject to
compliance with applicable securities laws and the terms set forth in the
warrant. The warrant contains anti-dilution provisions which require the
exercise price to be adjusted if we:
- sell or issue additional common shares without consideration or for
consideration per share less than the greater of the exercise price for
the warrant and the Current Market Price (as defined in the warrant) in
effect immediately prior to the issuance or sale;
- declare, order, pay or make a dividend or other distribution on our
common shares, other than a regularly scheduled cash dividend payable out
of our consolidated earnings or earned surplus determined in accordance
with generally accepted accounting principles and at a rate not in excess
of 110% of the rate of the last regularly scheduled cash dividend paid by
us;
- issue, sell, grant or assume, or fix a record date for holders of our
securities entitled to receive, options for or securities convertible
into our common shares for consideration per share which is less than the
Current Market Price (as defined in the warrant) as in effect on the date
of or immediately prior to the issuance, sale, grant or assumption, or
immediately prior to the close of business on the record date set for
determining the holders of our securities entitled to receive the
dividend or distribution;
- combine or consolidate our outstanding common shares into a lesser number
of common shares;
- declare or pay dividends on our common shares payable in our common
shares or subdivide our outstanding common shares into a greater number
of common shares; or
- issue or sell any other securities, or any other securities become
subject to issue or sale upon the conversion or exchange of any of our
securities for a consideration so as to dilute the purchase rights of the
holder of the warrant with respect to the other securities.
Upon each adjustment of the exercise price as required under the terms of
the warrant, the number of common shares receivable upon exercise of the warrant
is required to be adjusted to a number that equals the aggregate exercise price
for all of the common shares covered by the warrant prior to the adjustment,
divided by the exercise price in effect immediately after the adjustment.
LIMITATIONS ON ADJUSTMENTS
We are not required to issue any securities upon exercise of the warrant to
the extent that the issuance of the securities would cause us to exceed the
number of securities which we may issue under applicable rules and regulations
of the Nasdaq Stock Market, Inc. In the event that we are prohibited from
issuing any securities upon exercise of the warrant for any reason, at any time
prior to submitting the
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matter to our shareholders for approval and upon the request of the holder of
the warrant, we are required to redeem for cash those securities which we cannot
issue at a price equal to the excess, if any, of the aggregate Market Price (as
defined in the warrant) over the aggregate exercise price of the securities as
of the date of the attempted exercise of the warrant. The warrant issued to the
selling shareholder contains a provision limiting the selling shareholder's
ability to exercise the warrant to the extent that such exercise would result in
the selling shareholder and its affiliates owning more than 4.99% of our
outstanding common shares. This limitation may be waived by the selling
shareholder by providing to us at least 61 days prior written notice.
OTHER MATTERS RELATED TO THE WARRANT
We are required to reserve the number of our common shares from time to
time issuable upon exercise of the warrant. We agreed to prepare and file the
registration statement of which this prospectus is a part within 90 days after
the closing date of the Foothill loan transaction. During the period beginning
after the closing of the Foothill loan transaction and ending 90 days after the
effective date of the registration statement, we may not, without the consent of
the holders of the warrant or warrants covering a majority of the securities
being registered by the registration statement, file another registration
statement pertaining to any of our other securities, except for our common
shares issuable under our employee benefit plans or outside directors stock
option plans.
TRANSFER AGENT AND REGISTRAR
Our transfer agent and registrar for our common shares and our Series A
preferred shares is Fifth Third Bank, 38 Fountain Square Plaza, Cincinnati, Ohio
45263.
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 also are 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, until the selling shareholder sells all of the
common shares covered by this prospectus. This prospectus is part of a
registration statement we filed with the SEC (Registration No.
333- ). The documents we incorporate by reference are:
1. Our annual report on Form 10-K for the fiscal year ended June 30, 2001,
as filed with the SEC;
2. Our definitive proxy statement filed with the SEC in connection with our
2001 annual meeting of shareholders; and
3. The description of our common shares contained in our registration
statement on Form 8-A dated February 12, 1991, as amended, as filed with
the SEC.
