<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 1999.
REGISTRATION NO. 333-82871
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
AMENDMENT NO. 3
TO
Form F-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------------------
Pivotal Corporation
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
BRITISH COLUMBIA, CANADA 7372 NOT APPLICABLE
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
NORMAN B. FRANCIS
VINCENT D. MIFSUD
300 - 224 WEST ESPLANADE, NORTH VANCOUVER, BRITISH COLUMBIA, CANADA V7M 3M6
(604) 988-9982
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
CT CORPORATION SYSTEM
1633 BROADWAY
NEW YORK, NEW YORK 10019
(212) 664-1666
(Name, address, including zip code, and telephone number, including area code of
agent for service)
------------------------------------
COPIES TO:
<TABLE>
<S> <C> <C> <C>
CHRISTOPHER J. BARRY ALBERT J. HUDEC GAVIN B. GROVER CHRISTOPHER A. HEWAT
BRIGID CONYBEARE BRITTON ROBERT B. SWIFT PETER E. WILLIAMS III GEOFFREY S. BELSHER
DORSEY & WHITNEY LLP DAVIS & COMPANY MORRISON & FOERSTER LLP BLAKE, CASSELS & GRAYDON
U.S. BANK BUILDING CENTRE, 2800-666 BURRARD STREET 425 MARKET STREET BOX 25, COMMERCE COURT WEST
SUITE 4200 VANCOUVER, BRITISH COLUMBIA SAN FRANCISCO, CALIFORNIA TORONTO, ONTARIO
1420 FIFTH AVENUE CANADA V6C 2Z7 94105-2482 CANADA M5L 1A9
SEATTLE, WASHINGTON 98101 (604) 687-9444 (415) 268-7000 (416) 863-2400
(206) 903-8800
</TABLE>
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
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,
check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The table below lists the fees and expenses, other than underwriting
discounts and commissions, which the registrant will pay in connection with the
offering described in this registration statement. All the expenses are
estimates, except for the Securities and Exchange Commission registration fee,
the Nasdaq National Market listing fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
--------
<S> <C>
Securities and Exchange Commission registration fee......... $ 15,665
NASD filing fee............................................. 5,733
Nasdaq National Market listing fee.......................... 95,000
Legal fees and expenses..................................... 490,000
Accounting fees and expenses................................ 160,000
Printing and engraving expenses............................. 160,000
Transfer agent and registrar fees........................... 3,500
Miscellaneous expenses...................................... 10,102
--------
Total.................................................. $940,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the British Columbia Company Act we may, if we obtain court approval,
indemnify our directors and officers and former directors and officers and
current and former directors and officers of our 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 us. 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 our 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.
Our articles require us, if we obtain court approval, to indemnify our
current and former directors. Under our articles we may, if we obtain court
approval, indemnify our subsidiaries' current and former directors and our and
our subsidiaries' current and former officers, employees and agents. Our
articles also provide that, to the fullest extent permitted by the British
Columbia Company Act:
- the rights conferred in the articles are not exclusive; and
- we are authorized to purchase and maintain insurance on behalf of our
and our subsidiaries' current and past directors, officers, employees
and agents against any liability incurred by them in their duties.
Our board of directors has authorized us to enter into indemnity agreements
with each of our directors and officers and the directors and officers of our
subsidiaries. We are currently in the process of entering into indemnity
agreements with each of our directors and officers and the directors and
officers of our subsidiaries. The indemnity agreements call for us 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
Pivotal, or our subsidiaries, other than liabilities arising from gross
negligence or willful misconduct. These agreements also call for us to advance
expenses incurred by the individual in connection with any action with respect
to which the individual may be entitled to indemnification by Pivotal.
The British Columbia Company Act currently requires us to obtain the
approval of a court before we indemnify directors or officers. Under proposed
legislation now before the British Columbia legislature, this requirement will
be removed.
II-1
<PAGE> 3
Currently, there is no pending litigation or proceeding involving a current
or past director, officer or employee regarding which indemnification is sought,
nor are we aware of any threatened litigation that may result in claims for
indemnification.
We maintain 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
Pivotal pursuant to the foregoing provisions, Pivotal 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 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since May 31, 1996, the registrant has issued and sold unregistered
securities as follows:
1. Pivotal granted stock options to purchase 1,816,021 common shares at
exercise prices ranging from Cdn.$0.12 to Cdn.$15.55 per share to
employees, directors and consultants pursuant to its incentive stock
option plan. These options and common shares issuable upon their
exercise are not required to be registered by virtue of Rule 903 of
Regulation S with respect to optionees outside the United States and
Rule 701 with respect to optionees in the United States. After the
completion of the offering, Pivotal plans to file a registration
statement on Form S-8 with respect to its stock option plan and stock
purchase plan.
