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Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated
Agreement is entered into by and between CA, Inc. (the "Company")
and Kenneth V. Handal (the "Employee") September 25, 2006 (the
"Effective Date") and amends and restates in its entirety the
Employment Agreement between the Company and the Employee, dated as
of July 31, 2006 (the "Prior Agreement").
1. Employment, Duties,
Authority and Work Standards . The Company hereby agrees to
continue to employ the Employee as Executive Vice
President-Governance, Corporate Secretary, and Co-General Counsel
(along with Amy Fliegelman Olli or such other person as the Board
of Directors of the Company may designate (such person, the
"Co-General Counsel")) and the Employee hereby accepts such
positions and agrees to serve the Company in such capacities during
the Employment Period (as defined below). The Employee shall report
directly to the Company’s Chief Executive Officer. The
Employee’s duties, responsibilities and authority shall be
such duties, responsibilities and authority as are consistent with
the above job titles (other than the duties and responsibilities
assigned from time to time to the Co-General Counsel) and as the
Chief Executive Officer shall from time to time specify, in his
sole discretion. Such duties shall initially comprise the position
of Corporate Secretary, the oversight of the Internal Audit,
Compliance, and Global Security and Asset Protection Departments.
The Employee will (a) serve the Company (and such of its
subsidiary companies as the Company may designate) faithfully,
diligently and to the best of the Employee’s ability under
the direction of the Chief Executive Officer, (b) devote his full
working time and best efforts, attention and energy to the
performance of his duties to the Company and (c) not do
anything inconsistent with his duties to the Company.
2. Laws; Other
Agreements . The Employee represents that his employment
hereunder will not violate any law or duty by which he is bound,
and will not conflict with or violate any agreement or instrument
to which the Employee is a party or by which he is bound.
3. Compensation .
(a) In
consideration of services that the Employee will render to the
Company, the Company agrees to pay the Employee, during the
Employment Period, the sum of $500,000 per annum (less applicable
withholdings) (the "Base Salary"), payable semi-monthly concurrent
with the Company’s normal payroll cycle.
(b) In
addition to the Base Salary, during the Employment Period, the
Employee shall have an opportunity to earn an annual cash bonus
("Annual Bonus") under the Company’s Annual Performance Bonus
program in accordance with Section 4.4 of the Company’s
2002 Incentive Plan, as amended and restated, or any successor
thereto (the "Incentive Plan"); provided that, with respect to the
fiscal year ending March 31, 2007, the Employee’s Annual
Performance Bonus target shall equal $600,000, provided that such
targeted amount and the other terms and conditions of such Annual
Performance Bonus shall be subject to determination and approval of
the Compensation and Human Resource Committee of the Board of
Directors (the "Compensation Committee") in accordance with the
terms of the Incentive Plan. In respect of the fiscal year ending
March 31, 2008, the Company’s Chief Executive Officer
(the "CEO") shall recommend to the Compensation Committee an Annual
Performance Bonus target for the Employee, in an amount to be
determined by the CEO, subject to the determination and approval of
the Compensation Committee in accordance with the terms of the
Incentive Plan.
(c) In
addition, the Employee shall also be eligible to receive a targeted
Long-Term Performance Bonus of $2,000,000 for the performance
period commencing on April 1, 2006 under the Company’s
Long-Term Performance Bonus program as set forth in
Section 4.5 of the Incentive Plan, provided that such targeted
amount and the other terms and conditions of such Long-Term
Performance Bonus shall be subject to determination and approval of
the Compensation Committee in accordance with the terms of the
Incentive Plan. In respect of the fiscal year ending March 31,
2008, the CEO shall recommend to the Compensation Committee a
Long-Term Performance Bonus for the Employee, in an amount to be
determined by the CEO, subject to the determination and approval of
the Compensation Committee in accordance with the terms of the
Incentive Plan.
4. Benefits and
Perquisites. During the term of the Employee’s
employment, the Employee shall be eligible to participate in all
pension, welfare and benefit plans and perquisites generally made
available to other senior employees of the Company. Additionally,
for so long as the Employee resides in New York City, the Company
shall provide a stipend of not less than $5,000 per month for
transportation to and from the Company’s offices from the
Employee’s residence in the metropolitan New York area.
