-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QKwLIN4QkeKC7txjVqFLKFCzRdP+6ioPZwKYTHQbEB6V5N3+fpngaQuVEphzfzqS Ni7bAJnT3bk8gGUSiCEMaQ== 0000950135-04-004788.txt : 20041014 0000950135-04-004788.hdr.sgml : 20041014 20041014171603 ACCESSION NUMBER: 0000950135-04-004788 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20041014 DATE AS OF CHANGE: 20041014 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NETEGRITY INC CENTRAL INDEX KEY: 0000840824 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 042911320 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40775 FILM NUMBER: 041079472 BUSINESS ADDRESS: STREET 1: 245 WINTER ST CITY: WALTHAM STATE: MA ZIP: 02154 BUSINESS PHONE: 6178901700 MAIL ADDRESS: STREET 1: 245 WINTER STREET STREET 2: 0 CITY: WALTHAM STATE: MA ZIP: 02184 FORMER COMPANY: FORMER CONFORMED NAME: SOFTWARE DEVELOPERS CO INC/DE/ DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PEQUOT CAPITAL MANAGEMENT INC CENTRAL INDEX KEY: 0001071955 IRS NUMBER: 061524885 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 500 NYALA FARM ROAD CITY: WESTPORT STATE: CT ZIP: 06880 BUSINESS PHONE: 2034292200 MAIL ADDRESS: STREET 1: 500 NYALA FARM ROAD CITY: WESTPORT STATE: CT ZIP: 06880 FORMER COMPANY: FORMER CONFORMED NAME: PEQUOT CAPITAL MANAGEMENT INC/CT/ DATE OF NAME CHANGE: 19981118 SC 13D/A 1 b52167pqsc13dza.txt NETEGRITY, INC. (SUBJECT) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------- SCHEDULE 13D (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Amendment No. 11(1) Netegrity, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 64110P107 - -------------------------------------------------------------------------------- (CUSIP Number) Aryeh Davis, General Counsel Pequot Capital Management, Inc. 500 Nyala Farm Road, Westport, CT 06880 (203) 429-2200 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 6, 2004 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 5 Pages) - -------- (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------ ------------------------ CUSIP NO. 64110P107 13D PAGE 2 OF 5 PAGES - ------------------------ ------------------------ - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS Pequot Capital Management, Inc. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) 06-1524885 - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Connecticut, United States of America - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER 0 ---------------------------------------------------- NUMBER OF 8. SHARED VOTING POWER SHARES 2,651,180 BENEFICIALLY ---------------------------------------------------- OWNED BY EACH REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 2,651,180 ---------------------------------------------------- 10. SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,651,180 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.92% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON* IA - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! This Amendment No. 11 to Schedule 13D amends and restates in its entirety the Schedule 13D filed by Pequot Capital Management, Inc., a Connecticut corporation, with the Securities and Exchange Commission on August 9, 2001. This Amendment No. 11 is being filed to report the execution of a Stockholder Agreement by each of Pequot Private Equity Fund, L.P., a Delaware limited partnership ("PPE") and Pequot Offshore Private Equity Fund, Inc., a British Virgin Islands corporation ("PPEO", and together with PPE, the "Funds" and the "Stockholders") with Computer Associates International, Inc. ("Computer Associates") and Nova Acquisition Corp., a wholly-owned subsidiary of Computer Associates ("Merger Sub") (the "Stockholder Agreements"), whereby the Stockholders have agreed to vote all their beneficially owned shares of common stock, par value $.01 per share (the "Common Stock"), of Netegrity, Inc. ("Netegrity") in favor of adoption of that certain Merger Agreement dated as of October 6, 2004 by and among Computer Associates, Merger Sub and Netegrity (the "Merger Agreement") and against any other proposal or offer to acquire Netegrity. ITEM 1. SECURITY OF THE ISSUER. The class of securities to which this Schedule relates is the Common Stock of Netegrity, a Delaware corporation, whose principal executive offices are located at 201 Jones Road, Waltham, Massachusetts 02451. ITEM 2. IDENTITY AND BACKGROUND. (a) - (f) This statement is being filed on behalf of Pequot Capital Management, Inc., a Connecticut corporation (the "Reporting Person"). The Reporting Person is an investment advisor registered under the Investment Advisors Act of 1940, and acts as investment adviser to certain managed accounts over which the Reporting Person exercises discretionary authority (the "Accounts"). The address of the principal business and office of the Reporting Person and of the Executive Officers, Director and Controlling Person (as defined below) is 500 Nyala Farm Road, Westport, CT 06880. The Reporting Person is the investment advisor/manager of, and exercises sole investment discretion over, the Funds, each of which are Accounts. The executive officer of the Reporting Person is Mr. Arthur J. Samberg, the director of the Reporting Person is Mr. Arthur J. Samberg, and the controlling shareholder is Mr. Arthur J. Samberg (collectively, the "Executive Officer, Director and Controlling Person"). Each of the Executive Officer, Director and Controlling Person is a citizen of the United States. Lawrence D. Lenihan, Jr., is an employee of the Reporting Person and serves on the Board of Directors of Netegrity. Neither the Reporting Person, the Executive Officer, Director nor the Controlling Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Neither the Reporting Person, the Executive Officer, Director nor the Controlling Person has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to Federal or State securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Not applicable. ITEM 4. PURPOSE OF TRANSACTIONS. Netegrity, Computer Associates and Merger Sub entered into a Merger Agreement pursuant to which Merger Sub will merge with and into Netegrity with Netegrity continuing as the surviving corporation, such that Netegrity will become a wholly owned subsidiary of Computer Associates. At the request of Computer Associates, each of PPE and PPEO has entered into a Stockholder Agreement pursuant to which such person has agreed to vote its shares of Common Stock for adoption of the Merger Agreement and against any other proposal or offer to acquire Netegrity. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. As of the date hereof, the Reporting Person beneficially owns in the aggregate 2,651,180 shares of Common Stock, representing approximately 6.92% of the shares of Common Stock that the Reporting Person believes were outstanding on October 6, 2004. Of theses shares, 2,353,235 are held by PPE, 297,945 are held by PPEO. The Reporting Person has the sole power to dispose and direct the disposition of all of the shares of Common Stock held by the Funds. Pursuant to the Stockholder Agreements, the Reporting Person also shares the power to vote and direct the vote of all of these shares with Computer Associates and Merger Sub. To the knowledge of the Reporting Person, Computer Associates and Merger Sub are Delaware corporations located at One Computer Associates Plaza, Islandia, New York 11749. To the knowledge of the Reporting Person, Computer Associates is a provider of management software and Merger Sub is not engaged in any business. To the knowledge of the Reporting Person, neither Computer Associates nor Merger Sub has during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to Federal or State securities laws or finding any violation with respect to such laws. See Item 2. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. See Item 4. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. The following document is filed as an Exhibit to this schedule and is incorporated by reference herein. Exhibit No. Description - ----------- ----------- 1. Form of Stockholder Agreement dated as of October 6, 2004 with Computer Associates International, Inc. and Nova Acquisition Corp. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. October 14, 2004 Pequot Capital Management, Inc. By: /s/ Aryeh Davis -------------------------------- Aryeh Davis General Counsel EX-99.1 2 b52167pqexv99w1.txt FORM OF STOCKHOLDER AGREEMENT DATED 10/6/2004 EXHIBIT NO. 1 STOCKHOLDER AGREEMENT STOCKHOLDER AGREEMENT, dated as of October 6, 2004 (this "Agreement"), among the stockholder set forth on the signature page hereto (the "Stockholder"), Computer Associates International, Inc., a Delaware corporation (the "Buyer"), and Nova Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the Buyer (the "Transitory Subsidiary"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Merger Agreement referred to below. WHEREAS, concurrently with the execution of this Agreement, the Buyer, Transitory Subsidiary and Netegrity, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, Transitory Subsidiary will be merged with and into the Company, and the Company will be the surviving corporation (the "Merger"); and WHEREAS, for the purpose of inducing the Buyer to enter into (and to consummate the transactions contemplated by) the Merger Agreement, the Buyer has required that the Stockholder agree, and the Stockholder is willing, to enter into this Agreement. NOW, THEREFORE, intending to be legally bound hereby, the parties hereby agree as follows: Section 1. Number of Shares Beneficially Owned. (a) The Stockholder represents and warrants that, as of the date of this Agreement, the Stockholder (A) has full and exclusive power to vote and direct the voting of, and to dispose of and direct the disposition of, the shares of Company Common Stock shown on the signature page hereto (the "Shares") and (B) beneficially owns Company Stock Options to purchase shares of Common Company Stock shown on the signature page hereto (the "Options"). Except for the Shares and the Options and as otherwise disclosed on the signature page hereto, neither Stockholder nor any of its Affiliates holds or beneficially owns, as of the date hereof, any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company. Section 2. Voting of Subject Shares. (a) The Stockholder covenants and agrees that, until the termination of this Agreement in accordance with the terms hereof, at the Company Meeting or any other meeting of the stockholders of the Company, however called, and at every adjournment or postponement thereof, and in connection with any action by written consent of the stockholders of the Company, such Stockholder will vote, or cause to be voted, all of his, her or its Subject Shares (a) in favor of adoption of the Merger Agreement, as the Merger Agreement may be modified or amended from time to time in a manner not adverse to the Stockholder (regardless of whether the Company recommends to its stockholders the adoption of the Merger Agreement), and (b) except with the express written consent of the Buyer, against (i) any Acquisition Proposal and (ii) any action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by the Merger Agreement. For purposes of this Agreement, the term "Subject Shares" shall mean (i) the Shares and (ii) any other shares of Company Common Stock of which the Stockholder or its Affiliates is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) during the Term, whether by way of purchase or through the conversion, exercise or exchange, as the case may be, of any Company Stock Options or any other options, rights or securities held by the Stockholder or any of its Affiliates that are convertible into, or exercisable or exchangeable for, shares of Company Common Stock. (b) The Stockholder hereby revokes any and all previous proxies with respect to the Subject Shares. The Stockholder hereby irrevocably (to the fullest extent permitted by law) grants to, and appoints, the Buyer, and any individual designated in writing by the Buyer, and each of them individually, as its proxy and attorney-in-fact (with full power of substitution), for and in its name, place and stead, to vote or express consent on any matter specified in, and in accordance with, subsection (a) above. The Stockholder may vote the Subject Shares on all matters other than those specified in subsection (a) above. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 2(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the Stockholder under this Agreement. Except as otherwise provided for herein, the Stockholder hereby (i) affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked, (ii) ratifies and confirms all that the proxies appointed hereunder may lawfully do or cause to be done by virtue hereof and (iii) affirms that such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. Notwithstanding any other provisions of this Agreement, the irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Section 3. Transfer of Subject Shares. (a) The Stockholder covenants and agrees that he, she or it will not, and will not permit any of its Affiliates to, directly or indirectly (including, without limitation, through the disposition or transfer of any equity interest in another person), (i) sell, assign, transfer (including by merger, testamentary disposition, interspousal disposition pursuant to a domestic relations proceeding or otherwise by operation of law), pledge, grant any option with respect to, encumber or otherwise dispose of (collectively, "Transfer") or enter into any agreement, arrangement or understanding with respect to a Transfer of, any Subject Shares or any interest therein or securities convertible there into or any voting rights with respect thereto, other than (A) pursuant to the Merger, (B) to any Affiliate or family member of the Stockholder if such transferee prior to any such Transfer executes a binding agreement with the Buyer and the Transitory Subsidiary substantially in the form of this Agreement or (C) with the Buyer's prior written consent or (ii) grant any proxies with respect to the Subject Shares other than pursuant to this Agreement or to the Buyer or its designees, or (iii) enter into any voting trust or other agreement, arrangement or understanding with respect to the voting of any Subject Shares. -2- (b) The Stockholder agrees to submit to the Company promptly following execution of this Agreement all certificates representing the Shares so that the Company may place thereon a conspicuous legend referring to the transfer restrictions set forth in this Agreement and shall submit all other certificates of Company Common Stock received after the date of this Agreement to the Company for such purpose. Section 4. Other Covenants. (a) The Stockholder agrees to cooperate on a commercially reasonable basis with the Buyer, the Transitory Subsidiary and the Company in (i) preparing and filing documentation, (ii) effecting applications, notices, petitions, filings and other documents and (iii) obtaining permits, consents, orders, approvals and authorizations necessary to make effective the Merger and the other transactions contemplated by the Merger Agreement. (b) Stockholder shall not directly or indirectly take any action that is prohibited to be taken by any officer or director of the Company under Section 6.1 of the Merger Agreement (whether or not such Stockholder is or remains an officer or director, as applicable, of the Company) and shall use his, her or its reasonable best efforts to cause his, her or its employees, attorneys and any other of his, her or its representatives not to take any such action. Stockholder will promptly advise (within 24 hours) the Buyer after receipt by such Stockholder of an Acquisition Proposal, or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal, or of any inquiry with respect to any Acquisition Proposal. Stockholder shall provide such notice in writing in accordance with Section 9.2 of the Merger Agreement and shall identify the third party making any such Acquisition Proposal, request or inquiry, and the material terms and conditions of any such Acquisition Proposal or inquiry. Stockholder shall keep the Buyer reasonably informed of the status and the material terms and conditions (including any amendment thereto) of any such request, Acquisition Proposal or inquiry. (c) Stockholder agrees not to exercise any rights (including, without limitation, under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Subject Shares which may arise with respect to the Merger. Section 5. Representations and Warranties of the Stockholder. (a) The Stockholder hereby represents and warrants to the Buyer as follows: (i) the Stockholder beneficially owns all of the Shares as set forth on the signature page of this Agreement, free and clear of any claims, liens, security interests, rights to purchase or acquire, charges or other encumbrances and any voting agreements or restrictions with respect to voting, other than any of the foregoing created by or arising out of this Agreement; (ii) the Stockholder has the legal capacity and all requisite power and authority to enter into and perform its obligations under this Agreement; and (iii) this Agreement constitutes a legal, valid and binding agreement of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and the effect of general principles of equity. -3- (b) The execution and delivery of this Agreement by the Stockholder do not, and the performance of this Agreement by the Stockholder will not, (i) conflict with or violate any organizational documents of the Stockholder, if any, (ii) conflict with or violate any contract, agreement, license, instrument or permit to which the Stockholder is a party or by which the Stockholder or any of its properties or assets are bound or affected, (iii) conflict with or violate any law applicable to the Stockholder or by which the Stockholder or any of its properties or assets is bound or affected, except for any such conflicts or violations as could not reasonably be expected to impair the Stockholder's ability to perform its obligations under this Agreement or (iv) require any consent, approval or notice