Registration Number 333-5318
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
ON
FORM S-8
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 02451
(Address of Principal Executive Offices)
(781) 890-1700
(Registrant's telephone number, including area code)
NETEGRITY, INC. 1987 AMENDED STOCK PLAN
(Full title of the Plan)
Anthony J. Medaglia, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 425,000 $24.38(1) $10,361,500(1) $2,880.50(1)
(need to break out issued and unissued)
</TABLE>
(1) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee. The
computation with respect to unissued options is based upon the average high
and low sale prices of the Common Stock as reported on the Nasdaq SmallCap
Market on September 17, 1999.
<PAGE>
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement filed by Netegrity, Inc. (the "Company") under
Registration Number 33-35318 with respect to securities offered pursuant to the
Company's 1987 Amended Stock Plan, as amended, are hereby incorporated by
reference herein, and the opinions and consents listed below are annexed hereto:
Exhibit Number Description
4 Netegrity, Inc. 1987 Amended Stock Plan, as amended
5 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation as to the legality of the shares being registered
and consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation (included in Exhibit 5)
24 Power of Attorney (contained within signature page)
<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 September 17, 1999.
NETEGRITY, INC.
By /s/ James E. Hayden
James E. Hayden
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints James E. Hayden his true and lawful attorney-in- fact
and agent, with full power of substitution and resubstitution, for him or in his
name, place and stead, in any and all capacities to sign any and all amendments
or post-effective 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 attorney-in-fact
and agents, full power and authority to do and perform each and every act and
thing requisite or 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 that said attorney-in- fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
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>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/Barry N. Bycoff Director, President, Chief Executive Officer September 17, 1999
Barry N. Bycoff (principal executive officer and accounting
officer)
/s/Stephen L. Watson Chairman of the Board of Directors September 17, 1999
Stephen L. Watson
/s/ James E. Hayden Chief Financial Officer, Vice President of September 17, 1999
James E. Hayden Finance and Administration and Treasurer
/s/Eric R. Giler Director September 17, 1999
Eric R. Giler
/s/Michael L. Mark Director September 17, 1999
Michael L. Mark
/s/James P. McNiel Director September 17, 1999
James P. McNiel
/s/Ralph B. Wagner Director September 17, 1999
Ralph B. Wagner
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
4 Netegrity, Inc. 1987 Amended Stock Plan, as amended
5 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation as to the legality of the shares being
registered and consent of Hutchins, Wheeler & Dittmar, A
Professional Corporation
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation (included in Exhibit 5)
24 Power of Attorney (contained within signature page)
EXHIBIT 4
NETEGRITY, INC.
1987 AMENDED STOCK PLAN
1. Purpose. This 1987 Amended Stock Plan (the "Plan") is intended to
provide incentives: (a) to the officers and other employees of Netegrity, Inc.
(the "Company"), its parent (if any) and any present or future subsidiaries of
the Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422A(b) of
the Internal Revenue Code of 1986, as amended (the "'Code") ("ISO" or "ISOs);
(b) to directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereafter individually as an "Option" and collectively as "Options". Options,
Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights". As used herein, the terms "parent" and
'"subsidiary" mean "parent corporation" and "subsidiary corporation",
respectively, as those terms are defined in Section 425 of the Code.
2. Administration of the Plan.
A. Board or Committee Administration. The Plan shall be
administered by the Board of Directors to the Company (the "Board").