Management will also recommend to
the Board that the Employee be included as a participant in the
Company’s Change in Control Severance Policy (the "CIC
Severance Policy"), provided that such participation and any other
terms and conditions related to such participation shall be at the
discretion of the Board in accordance with the terms of such CIC
Severance Policy.
5. Termination;
Termination Payments.
(a) Unless
the Employee’s employment shall sooner terminate for any
reason pursuant to paragraph 6 of this Agreement, the "Employment
Period" shall commence on August 1, 2006 and shall terminate
on August 31, 2008. At the end of the Employment Period,
subject to the discretion of the Board of Directors and the
Compensation Committee, the Employee may remain with the Company on
such terms and in such position as the Employee and the Company,
the Board of Directors and the Compensation Committee may mutually
agree.
(b) In
the event that the Employee’s employment is terminated during
the Employment Period (i) by the Employee for Good Reason (as
defined in Appendix A) or (ii) by the Company without
Cause (as defined in Appendix A), other than as a result of
the Employee’s death or disability (within the meaning of the
Company’s long-term disability program then in effect),
subject to the Employee’s execution and delivery of a valid
and effective release and waiver in a form satisfactory to the
Company, the Company shall pay the Employee a lump sum cash amount
equal to the Employee’s Base Salary for the remainder of the
Employment Period (i.e., until August 31, 2008).
(c) Notwithstanding
anything herein to the contrary, upon the termination of the
Employee’s employment for any reason, the rights of the
Employee with respect to any shares of restricted stock or options
to purchase Common Stock held by the Employee which, as of the
Termination Date, have not been forfeited shall be subject to the
applicable rules of the plan or agreement under which such
restricted stock or options were granted as they exist from time to
time. In addition, upon the termination of the Employee’s
employment for any reason, the Company shall pay to the Employee
his Base Salary through the Termination Date, plus any unused
vacation time accrued through the Termination Date. Any vested
benefits and other amounts that the Employee is otherwise entitled
to receive under any employee benefit plan, policy, practice or
program of the Company or any of its affiliates shall be payable in
accordance with such employee benefit plan, policy, practice or
program as the case may be, provided that the Employee shall not be
entitled to receive any other payments or benefits in the nature of
severance or termination pay.
(d) In
the event that the Employee resigns other than for Good Reason, is
terminated for Cause, dies or becomes disabled (within the meaning
of the Company’s long-term disability program then in effect)
during the Employment Period, no benefits shall be payable to the
Employee under paragraph 5(b) of this Agreement, but the terms and
conditions of paragraph 5(c) shall remain in effect.
(e) If
the Employee is a participant in the Company’s CIC Severance
Policy and a "Change in Control" occurs, any payments and benefits
provided in the CIC Severance Policy that the Employee is entitled
to will reduce (but not below zero) the corresponding payment or
benefit provided under this Agreement. It is the intent of this
provision to pay or to provide to the Employee the greater of the
two payments or benefits but not to duplicate them.
6. No Duration of
Employment . Notwithstanding anything else contained in this
Agreement to the contrary, the Company and the Employee each
acknowledge and agree that the Employee’s employment with the
Company may be terminated by either the Company (upon approval of
the Company’s Board of Directors) upon 30 days’
written notice to the Employee
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(subject to the provisions of paragraph 5 of this Agreement) or
by the Employee upon 60 days’ written notice to the
Company (subject to the provisions of paragraph 5 of this
Agreement), at any time and for any reason, with or without cause;
provided that this Agreement may be terminated for Cause
immediately upon written notice from the Company to the Employee;
and
provided further that the Company may determine to waive all or
part of the Employee’s 60 days’ notice period at its
discretion. In addition, this Agreement shall automatically
terminate upon Employee’s death or disability (determined in
accordance with the Company’s practices and policies). Upon
termination of the Employee’s employment for any reason
whatsoever, the Company shall have no further obligations to the
Employee other than those set forth in paragraph 5 of this
Agreement. The effective date of the Employee’s termination
of employment shall be referred to herein as the "Termination
Date."
