-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NE+1fpXMJl09B6K5KNrba+P+MFifYglHxSe0TjojS+JeWxOBOMnQesbRpdK/+dF9 MbfCEuo5G2Z+uD4NEdPU9w== /in/edgar/work/20000623/0000912282-00-000182/0000912282-00-000182.txt : 20000920 0000912282-00-000182.hdr.sgml : 20000920 ACCESSION NUMBER: 0000912282-00-000182 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000623 EFFECTIVENESS DATE: 20000623 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PIVOTAL CORP CENTRAL INDEX KEY: 0001086329 STANDARD INDUSTRIAL CLASSIFICATION: [7389 ] IRS NUMBER: 000000000 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-39922 FILM NUMBER: 659436 BUSINESS ADDRESS: STREET 1: 300-244 WEST ESPLANADE STREET 2: NORTH VANCOUVER BRITISH COLUMBIA CITY: CANADA BUSINESS PHONE: 6049889982 MAIL ADDRESS: STREET 1: 300-244 WEST ESPLANADE STREET 2: NORTH VANCOUVER BRITISH COLUMBIA CITY: CANADA FORMER COMPANY: FORMER CONFORMED NAME: PIVOTAL SOFTWARE INC DATE OF NAME CHANGE: 19990512 S-8 1 0001.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on June 23, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PIVOTAL CORPORATION (Exact name of Registrant as specified in its charter) British Columbia, Canada Not Applicable - ------------------------------- ------------------------------------ (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 300 - 224 West Esplanade North Vancouver, British Columbia, Canada, V7M 3M6 -------------------------------------------------- (Address of Principal Executive Offices) Exactium, Ltd. 1999 Stock Option Plan, as amended -------------------------------------------------- (Full Title of the Plan) CT Corporation System 1633 Broadway New York, New York 10019 -------------------------------------------------- (Name and Address of Agent For Service) (212) 664-1666 ------------------------------------------------------------- (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE ================================================================================================================================= Proposed Maximum Proposed Maximum Title of Each Class of Amount to Offering Price Per Share Aggregate Offering Amount of Securities to be Registered (1) be Registered Price Registration Fee - --------------------------------------------------------------------------------------------------------------------------------- Common Shares subject to 108,435 shares US$24.78 US$2,687,019.30 US$709.37 outstanding options - ---------------------------------------------------------------------------------------------------------------------------------
(1) Common Shares, without par value, offered by the Company pursuant to the Plan described herein. (2) The proposed maximum offering price per share and the registration fee were calculated in accordance with rule 457(c) and (h) based on the average high and low prices for the Registrant's common shares on June 16, 2000, as quoted on the Nasdaq National Market. ================================================================================ PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have been filed with the Commission, are incorporated herein by reference: 1. The Registrant's prospectus filed with the Commission on August 5, 1999 pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"). 2. All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the latest prospectus filed pursuant to Rule 424(b) under the Securities Act incorporated by reference herein pursuant to (1) above. 3. The description of the Registrant's securities contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on July 28, 1999 under Section 12(g) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. Under the British Columbia Company Act, the Registrant may, if it obtains court approval, indemnify its directors and officers and former directors and officers and current and former directors and officers of its subsidiaries against costs and expenses, including amounts paid to settle an action or satisfy a judgment in a civil, criminal or administrative action or proceeding to which they are made parties because they have been directors or officers, including an action brought by the Registrant. Indemnification of a director or officer under the British Columbia Company Act is possible only if it is shown that the director or officer acted honestly and in good faith with a view to the Registrant's best interests, and in the case of a criminal or administrative action or proceeding the director or officer had reasonable grounds for believing that his conduct was lawful. The Registrant's articles require it, if it obtains court approval, to indemnify its current and former directors. Under the Registrant's articles it may, if it obtains court approval, indemnify its subsidiaries' current and former directors and its and its subsidiaries' current and former officers, employees and agents. The Registrant's articles also provide that, to the fullest extent permitted by the British Columbia Act: o the rights conferred in the articles are not