2. Pivotal issued and sold an aggregate of 555,051 common shares to
employees, directors and consultants for aggregate consideration of
Cdn.$129,945 pursuant to exercises of options granted under its
incentive stock option plan. These shares were either exempt from
registration pursuant to Rule 701 under the Securities Act or were
not required to be registered by virtue of Regulation S thereunder.
3. In November 1996 Pivotal issued and sold 4,000,000 Class E preferred
shares for an aggregate purchase price of $5,400,000 to a group of
seven institutional accredited investors and one sophisticated
individual accredited investor pursuant to a share subscription and
purchase agreement. This sale was exempt from registration pursuant
to section 4(2) under the Securities Act.
4. In December 1998 and January 1999 Pivotal issued 476,786 Class B
common shares to 22 of its existing shareholders in exchange for
476,786 Class A common shares. No other consideration was paid by the
holders of the securities and no commission or other remuneration was
paid for soliciting exchanges. These shares were exempt from
registration pursuant to section 3(a)(9) of the Securities Act or
were not required to be registered by virtue of Regulation S
thereunder.
5. In January 1999 Pivotal issued and sold 1,288,246 Class F preferred
shares for an aggregate purchase price of $8,000,000 to a group of
five institutional accredited investors pursuant to a share
subscription and purchase agreement. This sale was exempt from
registration pursuant to section 4(2) under the Securities Act.
6. Prior to the closing Pivotal is effecting a recapitalization pursuant
to which the following will take place:
(i) Class A common shares will be redesignated as common shares in
June 1999,
(ii) Pivotal will authorize 20,000,000 new undesignated preferred
shares in June 1999,
(iii) all holders of Class B common shares will exchange their shares
for common shares prior to the effectiveness of the registration
statement, and
(iv) immediately prior to the effectiveness of the registration
statement (and after the exchange of the Class B common shares) all
of Pivotal's convertible preferred shares will convert
automatically to common shares.
II-2
<PAGE> 4
In the recapitalization no other consideration is being paid by the
holders of the securities and no commission or other remuneration is
being paid to solicit conversions or exchanges. The issuance of the
common shares is exempt from registration pursuant to section 3(a)(9)
under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Memorandum and Articles*
