EXHIBIT 4.1
(The numbers in this plan do not reflect
the 3:2 stock split completed on September 1, 2000)
NETEGRITY, INC.
2000 STOCK INCENTIVE PLAN
1. Purpose of the Plan.
-------------------
This stock incentive plan (the "Plan") is intended to provide
incentives: (a) to the employees of Netegrity, Inc. (the "Company") and any
present or future subsidiaries of the Company by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISO" or "ISOs"); (b) to
officers, employees, consultants and directors of the Company and any present or
future subsidiaries 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"); and (c) to officers,
employees and consultants of the Company and any present or future subsidiaries
of the Company pursuant to stock awards. As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation,"
respectively, as those terms are defined in Section 424 of the Code and the
Treasury Regulations promulgated thereunder (the "Regulations").
2. Stock Subject to the Plan.
-------------------------
(a) The total number of shares of common stock, par value $.01 per
share, of the Company ("Common Stock") available for stock options and stock
awards granted under the Plan shall be 2,000,000 shares of Common Stock. The
maximum number of shares of Common Stock available for grants or awards under
this Plan shall be subject to adjustment in accordance with Section 12 hereof.
Shares issued under the Plan may be authorized but unissued shares of Common
Stock or shares of Common Stock held in treasury.
(b) To the extent that any stock option shall lapse, terminate, expire
or otherwise be cancelled without the issuance of shares of Common Stock, or any
stock award is settled in cash, the shares of Common Stock covered by such
option(s) or award shall again be available for the granting of stock options or
awards.
(c) Common Stock issuable under the Plan may be subject to such
restrictions on transfer, repurchase rights or other restrictions as shall be
determined by the Committee (as defined in Section 4 below).
3. Stock Awards.
------------
(a) The Committee may grant, subject to the limitation on the number of
shares of Common Stock available under Section 2 hereof, stock awards to
employees of and other key individuals engaged to provide services to the
Company and its subsidiaries. A stock award may be made in stock or denominated
in stock subject to final settlement in cash or stock. Each stock award granted
shall be subject to such terms and conditions as the Committee, in its sole
discretion, shall determine and establish. These may include, but are not
limited to, establishing a holding period during which stock issued pursuant to
an award may not be transferred, requiring forfeiture of the stock award because
of termination of employment or failure to achieve specific objectives such as
measures of individual, business unit or Company performance, including stock
price appreciation. In determining a person's eligibility to be granted an
award, as well as in determining the number of shares to be awarded to any
person, the Committee shall take into account the person's position and
responsibilities, the nature and value to the Company or its subsidiaries of
such person's service and accomplishments, such person's present and potential
contribution to the success of the Company or its subsidiaries, and such other
factors as the Committee may deem relevant.
(b) The Committee may provide that a stock award shall earn dividends
or dividend equivalents, which may be paid currently or may be deferred in
payment, including reinvestment in additional shares covered by the applicable
stock award, all on such terms and conditions as the Committee shall deem
appropriate.
(c) The Committee shall require that for any stock award to be
effective, the recipient of the award shall execute an award agreement at such
time and in such form as the Committee shall determine. Any award agreement may
require that for any or some of the shares issued, the awardee must pay a
minimum consideration, whether in cash, property or services, as may be required
by applicable law or the Committee, as the Committee shall determine.
(d) A stock award may be granted singly or in combination or in tandem
with another stock award or stock option. A stock award may also be granted as
the payment form in settlement of a grant or right under any other Company
employee benefit or compensation plan, including the plan of an acquired entity.
(e) Directors who are not otherwise employees of the Company or a
subsidiary shall not be eligible to receive stock awards pursuant to the Plan.
(f) No stock award granted to any person under the Plan shall be
assignable or transferable otherwise than by will or the laws of descent and
distribution. Any stock award granted under the Plan shall be null and void and
without effect upon any attempted assignment or transfer, except as herein
provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition,
attachment, trustee process or similar process, whether legal or equitable, upon
such award.
4. Administration of the Plan.
--------------------------
(a) At the discretion of the Company's Board of Directors, the Plan
shall be administered either (i) by the full Board of Directors of the Company
or (ii) by a committee (the "Committee") consisting of two or more members of
the Company's Board of Directors. In the event the full Board of Directors is
the administrator of the Plan, references herein to the Committee shall be
deemed to include the full Board of Directors. The Board of Directors may from
time to time appoint a member or members of the Committee in substitution for or
in addition to the member or members then in office and may fill vacancies on
the Committee however caused. The Committee shall choose one of its members as
Chairman and shall hold meetings at such times and places as it shall deem
advisable. A majority of the members of the Committee shall constitute a quorum
and any action may be taken by a majority of those present and voting at any
meeting.