exclusive; and o the Registrant is authorized to purchase and maintain insurance on behalf of its and its subsidiaries' current and past directors, officers, employees and agents against any liability incurred by them in their duties. The Registrant has entered into indemnity agreements with each of its directors and officers and the directors and officers of its subsidiaries. The indemnity agreements call for the Registrant to indemnify the director or officer against all liabilities in connection with any claim arising out of the individual's status or service as a director or officer of the Registrant, or its subsidiaries, other than liabilities arising from gross negligence or willful II-1 misconduct. These agreements also call for the Registrant to advance expenses incurred by the individual in connection with any action with respect to which the individual may be entitled to indemnification by the Registrant. The British Columbia Company Act currently requires the Registrant to obtain the approval of a court before it indemnifies directors or officers. The British Columbia legislature has passed legislation to remove this requirement. The exact timing of the enactment of this legislation is unknown, but it is anticipated that it will not be enacted until some time in 2001. Currently, there is no pending litigation or proceeding involving a current or past director, officer or employee regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification. The Registrant maintains directors and officers liability insurance with an annual aggregate coverage limit of Cdn.$5 million. Insofar as indemnification for liabilities arising under the U.S. Securities Act may be permitted for directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit Number Exhibit - -------------- ------- 4.1 Exactium, Ltd. 1999 Stock Option Plan, as amended 5.1 Opinion of Borden Ladner Gervais LLP 23.1 Consent of Deloitte Touche LLP, Independent Auditors 23.2 Consent of KPMG LLP, Chartered Accountants 23.3 Consent of Borden Ladner Gervais LLP (Included in Exhibit 5.1) 24.1 Powers of Attorney (included on the signature pages to the Registration Statement) Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Act; (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the change in volume and price represents no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; II-2 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8, or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement. (2) That for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) 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. (c) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. 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 of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES The Registrant. 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-8 and has duly caused this registration statement or amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in Vancouver, British Columbia, Canada, on June 21, 2000. PIVOTAL CORPORATION (Registrant) By: /s/ NORMAN B. FRANCIS ------------------------------------------ Norman B. Francis (President and Chief Executive Officer) II-4 POWERS OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Norman B. Francis and Vincent D. Mifsud, 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 any and all amendments to this Registration Statement, 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 each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all said attorneys-in-fact and agents of them or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof. 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 date indicated. Signature Title Date --------- ----- ---- /s/ NORMAN B. FRANCIS President, Chief Executive June 21, 2000 - ---------------------------- Officer and Director Norman B. Francis /s/ VINCENT D. MIFSUD Chief Financial Officer and June 21, 2000 - ---------------------------- Vice President, Operations Vincent D. Mifsud /s/ KEITH R. WALES Chief Technical Officer June 21, 2000 - ---------------------------- and Director Keith R. Wales /s/ JEREMY A. JAECH Director June 21, 2000 - ---------------------------- Jeremy A. Jaech /s/ DOUGLAS J. MACKENZIE Director June 21, 2000 - ---------------------------- Douglas J. MacKenzie /s/ ROBERT J. LOUIS Director June 21, 2000 - ---------------------------- Robert J. Louis /s/ DONALD A. MATTRICK Director June 21, 2000 - ---------------------------- Donald A. Mattrick II-5 AUTHORIZED REPRESENTATIVE Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, as amended, the undersigned has signed this Registration Statement solely in the capacity of the duly authorized representative of Pivotal Corporation in the United States on June 21, 2000. PIVOTAL CORPORATION, a Washington corporation By: /s/ NORMAN B. FRANCIS ------------------------------------------ Norman B. Francis (President and Chief Executive Officer) II-6 EXHIBIT INDEX Exhibit Number Exhibit Page - ------ ------- ---- 4.1 Exactium, Ltd. 1999 Stock