7. General .
(a) Any
notice required or permitted to be given under this Agreement shall
be made either:
(i) by
personal delivery to the Employee or, in the case of the Company,
to the Company’s principal office ("Principal Office")
located at One CA Plaza, Islandia, New York 11749, Attention:
Executive Vice President – Human Resources, or
(ii) in
writing and sent by registered mail, postage prepaid, to the
Employee’s residence, or, in the case of the Company, to the
Company’s Principal Office.
(b) This
Agreement shall be binding upon the Employee and his heirs,
executors, assigns, and administrators and shall inure to the
benefit of the Company, its successors and assigns and any
subsidiary or parent of the Company.
(c) This
Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflict of law
principles. Any action relating to this Agreement shall be brought
exclusively in the state or federal courts of the State of New
York, County of Suffolk.
(d) This
Agreement (which supersedes and replaces the Prior Agreement in its
entirety), the Employment and Confidentiality Agreement executed by
the Employee on or about the Effective Date and the other documents
referred to herein represent the entire agreement between the
Employee and the Company related to the Employee’s employment
and supersede any and all previous oral or written communications,
representations or agreements related thereto. This Agreement may
only be modified, in writing, jointly by the Employee and a duly
authorized representative of the Company. This Agreement may be
executed in several counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
(e) The
provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a
single paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable in any
respect, and the validity and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall
not in any way be impaired and shall remain enforceable to the
fullest extent permitted by law. In addition, waiver by any party
hereto of any breach or default by the other party of any of the
terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement
shall be implied from any course of dealing between the parties
hereto or from any failure by either party hereto to assert its or
his rights hereunder on any occasion or series of occasions.
CAUTION TO EXECUTIVE: This Agreement affects important
rights. DO NOT sign it unless you have read it carefully and are
satisfied that you understand it completely .
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CA, INC.
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/s/ Kenneth V. Handal 9/25/06
Kenneth V. Handal
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By:
Name:
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/s/ Andrew Goodman
Andrew Goodman
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Title:
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Executive Vice President, HR 9/25/06
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4
Appendix A
For purposes of this Agreement,
"Cause" means any of the following:
(1) The
Employee’s continued failure, either due to willful action or
as a result of gross neglect, to substantially perform his duties
and responsibilities to the Company and its affiliates (the
"Group") under this Agreement (other than any such failure
resulting from the Employee’s incapacity due to physical or
mental illness) that, if capable of being cured, has not been cured
within thirty (30) days after written notice is delivered to
the Employee, which notice specifies in reasonable detail the
manner in which the Company believes the Employee has not
substantially performed his duties and responsibilities.
(2) The
Employee’s engagement in conduct which is demonstrably and
materially injurious to the Group, or that materially harms the
reputation or financial position of the Group, unless the conduct
in question was undertaken in good faith on an informed basis with
due care and with a rational business purpose and based upon the
honest belief that such conduct was in the best interest of the
Group.
(3) The
Employee’s indictment or conviction of, or plea of guilty or
nolo contendere to, a felony or any other crime involving
dishonesty, fraud or moral turpitude.
(4) The
Employee’s being found liable in any SEC or other civil or
criminal securities law action or entering any cease and desist
order with respect to such action (regardless of whether or not he
admits or denies liability).
(5) The
Employee’s breach of his fiduciary duties to the Group which
may reasonably be expected to have a material adverse effect on the
Group. However, to the extent the breach is curable, the Company
must give the Employee notice and a reasonable opportunity to
cure.
(6) The
Employee’s (i) obstructing or impeding,
(ii) endeavoring to influence, obstruct or impede or
(iii) failing to materially cooperate with, any investigation
authorized by the Board (an "Investigation"). However, the
Employee’s failure to waive attorney-client privilege
relating to communications with his own attorney in connection with
an Investigation shall not constitute "Cause".
(7) The
Employee’s withholding, removing, concealing, destroying,
altering or by any other means falsifying any material which is
requested in connection with an Investigation.
