As filed with the Securities and
Exchange Commission on June 23, 2000 Registration No. 333-
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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
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(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
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(Address of Principal Executive Offices)
Exactium, Ltd. 1999 Stock Option Plan, as amended
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(Full Title of the Plan)
CT Corporation System
1633 Broadway
New York, New York 10019
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(Name and Address of Agent For Service)
(212) 664-1666
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(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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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
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<S> <C> <C> <C> <C>
Common Shares subject to 108,435 shares US$24.78 US$2,687,019.30 US$709.37
outstanding options
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</TABLE>
(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.
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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
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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
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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;
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(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.
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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
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Norman B. Francis
(President and Chief Executive Officer)
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<PAGE>
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
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/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
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Douglas J. MacKenzie
/s/ ROBERT J. LOUIS Director June 21, 2000
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Robert J. Louis
/s/ DONALD A. MATTRICK Director June 21, 2000
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Donald A. Mattrick
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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
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Norman B. Francis
(President and Chief Executive Officer)
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit Page
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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)