Option Plan, as amended 5.1 Opinion of Borden Ladner Gervais LLP 23.1 Consent of Deloitte Touche LLP, Independent Auditors 23.2 Consent of KPMG LLP, Chartered Accountants 23.3 Consent of Borden Ladner Gervais LLP (Included in Exhibit 5.1) 24.1 Powers of Attorney (included on the signature pages to the Registration Statement) EX-4.1 2 0002.txt EXACTIUM, LTD. 1999 STOCK OPTION PLAN, AS AMENDED EXHIBIT 4.1 EXACTIUM. LTD. 1999 STOCK OPTION PLAN AMENDMENT Pursuant to authority granted by Section 11 of the Exactium, Ltd. 1999 Stock Option Plan, (the "Plan"), and in connection with the acquisition of all of the issued and outstanding shares of Exactium, Ltd. by Pivotal Corporation ("Pivotal") on June 2, 2000 pursuant to the Stock Purchase Agreement dated April 11, 2000 by and among Pivotal, Industrial & Financial Systems AB, a Swedish corporation, Eli Barak, Alon Hod and Tony Topaz (the "Purchase Agreement"), the Plan is hereby amended as follows: Effective June 2, 2000, Pivotal Corporation assumes the Plan in its entirety. All options to purchase common shares of Exactium, Ltd. outstanding as of that date are converted into options to purchase Pivotal common shares. The number of Pivotal options granted to each Exactium, Ltd. optionee by Pivotal was the number of Exactium, Ltd. options held by each Exactium, Ltd. optionee divided by 1.26343. The exercise price of each converted option is 1.26343 multiplied by the exercise price of the original Exactium, Ltd. option. A total of 108,435 Pivotal common shares have been reserved for issuance under this plan. The vesting terms of the Exactium, Ltd. options will continue to apply to the converted options. No new additional options will be granted pursuant to the plan. Except as otherwise described in this paragraph, the provisions of the Plan continue in full force and effect. EXACTIUM, LTD. 1999 STOCK OPTION PLAN 1. Purpose. The purpose of this Exactium, Ltd. 1999 Stock Option Plan (the "Plan") is to further the interests of Exactium, Ltd. (the "Company"), organized under the laws of Israel, Exactium, Inc., a Delaware corporation and wholly-owned subsidiary, and any entity that hereafter becomes a subsidiary of the Company by providing incentives in the form of grants of stock options to key employees and other persons who contribute materially to the success and profitability of the Company. The grants will recognize and reward outstanding individual performances and contributions and will give such persons a proprietary interest in the Company, thus enhancing their personal interest in the Company's continued success and progress. This program will also assist the Company and its Subsidiary in attracting and retaining key persons. 2. Definitions. The following definitions shall apply to this Plan: (a) "Board" means the board of directors of the Company. (b) "Change of Control" occurs when (i) any person, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the beneficial owner of more than 50 percent of the total number of shares entitled to vote in the election of directors of the Board, or (ii) a registration statement is declared effective by the Securities and Exchange Commission with respect to an initial public offering of common stock of the Company or Subsidiary. (c) "Code" means the Internal Revenue Code of 1986, as amended. (d) "Committee" means the Stock Option Committee consisting of two or more directors appointed by the Board. In the event the Board does not appoint a Stock Option Committee, "Committee" means the Board. (e) "Company" means Exactium, Ltd. (f) "Date of Grant" means the date on which the Option is granted. (g) "Eligible Person" means any person who performs or has in the past performed services for the Company or any direct or indirect partially or wholly owned subsidiary thereof, whether as a director, officer, employee, consultant or other independent contractor, and any person who performs services relating to the Company in his or her capacity as an employee or independent contractor of a corporation or other entity that provides services for the Company; provided, that only an Employee can receive an incentive stock option grant. -1- Exactium Stock Option Plan (US) (h) "Employee" means any person employed on an hourly or salaried basis by the Company or any subsidiary of the Company that now exists or hereafter is organized or acquired by the Company. (i) "Fair Market Value" means the fair market value of the Ordinary Share. If the Ordinary Share is not publicly traded on the date as of which fair market value is being determined, the Board shall determine the fair market value of the Shares, using such factors as the Board considers relevant, such as the price at which recent sales have been made(including shares of other classes of Company stock), the book value of the Ordinary Share, and the Company's current and projected earnings. If the Ordinary Share is publicly traded on the date as of which fair market value is being determined, the fair market value is the average of the