(b) Any action may also be taken without the necessity of a meeting by
a written instrument signed by a majority of the Committee. The decision of the
Committee as to all questions of interpretation and application of the Plan
shall be final, binding and conclusive on all persons. The Committee shall have
the authority to adopt, amend and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of the Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in any option agreement granted hereunder in the manner and to the
extent it shall deem expedient to carry the Plan into effect and shall be the
sole and final judge of such expediency. No Committee member shall be liable for
any action or determination made in good faith.
(c) Subject to the terms of the Plan, the Committee shall have the
authority to (i) determine the employees of the Company and its subsidiaries
(from among the class of employees eligible under Section 5 to receive ISOs) to
whom ISOs may be granted, and to determine (from the class of individuals
eligible under Section 5 to receive Non-Qualified Options) to whom Non-Qualified
Options may be granted; (ii) determine the time or times at which options may be
granted; (iii) determine the option price of shares subject to each option which
price shall not be less than the minimum price specified in Section 7; (iv)
determine whether each option granted shall be an ISO or a Non-Qualified Option;
(v) determine (subject to Section 10) 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 and the nature of such restrictions; and (vii) determine the
size of any Options under the Plan, taking into account the position or office
of the optionee with the Company, the job performance of the optionee and such
other factors as the Committee may deem relevant in the good faith exercise of
its independent business judgment. Subject to the provisions of Section 3 the
Committee shall also have the authority to grant stock awards under this Plan.
5. Eligibility for Grant of Options.
--------------------------------
Options designated as ISOs may be granted only to employees of the
Company or any subsidiary. Non-Qualified Options may be granted to any officer,
employee, consultant or director of the Company or of any of its subsidiaries.
In determining the eligibility of an individual to be granted an
option, as well as in determining the number of shares to be optioned to any
individual, the Committee shall take into account the position and
responsibilities of the individual being considered, the nature and value to the
Company or its subsidiaries of his or her service and accomplishments, his or
her present and potential contribution to the success of the Company or its
subsidiaries, and such other factors as the Committee may deem relevant.
No option designated as an ISO shall be granted to any employee of the
Company or any subsidiary if such employee owns, immediately prior to the grant
of an option, stock representing more than 10% of the combined voting power of
all classes of stock of the Company or a parent or a subsidiary, unless the
purchase price for the stock under such option shall be at least 110% of its
fair market value at the time such option is granted and the option, by its
terms, shall not be exercisable more than five years from the date it is
granted. In determining the stock ownership under this paragraph, the provisions
of Section 424(d) of the Code shall be controlling. In determining the fair
market value under this paragraph, the provisions of Section 7 hereof shall
apply.
The maximum number of shares of the Company's Common Stock with respect
to which an option or options may be granted to any employee in any calendar
year shall not exceed 500,000 shares, taking into account shares subject to
options granted and terminated, or repriced, during such calendar year, subject
to adjustment in accordance with Section 12.
6. Option Agreement.
----------------
Each option shall be evidenced by an option agreement (the "Agreement")
duly executed on behalf of the Company and by the optionee to whom such option
is granted, which Agreement shall comply with and be subject to the terms and
conditions of the Plan. The Agreement may contain such other terms, provisions
and conditions which are not inconsistent with the Plan as may be determined by
the Committee. The date of grant of an option shall be as determined by the
Committee. More than one option may be granted to an individual.
7. Option Price.
------------
The option exercise price or prices of shares of the Company's Common
Stock for options designated as non-qualified stock options shall be determined
by the Committee, but in no event shall the option exercise price of a
non-qualified stock option be less than the par value of such Common Stock at
the time the option is granted. The option exercise price or prices of shares of
the Company's Common Stock for incentive stock options shall be no less than the
fair market value of such Common Stock at the time the option is granted as
determined by the Committee in accordance with Section 422 of the Code and the
Regulations promulgated thereunder.
8. Manner of Payment; Manner of Exercise.
-------------------------------------
(a) The Agreement may provide for the payment of the exercise price by
delivery of (i) cash or a check payable to the order of the Company in an amount
equal to the exercise price of such options, (ii) shares of Common Stock of the
Company owned by the optionee having a fair market value equal in amount to the
exercise price of the options being exercised, or (iii) any combination of (i)
and (ii), provided, however, that payment of the exercise price by delivery of
shares of Common Stock of the Company owned by such optionee may be made only if
such payment does not result in a charge to earnings for financial accounting
purposes as determined by the Committee. The fair market value of any shares of
the Company's Common Stock which may be delivered upon exercise of an option
shall be determined by the Committee in accordance with Section 7 hereof. With
the consent of the Committee, delivery of shares used to exercise any option may
be made through attestation rather than physical delivery of stock certificates.
