Registration
Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
NETEGRITY, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-2911320
(State of Incorporation) (IRS Employer Identification Number)
245 Winter Street, Waltham, MA 02154
(Address of Principal Executive Offices)
(781) 890-1700
(Registrant's telephone number, including area code)
NETEGRITY, INC.
1997 Non-Employee Director Stock Option Plan
(Full title of the Plan)
Anthony J. Medaglia, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
l01 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(l) Per Share Price Fee(2)
<S> <C> <C> <C> <C>
Common Stock 125,000 shares $2.50 $312,500 $92.19
</TABLE>
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(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the stock split, stock dividend or similar provisions of the Plan to
which this Registration Statement relates.
(2) The registration fee has been calculated with respect to 125,000 shares
registered on the basis of the average of the high and low sale prices
on the Nasdaq SmallCap Market on July 9, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (prior to 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 in this Registration Statement and to be a part thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or the prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities Exchange
Act of 1934, including any amendment or report filed for the purpose of updating
such description.
Item 4. Description of Securities
Inapplicable.
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Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchins, Wheeler &
Dittmar, A Professional Corporation, Boston, Massachusetts. Anthony J. Medaglia,
Jr., who is a stockholder of Hutchins, Wheeler & Dittmar, A Professional
Corporation, is the Secretary of the Company.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporate Law and the Company's Certificate of
Incorporation and By-Laws allow for indemnification of the Company's directors
and officers for liabilities and expenses that they may incur in such
capacities. In general, directors and officers are indemnified with respect to
actions taken in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company, and with respect to any criminal
action or proceeding, actions that the indemnitee has no reasonable cause to
believe were unlawful.
Article V of the Amended By-Laws of the Company provides as follows:
Article V
INDEMNIFICATION
Section 5.1 Third Party Actions. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (each an
"Indemnitee"), against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding.
Section 5.2 Derivative Actions. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit.
Section 5.3 Expenses. To the extent that a Director,
officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any action,
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suit or proceeding referred to in Sections 5.1 and 5.2, or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith.
Section 5.4 Authorization and Request for Indemnification.
(a) Any indemnification requested by the Indemnitee
under Section 5.1 hereof shall be made no later than ten (10)
days after receipt of the written request of the Indemnitee,
unless it shall have been adjudicated by a court of final
determination that the Indemnitee did not act in good faith
and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
(b) Any indemnification requested by the Indemnitee
under Section 5.2 hereof shall be made no later than ten (10)
days after receipt of the written request of the Indemnitee,
unless it shall have been adjudicated by a court of final
determination that the Indemnitee did not act in good faith
and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, the
Indemnitee shall have been finally adjudged to be liable to
the Company by a court of competent jurisdiction due to
willful misconduct of a culpable nature in the performance of
the Indemnitee's duty to the Corporation unless and only to
the extent that any court in which such proceeding was brought
shall determine upon application that despite the adjudication
of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
Section 5.5 Advance Payment of Expenses. Subject to Section
5.4 above, the Corporation shall advance all expenses incurred by the
Indemnitee in connection with the investigation, defense, settlement or
appeal of any proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee
is or was an agent of the Corporation. The Indemnitee hereby undertakes
to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to
be indemnified by the Corporation. The advances to be made hereunder
shall be paid by the Corporation to or on behalf of the Indemnitee
within 30 days following delivery of a written request therefor by the
Indemnitee to the Corporation.
Section 5.6 Non-Exclusiveness. The indemnification provided by
this Article V shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to
a person who has ceased to be a
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Director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
Section 5.7 Insurance. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this
Article V.
Section 5.8 Constituent Corporations. The Corporation shall
have power to indemnify any person who is or was a director, officer,
employee or agent of a constituent corporation absorbed in a
consolidation or merger with this Corporation or is or was serving at
the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in the same manner as hereinabove provided
for any person who is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
Section 5.9 Additional Indemnification. In addition to the
foregoing provisions of this Article V, the Corporation shall have the
power, to the full extent provided by law, to indemnify any person for
any act or omission of such person against all loss, cost, damage and
expense (including attorney's fees) if such person is determined (in
the manner prescribed in Section 5.4 hereof) to have acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interest of the Corporation.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Number Description
4 1997 Non-Employee Director Stock Option Plan
(filed as Exhibit 10.16 to Annual Report on
Form 10-K for the fiscal year ended December 31,
1997, and incorporated herein by reference).
