Filed by Onyx Software Corporation
Pursuant to Rule 425 under the Securities Act of 1933
And deemed filed pursuant to Rule 14a-12 and Rule 14d-2
Under the Securities Exchange Act of 1934
Subject Company: Pivotal Corporation
Commission File No. 0-26867
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News Release
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FOR IMMEDIATE RELEASE
NOVEMBER 17, 2003
INVESTOR CONTACT: PRESS CONTACT:
Mark Lamb Mary Erickson
Director - Investor Relations Reidy Communications
(425) 519-4034 (605) 325-3286
markl@onyx.com mary@reidycommunications.com
ONYX SOFTWARE PROPOSAL TO ACQUIRE PIVOTAL REMAINS OPEN
Pivotal Shareholders to Vote Tuesday
BELLEVUE, Wash - Onyx(R) Software Corp. (NASDAQ: ONXS), a worldwide leader in
successful CRM, today reiterated that its proposal to the Pivotal Board of
Directors remains open.
"Onyx is in a position to thrive on its own. Pivotal and Talisma are not. That
being said, adding the positive assets of Pivotal into our business could
further enhance the opportunity to create value for both companies'
shareholders," said Onyx CEO Brent Frei. "Our acquisition offer remains on the
table and we are hopeful that we will have the opportunity to engage with
Pivotal towards this goal."
ONYX BELIEVES ITS OFFER IS SUPERIOR
Onyx Software made its unsolicited proposal after being excluded from the
Pivotal company-sale process. Under the terms of the proposal, the companies
would be combined on the basis of 0.475 shares of Onyx Software common stock for
each common share of Pivotal Corporation, or approximately 12.5 million shares
of Onyx.
The Onyx proposal:
- Offers Pivotal shareholders equity participation in what would be the
second largest pure play CRM vendor
- Is expected to result in synergies leading to incremental quarterly
profits and cash flows to the combined entity that Onyx believes could
approach $2 million as early as one to two full quarters following the
acquisition
- Does not require financing as a condition
- Is expected to be completed in the first calendar quarter of 2004
- Provides opportunity for Pivotal employees and shareholders to participate
in the possible upside of a publicly-traded stock
- Puts Pivotal assets with Onyx - a company that has delivered better
operating performance and equity valuation
- Provides Pivotal customers with a vendor, Onyx, that leads the industry in
customer satisfaction
- Provides potential tax deferral benefits not available to Pivotal
shareholders under Talisma's offer
PIVOTAL SHAREHOLDERS TO VOTE TUESDAY
On Tuesday, November 18 at 2:30 p.m., Vancouver time, Pivotal shareholders are
scheduled to vote on the Talisma offer. Onyx has reviewed the Pivotal meeting
materials and the statements regarding the deadline for submitting
proxies for the shareholder meeting. In one instance Pivotal asserts that
proxies must be submitted no later than 48 hours (excluding Saturdays, Sundays
and holidays) prior to the meeting. However, page 41 of the Pivotal Information
Circular dated October 21, 2003, states that in order to be valid and effective,
proxies must be submitted not more than 48 hours prior to the meeting. In view
of this inconsistency, Onyx believes that shareholders should be permitted to
submit proxies until the commencement of the meeting.
POSITIVE REACTION TO THE ONYX PROPOSAL
In the three trading sessions since Onyx Software's announcement, the NASDAQ
trading volume in Pivotal stock exceeded 6.3 million shares and 0.6 million
shares were traded on the Toronto Stock Exchange -- all at prices in excess of
the existing $1.78 Talisma offer - strongly indicating that the financial
community believes that the Onyx proposal is superior. Shareholders who
preferred Talisma's lower cash offer could have and may yet be able to sell
their shares for $1.78 or higher.
"In addition to the strong support that the financial markets have shown for
Onyx Software's proposed business combination with Pivotal, we are encouraged by
positive comments made by a broad variety of CRM industry observers," said Brent
Frei, Onyx Software CEO. These published comments can be reviewed at:
WWW.ONYX.COM/NEWSANDEVENTS/PIVOTALINFO/COMMENTS.ASP.