With the consent of the Committee, payment may also be made by delivery of a
properly executed exercise notice to the Company, together with a copy of
irrevocable instruments to a broker to deliver promptly to the Company the
amount of sale or loan proceeds to pay the exercise price. To facilitate the
foregoing, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms.
(b) To the extent that the right to purchase shares under an option has
accrued and is in effect, options may be exercised in full at one time or in
part from time to time, by giving written notice, signed by the person or
persons exercising the option, to the Company, stating the number of shares with
respect to which the option is being exercised, accompanied by payment in full
for such shares as provided in subparagraph (a) above. Upon such exercise,
delivery of a certificate for paid-up non-assessable shares shall be made at the
principal office of the Company to the person or persons exercising the option
at such time, during ordinary business hours, not earlier than ten business days
from the date of receipt of the notice by the Company, as shall be designated in
such notice, or at such time, place and manner as may be agreed upon by the
Company and the person or persons exercising the option.
9. Exercise of Options.
-------------------
Each option granted under the Plan shall, subject to the other
provisions of this Plan, be exercisable at such time or times and during such
period as shall be set forth in the Agreement.
To the extent that an option to purchase shares is not exercised by an
optionee when it becomes initially exercisable, it shall not expire but shall be
carried forward and shall be exercisable, on a cumulative basis, until the
expiration of the exercise period. No partial exercise may be made for less than
two hundred fifty (250) full shares of Common Stock.
10. Term of Options; Exercisability.
-------------------------------
(a) Term.
(1) Each incentive stock option shall expire not more than ten
(10) years from the date of the granting thereof, but shall be subject
to earlier termination as herein provided. Each non-qualified stock
option shall expire not more than fifteen (15) years from the date of
the granting thereof, but shall be subject to earlier termination as
herein provided.
(2) Except as otherwise provided in this Section 10, an option
granted to any employee optionee who ceases to be an employee of the
Company or one of its subsidiaries shall terminate on the seventh
business day after the date such optionee ceases to be an employee of
the Company or one of its subsidiaries, or on the date on which the
option expires by its terms, whichever occurs first.
(3) If such termination of employment is because of dismissal
for cause or because the employee is in breach of any employment
agreement, such option will terminate immediately on the date the
optionee ceases to be an employee of the Company or one of its
subsidiaries.
(4) If such termination of employment is because the optionee
has become permanently disabled (within the meaning of Section 22(e)(3)
of the Code), such option shall terminate on the last day of the
twelfth month from the date such optionee ceases to be an employee, or
on the date on which the option expires by its terms, whichever occurs
first.
(5) In the event of the death of any optionee, any option
granted to such optionee shall terminate on the last day of the twelfth
month from the date of death, or on the date on which the option
expires by its terms, whichever occurs first.
(6) Notwithstanding subparagraphs (2), (3), (4) and (5) above,
the Committee shall have the authority to extend the expiration date of
any outstanding option in circumstances in which it deems such action
to be appropriate, provided that no such extension shall extend the
term of an option beyond the date on which the option would have
expired if no termination of the optionee's employment had occurred.
(b) Exercisability.
(1) An option granted to an employee optionee who ceases to be
an employee of the Company or one of its subsidiaries shall be
exercisable only to the extent that the right to purchase shares under
such option has accrued and is in effect on the date such optionee
ceases to be an employee of the Company or one of its subsidiaries.
(2) In the event of the death of any optionee, the option
granted to such optionee may be exercised by the estate of such
optionee, or by any person or persons who acquired the right to
exercise such option by bequest or inheritance or by reason of the
death of such optionee.
11. Transferability.
---------------
The right of any optionee to exercise any option granted to him or her
shall not be assignable or transferable by such optionee otherwise than by will
or the laws of descent and distribution, except that an optionee may transfer
options that are not ISOs granted under Plan to the optionee's spouse or
children or to a trust or partnership for the benefit of the optionee or the
optionee's spouse or children. ISOs shall be exercisable during the lifetime of
such optionee only by the optionee. Any option granted under the Plan shall be
null and void and without effect upon the bankruptcy of the optionee to whom the
option is granted, or upon any attempted assignment or transfer, except as
herein provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition,
attachment, divorce, trustee process or similar process, whether legal or
equitable, upon such option.
