EMPLOYMENT AGREEMENT
Exhibit 10.2
Execution Copy
This Employment Agreement, dated as of June 23, 2010, (the “Effective Date”) entered
into by and between CA, Inc. (the “Company”) and Xxxxx Xxxxxx (the “Employee”).
1. Employment, Duties, Authority and Work Standards. The Company hereby agrees to employ the
Employee on the Effective Date as Executive Vice President, Group Executive-Customer Solutions
Group, with such duties and responsibilities to be determined by the Company from time to time 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 title and such
other duties, responsibilities and authority as the Chief Executive Officer shall from time to time
specify. 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 and (b) devote his full working time and best efforts,
attention and energy to the performance of 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 $700,000 per annum (the
“Base Salary”), payable semi-monthly concurrent with the Company’s normal payroll cycle,
subject to annual review by the Compensation and Human Resources Committee of the Board of
Directors (the “Compensation Committee”).
(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 2007 Incentive Plan, as
amended and restated, or any successor thereto (the “Incentive Plan”). The Employee’s
Annual Bonus target for the fiscal year commencing on April 1, 2010 shall equal $700,000, to be
pro-rated based on the number days the Employee served the Company during the fiscal year
commencing on April 1, 2010. The Employee’s Annual Bonus targeted amount and the other terms and
conditions of such Annual Performance Bonus shall be subject to determination and approval of the
Compensation Committee. For each fiscal year thereafter the Employee’s Annual Bonus target will be
subject to the review and approval of the Compensation Committee.
(c) In addition, the Employee shall also be eligible to receive a targeted Long-Term
Performance Bonus of $2,400,000 for the performance period commencing on April 1, 2010
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. For the fiscal year commencing on
April 1, 2010 the Employee’s Long Term Performance Bonus shall be pro-rated based on the number
days the Employee served the Company during the fiscal year commencing on April 1, 2010. For each
fiscal year thereafter the Employee’s Long-Term Performance Bonus target will be subject to the
review and approval of the Compensation Committee.
(d) All payments to the Employee shall be subject to applicable tax withholding.
4. Cash Equalization Payment. The Employee shall be entitled to a cash equalization payment
equal to $250,000 (the “Cash Equalization Payment”) in lieu of forfeited benefits
associated with the Employee’s previous employment. The Cash Equalization Payment will be paid to
the Employee in two equal installments. The first installment shall be paid to the Employee on
the first available payroll following his first month of employment and the second installment will
be paid to the Employee on the first available payroll after 6 months of employment with the
Company.
5. Equity Awards.
(a) As of the Effective Date the Company will grant the Employee 70,000 restricted shares of
CA, Inc. common stock (the “Restricted Stock Award”) which shall vest in
approximately three equal installments on the first, second and third anniversaries of the
Effective Date. The Restricted Stock Award is subject to the terms of the Incentive Plan
and shall be subject to the approval of the Compensation Committee.
(b) As of the Effective Date the Company will grant the Employee 75,000 options to purchase
shares of CA, Inc. common stock with an exercise price equal to fair market value of CA,
Inc. common stock on the Effective Date (the “Option Award”). The Option Award is
an award of non-qualified options which shall vest in approximately three equal installments
on the first, second and third anniversaries of the Effective Date. The Option Award is
subject to the terms of the Incentive Plan and shall be subject to the approval of the
Compensation Committee.
6. Termination; Termination Payments. Unless the Employee’s employment shall sooner terminate
for any reason pursuant to Section 6 of this Agreement, the “Employment Period” shall
commence on the Effective Date and shall initially terminate on the three-year anniversary from the
Effective Date, except that beginning June 30, 2013 and each anniversary thereafter, the Employment
Period will automatically extend for one year unless either the Employee or the Company gives at
least 90 days’ advanced written notice of non-extension (a “Notice of Non-Extension”). For
purposes of this Agreement, “Employment Period” refers to the period of the Employee’s employment
that is governed by the terms of this Agreement. Upon either party giving the other a Notice of
Non-Extension, the Employment Period will end on June 30th of such year in which notice was given
and the Employee’s employment will no longer be subject to the terms of this Agreement.
(a) In the event that the Employee’s employment is terminated during the Employment Period
either (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, delivery and non-revocation, within fifty-five (55) days
following the Termination Date, of a valid and effective release and
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waiver in a form satisfactory
to the Company, the Company shall pay the Employee a lump sum
cash amount equal to $1,400,000, such lump sum payment to be made no later than the sixtieth
(60th) day (or the next following business day if the sixtieth day is not a business day) following
the Termination Date. Additionally, the Employee shall be eligible to receive a portion of any
outstanding Annual Bonus, provided that such payment (i) shall be made only after the end of the
applicable performance cycle, (ii) shall be based upon the actual performance of the Company
achieved as determined in the sole discretion of the Company (provided, however, that negative
discretion shall only be applied if, and to the extent, it is applied generally to the executive
management team) and (iii) shall be pro-rated for the portion of the performance period that has
been completed by the Employee through the Termination Date (provided, however, that nothing herein
shall be construed to accelerate the vesting of any Performance Share Award). The Employee’s
unvested Equity Awards granted pursuant to Sections 5(a) and 5(b) of this Agreement shall
accelerate and vest immediately upon the Termination Date. Notwithstanding the foregoing, in
accordance with the terms of the Incentive Plan, the Employee will have ninety (90) days from the
Termination Date to exercise any vested but unexercised Stock Option Awards as of such date.
(b) Except as expressly provided herein, 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 shares of CA, Inc. common stock held by the Employee as of the Termination Date, 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. 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.