under any law applicable to the Stockholder or by which any of its properties or assets is bound or affected. If the Stockholder is a natural person, is married and the Shares set forth on the signature page hereto underneath such Stockholder's name constitute community property under applicable laws, this Agreement has been duly authorized, executed and delivered by, and constitutes the valid and binding agreement of, such Stockholder's spouse. Section 6. Acknowledgement. Nothing withstanding anything to the contrary in this Agreement, nothing herein shall be interpreted as obligating the Stockholder to (i) exercise any options to acquire shares of capital stock of the Company, (ii) convert or exchange any securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) exercise any other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company. Section 7. Termination. This Agreement shall commence on the date hereof and terminate upon the earlier to occur of (i) the Effective Time or (ii) the termination of the Merger Agreement. Section 8. Specific Performance; Cumulative Remedies. The Stockholder agrees that its failure to perform its agreements and covenants hereunder will cause irreparable injury to the Buyer for which damages, even if available, may not be an adequate remedy. Accordingly, the Stockholder agrees that the Buyer may seek the issuance of injunctive relief (including a temporary restraining order) to compel performance of its obligations and may seek the granting by any court of the remedy of specific performance of its obligations hereunder. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. Section 9. Fiduciary Duties. The Stockholder is signing this Agreement solely in the Stockholder's capacity as an owner of his, her or its Subject Shares, and nothing herein shall prohibit, prevent or preclude the Stockholder from the exercise of such Stockholder's fiduciary duties as an officer or director of the Company. Section 10. Miscellaneous. (a) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect thereto. -4- This Agreement may not be amended, modified or rescinded except by an instrument in writing signed by each of the parties hereto. (b) Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible. (c) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of Delaware. (d) Jurisdiction; Waivers of Certain Defenses; Waiver of Right to Jury Trial. Each of the parties to this Agreement (i) consents to submit itself to the personal jurisdiction of any state or federal court sitting in Wilmington, Delaware in any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (iii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iv) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the transaction contemplated by this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party hereto may make service on another party by sending or delivering a copy of the process to the party to be served at the address set forth beneath such party's name on the signature page hereto. Nothing in this Section 10(d), however, shall affect the right of any party to serve legal process in any other manner permitted by law. EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT (e) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (f) Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) three business days after being sent by registered or certified mail, return receipt requested, postage prepaid, or (ii) one business day after being -5- sent for next business day delivery, fees prepaid, via a reputable nationwide overnight courier service, in each case to the intended recipient as set forth below: (i) if to the Stockholder to the address set forth on the signature page to this Agreement; with a copy to: Netegrity, Inc. 201 Jones Road Waltham, MA 02451 Attn: Chief Executive Officer and General Counsel Telecopy: (781) 697-0400 (ii) if to the Buyer or Transitory Subsidiary to: Computer Associates International, Inc. One Computer Associates Plaza Islandia, NY 11749 Attn: General Counsel Telecopy: (631) 342-4866 with a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: James C. Morphy, Esq. Keith A. Pagnani, Esq. Telecopy: (212) 558-3588 (g) No Third Party Beneficiaries. This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns, to create any agreement of employment with any person or to otherwise create any third party beneficiary hereto. (h) Assignment. Except as specifically provided herein, neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties, and any such assignment without such prior written consent shall be null and void. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. Any successor, assignee or transferee (including a successor, assignee or transferee as a result of the death of the Stockholder, such as an executor or heir) shall be bound by the terms of this Agreement and the Stockholder will take any and all actions necessary to obtain and deliver to you the written confirmation from such successor, assignee or transferee that it is bound by the terms hereof. (i) Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement, unless otherwise indicated. The headings -6- contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." No summary of this Agreement prepared by the parties shall affect in any way the meaning or interpretation of this Agreement. [Signature Page to follow] -7- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COMPUTER ASSOCIATES INTERNATIONAL, INC. By: ______________________________________ Name: ____________________________________ Title: ___________________________________ NOVA ACQUISITION CORP. By: ______________________________________ Name: ____________________________________ Title: ___________________________________ [Signature Page to Stockholder Agreement] STOCKHOLDER ________________________________ Signature ________________________________ Name ________________________________ Address ________________________________ Address _________ Shares _________ Options [Signature Page to Stockholder Agreement] -----END PRIVACY-ENHANCED MESSAGE-----