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.
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(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.
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(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.
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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
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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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer and General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Buyer or Transitory Subsidiary to:
Computer Associates International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(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
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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]
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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]