AMENDMENT TO THE PREFERRED STOCK AND WARRANT PURCHASE
AGREEMENT
THIS AMENDMENT, dated as of June 5, 1998 (the "Amendment"), to the
Preferred Stock and Warrant Purchase Agreement, dated January 6, 1998 (the
"Agreement"), by and among Netegrity, Inc. (the "Company"), Peqout Private
Equity Fund, L.P. and Peqout Offshore Private Entity Fund, Inc. (collectively,
the "Purchasers"), is entered into by and among the Company and the Purchasers
(capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Agreement).
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers desire to amend certain
provisions of the Agreement relating to the closing of the Subsequent Purchase
as set forth below.
NOW, THEREFORE, in consideration of the good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Purchasers hereby agree as follows:
1. Amendment to the Agreement. Acting in accordance with
Section 15 of the Agreement, the undersigned hereby consent to the following
amendments to the Agreement:
(a) Section 1.1 is deleted in its entirety and the following is
inserted in lieu thereof:
"1.1 The Purchases. Upon the terms and subject to the conditions set
forth in this Agreement, at the Initial Closing and the Subsequent Closings, the
Pequot Entities shall purchase from the Company and the Company shall sell to
the Pequot Entities, the number of shares of Series D Preferred Stock and
Warrants set forth opposite such entity's name on Exhibit B-1 (the "Initial
Purchase"), Exhibit B-2 (the "Second Purchase") and Exhibit B-3 (the "Third
Purchase" and, together with the Second Purchase, the "Subsequent Purchases"),
respectively (the Initial Purchase and the Subsequent Purchases collectively,
the "Purchases"), at the purchase price set forth opposite such entity's name on
each exhibit. The aggregate purchase price to be paid by the Pequot Entities for
the Series D Preferred Stock and Warrants purchased by them hereunder is set
forth on Exhibit X-0, X-0 and B-3, as the case may be, as "Total Purchase Price"
(collectively, the "Purchase Price").
(b) Section 1.2(a)(ii) is deleted in its entirety and the
following is inserted in lieu thereof:
"(ii) the closing of the Subsequent Purchases (each a "Subsequent
Closing" and, together, the "Subsequent Closings" and, together with the Initial
Closing, the "Closings") shall take place at the location and time of day
referred to in clause (i) above on June 5, 1998 in the case of the Second
Purchase and July 2, 1998 in the case of the Third Purchase; provided, however,
that
prior to the Third Purchase, version 3.0 of the SiteMinder (the "SiteMinder
3.0") shall have attained Customer Satisfaction."
(c) References to "the Subsequent Closing" in Section 1.4(a) and
(c) shall be replaced with "a Subsequent Closing."
(d) The first three lines of Section 1.6 are deleted and the
following is inserted in lieu thereof:
"1.6 Conditions to each Subsequent Closing. The obligations of
the Pequot Entities to consummate each Subsequent Closing shall be subject to
the satisfaction (or waiver), on or prior to the date of such Subsequent
Closing, of the following conditions."
(e) The first two references to "the Subsequent Closing" in Section
1.6(a) and in Sections 1.6(f) and (h) shall be replaced by "such Subsequent
Closing" and the third of such references in Section 1.6(a) shall be replaced by
"each of the Subsequent Closings."
(f) The reference to "the Subsequent Closing" in Section 1.6(c)
shall be replaced by "each of the Subsequent Closings."
(g) Section 2.3 shall be amended to replace "Subsequent Closing" with
"Subsequent Closings" wherever such wording appears.
(h) Section 2.3 shall be amended further such that the two
references to "34.43%" be replaced with "31.53%".
(i) The first sentence of Section 4.9 shall be amended to replace
"Subsequent Purchase" with "Subsequent Purchases."
(j) The first sentence of Section 4.15 shall be amended to
replace "the Subsequent Closing" with "July 1, 1998."
(k) Exhibit B-2 is deleted in its entirety and Exhibits B-2 and
B-3 (attached hereto) are inserted in lieu thereof.
(l) The reference in Exhibit G to "Subsequent Closing" shall be
replaced by "Subsequent Closings."
2. Amendments to Disclosure Schedules. Attached hereto are
updates to Schedules 1.3(b), 2.3, 2.6, 2.9, 2.10(a), 2.10(b), 2.10(c), 2.11,
2.12(b), 2.14 and 2.15 to the Agreement, thereby making the Schedules to the
Agreement true and correct in all material respects.
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3. Entire Agreement. The Agreement, as amended by this
Amendment, sets forth the entire understanding of the parties with respect to
the transactions contemplated hereby.
4. Effect of Amendment. Upon effectiveness of this Amendment, on or
after the date hereof, each reference in the Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import, and each reference in
any other documents entered into in connection with the Agreement, shall mean
and be a reference to the Agreement, as amended hereby. Except as specifically
amended above, the Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
5. Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
NETEGRITY, INC.
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
PEQUOT PRIVATE EQUITY FUND, L.P.
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
PEQUOT OFFSHORE PRIVATE EQUITY
FUND, INC.
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
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EXHIBIT B-2
SCHEDULE OF PURCHASERS
SECOND CLOSING
Series D Cash
Shares Warrants Tendered*
Investor Name Purchased (#) Purchased (#) ($)
Peqout Private Equity Fund L.P. 739,682 333,031 1,109,523
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Pequot Offshore Private Equity Fund, Inc. 93,652 42,166 140,478
c/o Hemisphere Management Limited
Xxxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
P.O. Box HM 951
Xxxxxxxx XX DX Bermuda
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000 __________ __________ __________
Total Purchase Price: 833,334 375,197 1,250,001
======= ======= =========
Purchase Price Per Share: $1.50
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EXHIBIT B-3
SCHEDULE OF PURCHASERS
THIRD CLOSING
Series D Cash
Shares Warrants Tendered*
Investor Name Purchased (#) Purchased (#) ($)
Peqout Private Equity Fund L.P. 739,681 333,031 1,109,521.50
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Pequot Offshore Private Equity Fund, Inc. 93,652 42,165 140,478.00
c/o Hemisphere Management Limited
Xxxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
P.O. Box HM 951
Xxxxxxxx XX DX Bermuda
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000 __________ __________ __________
Total Purchase Price: 833,333.00 375,196 1,249,999.50
========== ======= ============
Purchase Price Per Share: $1.50
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