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
News Release
FOR IMMEDIATE RELEASE
NOVEMBER 13, 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
FINANCIAL MARKETS SHOW SUPPORT FOR ONYX PROPOSAL
3.9 Million Pivotal Shares Trade Between $1.97 and $2.10
BELLEVUE, Wash -- Onyx(R) Software Corp. (NASDAQ: ONXS), a worldwide leader in
successful CRM, today noted that the financial market reaction suggests strong
support for the Onyx proposal to acquire Pivotal Corporation. On the day of the
Onyx announcement, the price of Pivotal stock gapped up to as high as $2.10 and
traded no lower than $1.97 with NASDAQ reported volume exceeding 3.9 million
shares. Additionally, Pivotal stock gapped up to as high as CAN$2.75 and traded
no lower than CAN$2.57 with 476,800 shares traded on the Toronto Stock Exchange.
In both Nasdaq and Toronto markets, the high, low and closing prices of Pivotal
common stock on the day the Onyx proposal was announced were substantially
higher than the value of the Talisma offer and the prices at any time since the
announcement of the Talisma offer.
"The market as a whole appears to agree that the Onyx proposal is superior to
the existing offer from Oak," said Onyx Software CEO Brent Frei.
The Onyx proposal is not contingent on financing. Onyx Software achieved
non-GAAP profitability in recent quarters and believes that it has adequate
financing to complete the transaction and to grow the business of the combined
entity. "We expect that Pivotal's board will soon exercise their fiduciary duty
to review what we believe is a superior proposal," Frei added.
BACKGROUND: Onyx announced on November 12 an unsolicited proposal to acquire
Pivotal Corporation (NASDAQ: PVTL and TSE:PVT) by way of a business combination
in a stock for stock transaction valued at approximately $2.25 per Pivotal
common share. Under the terms of the proposal which was submitted by letter to
the Pivotal Board of Directors this morning and is included with this press
release, the companies will 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 approximate price per Pivotal
share of $2.25 is based on the $4.73 closing price of Onyx common stock on
November 11, 2003.
On October 8, 2003 Pivotal announced that it had entered into a definitive
agreement to be acquired by Talisma Corporation in a cash transaction financed
by Oak Investment Partners valued at $1.78 per share. The Talisma transaction is
still pending and is scheduled for a shareholder vote on November 18, 2003. The
Onyx proposal represents a 26% premium over the Talisma offer. The Onyx proposal
is structured to provide potential tax deferral
benefits to investors compared to the existing offer. Onyx has not at this time
commenced an exchange offer for Pivotal shares.
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:
(www.sec.gov). 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 perception of the financial markets to the Onyx proposal, the
sufficiency of Onyx's financial resources, the anticipated economic performance
of Onyx and Pivotal as a combined company, and the anticipated reaction of the
Pivotal Board of Directors to the Onyx proposal. 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 Pivotal Board
of Directors elects not to accept the Onyx proposal, the risk that Onyx and
Pivotal are unable to reach a definitive agreement, the risk that even if such a
definitive agreement is reached that the resulting business combination will not
realize the anticipated economic benefits, the risk that Onyx common stock
declines or otherwise underperforms over time, 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 June 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.