12. Adjustment for Recapitalizations, Reorganizations and Other Events.
------------------------------------------------------------------
(a) In the event that the outstanding shares of the Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, or dividends payable in capital stock,
appropriate adjustment shall be made in the number and kind of shares as to
which options and stock awards may be granted under the Plan and as to which
outstanding options or awards or portions thereof then unexercised shall be
exercisable, to the end that the proportionate interest of the optionee or award
recipient shall be maintained as before the occurrence of such event; such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of such options and with a
corresponding adjustment in the option price per share.
(b) In addition, unless otherwise determined by the Committee in its
sole discretion, in the case of any (i) sale or conveyance to another entity of
all or substantially all of the property and assets of the Company or (ii)
Change in Control (as hereinafter defined) of the Company, the purchaser(s) of
the Company's assets or stock may, in his, her or its discretion, deliver to the
optionee the same kind of consideration that is delivered to the shareholders of
the Company as a result of such sale, conveyance or Change in Control, or the
Committee may cancel all outstanding options in exchange for consideration in
cash or in kind, which consideration in both cases shall be equal in value to
the value of those shares of stock or other securities the optionee would have
received had the option been exercised (to the extent then exercisable) and no
disposition of the shares acquired upon such exercise been made prior to such
sale, conveyance or Change in Control, less the option price therefor. Upon
receipt of such consideration by the optionee, his or her option shall
immediately terminate and be of no further force and effect. The value of the
stock or other securities the optionee would have received if the option had
been exercised shall be determined in good faith by the Committee of the
Company, and in the case of shares of the Common Stock of the Company, in
accordance with the provisions of Section 7 hereof. The Committee shall also
have the power and right to accelerate the exercisability of any options,
notwithstanding any limitations in this Plan or in the Agreement upon such a
sale, conveyance or Change in Control. Upon such acceleration, any options or
portion thereof originally designated as incentive stock options that no longer
qualify as incentive stock options under Section 422 of the Code as a result of
such acceleration shall be redesignated as non-qualified stock options. To the
extent permitted by law, upon such a sale, conveyance or a Change of Control the
Committee may, in its sole discretion, amend any Award Agreement issued under
the Plan in such manner as it deems appropriate, including without limitation,
by amendments that advance the dates upon which any or all outstanding awards
shall become free of restrictions or shall become issued or payable, or that
advance the dates upon which any or all outstanding awards shall terminate. For
purposes of the Plan, a "Change of Control" shall be deemed to have occurred if
any of the following conditions have occurred: (1) the merger or consolidation
of the Company with another entity where the Company is not the surviving entity
and where after the merger or consolidation (i) its stockholders prior to the
merger or consolidation hold less than 50% of the voting stock of the surviving
entity and (ii) its Directors prior to the merger or consolidation are less than
a majority of the Board of the surviving entity; (2) the sale of all or
substantially all of the Company's assets to a third party and subsequent to the
transaction (i) its stockholders hold less than 50% of the stock of said third
party and (ii) its Directors are less than a majority of the Board of said third
party; or (3) a transaction or series of related transactions, including a
merger of the Company with another entity where the Company is the surviving
entity, whereby (i) 50% or more of the voting stock of the Company after the
transaction(s) is owned actually or beneficially by parties who held less than
thirty percent (30%) of the voting stock, actually or beneficially, prior to the
transaction(s) and (ii) its Board of Directors after the transaction(s) or
within sixty (60) days thereof, is comprised of less than a majority of the
Directors serving prior to the transaction(s).
(c) Upon dissolution or liquidation of the Company, all options granted
under this Plan shall terminate, but each optionee (if at such time in the
employ of or otherwise associated with the Company or any of its subsidiaries)
shall have the right, immediately prior to such dissolution or liquidation, to
exercise his or her option to the extent then exercisable. The Committee shall
have the right to accelerate the vesting of any award or take such other action
with respect thereto as the Committee shall in its sole discretion determine in
the event of any contemplated dissolution or liquidation of the Company.
(d) No fraction of a share shall be purchasable or deliverable upon the
exercise of any option or stock award, but in the event any adjustment hereunder
of the number of shares covered by the option or award shall cause such number
to include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
13. No Special Employment Rights.
----------------------------
Nothing contained in the Plan or in any option granted under the Plan
shall confer upon any option holder any right with respect to the continuation
of his employment by the Company (or any subsidiary) or interfere in any way
with the right of the Company (or any subsidiary), subject to the terms of any
separate employment agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the option holder from
the rate in existence at the time of the grant of an option. Whether an
authorized leave of absence, or absence in military or government service, shall
constitute termination of employment shall be determined by the Committee at the
time.