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 that statement. Any statement so modified or
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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 written or oral 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
Frontstep, Inc., 2800 Corporate Exchange Drive, Suite 400, Columbus, Ohio 43231,
Attention: Secretary, or by telephone at (614) 523-7136.
LEGAL MATTERS
Legal matters regarding the validity of the shares offered by the selling
shareholder will be passed upon for us by Vorys, Sater, Seymour and Pease LLP,
Columbus, Ohio, our legal counsel. As of October 8, 2001, 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 126,219 of our
common shares and none of our preferred shares. Duke W. Thomas, a member of that
firm, serves on our board of directors.
EXPERTS
Our consolidated financial statements as of June 30, 2001 and for the year
ended June 30, 2001, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
Our consolidated financial statements as of June 30, 2000 and for each of
the two years then ended appearing in our Annual Report on Form 10-K for the
year ended June 30, 2001 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. Such consolidated financial
statements 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.
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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, AND IT IS NOT A SOLICITATION OF AN OFFER TO BUY,
THESE SECURITIES IN ANY STATE WHERE 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.
---------------------
687,500 COMMON SHARES
FRONTSTEP, INC.
-------------------------
PROSPECTUS
-------------------------
, 2001
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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) fees and expenses payable by Frontstep in connection with the sale by the
selling shareholder of the common shares being registered.
SEC registration fee........................................ $ 521.09
Legal fees and expenses..................................... $10,000.00
Accountants' fees and expenses.............................. $ 5,000.00
Printing.................................................... $ 3,000.00
Miscellaneous expenses...................................... $ 1,000.00
----------
Total..................................................... $19,521.09
==========
The selling shareholder will not pay any portion of the expenses listed
above.
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 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
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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 retained by or who has performed services for the
corporation or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section, the articles or the regulations of a corporation
state, by specific reference to this division, that the provisions of this
division do not apply to the corporation and unless the only liability
asserted against a director in an action, suit, or proceeding referred to
in division (E)(1) or (2) of this section is pursuant to section 1701.95 of
the Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition of
the action, suit, or proceeding, upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action
or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the corporation or
undertaken with reckless disregard for the best interests of
the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding
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(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, may be paid by the corporation as they are incurred, in advance of
the final disposition of the action, suit, or proceeding, as authorized by
the directors in the specific case, upon receipt of an undertaking by or on
behalf of the director, trustee, officer, employee, member, manager, or
agent to repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or otherwise,
both as to action in their official capacities and as to action in another
capacity while holding their offices or positions, and shall continue as to
a person who has ceased to be a director, trustee, officer, employee,
member, manager, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liability under this section.
Insurance 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 Semi's Amended Regulations governs indemnification and
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, attorney's 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
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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.
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
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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. 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 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
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26
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, Frontstep has purchased directors' and officers' liability
insurance coverage under policies which insure its directors and officers with
respect to liabilities.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 Form of warrant issued to selling shareholder (incorporated
herein by reference to Exhibit 4(g) to the Annual Report on
Form 10-K of the registrant for the year ended June 30,
2001).
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP as to the
legality of the common shares being offered (filed herein).
10.1 Registration Rights Agreement dated July 17, 2001 between
the registrant and the selling shareholder (incorporated
herein by reference to Exhibit 4(h) to the Annual Report on
Form 10-K of the registrant for the year ended June 30,
2001).
23.1 Consent of KPMG LLP (filed herein).
23.2 Consent of Ernst & Young LLP (filed herein).
23.3 Consent of Vorys, Sater, Seymour and Pease LLP (included in
Exhibit 5.1 filed herein).
24.1 Powers of Attorney (filed herein).
ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
to the information required to be included in a post-effective amendment by
those paragraphs which is contained in periodic
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27
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(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 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.