The Board may appoint a Compensation Committee (the "Committee") of
three or more of its members to administer this Plan. No member of the
Committee, while a member, shall be eligible to participate in the
Plan. Subject to ratification of the grant or authorization of each
Stock Right by the Board (if so required by applicable state law), and
subject to the terms of the Plan, the Committee shall have the
authority to (i) determine the employees of the Company and Related
Corporations (from among the class of employees eligible under
paragraph 3 to receive ISOs) to whom ISOs may be granted, and to
determine (from among the class of individuals and entities eligible
under paragraph 3 to receive Non-Qualified Options and Awards and to
make Purchases) to whom Non-Qualified options, Awards and
authorizations to make Purchases may be granted; (ii) determine the
time or times at which Options or Awards may be granted or Purchases
made; (iii) determine the option price of shares subject to each
Option, which price shall not be less than the minimum price specified
in paragraph 6, and the purchase price of shares subject to each
Purchase; (iv) determine whether each Option granted shall be an ISO or
a Non-Qualified Option; (v) determine (subject to paragraph 7) the time
or times when each Option shall become exercisable and the duration of
the exercise period; (vi) determine whether restrictions such as
repurchase options are to be imposed on shares subject to Options,
Awards and Purchases and the nature of such restrictions, if any, and
(vii) interpret the Plan and prescribe and rescind rules and
regulations relating to it. If the Committee determines to issue a
Non-Qualified Option, it shall take whatever actions it deems
necessary, under Section 422A of the Code and the regulations
promulgated thereunder, to ensure that such Option is not treated as an
ISO. The interpretation and construction by the Committee of any
provisions of the Plan or of any Stock Right granted under it shall be
final unless otherwise determined by the Board. The Committee may from
time to time adopt such rules and regulations for carrying out the Plan
as it may deem best. No member of the Board or the Committee shall be
liable for any action or determination made in good faith with respect
to the Plan or any Stock Right granted under it.
B Committee Action. The Committee may select one of its
members as its chairman, and shall hold meetings at such time and
places as it may determine. Acts by a majority of the Committee, or
acts reduced to or approved in writing by a majority of the members of
the Committee, shall be the valid acts of the Committee. All references
in this Plan to the Committee shall mean the Board if no Committee has
been appointed. From time to time the Board may increase the size of
the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the
Committee and thereafter directly administer the Plan.
C. Grant of Stock Rights to Board Members. Notwithstanding the
provisions of paragraph 2(A), no Stock Right shall be granted to any
person who is, at the time of the proposed grant, a member of the
Board, unless such grant has been approved by a majority vote of the
disinterested members of the Board and otherwise approved in accordance
with paragraph 2(D), if applicable. All grants of Stock Rights to
members of the Board shall in all other respects be made in accordance
with the provisions of this Plan applicable to other eligible persons.
Members of the Board who are either (i) eligible for Stock Rights
pursuant to the Plan or (ii) have been granted Stock Rights may vote on
any matters affecting the administration of the Plan or the grant of
any Stock Rights pursuant to the Plan, except that no such member shall
act upon the granting to himself of Stock Rights, but any such member
may be counted in determining the existence of a quorum at any meeting
of the Board during which action is taken with respect to the granting
to him of Stock Rights.
D. Compliance with Federal Securities Laws. In the event the
Company registers any class of any equity security pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), any grant of Stock Rights to a member of the Board (made at any
time from the effective date of such registration until six months
after the termination of such registration) must be approved by a
majority vote of the other members of the Board; provided, however,
that if a majority of the Board is eligible to participate in the Plan
or in any other stock option or other stock plan of the Company or any
of its affiliates, or has been so eligible at any time within the
preceding year, any grant of Stock Rights to a member of the Board must
be made by, or only in accordance with the recommendation of, the
Committee or a committee consisting of three or more persons, who may
but need not be directors or employees of the Company, appointed by the
Board but having full authority to act in the matter, none of whom is
eligible to participate in this Plan or any other stock option or other
stock plan of the Company or any of its affiliates, or has been
eligible at any time within the preceding year. The requirements
imposed by the preceding sentence shall also apply with respect to
grants to officers who are not also directors. Once appointed, such
committee shall continue to serve until otherwise directed by the
Board.
3. Eligible Employees and Others. ISOs may be granted to any employee
of the Company or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the Plan.
Non-Qualified Options, Awards and authorizations to make Purchases may be
granted to any director (whether or not an employee), officer, employee or
consultant of the Company or any Related Corporation. The Committee may take
into consideration a recipient's individual circumstances in determining whether
to grant an ISO, a Non-Qualified Option or an authorization to make a Purchase.
Granting of any Stock Right to any individual or entity shall neither entitle
that individual or entity to, nor disqualify him from, participation in any
other grant of Stock Rights.
4. Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of Common Stock of the Company, par value $.0l
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 750,000 shares, subject to adjustment as provided in
paragraph 13. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the number of
shares so issued does not exceed such number, as adjusted or amended from time
to time by a vote of stockholders or otherwise pursuant to paragraph 13. If any
Option granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part, or if the Company shall reacquire any unvested shares issued
pursuant to Awards or Purchases, the unpurchased shares subject to such Options
and any unvested shares so reacquired by the Company shall again be available
for grants of Stock Rights under the Plan.
5. Granting of Stock Rights. Stock Rights may be granted under the Plan
at any time after September 21, 1987 and prior to September 21, 1997. The date
of grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant. The Committee shall have the right, with the consent of the optionee, to
convert an ISO granted under the Plan to a Non-Qualified Option pursuant to
paragraph 16.
6. Minimum Option Price; ISO Limitations.
A. Price for Non-Qualified Options. The exercise price per
share specified in the agreement relating to each Non-Qualified Option
granted under the Plan shall in no event be less than the lesser of (i)
the book value per share of Common Stock as of the end of the fiscal
year of the Company immediate preceding the date of such grant, or (ii)
fifty (50%) percent of the fair market value per share of Common Stock
on the date of such grant.
B. Price for ISOs. The exercise price per share specified in
the agreement relating to each ISO granted under the Plan shall not be
less than the fair market value per share of Common Stock on the date
of such grant. In the case of an ISO to be granted to an employee
owning stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any
Related Corporation, the price per share specified in the agreement
relating to such ISO shall not be less than one hundred ten percent
(110%) of the fair market value per share of Common Stock on the date
of grant.
C. $100,000 Annual Limitation on ISOs. Each eligible employee
may be granted ISOs only to the extent that, in the aggregate under
this Plan and all incentive stock option plans of the Company and any
Related Corporation, such ISOs do not become exercisable for the first
time by such employee during any calendar year in a manner which would
entitle the employee to purchase more than $100,000 in fair market
value (determined at the time the ISOs were granted) of Common Stock in
that year. Any options granted to an employee in excess of such amount
will be granted as Non-Qualified Options.
D. Determination of Fair Market Value. If, at the time an
Option is granted under the Plan, the Company's Common Stock is
publicly traded, "fair market value" shall be determined as of the last
business day for which the prices or quotes discussed in this sentence
are available prior to the date such Option is granted and shall mean
(i) the average (on that date) of the high and low prices of the Common
Stock on the principal national securities exchange on which the Common
Stock is traded, if the Common Stock is then traded on a national
securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the NASDAQ National Market List, if the
Common Stock is not then traded on a national securities exchange; or
(iii) the average of the closing bid and asked prices last quoted (on
that date) by an established quotation service for over-the-counter
securities, if the Common Stock is not reported on the NASDAQ National
Market List. However, if the Common Stock is not publicly traded at the
time an Option is granted under the Plan, "fair market value" shall be
deemed to be the fair value of the Common Stock as determined by the
Committee after taking into consideration all factors which it deems
appropriate, including, without limitation, recent sale and offer
prices of the Common Stock in private transactions negotiated at arm's
length.
7. Option Duration. Subject to earlier termination as provided in
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and (iii) five years from the date of grant in the case
of ISOs granted to an employee owning stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Related Corporation. Subject to earlier termination as provided in
paragraphs 9 and 10, the term of each ISO shall be the term set forth in the
original instrument granting such ISO, except with respect to any part of such
ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraph 9 through
12, each Option granted under the Plan shall be exercisable as follows:
A. Full Vesting or Partial Vesting. The Option shall either be
fully exercisable on the date of grant or shall become exercisable
thereafter in such installments as the Committee may specify.
B. Fully Vesting of Installments. Once an installment becomes
exercisable it shall remain exercisable until expiration or
termination of the Option, unless otherwise specified by the
Committee.
C. Partial Exercise. Each Option or installment may be exercised
at any time or from time to time, in whole or in part, for up to the
total number of shares with respect to which it is then exercisable.
D. Acceleration of Vesting. The Committee shall have the right to
accelerate the date of exercise of any installment of any Option;
provided that the Committee shall not accelerate the exercise date of
any installment of any Option granted to any employee as an ISO (and
not previously converted into a Non-Qualified Option pursuant to
paragraph 16) if such acceleration would violate the annual vesting
limitation contained in Section 422A(b)(7) of the Code, as described
in paragraph 6(C).