high bid and ask price of the Common Stock as quoted on that date. If a price quotation does not occur on the date as of which fair market value is being determined, the next preceding date on which a price was quoted will determine the fair market value. (j) "Incentive Stock Option" means a stock option granted pursuant to either this Plan or any other plan of the Company that satisfies the requirements of Section 422 of the Code and that entitles the key employee to purchase stock of the Company or in a corporation that at the time of grant of the option was a parent or subsidiary of the Company or a predecessor corporation of any such corporation. (k) "Nonqualified Stock Option" means a stock option granted pursuant to the Plan that is not an Incentive Stock Option and that entitles the Recipient to purchase stock of the Company or in a corporation that at the time of grant of the option was a parent or subsidiary of the Company or a predecessor corporation of any such corporation. (l) "Option" means an Incentive Stock Option or a Nonqualified Stock Option granted pursuant to the Plan. (m) "Option Agreement" means a written agreement entered into between the Company and a Recipient which sets out the terms and restrictions of an Option granted to the Recipient. (n) "Option Shareholder" shall mean an Employee who has exercised his or her Option. (o) "Option Shares" means Shares issued upon exercise of an Option. (p) "Ordinary Share" or "Share" means the common stock, par value NIS 0.01 per share of the Company, as adjusted in accordance with Section 8 of the Plan, or such other class of shares or securities as to which the Plan may be applicable. -2- Exactium Stock Option Plan (US) (q) "Plan" means this Exactium, Ltd. 1999 Stock Option Plan. (r) "Recipient" means an individual who receives an Option. (s) "Subsidiary" means Exactium, Inc. 3. Administration. This Plan will be administered by the Committee. The Committee has the exclusive power to select the Recipients of Options pursuant to this Plan, to establish the terms of the Options granted to each Recipient, and to make all other determinations necessary or advisable under the Plan. The Committee has the sole and absolute discretion to determine whether the performance of an Eligible Person warrants an Option under this Plan, and to determine the size and type of the Option. The Committee shall have the authority to grant in its discretion to the holder of an outstanding Option, in exchange for the surrender and cancellation of such Option, a new Option having an exercise price other than that provided in the Option so surrendered and cancelled and containing such other terms and conditions as the Committee may deem appropriate. The Committee has full and exclusive power to construe and interpret this Plan, to prescribe, amend, and rescind rules and regulations relating to this Plan, and to take all actions necessary or advisable for the Plan's administration. The Committee, in the exercise of its powers, may correct any defect or supply any omission, or reconcile any inconsistency in the Plan, or in any Agreement, in the manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. In exercising this power, the Committee may retain counsel at the expense of the Company. The Committee shall also have the power to determine the duration and purposes of leaves of absence which may be granted to a Recipient without constituting a termination of the Recipient's employment for purposes of the Plan. Any determinations made by the Committee will be final and binding on all persons. Each member of the Committee shall be indemnified and held harmless by the Company against any cost or expense reasonably incurred by him, or any liability (including any sum paid in settlement of a claim with the approval of the Company) arising out of any act or omission to act in connection with the Plan unless arising out of such member's own fraud or bad faith, to the extent permitted by applicable law. 4. Shares Subject to Plan. Subject to the provisions of Section 10 of the Plan, the maximum aggregate number of Shares that may be subject to Options under the Plan shall be 170,000. If an Option should expire or become unexercisable for any reason without having been exercised, the unpurchased Shares that were subject to such Option shall, unless the Plan has then terminated, be available for other Options under the Plan. -3- Exactium Stock Option Plan (US) 5. Eligibility. Any Eligible Person that the Committee in its sole discretion designates is eligible to receive an Option under this Plan. The Committee's grant of an Option to a Recipient in any year does not require the Committee to grant an Option such Recipient in any other year. Furthermore, the Committee may grant different Options to different Recipients and has full discretion to choose whether to grant Options to any Eligible Person. The Committee may consider such factors as it deems pertinent in selecting Recipients and in determining the types and sizes of their