(8) The
Employee’s disqualification or bar by any governmental or
self-regulatory authority from serving in the capacity contemplated
by this Agreement or his loss of any governmental or
self-regulatory license that is reasonably necessary for him to
perform his responsibilities to the Group under this Agreement, if
(a) the disqualification, bar or loss continues for more than
30 days and (b) during that period the Group uses its good
faith efforts to cause the disqualification or bar to be lifted or
the license replaced. While any disqualification, bar or loss
continues during the Employee’s employment, he will serve in
the capacity contemplated by this Agreement to whatever extent
legally permissible and, if his employment is not permissible, he
will be placed on leave (which will be paid to the extent legally
permissible).
(9) The
Employee’s unauthorized use or disclosure of confidential or
proprietary information, or related materials, or the violation of
any of the terms of the Employment and Confidentiality Agreement
executed by the Employee or any Company standard confidentiality
policies and procedures, which may reasonably be expected to have a
material adverse effect on the Group and that, if capable of being
cured, has not been cured within thirty (30) days after
written notice is delivered to the Employee by the Company, which
notice specifies in reasonable detail the alleged unauthorized use
or disclosure or violation.
(10) The
Employee’s violation of the Group’s (i) Workplace
Violence Policy or (ii) policies on discrimination, unlawful
harassment or substance abuse.
For this definition, no act or
omission by the Employee will be "willful" unless it is made by the
Employee in bad faith or without a reasonable belief that his act
or omission was in the best interests of the Group.
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For purposes of this Agreement,
"Good Reason" shall mean any of the following:
(1) Any
material and adverse change in the Employee’s title;
(2) Any
material and adverse reduction in the Employee’s authorities
or responsibilities other than any isolated, insubstantial and
inadvertent failure by the Company that is not in bad faith and is
cured promptly on the Employee’s giving the Company notice
(and for purposes of clarification, a change in the number of
direct reports will not constitute a material and adverse reduction
in the Employee’s authorities or responsibilities);
(3) Any
reduction by the Company in the Employee’s Base Salary or
target level of Annual Bonus as set forth in Sections 3(a) and (b),
respectively, other than any such reduction agreed to by the
Employee in writing;
(4) The
Company’s material breach of this Agreement;
provided
that, no alleged action, reduction or breach set forth in
(1) through (4) above (each an "Event") shall be deemed
to constitute "Good Reason" unless such Event remains uncured, as
the case may be, after the expiration of thirty (30) days
following delivery to the Company from the Employee of a written
notice, specifying the Event deemed by the Employee to constitute
"Good Reason". The Employee acknowledges and agrees that no Event
has occurred prior to the date of this Agreement. The
Company’s placing the Employee on paid leave for up to 90
consecutive days while it is determining whether there is a basis
to terminate the Employee’s employment for Cause will not
constitute Good Reason.
6
COMPUTER ASSOCIATES INTERNATIONAL, INC.
CHANGE IN CONTROL SEVERANCE POLICY
1.
Purpose . The purpose of the Computer Associates
International, Inc. Change in Control Severance Policy (the "
Policy ") is to secure the continued services of
certain senior executives of the Company and to ensure their
continued dedication to their duties in the event of any threat or
occurrence of a Change in Control (as defined in
Section 2).
2.
Definitions . As used in this Policy, the following
terms shall have the respective meanings set forth below:
(a)
" Annual Performance Bonus " means the annual cash bonus
awarded under the Company’s incentive plan, as in effect from
time to time (as of the date of adoption of this Policy the "annual
performance bonus" within the meaning of Section 4.4 of the
Company’s 2002 Incentive Plan, amended and restated effective
as of March 31, 2004 (the " Company Incentive
Plan ")).
(b)
" Base Salary " means the higher of (i) the
Participant’s highest annual rate of base salary during the
twelve-month period immediately prior to the Participant’s
Date of Termination or (ii) the average of the
Participant’s annual base salary earned during the past three
(3) completed fiscal years of the Company immediately
preceding the Participant’s Date of Termination (annualized
in the event the Participant was not employed by the Company (or
its affiliates) for the whole of any such fiscal year).
(c)
" Board " means the Board of Directors of the Company
and, after a Change in Control, the "board of directors" of the
Parent Corporation or Surviving Corporation, as the case may be, as
defined for purposes of Section 2(f).