9. Termination of Employment. If an ISO optionee ceases to be employed
by the Company and all Related Corporations other than by reason of death or
disability as defined in paragraph 10, no further installments of his ISOs shall
become exercisable, and his ISOs shall terminate after the passage of ninety
(90) days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. Employment shall be considered as continuing
uninterrupted during any bona fide leave of absence (such as those attributable
to illness, military obligations or governmental service) provided that the
period of such leave does not exceed ninety (90) days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute. A
bona fide leave of absence with the written approval of the Committee shall not
be considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the optionee after the approved period of absence.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. Nothing
in the Plan shall be deemed to give any grantee of any Stock Right the right to
be retained in employment of other service by the Company or any Related
Corporation for any period of time.
10. Death; Disability.
A. Death. If an ISO optionee ceases to be employed by the
Company and all Related Corporations be reason of his death, any ISO of
his may be exercised, to the extent of the number of shares with
respect to which he could have exercised it on the date of his death,
by his estate, personal represented or beneficiary who has acquired the
ISO by will or by the laws of descent and distribution, at any time
prior to the earlier of the specified expiration date of the ISO or 180
days from the date of the optionee's death.
B. Disability. If an ISO optionee ceases to be employed by the
Company and all Related Corporations by reason of his disability, he
shall have the right to exercise any ISO held by him on the date of
termination of employment, to the extent of the number of shares with
respect to which he could have exercised it on that date, at any time
prior to the earlier of the specified expiration date of the ISO or 180
days from the date of the termination of the optionee's employment. For
the purposes of the Plan, the term "disability" shall mean "permanent
and total disability" as defined in Section 22(e)(3) of the Code or
successor status.
11. Assignability. No Option shall be assignable or transferable by the
grantee except by will or by the laws of descent and distribution, and during
the lifetime of the grantee each Option shall be exercisable only by him.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee from
time to time approve. Such instruments shall conform to the terms and conditions
set forth in paragraphs 6 through 11 hereof and may contain such other
provisions as the Committee deems advisable which are not inconsistent with the
Plan, including restrictions applicable to shares of Common Stock issuable upon
exercise of Options. In granting any Non-Qualified Option, the Committee may
specify that such Non-Qualified Option shall be subject to the restrictions set
forth herein with respect to ISOs, or to such other termination and cancellation
provisions as the Committee may determine. The Committee may from time to time
confer authority and responsibility on one or more of its own members and/or one
or more officers of the Company to execute and deliver such instruments. The
proper officers of the Company are authorized and directed to take any and all
action necessary or advisable from time to time to carry out the terms of such
instruments.
13. Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to him hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
written agreement between the optionee and the Company relating to such Option:
A. Stock Dividend and Stock Splits. If the shares of Common
Stock shall be subdivided or combined into a greater or smaller number
of shares or if the Company shall issue any shares of Common Stock as a
stock dividend on its outstanding shares of Common Stock, the number of
shares of Common Stock deliverable upon the exercise of Options shall
be appropriately increased or decreased proportionately, and
appropriate adjustments shall be made in the purchase price per share
to reflect such subdivision, combination or stock dividend.
B. Consolidations or Mergers. If the Company is to be
consolidated with or acquired by another entity in a merger, sale of
all or substantially all of the Company's assets or otherwise (an
"Acquisition"), the Committee or the board of directors of any entity
assuming the obligations of the Company hereunder (the "Successor
Board"), shall, as to outstanding Options, take one or more of the
following actions: (i) make appropriate provision for the continuation
of such Options by substituting on an equitable basis for the shares
then subject to such Options the consideration payable with respect to
the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) make appropriate provision for the continuation of
such Options by substituting on an equitable basis for the shares then
subject to such Options any equity securities of the successor
corporation; or (iii) upon written notice to the optionees, provide
that all Options must be exercised, to the extent then exercisable,
within a specified number of days of the date of such notice, at the
end of which period the Options shall terminate; or (iv) terminate all
Options in exchange for a cash payment equal to the excess of the fair
market value of the shares subject to such Options (to the extent then
exercisable) over the exercise price thereof; or (v) accelerate the
date of exercise of such Options or of any installment of any such
Options; or (vi) terminate all Options in exchange for the right to
participate in any stock option or other employee benefit plan of any
successor corporation.