(c) 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
Section 6(a) of this Agreement, but the terms and conditions of Section 6(b) shall remain in
effect.
(d) If the Employee is a participant in the Company’s Change in Control Severance Policy (the
“CIC Severance Policy”) and a “Change in Control” occurs (as defined therein), 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.
7. Benefits and Perquisites. During the term of the Employee’s employment, the Employee shall
be eligible to participate in all retirement, welfare and benefit plans and perquisites generally
made available to other senior employees of the Company. For the term of this Agreement, the
Company shall provide the Employee with a Company car and driver for the Employee’ commute from
home to work in order to help maintain the confidentiality of business matters and to increase
productivity when traveling.
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8. 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 60 days’
written notice to the Employee (subject to the provisions of Section 6 of this Agreement) or by the
Employee upon 60 days’ written notice to the Company (subject to the provisions of Section 6 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 the 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 Section 6 of this Agreement. The effective date of the Employee’s termination of
employment shall be referred to herein as the “Termination Date.”
9. 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 (the “Principal Office”) located at Xxx XX Xxxxx, Xxxxxxxx, Xxx Xxxx
00000, Attention: Executive Vice President — Global 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, the Employment and Confidentiality Agreement to be 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 executed 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. However, this Agreement will not be effective until the date it has been
executed by both parties.
(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
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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.
(f) The parties agree that this Agreement is intended to comply with the requirements of
Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”) or an
exemption from Section 409A. In the event that after execution of this Agreement either party
makes a determination inconsistent with the preceding sentence, it shall promptly notify the other
party of the basis for its determination. The parties agree to renegotiate in good faith the terms
of this Agreement at no additional cost to the Company, if the Employee determines that this
Agreement as structured would have adverse tax consequences to him under applicable law. To extent
that the Employee would otherwise be entitled to any payment under this Agreement or any plan or
arrangement of the Company or its affiliates, that constitutes “deferred compensation” subject to
Section 409A and that if paid during the six months beginning on the Termination Date would be
subject to the Section 409A additional tax because the Employee is a “specified employee” (within
the meaning of Section 409A and as determined by the Company), the payment will be paid to the
Employee on the earlier of the six-month anniversary of the Termination Date, a change in ownership
or effective control of the Company (within the meaning of Section 409A) or the Employee’s death.
Similarly, to the extent that the Employee would otherwise be entitled to any benefit (other than a
payment) during the six months beginning on the Termination Date that would be subject to the
Section 409A additional tax, the benefit will be delayed and will begin being provided on the
earlier of the six-month anniversary of the Termination Date, a change in ownership or effective
control of the Company (within the meaning of Section 409A) or the Employee’s death. In addition,
any payment or benefit due upon a termination of employment that represents a “deferral of
compensation” within the meaning of Section 409A shall be paid or provided to the Employee only
upon a “separation from service” as defined in Treas. Reg. 1.409A-1(h). To the extent applicable,
each severance payment made under this Agreement shall be deemed to be separate payments, amounts
payable under Section 6 of this Agreement shall be deemed not to be a “deferral of compensation”
subject to Section 409A to the extent provided in the exceptions in Treas. Reg. 1.409A-1(b)(4)
(“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under
subparagraph (iii)) and other applicable provisions of Treas. Reg. 1.409A-1 through 1.409A-6.
Notwithstanding anything to the contrary in this Agreement or elsewhere, any payment or
benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treas. Reg.
1.409A-1(b)(9)(v)(A) or (C) shall be paid or provided to the Employee only to the extent that the
expenses are not incurred, or the benefits are not provided, beyond the last day of the Employee’s
second taxable year following the Employee’s taxable year in which the “separation from service”
occurs; and provided further that such expenses shall be reimbursed no later than the last day of
the Employee’s third taxable year following the taxable year in which the Employee’s “separation
from service” occurs. Except as otherwise expressly provided herein, to the extent any expense
reimbursement or the provision of any in-kind benefit under this Agreement is determined to be
subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or
the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible
for reimbursement in any other calendar year (except for any life-time or other aggregate
limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the
last day of the calendar year following the calendar year in which the Employee incurred such
expenses, and in no event shall any right to reimbursement or
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the provision of any in-kind benefit
be subject to liquidation or exchange for another benefit.
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.
| CA, INC. | ||||||||||
| /s/ Xxxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxxxx | ||||||||
Name:
|
Xxxxx Xxxxxx | Name: | Xxxxxx Xxxxxxx | |||||||
| Title: | Executive Vice President, | |||||||||
| Global Human Resources | ||||||||||
Date:
|
June 23, 2010 | Date: | June 23, 2010 | |||||||
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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 xxxxx 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 or
any governmental or self-regulatory entity (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 purposely 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).
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(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 level or Executive Vice President 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 material 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
that is (i) part of a broad-based salary reduction program for executive officers of the Company
that does not exceed 10% or (ii) agreed to by the Employee in writing; or
(4) The Company’s material breach of this Agreement;
provided that (A) no alleged action, reduction or breach set forth in (1) through (4) above
shall be deemed to constitute “Good Reason” unless such action, reduction or breach 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, setting forth such course of conduct deemed by the
Employee to constitute “Good Reason”; (B) such written notice must be delivered to the Company
within ninety (90) days after the Employee obtains knowledge of such breach constituting “Good
Reason”; and (C) the Employee must terminate employment within two years after the Employee obtains
knowledge of such breach constituting “Good Reason”. The Company’s placing the Employee on paid
leave for up to ninety (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”.
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