(d)
" Bonus Amount " means the higher of (i) the
Participant’s target Annual Performance Bonus for the fiscal
year in which the Participant’s Date of Termination occurs
(or if the Participant’s Qualifying Termination is on account
of Good Reason pursuant to a reduction in a Participant’s
compensation or compensation opportunity under
Section 2(k)(ii), the Participant’s target Annual
Performance Bonus for the prior fiscal year if higher) or
(ii) the average of the Annual Performance Bonuses earned by
the Participant from the Company (or its affiliates) during the
last three (3) completed fiscal years of the Company (or such
shorter period of time during which the Participant was employed by
the Company) immediately preceding the Participant’s Date of
Termination (annualized in the event the Participant was not
employed by the Company (or its affiliates) for the whole of any
such fiscal year).
(e)
" Cause " means (i) the willful and continued
failure of the Participant to perform substantially his duties with
the Company (other than any such failure resulting from the
Participant’s incapacity due to physical or mental illness or
any
such failure subsequent to the Participant being delivered a
notice of termination without Cause by the Company or delivering a
notice of termination for Good Reason to the Company) after a
written demand for substantial performance is delivered to the
Participant by or on behalf of the Board which specifically
identifies the manner in which the Board believes that the
Participant has not substantially performed his duties,
(ii) the willful engaging by the Participant in illegal
conduct or gross misconduct which is demonstrably and materially
injurious to the Company or its affiliates, (iii) the engaging
by the Participant in conduct or misconduct that materially harms
the reputation or financial position of the Company, (iv) the
Participant (x) obstructs or impedes, (y) endeavors to
influence, obstruct or impede or (z) fails to materially
cooperate with, an Investigation, (v) the Participant
withholds, removes, conceals, destroys, alters or by other means
falsifies any material which is requested in connection with an
Investigation, or attempts to do so or solicits another to do so,
(vi) the commission of a felony by the Participant or
(vii) the Participant is found liable in any SEC or other
civil or criminal securities law action or enters into any cease
and desist orders with respect to such action regardless of whether
the Participant admits or denies liability. For purposes of this
paragraph (d), no act or failure to act by the Participant shall be
considered "willful" unless done or omitted to be done by the
Participant in bad faith and without reasonable belief that the
Participant’s action or omission was in the best interests of
the Company or its affiliates. Any act, or failure to act, in
accordance with authority duly given by the Board, based upon the
advice of counsel for the Company (including counsel employed by
the Company) shall be conclusively presumed to be done, or omitted
to be done, by the Participant in good faith and in the best
interests of the Company. Cause shall not exist unless and until
the Company has delivered to the Participant a copy of a resolution
duly adopted by three-quarters (3/4) of the entire Board (excluding
the Participant from both the numerator and denominator if the
Participant is a Board member) at a meeting of the Board called and
held for such purpose (after reasonable notice to the Participant
and an opportunity for the Participant, together with counsel, to
be heard before the Board), finding that in the good faith opinion
of the Board an event set forth in clauses (i), (ii), (iii), (iv),
(v), (vi) or (vii) has occurred and specifying the
particulars thereof in detail.