3. The undersigned Registrant hereby undertakes that:
(a) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(b) for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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28
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 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 11th day of
October, 2001.
FRONTSTEP, INC.
By /s/ DANIEL P. BUETTIN
------------------------------------
Daniel P. Buettin
Vice President, Chief Financial
Officer and
Secretary, Frontstep, Inc.
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.
SIGNATURE TITLE DATE
--------- ----- ----
LAWRENCE J. FOX* Chairman of the Board October 11, 2001
--------------------------------------------------- and Director
Lawrence J. Fox
STEPHEN A. SASSER* President, Chief Executive October 11, 2001
--------------------------------------------------- Officer and Director
Stephen A. Sasser (Principal Executive Officer)
/s/ DANIEL P. BUETTIN Vice President, October 11, 2001
--------------------------------------------------- Chief Financial Officer
Daniel P. Buettin and Secretary
(Principal Financial and
Accounting Officer)
LARRY L. LIEBERT* Director October 11, 2001
---------------------------------------------------
Larry L. Liebert
DUKE W. THOMAS* Director October 11, 2001
---------------------------------------------------
Duke W. Thomas
JOHN T. TAIT* Director October 11, 2001
---------------------------------------------------
John T. Tait
JAMES A. RUTHERFORD* Director October 11, 2001
---------------------------------------------------
James A. Rutherford
ROGER D. BLACKWELL* Director October 11, 2001
---------------------------------------------------
Roger D. Blackwell
GUY L. DE CHAZAL* Director October 11, 2001
---------------------------------------------------
Guy L. de Chazal
BARRY M. GOLDSMITH* Director October 11, 2001
---------------------------------------------------
Barry M. Goldsmith
*By: /s/ DANIEL P. BUETTIN
---------------------------------------------------
Daniel P. Buettin (Attorney-in-Fact)
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INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
4.1 Form of warrant issued to selling shareholder Incorporated herein by
reference to Exhibit 4(g)
to Annual Report on Form
10-K of the registrant for
the year ended June 30,
2001.
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP as to Filed herein.
the legality of the common shares being offered
10.1 Registration Rights Agreement dated as of July 17, Incorporated herein by
2001 reference to Exhibit 4(h)
to the Annual Report on
Form 10-K of the registrant
for the year ended June 30,
2001.
23.1 Consent of KPMG LLP Filed herein.
23.2 Consent of Ernst & Young LLP Filed herein.
23.3 Consent of Vorys, Sater, Seymour and Pease LLP Included in Exhibit 5.1
filed herein.
24.1 Powers of Attorney Filed herein.
EX-5.1
3
l90418aex5-1.txt
EXHIBIT 5.1
1
Exhibit 5.1
October 11, 2001
Frontstep, Inc.
2800 Corporate Exchange Drive
Columbus, OH 43231
Re: FRONTSTEP, INC. REGISTRATION STATEMENT ON FORM S-3
--------------------------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 proposed to
be filed by Frontstep, Inc., an Ohio corporation (the "Company"), with the
Securities and Exchange Commission on or about October 11, 2001 (as such may be
amended or supplemented, the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act") of up to 687,500 common shares, no par value, of the Company (the "Common
Shares"). The Common Shares are to be issued by the Company upon the exercise
of a stock purchase warrant held by the selling shareholder as described in the
Registration Statement (the "Warrant"). We understand that the Common Shares are
being registered on Form S-3 for resale by the selling shareholder as described
in the Registration Statement.
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; 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 examination, we have assumed that (i) all applicable state
securities laws will have been complied with in connection with the Warrant
exercise; (ii) at each time of issuance of the Common Shares upon the exercise
of the Warrant, the Company will have sufficient authorized and unissued Common
Shares available for issuance; (iii) the Warrant will be exercised in accordance
with the applicable warrant agreement; and (iv) the Common Shares issuable upon
exercise of the Warrant will, upon issuance, be evidenced by appropriate
certificates properly executed and delivered. As to any facts material to the
opinions expressed herein which were not independently established or verified
by us, we have relied upon oral or written statements and representations of
officers and other representatives of the Company and others.