Options, including, without limitation, (i) the financial condition of the Company or its subsidiaries; (ii) expected profits for the current or future years; (iii) the contributions of a prospective Recipient to the profitability and success of the Company or its subsidiaries; and (iv) the adequacy of the prospective Recipient's other compensation. Recipients may include persons to whom stock, stock options, stock appreciation rights, or other benefits previously were granted under this or another plan of the Company or any subsidiary, whether or not the previously granted benefits have been fully exercised or vested. A Recipient's right, if any, to continue to serve the Company and its subsidiaries as an officer, Employee, or otherwise will not be enlarged or otherwise affected by his designation as a Recipient under this Plan, and such designation will not in any way restrict the right of the Company or any parent, as the case may be, to terminate at any time the employment or affiliation of any participant. 6. Options. Each Option granted to a Recipient under the Plan shall contain such provisions as the Committee at the Date of Grant shall deem appropriate. Each Option granted to a Recipient will satisfy the following requirements: (a) Written Agreement. Each Option granted to a Recipient will be evidenced by an Option Agreement. The terms of the Option Agreement need not be identical for different Recipients. The Option Agreement shall include a description of the substance of each of the requirements in this Section 6 with respect to that particular Option. (b) Number of Shares. Each Option Agreement shall specify the number of Shares that may be purchased by exercise of the Option. (c) Exercise Price. The exercise price of each Share subject to an Incentive Stock Option shall equal the exercise price designated by the Committee on the Date of Grant, but shall not be less than the Fair Market Value of the Share on the Incentive Stock Option's Date of Grant. The exercise price of each Share subject to a Nonqualified Stock Option shall equal the exercise price designated by the Committee on the Date of Grant. (d) Duration of Option. Except as otherwise provided in this Section 6, an Incentive Stock Option granted to an Employee shall expire on the tenth anniversary of its Date of Grant or, at such earlier date as is set by the Committee in establishing the terms of the Incentive Stock Option at grant. Except as otherwise provided in this Section 6, a Nonqualified Stock Option granted to an Employee shall expire on the tenth anniversary of its Date of Grant or, at such earlier or later date as is set by the Committee in establishing the terms of the Nonqualified Stock Option at grant. -4- Exactium Stock Option Plan (US) (e) Vesting of Option. Each Option Agreement shall specify the vesting schedule applicable to the Option. The Committee, in its sole and absolute discretion, may accelerate the vesting of any Option at any time. (f) Death. In the case of the death of a Recipient, an Option granted the Recipient shall expire no later than the six month anniversary of the Recipient's death, or if earlier, the date specified in subsection (d) above. The Committee shall set the expiration date in establishing the terms of the Option at grant or a later expiration date subsequent to the Date of Grant but prior to the sixth month anniversary of the Recipient's death. During the period beginning on the date of the Recipient's death and ending on the date the Option expires, the Option may be exercised to the extent it could have been exercised at the time the Recipient died, subject to any adjustment under Section 8 herein. (g) Disability. In the case of the total and permanent disability of a Recipient and a resulting termination of employment or affiliation with the Company or subsidiary, an Option granted to the Recipient shall expire no later than the six month anniversary of the Recipient's last day of employment, or, if earlier, the date specified in subsection (d) above. The Committee shall set the expiration date in establishing the terms of the Option at grant or a later expiration date subsequent to the Date of Grant but prior to the six month anniversary of the Recipient's last day of employment or affiliation with the Company or subsidiary. During the period beginning on the date of the Recipient's termination of employment or affiliation by reason of disability and ending on the date the Option expires, the Option may be exercised as to the number of Shares for which it could have been exercised at the time the Recipient became disabled, subject to any adjustments under Section 8 herein. (h) Retirement. If the Recipient's employment with the Company or subsidiary terminates by reason of normal retirement under the Company's normal retirement policies, an Option granted the Recipient shall expire no later than 90 days after the last day of employment, or, if earlier, on the date specified in subsection (d) above. The Committee shall set the