As filed with the Securities and Exchange Commission on October 31, 2002.
Registration No. 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)
52 Second Avenue, Waltham, MA 02451
(Address of Principal Executive Offices)
781-890-1700
(Registrant's telephone number, including area code)
NETEGRITY, INC. 2002 GENERAL STOCK INCENTIVE PLAN
(Full title of the Plan)
Colette Cooke
Vice President and General Counsel
Netegrity, Inc.
52 Second Avenue
Waltham, MA 02451
(781) 890-1700
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
registered registered(1) Share(2) Price(2) Registration Fee(2)
Common Stock 192,650 $2.02 $389,153.00 $35.80
Par value $.01 per share 4,300 $2.15 $ 9,245.00 $ 0.85
36,950 $2.27 $ 83,876.50 $ 7.72
91,100 $2.29 $208,619.00 $19.19
25,000 $6.16 $154,000.00 $14.17
------- ----- ----------- ------
350,000 $844,893.50 $77.73
(1) Also registered hereunder are such additional number of shares 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 solely for
the purpose of calculating the registration fee. The registration fee has been
calculated with respect to 192,650 of the shares registered on the basis of the
average of the high and low price as reported on the Nasdaq National Market
("NASDAQ"), calculated at $2.02 on October 25, 2002 and with respect to the
remaining 157,350 shares registered on the basis of the price at which options
may be exercised.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Netegrity, Inc. ("Netegrity") hereby incorporates by reference the
documents listed in (a) through (c) below. In addition, all documents
subsequently filed by Netegrity 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) Netegrity's latest annual report filed pursuant to Section 13 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 Netegrity's
latest fiscal year for which such statements have been filed.
(b) All of the reports filed by Netegrity 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 Netegrity's Common Stock which is contained in the
Registration Statement filed by Netegrity under the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of updating such
description.
The financial statements for the fiscal year ended December 31, 2001,
incorporated by reference in this registration statement were audited by
Netegrity's former independent auditors, Arthur Andersen LLP ("Andersen").
Effective June 20, 2002, Netegrity's Board of Directors engaged KPMG LLP as its
independent auditors and dismissed Andersen. Netegrity would ordinarily be
required to obtain the consent of Andersen to the incorporation by reference
into this registration statement of Andersen's report with respect to its
financial statements for the year ended December 31, 2001. However, Andersen was
indicted and found guilty of federal obstruction of justice charges and is no
longer able to provide such consent. Under these circumstances, Rule 437a
promulgated under the Securities Act of 1933, as amended, permits Netegrity to
file this registration statement without a written consent from Andersen. The
absence of Andersen's consent may limit a security holder's recovery on certain
claims. In particular, and without limitation, a person who acquires shares of
Netegrity will not be able to assert claims against Andersen under Section 11 of
the Securities Act of 1933 if this prospectus contains financial statements
audited by Andersen that include an untrue statement of material fact or omit to
state a material fact necessary to make other disclosure in those financial
statements not misleading. In addition, the ability of Andersen to satisfy any
claims (including claims arising from Andersen's provision of auditing and other
services to Netegrity) may be limited as a practical matter due to recent events
regarding Andersen.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
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 Netegrity by Hutchins, Wheeler & Dittmar, A
Professional Corporation, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporate Law and Netegrity's Certificate of
Incorporation and By-Laws allow for indemnification of Netegrity'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 Netegrity, 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 Netegrity provides as follows:
II-1
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, 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 Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
II-2
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.
The Delaware General Corporation Law and Netegrity's Amended and Restated
By-laws provide for indemnification of Netegrity'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 Netegrity, and with respect to any criminal action or proceeding,
actions that the indemnitee has no reasonable choice to believe were unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Number Description
4.1 2002 General Stock Incentive Plan
5.1 Opinion 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 this Registration
Statement;
II-3
(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 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.
II-4
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 October 30, 2002.
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 Regina O. Sommer and each of
them 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.
Signature Title Date
/s/Barry N. Bycoff Chairman of the Board of Directors, October 30, 2002
------------------------- President, Chief Executive Officer and
Barry N. Bycoff Director (principal executive officer)
/s/ Regina O. Sommer Vice President and Chief Financial Officer October 30, 2002
------------------------- (principal financial and accounting officer)
Regina O. Sommer
/s/ Paul F. Deninger Director October 30, 2002
-------------------------
Paul F. Deninger
/s/ Eric R. Giler Director October 30, 2002
-------------------------
Eric R. Giler
/s/ Lawrence D. Lenihan Director October 30, 2002
-------------------------
Lawrence D. Lenihan
/s/ Ralph B. Wagner Director October 30, 2002
-------------------------
Ralph B. Wagner
/s/ Michael L. Mark Director October 30, 2002
-------------------------
Michael L. Mark
II-5
INDEX TO EXHIBITS
Exhibit
Number
4.1 2002 General Stock Incentive Plan.
5.1 Opinion 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).