Based upon the foregoing, and assuming compliance with applicable
state securities laws, we are of the opinion that the Common Shares issuable
upon exercise of the Warrant, when issued to the holder of the Warrant upon the
exercise thereof in accordance with the related warrant agreement (including
the payment of the exercise price specified therein), 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 Registration Statement and the Prospectus forming a part
thereof. This opinion is to be used only in connection with the issuance of the
Common Shares while the Registration Statement is in effect. In giving this
consent, we do not admit thereby that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations promulgated thereunder.
Very truly yours,
/s/ VORYS, SATER, SEYMOUR AND PEASE LLP
EX-23.1
4
l90418aex23-1.txt
EXHIBIT 23.1
1
Exhibit 23.1
The Board of Directors
Frontstep, Inc.:
We consent to incorporation by reference in this registration statement on Form
S-3 of Frontstep, Inc. of our report dated August 13, 2001, relating to the
consolidated balance sheet of Frontstep, Inc. as of June 30, 2001, and the
related consolidated statements of operations, shareholders' equity, and cash
flows for the year ended June 30, 2001, which report appears in the June 30,
2001 annual report on Form 10-K of Frontstep, Inc.
We consent to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG
Columbus, Ohio
October 10, 2001
EX-23.2
5
l90418aex23-2.txt
EXHIBIT 23.2
1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-3) and related Prospectus of Frontstep, Inc. for the registration of
687,500 shares of its common stock of our report dated July 27, 2000, with
respect to the consolidated balance sheet of Frontstep, Inc. (formerly Symix
Systems, Inc.) as of June 30, 2000 and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the two years in the
period ended June 30, 2000 included in its Annual Report (Form 10-K) filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Columbus, Ohio
October 10, 2001
EX-24.1
6
l90418aex24-1.txt
EXHIBIT 24.1
1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th day of October, 2001.
/s/ JAMES A. RUTHERFORD
--------------------------
James A. Rutherford
Director
2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th day of October, 2001.
/s/ ROGER D. BLACKWELL
--------------------------
Roger D. Blackwell
Director
3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th day of October, 2001.
/s/ GUY L. de CHAZAL
--------------------------
Guy L. de Chazal
Director
4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox and Stephen A. Sasser, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 3rd day of October, 2001.
/s/ DANIEL P. BUETTIN
------------------------------
Daniel P. Buettin
Vice President, Chief Financial Officer and Secretary
5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Stephen
A. Sasser and Daniel P. Buettin, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th day of October, 2001.
/s/ LAWRENCE J. FOX
----------------------------------
Lawrence J. Fox
Chairman of the Board and Director
6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 5th day of October, 2001.
/s/ BARRY M. GOLDSMITH
--------------------------
Barry M. Goldsmith
Director
7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th of October, 2001.
/s/ LARRY L. LIEBERT
--------------------------
Larry L. Liebert
Director
8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox and Daniel P. Buettin, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 9th day of October, 2001.
/s/ STEPHEN A. SASSER
-----------------------------------------------
Stephen A. Sasser
President, Chief Executive Officer and Director
9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 3rd day of October, 2001.
/s/ JOHN T. TAIT
----------------------------------
John T. Tait
Director
10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of FRONTSTEP, INC., an Ohio corporation (the "Company"), which
is about to file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 for the registration of certain of its common shares for
resale by a shareholder of the Company, hereby constitutes and appoints Lawrence
J. Fox, Stephen A. Sasser and Daniel P. Buettin, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign said Registration Statement and any or all amendments or
documents related thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and substitute or
substitutes, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 3rd day of October, 2001.
/s/ DUKE W. THOMAS
-------------------------------------
Duke W. Thomas
Director