(f)
" Change in Control " means the occurrence of any one
of the following events:
(i)
individuals who, on the effective date of the Policy, constitute
the Board (the " Incumbent Directors ") cease for any
reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to
the effective date of the Policy whose election or nomination for
election was approved by a vote of a majority of the Incumbent
Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person
is named as a nominee for director, without written objection to
such nomination) shall be an Incumbent Director; provided ,
however , that no individual initially elected or nominated
as a director of the Company as a result of an actual or threatened
election contest with respect to directors or as a result of any
other actual or threatened solicitation of
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proxies or consents by or on behalf of any person other than the
Board shall be deemed to be an Incumbent Director;
(ii)
any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "
Exchange Act ") and as used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act) is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 35% or more
of the combined voting power of the Company’s then
outstanding securities eligible to vote generally in the election
of directors (the " Company Voting Securities ");
provided , however , that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control
by virtue of any of the following acquisitions: (A) by the
Company or any Subsidiary, (B) by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
Subsidiary, (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities,
(D) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii)), (E) pursuant to any acquisition by the
Participant or any group of persons including the Participant (or
any entity controlled by the Participant or any group of persons
including the Participant); or (F) a transaction (other than
one described in (iii) below) in which Company Voting
Securities are acquired from the Company, if a majority of the
Incumbent Directors approve a resolution providing expressly that
the acquisition pursuant to this clause (F) does not
constitute a Change in Control under this paragraph (ii);
(iii)
the consummation of a merger, consolidation, statutory share
exchange, reorganization, sale of all or substantially all the
Company’s assets or similar form of corporate transaction
involving the Company or any of its Subsidiaries that requires the
approval of the Company’s stockholders, whether for such
transaction or the issuance of securities in the transaction (a "
Business Combination "), unless immediately following
such Business Combination: (A) at least 60% of the total
voting power of (x) the corporation resulting from such Business
Combination (the " Surviving Corporation "), or
(y) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of at least 95% of
the voting securities eligible to elect directors of the Surviving
Corporation (the " Parent Corporation "), is
represented by Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable,
is represented by shares into which such Company Voting Securities
were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities
among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit
plan (or related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 35% or more of the
total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is
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no Parent Corporation, the Surviving Corporation) and
(C) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) following the consummation
of the Business Combination were Incumbent Directors at the time of
the Board’s approval of the execution of the initial
agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a "
Non-Qualifying Transaction " and any Business
Combination which does not satisfy all of the criteria specified in
(A) (B) and (C) shall be deemed a " Qualifying
Transaction "); or
(iv)
the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur
solely because any person acquires beneficial ownership of more
than 35% of the Company Voting Securities as a result of the
acquisition of Company Voting Securities by the Company or its
affiliates which reduces the number of Company Voting Securities
outstanding; provided , that if after the consummation of
such acquisition by the Company such person becomes the beneficial
owner of additional Company Voting Securities that increases the
percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change in Control of the Company shall then
occur. For purposes of this Change in Control definition,
"corporation" shall include any limited liability company,
partnership, association, business trust and similar organization,
"board of directors" shall refer to the ultimate governing body of
such organization and "director" shall refer to any member of such
governing body.
(g)
" Company " means Computer Associates International,
Inc.
(h)
" Date of Termination " means (i) the effective
date on which the Participant’s employment by the Company
terminates as specified in a prior written notice by the Company or
the Participant, as the case may be, to the other, delivered
pursuant to Section 9 or (ii) if the Participant’s
employment by the Company terminates by reason of death, the date
of death of the Participant.
(i)
" Disability " shall mean long-term disability under
the terms of Company’s long-term disability plan, as then in
effect.
(j)
" Equity Incentive Compensation " means all
equity-based compensation (including stock options and restricted
stock) awarded under the Company’s incentive plan, as in
effect from time to time (as of the date of adoption of this Policy
the "restricted stock," "stock options" and "other equity-based
awards" within the meaning of Sections 4.5, 4.6 and 4.7,
respectively, of the Company Incentive Plan).
(k)
" Good Reason " means, without the
Participant’s express written consent, the occurrence of any
of the following events after a Change in Control:
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(i)
(A) any change in the duties, responsibilities or status
(including reporting responsibilities) of the Participant that is
inconsistent in any material and adverse respect with the
Participant’s position(s), duties, responsibilities or status
with the Company immediately prior to such Change in Control
(including any material and adverse diminution of such duties or
responsibilities); provided , however , that Good
Reason shall not be deemed to occur upon a change in duties,
responsibilities (other than reporting responsibilities) or status
that is solely and directly a result of the Company no longer being
a publicly traded entity and does not involve any other event set
forth in this Section 2(k) or (B) a material and adverse
change in the Participant’s titles or offices (including, if
applicable, membership on the Board) with the Company as in effect
immediately prior to such Change in Control;
(ii)
a more than 10% reduction by the Company in the Participant’s
rate of annual base salary or Annual Performance Bonus, Long-Term
Performance Bonus or Equity Incentive Compensation target
opportunities (including any material and adverse change in the
formula for such targets) as in effect immediately prior to such
Change in Control;
(iii)
the failure of the Company to (A) continue in effect any
significant employee benefit plan, compensation plan, welfare
benefit plan or material fringe benefit
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