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 14, 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
QUESTIONS RAISED REGARDING PIVOTAL'S COMPANY-SALE PROCESS
Onyx Software Proposal to Acquire Pivotal Remains Open
BELLEVUE, Wash - Onyx(R) Software Corp. (NASDAQ: ONXS), a worldwide leader in
successful CRM, today announced that as of 2:00 p.m. Pacific Standard Time, the
Board of Directors of Pivotal Corporation (NASDAQ: PVTL and TSE: PVT) had not
responded to Onyx Software's proposal for acquisition by way of business
combination.
"For the many Pivotal shareholders that were encouraged by the Onyx proposal,
and those who acquired Pivotal shares in recent days at prices well above the
level of the Talisma offer, the lack of comment by Pivotal's Board of Directors
must be disappointing," said Brent Frei, Onyx Software CEO.
QUESTIONS RAISED REGARDING PIVOTAL'S COMPANY-SALE PROCESS
Onyx Software believes that certain events raise questions as to whether the
Pivotal company-sale process is achieving the best results for Pivotal
shareholders. Specifically:
- While seeking to sell the company, Pivotal's Board explicitly excluded Onyx
from consideration while shopping the company to as many as 47 other
entities. Efforts by Onyx to engage Pivotal through their investment banker
were precluded.
- This exclusion of Onyx Software is particularly egregious given that Onyx is
widely acknowledged by financial and industry analysts as the closest
comparable to Pivotal Corporation, has been cited by Pivotal management as
such in presentations to investors, and is identified as a comparable in the
fairness opinion prepared by Pivotal's banking advisor.
- After the announcement of the Onyx proposal, Pivotal's Board of Directors has
not communicated with Onyx other than a cursory acknowledgement. The Board
has not asked Onyx to provide any significant additional information, hasn't
requested any possible modifications to the Onyx proposal, and hasn't pursued
the Onyx invitation to engage a constructive dialogue involving the customary
questions that would be part of a normal investigatory process.
FINANCIAL MARKETS CONTINUE TO SUPPORT 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 well in excess
of the existing $1.78 Talisma offer - strongly indicating that the financial
community believes that the Onyx proposal is superior.
"Onyx Software has always been and remains the best fit for Pivotal
Corporation," Frei said. "Our acquisition offer remains on the table and we are
hopeful that Pivotal's Board of Directors will honor engage with us in the
interest of Pivotal shareholders."
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 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 process surrounding the sale of Pivotal Corporation and the financial
community's view of 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 combined entity
does not produce the benefits or realize the costs savings that Onyx
anticipates, the risk that Pivotal does not elect to accept the Onyx proposal,
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.