5 Opinion of Hutchins, Wheeler & Dittmar, A
Professional Corporation, as to legality of shares
being registered and consent of Hutchins, Wheeler &
Dittmar, A Professional Corporation (filed
herewith).
<PAGE>
23 Consents of Independent Public Accountants -
included in Registration Statement under heading
"Consent of Independent Public Accountants."
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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 Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this 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 this Registration
Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities
offered (if the total dollar value of
securitied offered would not exceed that
which was registered) and any deviation from
the low or high and 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 changes in volume and price represent
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;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
<PAGE>
the Securities Exchange Act of 1934) that is incorporated by reference in this
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) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 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 Securities Act of
1933 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 whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Waltham, Massachusetts on July 9, 1998.
NETEGRITY, INC.
By /s/ Barry N. Bycoff
Barry N. Bycoff
Chief Executive Officer
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 dates indicated.
<TABLE>
Signature Title Date
<S> <C> <C>
/s/ Barry N. Bycoff Director, President July 9, 1998
- ------------------------------------------
Barry N. Bycoff and Chief Executive Officer
(principal executive officer)
/s/ Stephen L. Watson Chairman of the Board July 9, 1998
- ----------------------------------------
Stephen L. Watson of Directors
/s/ James E. Hayden Vice President of Finance and July 9, 1998
- -----------------------------------------
James E. Hayden Administration, Chief Financial
Officer and Treasurer
(principal financial and
accounting officer)
/s/ Milton J. Pappas Director July 9, 1998
- -------------------------------------------
Milton J. Pappas
/s/ Ralph B. Wagner Director July 9, 1998
- -----------------------------------------
Ralph B. Wagner
/s/ Michael L. Mark Director July 9, 1998
- -----------------------------------------
Michael L. Mark
/s/ Eric R. Giler Director July 9, 1998
- ---------------------------------------------
Eric R. Giler
/s/ James P. McNiel Director July 9, 1998
- -----------------------------------------
James P. McNiel
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
NETEGRITY, INC.
(Exact name of registrant as specified in its charter)
285401-1
<PAGE>
Exhibit 5
July 8, 1998
Netegrity, Inc.
245 Winter Street
Waltham, MA 02154
Ladies and Gentlemen:
In connection with the proposed registration under the Securities Act
of 1933, as amended, of 125,000 shares of common stock, par value $.01 per share
(the "Common Stock"), of Netegrity, Inc. a Delaware corporation (the "Company"),
proposed to be sold pursuant to the Company's 1997 Non-Employee Director Stock
Option Plan (the "Plan") by the Company, we have examined such corporate records
and other documents, including the registration statement on Form S-8 relating
to such shares (the "Registration Statement"), and have reviewed such matters of
law as we have deemed necessary as a basis for the opinions as hereinafter
expressed.
Based upon the foregoing and having regard for such legal consideration
as we deem relevant, we are of the opinion that:
1. The Company is a corporation validly existing under the laws
of the State of Delaware.
2. The Company is authorized to issue 25,000,000 shares of
common stock, par value $.01 per share.
3. The 125,000 shares of Common Stock proposed to be sold
pursuant to the Registration Statement have been duly
authorized and when issued in accordance with the Plan will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the captions in the
prospectus constituting a part of the Registration Statement.
Very truly yours,
/s/ Hutchins, Wheeler & Dittmar
Hutchins, Wheeler & Dittmar
A Professional Corporation
AJM/NMP:285412-1
<PAGE>
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 13, 1998, on our audits of the
consolidated financial statements of Netegrity, Inc. as of December 31, 1997 and
December 31, 1996 and for the fiscal year ended December 31, 1997, the
nine-month transition period ended December 31, 1996 and the fiscal year ended
March 31, 1996 which report is included in the Company's Annual Report on Form
10-K.
/s/ PricewaterhouseCoopers, L.L.P.
PricewaterhouseCoopers, L.L.P.
Boston, Massachusetts
July 7, 1998
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