3.2 Form of Memorandum and Articles of the Registrant to be
effective at closing of this offering*
4.1 Specimen of Common Share certificate*
4.2 Registration Rights (included in Exhibit 10.15)*
5.1 Opinion of Davis & Company
10.1 Amended and Restated Incentive Stock Option Plan dated as of
January 28, 1999*
10.2 Form of Amended and Restated Incentive Stock Option Plan to
be effective at closing of this offering*
10.3 Employee Share Purchase Plan*
10.4 Lease dated as of July 18, 1997 between Sodican (B.C.) Inc.
and the Registrant for premises located in North Vancouver,
B.C.*
10.5 Lease dated as of May 26, 1998 between Novo Esplanade Ltd.
and the Registrant for premises located in North Vancouver,
B.C.*
10.6 Lease(1) dated as of December 14, 1998 between B.C. Rail
Ltd. and the Registrant for premises located in North
Vancouver, B.C.*
10.7 Lease(2) dated as of December 14, 1998, between B.C. Rail
Ltd. and the Registrant with respect to premises located in
North Vancouver, B.C.*
10.8 Lease dated as of December 11, 1998 between Yarrow Bay
Office III Limited Partnership and the Registrant with
respect to premises located in Kirkland, Washington*
10.9 Lease dated as of March 12, 1999 between Erachange Limited
and the Registrant for premises located in London, England*
10.10 Lease dated as of April 19, 1999 between Massachusetts
Mutual Life Insurance Company and the Registrant for
premises located in Des Plaines, Illinois*
**10.11 Letter agreement dated November 21, 1997 between the
Registrant and Robert A. Runge granting an option to
purchase 250,000 common shares*
**10.12 Letter agreement dated November 2, 1997 between the
Registrant and Glenn S. Hasen granting an option to purchase
136,000 common shares*
10.13 Class F Preferred Share Subscription and Purchase Agreement
dated January 15, 1999, with respect to Class F Preferred
Shares*
10.14 Shareholders' Agreement dated January 15, 1999*
10.15 Investors' Rights Agreement dated January 15, 1999*
10.16 Form of Share Purchase Agreement with respect to the
issuance of Class B common shares*
10.17 Form of Share Purchase Agreement with respect to the
issuance of common shares in exchange for Class B common
shares*
10.18 Form of Lock-up Agreement*
10.19 Canadian Imperial Bank of Commerce $2,000,000 Committed
Installment Loan dated March 18, 1998*
10.20 Canadian Imperial Bank of Commerce $3,000,000 Operating Line
of Credit dated March 18, 1998*
10.21 Security Agreement with Canadian Imperial Bank of Commerce
dated for reference April 15, 1998*
10.22 Contract Relative to Special Security under the Bank Act
between Canadian Imperial Bank of Commerce and the
Registrant dated April 30, 1998*
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
<C> <S>
10.23 Canadian Imperial Bank of Commerce Schedule -- Standard
Credit Terms dated March 18, 1998*
10.24 Canadian Imperial Bank of Commerce Schedule -- Standard
Credit Terms dated March 18, 1998*
10.25 Form of Indemnity Agreement between the Registrant and
directors and officers of the Registrant*
21.1 Subsidiaries of the Registrant*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of KPMG Peat Marwick LLP*
23.3 Consent of Davis & Company (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)*
</TABLE>
- - ---------------
** Indicates management contract.
* Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
The financial statement schedules are omitted because they are inapplicable
or the requested information is shown in our consolidated financial statements,
and related notes.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreement, certificates
in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
(2) Insofar as indemnification for liabilities arising under the Securities
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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities 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, 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 a part of this registration
statement as of the time it was declared effective; and
(b) For the purposes of determining any liability under the Securities Act,
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.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing of Form F-1 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Vancouver, British Columbia, Canada, on August 4,
1999.
PIVOTAL CORPORATION
By: /s/ NORMAN B. FRANCIS
------------------------------------
Norman B. Francis
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ NORMAN B. FRANCIS President, Chief Executive Officer August 4, 1999
- - --------------------------------------------------- and Director
Norman B. Francis
* Chief Financial Officer and Vice August 4, 1999
- - --------------------------------------------------- President, Operations
Vincent D. Mifsud
* Chief Technical Officer and August 4, 1999
- - --------------------------------------------------- Director
Keith R. Wales
* Director August 4, 1999
- - ---------------------------------------------------
Jeremy A. Jaech
* Director August 4, 1999
- - ---------------------------------------------------
Roger S. Siboni
Director
- - ---------------------------------------------------
Douglas J. Mackenzie
* Director August 4, 1999
- - ---------------------------------------------------
Robert J. Louis
* Director August 4, 1999
- - ---------------------------------------------------
Donald A. Mattrick
</TABLE>
By: /s/ NORMAN B. FRANCIS
--------------------------------------------------
Norman B. Francis
Attorney-in-fact
II-5
<PAGE> 7
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 August 4, 1999.
