-----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, UYF9J+v0jzCFD8NBQa9inIgWCSd1kJ/U96L7Fq4rV0gVpNUuHAtu70MHdGLMWpY5 wVoZuskNKPqt7EFxA/D7oA== 0000912282-99-000231.txt : 19991228 0000912282-99-000231.hdr.sgml : 19991228 ACCESSION NUMBER: 0000912282-99-000231 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991227 EFFECTIVENESS DATE: 19991227 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PIVOTAL CORP CENTRAL INDEX KEY: 0001086329 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 000000000 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-93607 FILM NUMBER: 99780408 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 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on December 27, 1999 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) Incentive Stock Option Plan Employee Stock Purchase Plan (Full Title of the Plans) 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 Aggregate Offering Amount of Securities to be Registered (1) be Registered Share Price Registration Fee - --------------------------------------------------------------------------------------------------------------------------------- Common Shares subject to 1,805,015 shares US$8.15(2) US$14,710,872 US$3,884 outstanding options - --------------------------------------------------------------------------------------------------------------------------------- Common Shares not subject to 2,121,753 shares US$42.19(3) US$89,516,759 US$23,633 outstanding options - --------------------------------------------------------------------------------------------------------------------------------- Common shares reserved for 1,000,000 shares US$42.19(3) US$42,190,000 US$11,139 issuance pursuant to Employee Stock Purchase Plan ================================================================================================================================= Total 4,926,768 shares US$146,417,631 US$38,656 =================================================================================================================================
(1) Common Shares, without par value, offered by the Company pursuant to the Plans described herein. (2) Based on the average exercise price of options granted under the Pivotal Corporation Incentive Stock Option Plan outstanding as of the date of the filing of this registration statement. (3) 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 December 22, 1999, 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 misconduct. These agreements also call for the Registrant to advance expenses incurred by the individual in II-1 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 Incentive Stock Option Plan (incorporated by reference to Exhibit 10.2 to the Registrant's Registration Statement on Form F-1 (333-82871)) 4.2 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3 the Registrant's Registration Statement on Form F-1 (333-82871)) 5.1 Opinion of Ladner Downs 23.1 Consent of Deloitte & Touche LLP, Independent Auditors 23.2 Consent of KPMG, LLP, Chartered Accountants 23.3 Consent of Ladner Downs (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 II-2 the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (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. (h) 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 December 23, 1999. 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 --------- ----- ---- President, Chief Executive December 23, 1999 /s/ NORMAN B. FRANCIS Officer and Director - -------------------------- Norman B. Francis Chief Financial Officer and December 23, 1999 /s/ VINCENT D. MIFSUD Vice President, Operations - -------------------------- Vincent D. Mifsud Chief Technical Officer and December 23, 1999 /s/ KEITH R. WALES Director - -------------------------- Keith R. Wales /s/ JEREMY A. JAECH Director December 23, 1999 - -------------------------- Jeremy A. Jaech /s/ ROGER S. SIBONI Director December 23, 1999 - -------------------------- Roger S. Siboni /s/ DOUGLAS J. MACKENZIE Director December 23, 1999 - -------------------------- Douglas J. MacKenzie /s/ ROBERT J. LOUIS Director December 23, 1999 - -------------------------- Robert J. Louis /s/ DONALD A. MATTRICK Director December 23, 1999 - -------------------------- 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 December 23, 1999. 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 Incentive Stock Option Plan (incorporated by reference to Exhibit 10.2 to the Registrant's Registration Statement on Form F-1 (333-82871)) 4.2 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3 to the Registrant's Registration Statement on Form F-1 (333-82871)) 5.1 Opinion of Ladner Downs 23.1 Consent of Deloitte & Touche LLP, Independent Auditors 23.2 Consent of KPMG, LLP, Chartered Accountants 23.3 Consent of Ladner Downs (included in Exhibit 5.1) 24.1 Powers of Attorney (included on the signature pages to the Registration Statement) EX-5.1 2 OPINION OF LADNER DOWNS EXHIBIT 5.1 [Letterhead of Ladner Downs] December 23, 1999 Pivotal Corporation 300 - 224 West Esplanade North Vancouver, B.C. V7M 3M6 Dear Sirs/Mesdames: Re: 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 common shares of the Company pursuant to the Company's: (a) stock option plan (the "Option Shares"); and (b) employee share purchase plan (the "ESPP Shares"). 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 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. We are solicitors qualified to practice law in the Province of British Columbia and our opinion expressed below is 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: (a) upon the valid allotment for issuance of the Option Shares to allow for the grant and exercise of stock options under the Company's stock option plan and, upon the valid exercise of same and receipt of payment in full for the shares in respect of which the respective stock options have been exercised, the shares so paid for will be validly issued as fully paid and non-assessable shares in the capital of the Company; and (b) upon valid allotment for issuance of the ESPP Shares to allow for the issuance of such shares under the Company's employee share purchase plan, and upon the receipt of payment in full for the ESPP Shares, such shares so paid for will be issued as fully paid and non-assessable shares in the capital of the Company. 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/ Ladner Downs EX-23.1 3 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 CONSENT OF DELOITTE & TOUCHE LLP CONSENT OF 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 of Pivotal Corporation for the years ended June 30, 1998 and 1997, included in its Rule 424(b) prospectus filed with the Securities and Exchange Commission on August 5, 1999. /s/ Deloitte & Touche LLP Vancouver, Canada December 23, 1999 EX-23.2 4 CONSENT OF KPMG, LLP EXHIBIT 23.2 CONSENT OF KPMG LLP To the Board of Directors Pivotal Corporation We consent to the use of our report dated September 17, 1997 incorporated by reference in this Registration Statement of Form S-8. Yours very truly /s/ KPMG LLP Chartered Accountants Vancouver, Canada December 23, 1999 -----END PRIVACY-ENHANCED MESSAGE-----