expiration date in establishing the terms of the Option at grant or a later expiration date subsequent to the Date of Grant but prior to the end of the 90-day period following the Recipient's normal retirement. During the period beginning on the date of the Recipient's normal retirement and ending on the date the Option expires, the Option may be exercised as to the number of Shares for which it could have been exercised on the retirement date, subject to any adjustment under Section 8 herein. (i) Termination of Service. If the Recipient ceases employment or affiliation with the Company or subsidiary, for any reason other than death, disability, or retirement (as described above), an Option granted to the Recipient shall lapse immediately following the last day that the Recipient is employed by or affiliated with the Company or subsidiary. However, the Committee may, in its sole discretion, either at grant of the Option or at the time the Recipient terminates employment, delay the expiration date of the Option to a date after termination of employment; provided, however, that the expiration date of an Incentive Stock Option may not be -5- Exactium Stock Option Plan (US) delayed more than 90 days following the termination of the Recipient's employment or affiliation with the Company. During any such delay of the expiration date, the Option may be exercised only for the number of Shares for which it could have been exercised on such termination date, subject to any adjustment under Section 8 herein. Notwithstanding any provisions set forth herein or in the Plan, if the Recipient shall (i) commit any act of malfeasance or wrongdoing affecting the Company or any subsidiary, (ii) breach any covenant not to compete or employment agreement with the Company or any subsidiary, or (iii) engage in conduct that would warrant the Recipient's discharge for cause, any unexercised part of the Option shall lapse immediately upon the earlier of the occurrence of such event or the last day the Recipient is employed by the Company. For this purpose, "cause" shall mean (i) material violation of any relevant letter or agreement of employment or engagement covering the Recipient, (ii) commission of fraud, embezzlement or other felony or similar acts, or (iii) insubordination or other material failure to discharge the duties of his or her employment. (j) Change of Control. If a Change of Control occurs, all Options, limited to a fair market value of $100,000, shall become immediately vested and exercisable by the Recipient. (k) Conditions Required for Exercise. Options granted to Recipients under the Plan shall be exercisable only to the extent they are vested according to the terms of the Option Agreement. Furthermore, Options granted to Employees under the Plan shall be exercisable only if the issuance of Shares pursuant to the exercise would be in compliance with applicable securities laws, as contemplated by Section 7 of the Plan. Each Agreement shall specify any additional conditions required for the exercise of the Option. (l) Ten Percent Shareholders. An Incentive Stock Option granted to an Employee who, on the Date of Grant, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of either the Company or any subsidiary, shall be granted at an exercise price of 110 percent of Fair Market Value on the Date of Grant and shall be exercisable only during the five-year period immediately following the Date of Grant. In calculating stock ownership of any person, the attribution rules of Section 424(d) of the Code will apply. Furthermore, in calculating stock ownership, any stock that the Employee may purchase under outstanding options will not be considered. (m) Maximum Option Grants. The aggregate Fair Market Value, determined on the Date of Grant, of stock in the Company with respect to which any Incentive Stock Options under the Plan and all other plans of the Company or its subsidiary (within the meaning of Section 422(b) of the Code) may become exercisable by any individual for the first time in any calendar year shall not exceed $100,000. (n) Method of Exercise. An Option granted under this Plan shall be deemed exercised when the person entitled to exercise the Option (i) delivers written notice to the President of the Company (or his delegate, in his absence) of the decision to exercise accompanied by a -6- Exactium Stock Option Plan (US) voting proxy for the Shares to be received on exercise, (ii) concurrently tenders to the Company full payment for the Shares to be purchased pursuant to the exercise, and (iii) complies with such other reasonable requirements as the Committee establishes pursuant to Section 7 of the Plan. Payment for Shares with respect to which an Option is exercised may be made in cash, or by certified check. A partial exercise of an Option will not affect the holder's right to exercise the Option from time to time in accordance with this Plan as to the remaining Shares subject to the Option. (o) Designation of Beneficiary. Each Recipient shall designate, in the Option Agreement he executes, a beneficiary to receive Options awarded hereunder in the event of his death prior to full exercise of such Options; provided, that if no such beneficiary is designated or if the beneficiary so designated does not survive the Recipient, the estate of such Recipient shall be deemed to be his beneficiary. Recipients may, by written notice to the Committee, change the beneficiary designated in any outstanding Option Agreements. (p) Transferability. An Option granted under this Plan is not transferable except by will or the laws of descent and distribution. During the lifetime of the Recipient, all rights of the Option are exercisable only by the Recipient. 