C. Recapitalization or Reorganization. In the event of a
recapitalization or reorganization of the Company (other than a
transaction described in subparagraph B above) pursuant to which
securities of the Company or of another corporation are issued with
respect to the outstanding shares of Common Stock, an optionee upon
exercising an Option shall be entitled to receive for the purchase
price paid upon such exercise the securities he would have received if
he had exercised his Option prior to such recapitalization or
reorganization.
D. Modification of ISOs. Notwithstanding the foregoing, any
adjustments made pursuant to subparagraphs A, B or C with respect to
ISOs shall be made only after the Committee, after consulting with
counsel for the Company, determines whether such adjustments would
constitute a "modification" of such ISOs (as that term is defined in
Section 425 of the Code) or would cause any adverse tax consequences
for the holders of such ISOs. If the Committee determines that such
adjustments made with respect to ISOs would constitute a modification
of such ISOs, it may refrain from making such adjustments.
E. Dissolution or Liquidation. In the event of the proposed
dissolution of liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at
such other time and subject to such other conditions as shall be
determined by the Committee.
F. Issuance of Securities. Except as expressly provided
herein, no issuance by the Company or shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to Options. No adjustments shall be
made for dividends paid in cash or in property other than securities of
the Company.
G. Fractional Shares. No fractional shares shall be issued
under the Plan and the Optionee shall receive from the Company cash in
lieu of such fractional shares.
H. Adjustments. Upon the happening of any of the foregoing
events described in subparagraphs A, B or C above, the class and
aggregate number of shares set forth in paragraph 4 hereof that are
subject to Stock Rights which previously have been or subsequently may
be granted under the Plan shall also be appropriately adjusted to
reflect the event described in such subparagraphs. The Committee or the
Successor Board shall determine the specific adjustments to be made
under this paragraph 13 and, subject to paragraph 2, its determination
shall be conclusive.
If any person or entity owning restricted Common Stock obtained by exercise of a
Stock Right made hereunder receives shares of securities or cash in connection
with a corporate transaction described in subparagraphs A, B or C above as a
result of owning such restricted Common Stock, such shares or securities or cash
shall be subject to all of the conditions and restrictions applicable to the
restricted Common Stock with respect to which such shares or securities or cash
were issued, unless otherwise determined by the Committee or the Successor
Board.
14. Means of Exercising Stock Rights. A Stock Right (or any part or
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Stock Right
being exercised and specify the number of shares as to which such Stock Right is
being exercised, accompanied by full payment of the purchase price therefor
either (a) in United States dollars in cash or by check, or (b) at the
discretion of the Committee, through delivery of shares of Common Stock having a
fair market value equal as of the date of the exercise to the cash exercise
price of the Stock Right, or (c) at the discretion of the Committee, by delivery
of the grantee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in Section 1274(d) of the Code, or (d) at the discretion of the Committee, by
any combination of (a), (b) and (c) above. If the Committee exercises its
discretion to permit payment of the exercise price of an ISO by means of the
methods set forth in clauses (b), (c), or (d) of the preceding sentence, such
discretion shall be exercised in writing at the time of the grant of the ISO in
question. The holder of a Stock Right shall not have the rights of a shareholder
with respect to the shares covered by his Stock Right until the date of issuance
of a stock certificate to him for such shares. Except as expressly provided
above in paragraph 13 with respect to changes in capitalization and stock
dividends, no adjustment shall be made for dividends or similar rights for which
the record date is before the date such stock certificate is issued.
15. Terms and Amendment of Plan. This Plan was adopted by the Board on
September 21, 1987, subject (with respect to the validation of ISOs granted
under the Plan) to approval of the Plan by the stockholders of the Company at
the next Meeting of Stockholders or, in lieu thereof, by unanimous written
consent. If the approval of stockholders is not obtained by September 21, 1988,
any grants of ISOs under the Plan made prior to that date will be rescinded. The
Plan shall expire on September 21, 1997 (except as to Options outstanding on
that date). Subject to the provisions of paragraph 5 above, Stock Rights may be
granted under the Plan prior to the date of stockholder approval of the Plan.