PIVOTAL CORPORATION, a Washington
corporation
By: /s/ NORMAN B. FRANCIS
---------------------------------------
Norman B. Francis
President, Chief Executive Officer and
Director
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Memorandum and Articles*
3.2 Form of Memorandum and Articles of the Registrant to be
effective at closing of this offering*
4.1 Specimen of Common Share certificate*
4.2 Registration Rights (included in Exhibit 10.15)*
5.1 Opinion of Davis & Company
10.1 Amended and Restated Incentive Stock Option Plan dated as of
January 28, 1999*
10.2 Form of Amended and Restated Incentive Stock Option Plan to
be effective at closing of this offering*
10.3 Employee Share Purchase Plan*
10.4 Lease dated as of July 18, 1997 between Sodican (B.C.) Inc.
and the Registrant for premises located in North Vancouver,
B.C.*
10.5 Lease dated as of May 26, 1998 between Novo Esplanade Ltd.
and the Registrant for premises located in North Vancouver,
B.C.*
10.6 Lease(1) dated as of December 14, 1998 between B.C. Rail
Ltd. and the Registrant for premises located in North
Vancouver, B.C.*
10.7 Lease(2) dated as of December 14, 1998, between B.C. Rail
Ltd. and the Registrant with respect to premises located in
North Vancouver, B.C.*
10.8 Lease dated as of December 11, 1998 between Yarrow Bay
Office III Limited Partnership and the Registrant with
respect to premises located in Kirkland, Washington*
10.9 Lease dated as of March 12, 1999 between Erachange Limited
and the Registrant for premises located in London, England*
10.10 Lease dated as of April 19, 1999 between Massachusetts
Mutual Life Insurance Company and the Registrant for
premises located in Des Plaines, Illinois*
**10.11 Letter agreement dated November 21, 1997 between the
Registrant and Robert A. Runge granting an option to
purchase 250,000 common shares*
**10.12 Letter agreement dated November 2, 1997 between the
Registrant and Glenn S. Hasen granting an option to purchase
136,000 common shares*
10.13 Class F Preferred Share Subscription and Purchase Agreement
dated January 15, 1999, with respect to Class F Preferred
Shares*
10.14 Shareholders' Agreement dated January 15, 1999*
10.15 Investors' Rights Agreement dated January 15, 1999*
10.16 Form of Share Purchase Agreement with respect to the
issuance of Class B common shares*
10.17 Form of Share Purchase Agreement with respect to the
issuance of common shares in exchange for Class B common
shares*
10.18 Form of Lock-up Agreement*
10.19 Canadian Imperial Bank of Commerce $2,000,000 Committed
Installment Loan dated March 18, 1998*
10.20 Canadian Imperial Bank of Commerce $3,000,000 Operating Line
of Credit dated March 18, 1998*
10.21 Security Agreement with Canadian Imperial Bank of Commerce
dated for reference April 15, 1998*
10.22 Contract Relative to Special Security under the Bank Act
between Canadian Imperial Bank of Commerce and the
Registrant dated April 30, 1998*
10.23 Canadian Imperial Bank of Commerce Schedule -- Standard
Credit Terms dated March 18, 1998*
10.24 Canadian Imperial Bank of Commerce Schedule -- Standard
Credit Terms dated March 18, 1998*
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
<C> <S>
10.25 Form of Indemnity Agreement between the Registrant and
directors and officers of the Registrant*
21.1 Subsidiaries of the Registrant*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of KPMG Peat Marwick LLP*
23.3 Consent of Davis & Company (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)*
</TABLE>
- - ---------------
** Indicates management contract.
* Previously filed.
<PAGE> 1
[DAVIS & COMPANY LETTERHEAD]
EXHIBIT 5.1
July 28, 1999
Pivotal Corporation
300 - 224 West Esplanade
North Vancouver, B.C. V7M 3M6
Ladies and Gentlemen:
Re: Registration Statement on Form F-1 of Pivotal Corporation ("Pivotal" or
the "Company")
________________________________________________________________________________
We have acted as Canadian counsel to the Company in connection with the
authorization and issuance by Pivotal of up to 3,500,000 common shares of the
Company together with an additional 525,000 common shares, if and to the extent
the underwriters exercise an over-allotment option granted by the Company
(together, "Shares"), and the preparation and filing of a registration statement
on Form F-1 ("Registration Statement") under the Securities Act of 1933, as
amended ("Securities Act"), which the Company is filing with the Securities and
Exchange Commission with respect to the Shares.
We have examined the Registration Statement and such documents and
records of the Company and other documents as we have deemed necessary for the
purpose of this opinion. We have assumed, with your permission and without
independent investigation, (i) the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as photostatic or facsimile
copies, and the authenticity of the originals of such copies, (ii) the accuracy
of the factual representations made to us by officers and other representatives
of the Company, whether evidenced by certificates or otherwise, (iii) the
identity and capacity of all individuals acting or purporting to act as public
officials, and (iv) that all actions contemplated by the Registration Statement
have been and will be carried out only in the manner described therein.
Based upon the foregoing, we are of the opinion that upon the happening
of the following events:
<PAGE> 2
-2-
DAVIS & COMPANY
(a) the filing of the Registration Statement and any amendments
thereto and the Registration Statement becoming effective; and
(b) the sale of the Shares and the receipt by the Company of an
amount equal to the full consideration for the Shares as
contemplated by the Registration Statement; and
(c) the due issuance by the Company and registration by its
registrar of the Shares;
the Shares will be duly authorized, validly issued, fully paid and
non-assessable.
In rendering this opinion we express no opinion as to the laws of any
jurisdiction other than the laws of the Province of British Columbia and the
federal laws of Canada applicable therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus made
part of the Registration Statement under the heading "Legal Matters". In giving
such consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act. This Consent may be
incorporated by reference in any amendment to the Registration Statement filed
pursuant to Rule 462(b) of Regulation C under the Securities Act.
Yours truly,
/s/ DAVIS & COMPANY
DAVIS & COMPANY