ABOUT ONYX SOFTWARE
Onyx Software Corp. (Nasdaq: ONXS), a worldwide leader in delivering successful
CRM, offers a fast, cost-effective, usable solution that shares critical
information among employees, customers and partners through three role-specific,
Web services-based portals. The Onyx approach delivers real-world success by
aligning CRM technology with business objectives, strategies and processes.
Companies rely on Onyx across multiple departments to create a superior customer
experience and a profitable bottom line. Onyx serves customers worldwide in a
variety of industries, including financial services, healthcare, high technology
and the public sector. Customers include Amway, United Kingdom lottery operator
Camelot, Delta Dental Plans of California, Microsoft Corporation, Mellon
Financial Corporation, The Regence Group, State Street Corporation and Suncorp.
More information can be found at (888) ASK-ONYX, info@onyx.com or
HTTP://WWW.ONYX.COM/.
This communication is not a solicitation of a proxy from any security holder of
Pivotal Corporation or Onyx Software Corporation. Nor is this communication an
offer to purchase nor a solicitation of an offer to sell securities. Any offer
will be made only through an exchange offer statement, information circular,
proxy statement or similar document. Investors and security holders are strongly
advised to read such document regarding the proposed business combination
referred to in this communication, if and when such document is filed and
becomes available, because it will contain important information. Any such
document would be filed by Onyx Software Corporation with the U.S. Securities
and Exchange Commission (SEC). Investors and security holders may obtain a free
copy of such document (if and when filed and available) and other relevant
documents related to the proposed business combination on the SEC's web site at:
. Any such document and related materials may also be obtained for
free by directing such requests to Onyx at 425-451-8060. Onyx Software
Corporation and its executive officers and directors may be deemed to be
participants in the solicitation of proxies from Pivotal Corporation and Onyx
Software Corporation security holders in favor of the proposed transaction,
should Onyx Software Corporation solicit such proxies. Information regarding the
security ownership and other interests of Onyx Software Corporation's executive
officers and directors will be included in any such exchange offer statement,
information circular, proxy statement or similar document.
FORWARD-LOOKING STATEMENT
This press release contains forward-looking statements, including statements
about the merits of the Onyx proposal relative to the Talisma offer, the
anticipated cost savings and expected revenues of the combined Onyx/Pivotal
entity, the amount of positive cash flow that would be generated by the combined
entity and the timing of commencement of same, the time frame in which Pivotal
shareholders will be able to vote their shares, the risk that the contemplated
transaction does not close in a timely fashion, and the potential benefit to
Pivotal shareholders of
the transaction. Forward-looking statements are based on the opinions and
estimates of management at the time the statements are made and are subject to
risks and uncertainties that could cause actual results to differ materially
from those anticipated in the forward-looking statements. The words "believe,"
"expect," "intend," "anticipate," variations of such words, and similar
expressions identify forward-looking statements, but their absence does not mean
that the statement is not forward-looking. These statements are not guarantees
of future performance and are subject to risks, uncertainties and assumptions
that are difficult to predict. Factors that could affect Onyx's actual results
include, but are not limited to the risk that the combined entity does not
produce the benefits or realize the costs savings that Onyx anticipates, the
risk that Onyx is unable to successfully integrate the two entities in a timely
manner, the risk that the attention of Onyx's management is diverted from the
operation of its core business and the "Important Factors That May Affect Our
Business, Our Results of Operations and Our Stock Price" described in our
quarterly report on form 10-Q for the period ended September 30, 2003. Readers
are cautioned not to place undue reliance upon these forward-looking statements
that speak only as to the date of this release. Onyx undertakes no obligation to
update publicly any forward-looking statements to reflect new information,
events or circumstances after the date of this release or to reflect the
occurrence of unanticipated events.