The Board may terminate or amend the Plan in any respect at any time, except
that, without the approval of the stockholders obtained within 12 months before
or after the Board adopts a resolution authorizing any of the following actions:
(a) the total number of shares that may be issued under the Plan may be
increased (except by adjustment pursuant to paragraph 13); (b) the provisions of
paragraph 3 regarding eligibility for grants of ISOs may not be modified; (c)
the provisions of paragraph 6(B) regarding the exercise price at which shares
may be offered pursuant to ISOs may not be modified (except by adjustment
pursuant to paragraph 13); and (d) the expiration date of the Plan may not be
extended. Except as otherwise provided in this paragraph 15, in no event may
action of the Board or stockholders alter or impair the rights of a grantee,
without his consent, under any Stock Right previously granted to him.
16. Conversion of ISOs into Non-Qualified Options; Termination of ISOs.
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options. At
the time of such conversion, the Committee (with the consent of the Optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. Application of Funds. The proceeds received by the Company from the
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Governmental Regulation. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
19. Withholding of Additional Income Taxes. Upon the exercise of a
Non-Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 20) or the vesting of restricted Common
Stock acquired on the exercise of a Stock Right hereunder, the Company, in
accordance with Section 3402 (a) of the Code, may require the optionee, Award
recipient or purchaser to pay additional withholding taxes in respect of the
amount that is considered compensation includible in such person's gross income.
The Committee in its discretion may condition (i) the exercise of an Option,
(ii) the grant of an Award, (iii) the making of a Purchase of Common Stock for
less than its fair market value, or (iv) the vesting of restricted Common Stock
acquired by exercising a Stock Right, on the grantee's payment of such
additional withholding taxes.
20. Notice to Company of Disqualifying Disposition. Each employee who
receives an ISO must agree to notify the Company in writing immediately after
the employee makes a Disqualifying Disposition of any Common Stock acquired
pursuant to the exercise of an ISO. A Disqualifying Disposition is any
disposition (including any sale) of such Common Stock before the later of (a)
two years after the date the employee was granted the ISO, or (b) one year after
the date the employee acquired Common Stock by exercising the ISO. If the
employee has died before such stock is sold, these holding period requirements
do not apply and no Disqualifying Disposition can occur thereafter.
21. Governing Law, Construction. The validity and construction of the
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the State of Delaware or the laws of any jurisdiction in which the Company or
its successors in interest may be organized. In construing this Plan, the
singular shall include the plural and the masculine gender shall include the
feminine and neuter, unless the context otherwise requires.
EXHIBITS 5 and 23.2
Hutchins, Wheeler & Dittmar, A Professional Corporation
September 21, 1999
Netegrity, Inc.
245 Winter Street
Waltham, Massachusetts 02451
POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT ON FORMS 8
REGISTRTION NO. 33-35318
Ladies and Gentlemen:
We have examined the Post-Effective Amendment to the Registration Statement
Number 33-35318 on Form S-8 (the "Registration Statement") to be filed by
Netegrity, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") on or about September 17, 1999 in connection with the registration
under the Securities Act of 1933, as amended, of an additional 425,000 shares of
the Company's Common Stock reserved for issuance under the Company's 1987
Amended Stock Plan (the "Plan"). As the Company's legal counsel in connection
with this transaction, we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by the Company in connection with the
sale and issuance of the foregoing shares under the Plan, respectively
(collectively, the "Shares").
Based upon the foregoing, and having regard for such legal considerations as we
deem relevant, we are of the opinion that the Shares, when issued and sold in
accordance with the terms of the Plan will be legally and 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 references to us under the caption "Interests of Named
Experts and Counsel" in the Registration Statement, including the Prospectus
constituting a part thereof, and in any amendment thereto.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR,
A Professional Corporation
EXHIBIT 23.1
IINDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of Netegrity, Inc. of our report dated February 8, 1999,
or our audits of the consolidated financial statements and financial schedules
of Netegrity, Inc. as of December 31, 1998 and December 31, 1997, and for each
of the three years in the period ended December 31, 1998 and 1997, and the nine
months ended December 31, 1997. We also consent to the reference to our firm
under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
September 15, 1999