14. Withholding.
-----------
The Company's obligation to deliver shares upon settlement of an award
or upon the exercise of any option granted under the Plan, or to make any cash
payment in connection with an award, and any payments or transfers under Section
12 hereof, shall be subject to the option or award holder's satisfaction of all
applicable Federal, state, local and foreign governmental tax withholding
requirements. Whenever cash is to be paid pursuant to an award under the Plan,
the Company shall be entitled to deduct therefrom an amount sufficient in its
opinion to satisfy all applicable tax withholding requirements related to such
payment. Whenever shares of Common Stock are to be delivered pursuant to an
award or the exercise of an option under the Plan, the Company shall be entitled
to require as a condition of delivery that the option or award holder remit to
the Company an amount sufficient in the opinion of the Company to satisfy all
applicable tax withholding requirements related thereto. With the approval of
the Committee, which it shall have sole discretion to grant, and on such terms
and conditions as the Committee may impose, the option or award holder may
satisfy the foregoing condition by electing to have the Company withhold from
delivery shares having a value equal to the amount of tax to be withheld. The
Committee shall also have the right to require that shares be withheld from
delivery to satisfy such condition. In the event that shares are used to satisfy
a tax withholding obligation under this Plan, the repurchased or withheld shares
shall not represent an amount in excess of the Company's minimum statutory tax
withholding obligation (based on minimum statutory withholding rates for federal
and state tax purposes, including payroll taxes, that are applicable to such
supplemental income).
15. Restrictions on Issue of Shares.
-------------------------------
(a) Notwithstanding the provisions of Section 8, the Company may delay
the issuance of shares covered by the exercise of an option and the delivery of
a certificate for such shares until the delivery or distribution of any shares
issued under this Plan complies with all applicable laws (including without
limitation, the Securities Act of 1933, as amended), and with the applicable
rules of any stock exchange upon which the shares of the Company are listed or
traded.
(b) It is intended that all exercises of options shall be effective,
and the Company shall use its best efforts to bring about compliance with all
applicable legal and regulatory requirements within a reasonable time, except
that the Company shall be under no obligation to qualify shares or to cause a
registration statement or a post-effective amendment to any registration
statement to be prepared for the purpose of covering the issue of shares in
respect of which any option may be exercised, except as otherwise agreed to by
the Company in writing.
16. Loans.
-----
The Company may not make loans to optionees to permit them to exercise
options.
17. Modification of Outstanding Options.
-----------------------------------
The Committee may authorize the amendment of any outstanding option
with the consent of the optionee when and subject to such conditions as are
deemed to be in the best interests of the Company and in accordance with the
purposes of this Plan.
18. Approval of Shareholders.
------------------------
The Plan shall take effect as of the date of adoption by the Board of
Directors. The Plan shall be submitted for approval by the vote of shareholders
holding at least a majority of the voting stock of the Company voting in person
or by proxy at a duly held shareholders' meeting, or by written consent of
shareholders holding at least a majority of the voting stock of the Company,
within twelve (12) months after the adoption of the Plan by the Board of
Directors. No options or awards granted on or after the next annual meeting of
the shareholders of the Company which occurs after approval of this Plan by the
Board of Directors shall take effect or be exercisable unless shareholder
approval is obtained in accordance with the previous sentence.
19. Termination and Amendment.
-------------------------
Unless sooner terminated as herein provided, the Plan shall terminate
ten (10) years from the date upon which the Plan was duly adopted by the Board
of Directors of the Company. The Board of Directors may at any time terminate
the Plan or make such modification or amendment thereof as it deems advisable;
provided, however, that the Board of Directors may not terminate, modify, or
amend the Plan without shareholder approval if such shareholder approval is
expressly required by applicable law. The Committee may terminate, amend or
modify any outstanding option without the consent of the option holder,
provided, however, that, except as provided in Section 12, without the consent
of the optionee, the Committee shall not change the number of shares subject to
an option, nor the exercise price thereof, nor extend the term of such option.
20. Reservation of Stock.
--------------------
The Company shall at all times during the term of the Plan reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of the Plan and shall pay all fees and expenses necessarily
incurred by the Company in connection therewith.
21. Notices.
-------
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to the Company, to its principal place of business,
attention: President, and, if to an optionee, to the address as appearing on the
records of the Company.