7. Taxes; Compliance with Law; Approval of Regulatory Bodies; Legends. The Company shall have the right to withhold from payments (including shares otherwise to be received on exercise) otherwise due and owing to the Recipient (or his beneficiary) or to require the Recipient (or his beneficiary) to remit to the Company in cash upon demand an amount sufficient to satisfy any federal (including FICA and FUTA amounts), state, and/or local withholding tax requirements. Options can be granted, and Shares can be delivered under this Plan, only in compliance with all applicable federal and state laws and regulations and the rules of all stock exchanges on which the Company's stock is listed at any time. An Option is exercisable only if either (a) a registration statement pertaining to the Shares to be issued upon exercise of the Option has been filed with and declared effective by the Securities and Exchange Commission and remains effective on the date of exercise, or (b) an exemption from the registration requirements of applicable securities laws is available. This Plan does not require the Company, however, to file such a registration statement or to assure the availability of such exemptions. Any certificate issued to evidence Shares issued under the Plan may bear such legends and statements, and shall be subject to such transfer restrictions, as the Committee deems advisable to assure compliance with federal and state laws and regulations and with the requirements of this Section. No Option may be exercised, and Shares may not be issued under this Plan, until the Company has obtained the consent or approval of every regulatory body, federal or state, having jurisdiction over such matters as the Committee deems advisable. Each person who acquires the right to exercise an Option may be required by the Committee to furnish reasonable evidence of ownership of the Option as a condition to his exercise -7- Exactium Stock Option Plan (US) of the Option. In addition, the Committee may require such consents and releases of taxing authorities as the Committee deems advisable. 8. Adjustment Upon Change of Shares. If a reorganization, merger, consolidation, reclassification, recapitalization, combination or exchange of shares, stock split, stock dividend, rights offering, or other expansion or contraction of the Common Stock of the Company occurs, the number and class of Shares for which Options are authorized to be granted under this Plan, the number and class of Shares then subject to Options previously granted to Employees under this Plan, and the price per Share payable upon exercise of each Option outstanding under this Plan shall be equitably adjusted by the Committee to reflect such changes. To the extent deemed equitable and appropriate by the Board, subject to any required action by shareholders, in any merger, consolidation, reorganization, liquidation or dissolution, any Option granted under the Plan shall pertain to the securities and other property to which a holder of the number of Shares of stock covered by the Option would have been entitled to receive in connection with such event. 9. Liability of the Company. The Company and its subsidiaries shall not be liable to any person for any tax consequences incurred by a Recipient or other person with respect to an Option. 10. Option Shareholder Action. If prior to completion of a public offering of Shares of the Company, all or substantially all of the Shares of the Company are to be sold, or upon a merger or reorganization or similar transaction, the Shares of the Company or any class thereof, are to be exchanged for securities of another company then in such event, each Recipient shall be obliged to sell or exchange, as the case may be, the Shares such Optionee acquired under the Plan in accordance with instructions provided by the Board. 