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 Employee Identification Number)
52 Second Avenue, Waltham, MA 02451
(Address of Principal Executive Offices)
(781) 890-1700
(Registrant's telephone number, including area code)
NETEGRITY, INC.
2000 STOCK INCENTIVE 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
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<TABLE>
<CAPTION>
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Title of Amount to be Registered(1) Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Per Aggregate Registration Fee
Registered Share Offering Price
-------------------- -------------------------------------- -------------------- ------------------ ------------------
<S> <C> <C> <C> <C>
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 285,000 $37.96 $10,818,600 $2,856.11(2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 169,500 $46.33 $7,852,935 $2,073.17 (2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 633,750 $30.83 $19,538,512.50 $5,158.17 (2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 286,287 $35.83 $10,257,663.21 $2,708.02(2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 182,550 $50.21 $9,165,835.50 $2,419.78(2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 91,875 $52.67 $4,839,056.25 $1,277.51(2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 152,750 $88.00 $13,442,000 $3,548.69(2)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
Common Stock 1,198,288 $52.06 $62,382,873.28 $16,469.08 (3)
-------------------- -------------------------------------- -------------------- ------------------ ------------------
-------------------- -------------------------------------- -------------------- ------------------ ------------------
TOTAL 3,000,000(4) $36,510.53
-------------------- -------------------------------------- -------------------- ------------------ ------------------
</TABLE>
(1) Also registered hereunder are such additional number of share of Common
Stock, presently indeterminable, as may be necessary to satisfy the
antidilution provisions of the Plan, to which this Registration
Statement relates.
(2) 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 outstanding options
is based on the price at which options may be exercised.
(3) 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 National Market on October 18, 2000.
(4) Total amount to be registered reflects the 3:2 stock split completed on
September 1, 2000.
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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 (10-K/A) 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.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
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 and Restated By-Laws of the Company provides
as follows:
Article V
INDEMNIFICATION
Section 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 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 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, suit or proceeding referred to
in Sections 1 and 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 4 Authorization and Request for Indemnification.
---------------------------------------------
(a) Any indemnification requested by the Indemnitee under
Section 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 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 Advance Payment of Expenses. Subject to Section 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 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 Director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 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 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 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 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
4.1 Netegrity, Inc. 2000 Stock Incentive Plan.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A
Professional Corporation, as to legality of 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 5.1)
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 the 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 the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 the 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 the
Securities Exchange Act of 1934) that is incorporated by reference in the
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 Act 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 Act and will be governed by the final adjudication of
such issue.
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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, October 23, 2000.
NETEGRITY, INC.
By /s/ Barry N. Bycoff
Barry N. Bycoff
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints Barry N. Bycoff and James E. Hayden and each of their
acting without the other, 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.
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<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Barry N. Bycoff Chairman of the Board of Directors, President, Chief Executive October 23, 2000
Barry N. Bycoff Officer (Principal Executive Officer)
/s/ James E. Hayden Chief Financial Officer, Vice President of Finance and October 23, 2000
James E. Hayden Administration and Treasurer (Principal accounting and financial
-
officer)
/s/Eric R. Giler Director October 23, 2000
Eric R. Giler
/s/Michael L. Mark Director October 23, 2000
Michael L. Mark
Director October __, 2000
James P. McNiel
Director October __, 2000
Paul F. Deninger
/s/Ralph B. Wagner Director October 23, 2000
Ralph B. Wagner
</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)