11. Amendment and Termination of Plan. The Board may alter, amend, or terminate this Plan from time to time without approval of the shareholders of the Company, except that no amendment shall be made which, without the approval of the shareholders of the Company would (i) increase the number of shares reserved for purposes of the Plan, (ii) change the class of persons eligible to participate in the Plan, or (iii) extend the option period as set forth in Section 6. The Board may condition any amendment on the approval of the shareholders of the Company if such approval is necessary or advisable with respect to tax, securities or other applicable laws to which the Company, the Plan, Recipients or Eligible Persons are subject. Any amendment, whether with or without the approval of shareholders of the Company, that alters the terms or provisions of an Option granted before the amendment (unless the alteration is expressly permitted under this Plan) will be effective only with the consent of the Recipient to whom the Option was granted or the holder currently entitled to exercise it. -8- Exactium Stock Option Plan (US) 12. Expenses of Plan. The Company shall bear the expenses of administering the Plan. 13. Duration of Plan. Options may be granted under this Plan only during the 10 years immediately following the effective date of this Plan. 14. Applicable Law. This Plan and options issued hereunder shall be governed by and construed and enforced in accordance with the laws of the State of Israel applicable to contracts made and to be performed therein without giving effect to the principles of conflict of laws. 15. Effective Date. The effective date of this Plan shall be the earlier of (i) the date on which the Board adopts the Plan or (ii) the date on which the Shareholders approve the Plan. -9- Exactium Stock Option Plan (US) EX-5.1 3 0003.txt OPINION OF BORDEN LADNER GERVAIS LLP EXHIBIT 5.1 Borden Ladner Gervais LLP Lawyers * Patent & Trade-Mark Agents 1200 Waterfront Centre 200 Burrard Street, P.O. Box 48600 Vancouver, B.C., Canada V7X 1T2 tel: (604) 687-5744 fax: (604) 687-1415 www.blgcanada.com [BLG BORDEN LADNER GERVAIS LOGO] June 22, 2000 Pivotal Corporation 300 - 224 West Esplanade North Vancouver, B.C. V7M 3M6 Dear Sirs/Mesdames: Pivotal Corporation Registration Statement on Form S-8 We have acted as Canadian counsel to Pivotal Corporation (the "Company") in connection with the issue by the Company of up to 108,435 common shares of the Company (the "Option Shares") pursuant to the Exactium, Ltd. 1999 Stock Option Plan, as amended (the "Option Plan"). We have also acted as Canadian counsel to the Company in connection with a Registration Statement on Form S-8 (the "Registration Statement") filed with the United States Securities and Exchange Commission by the Company relating to the registration of the Option Shares under the United States Securities Act of 1933, as amended (the "Act"). We have examined originals or copies, certified or otherwise identified to our satisfaction, of the Memorandum and Articles of the Company and resolutions of the directors of the Company with respect to the matters referred to herein. We have also examined such certificates of public officials, officers of the Company, corporate records and other documents as we have deemed necessary as a basis for the opinion expressed below. In our examination of such documents, we have assumed the authenticity of all documents submitted to us as certified copies or facsimiles thereof. We have also relied upon the resolutions of the board of directors of the Company as to the adequacy of the consideration received by the Company for the issue of the Shares. Our opinions herein are limited to the laws of British Columbia and the federal laws of Canada applicable therein. Based upon and subject to the foregoing, we are of the opinion that upon the valid exercise of options duly issued under the Option Plan and receipt of payment in full for the Option Shares in respect of which such stock options have been exercised, the Option Shares so paid for will be validly issued as fully paid and non-assessable shares in the capital of the Company. [Calgary Canada London England Montreal Canada Ottawa Canada Toronto Canada Vancouver Canada displayed perpendicularly to text in right margin] Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership [SCOTT & AYLEN INTELLECTUAL PROPERTY LOGO] Consent is hereby given to the use of our name in the Registration Statement and to the filing, as an exhibit to the Registration Statement, of this opinion. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act. Yours truly, /s/ Borden Ladner Gervais LLP EX-23.1 4 0004.txt CONSENT OF DELOITTE TOUCHE LLP EXHIBIT 23.1 CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated July 9, 1999, with respect to the consolidated financial statements and schedule of Pivotal Corporation, included in the Registration Statement on Form F-1, as amended, filed with the Securities and Exchange Commission. /s/ Deloitte & Touche LLP Vancouver, British Columbia, Canada June 22, 2000 EX-23.2 5 0005.txt CONSENT OF KPMG, LLP EXHIBIT 23.2 [KPMG LOGO] KPMG LLP Chartered Accountants Box 10426 777 Dunsmuir Street Telephone (604) 691-3000 Vancouver, BC V7Y 1K3 Telefax (604) 691-3031 Canada www.kpmg.ca To the Board of Directors Pivotal Corporation We consent to the use of our report incorporated herein by reference. /s/ KPMG LLP Chartered Accountants Vancouver, BC June 21, 2000 -----END PRIVACY-ENHANCED MESSAGE-----