Exhibit 3
Share Pledge Agreement
by and between
Xxxxxxx X. Xxxx, 0 Xxxxxxxx Xxxx Xxxx, Xxxxxx Xxx, XX 00000, XXX
(the Pledgor)
and
Careal Holding XX, Xxxxxxx 00, XX Xxx 0000, 0000 Xxxxxx, Xxxxxxxxxxx
(the Pledgee)
WHEREAS,
(a) the Pledgor and the Pledgee are parties to the Loan Agreement as defined
in Section 1;
(b) in order to secure the performance of Pledgor's obligations under the
Loan Agreement, the Pledgor has agreed to provide a first-priority pledge
over his shares of Computer Associates International, Inc. ("CA") as
defined in Section 2, to secure the claims of the Pledgee under the Loan
Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions
All terms used herein but not defined shall have the meaning ascribed
to them in the Loan Agreement.
The following terms used in this Share Pledge Agreement are defined
as follows:
"Enforcement Event" means the occurrence of an Event of Default, in
accordance with Section 7 of the Loan Agreement.
"Loan Agreement" means the Loan Agreement dated January 6, 2003 and
originally made between the Pledgor as Borrower and the Pledgee as
Lender as from time to time modified, supplemented or varied in any
manner or respect whatsoever.
2. Pledge of Shares
2.1 Object of Pledge
The Pledgor hereby grants a pledge over 2,636,242 shares of common
stock of Computer Associates International, Inc. represented by
Certificate Nos. NU 118785, NU 119161, NU 118767, NU 108926, NU 60452
(the "Shares") to the Pledgee.
2.2 Secured Claim
The pledge over the Shares granted hereby shall serve as a Security
for the Pledgee for all the obligations of the Pledgor to the Pledgee
under the Loan Agreement in accordance with the terms thereof.
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2.3 Transfer of Shares
All the original signed stock certificates constituting the pledged
Shares shall be accompanied by stock powers duly executed in blank or
other instruments of transfer satisfactory in form and substance to
Pledgee and by such other instruments or documents as Pledgee may
request and shall be delivered to Pledgee on or prior to the
execution and delivery of this Agreement.
The Pledgee is entitled at any time to place the pledged Shares
deposited with third parties in its own custody.
3. Shareholder Rights
3.1 Dividend and other Entitlements
Until the occurrence of an Enforcement Event all rights to dividends,
and all other pecuniary rights arising out of the Shares (including,
without limitation, the preemptive right upon issuance of new shares,
the right to be allotted shareholder options, the right to receive a
dividend in kind or stock dividend, but not the right to liquidation
proceeds upon liquidation of CA) shall remain with the Pledgor.
3.2 Other Shareholder Rights
Until the occurrence of an Enforcement Event all other shareholder
rights in the Shares, including without limitation voting rights and
rights related thereto, shall accrue to the benefit of the Pledgor.
The Pledgee undertakes to do all acts and things and to permit all
acts and things to be done which are necessary for the Pledgor to
exercise its voting rights and rights related thereto. Upon the
occurrence of an Enforcement Event the voting rights shall
automatically pass to the Pledgee. The Pledgor hereby undertakes to
exercise the voting rights in the Shares in a manner consistent with
his obligations under the Loan Agreement for the benefit of the
Pledgee and in a manner that otherwise will not lead to a material
deterioration in value of the Shares.
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4. Redelivery of Shares
The Shares shall be redelivered to the Pledgor within 5 (five)
Business Days only after he is discharged from all of his obligations
under the Loan Agreement in accordance with its terms.
5. Enforcement of Pledge
Upon the occurrence of an Enforcement Event, the Pledgee shall have
the right but not the obligation, after having given the Pledgor 5
(five) Business Days' prior notice thereof, to realize, on the open
market, the pledge without regard to the formalities provided in the
Swiss Federal Code on Debt Collection and Bankruptcy and to apply the
proceeds towards the satisfaction of his secured claims pursuant to
Section 2.2. The Pledgee, however, shall be obligated to realize the
pledge at fair market value only.
Notwithstanding the foregoing and the provision of Article 41 of the
Swiss Federal Code on Debt Collection and Bankruptcy, the Pledgee is
at the liberty to institute or pursue the regular debt enforcement
proceedings without having first realized the Shares or institute
proceedings for the realization of the said Security. The Pledgee may
choose at its discretion whether to realize the pledge by forced or
by private sale. Proceeds from the enforcement of the Shares shall
remain pledged in favour of the Pledgee until full repayment of all
debts referred to above. Any surplus shall be reimbursed to the
Pledgor.
6. Representations and Warranties
The Pledgor represents and warrants as follows:
(a) the Shares are duly and validly issued by CA;
(b) as of execution of this Agreement, the Shares are held by the Pledgor
in free and unencumbered property, and are not subject to any
security other than as provided in this Share Pledge Agreement;
(c) the pledge granted to the Pledgee under this Agreement will create a
valid, perfected and enforceable first ranking security interest in
the Shares in favour of the Pledgee.
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7. Covenants
The Pledgor hereby undertakes to the Pledgee, to do as follows for so
long as the pledge constituted under this Share Pledge Agreement
shall remain in effect:
(a) not make or consent to any amendment or other modification or waiver
with respect to the Shares;
(b) not to sell, transfer, or create a subsequent security on any of the
Shares without the prior written consent of the Pledgee;
(c) shall at all times during this Agreement, at Pledgor's expense, take
all legal or other action which are reasonably necessary to safeguard
all of his rights and the rights of the Pledgee under the Shares;
(d) upon enforcement of the pledge pursuant to Section 5 hereof to do all
acts and things as the Pledgee requires or are necessary or useful,
and procure that any and all such acts and things be done, to
properly effect any transfer of the Shares to a new owner, free of
any security on any of the Shares so transferred.
8. General Provisions
8.1 Effect on Third Parties
No person other than the parties hereto shall have any rights or
benefits under this Share Pledge Agreement, and nothing in this Share
Pledge Agreement is intended to confer on any person other than the
parties hereto any rights, benefits or remedies.
8.2 Severability
In the event that any one or more of the provisions contained in this
Share Pledge Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Share
Pledge Agreement or any other such instrument.
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8.3 Notices
All notices, requests, demands and other communications under this
Agreement shall be in writing by letter or telefax and shall be
addressed to:
if to the Lender:
----------------
Xxxxxx Xxxxxxx, Careal Holding AG, Utoquai 49, XX Xxx 0000, 0000
Xxxxxx, Xxxxxxxxxxx
if to the Borrower:
------------------
Xxxxxxx X. Xxxx, c/o Xx. Xxxxxx Xxxxxx, Computer Associates
International, Inc., Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000, XXX
with a copy to:
--------------
Xxxxxx X. Xxxx, Park 80 West, Plaza Two, Suite 510, Saddle Brook,
New Jersey 07633, USA
Han-Xxxxx Xxxx, Xx Xxxx & Xxxxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000, XXX
8.4 Amendments and Waivers
This Share Pledge Agreement may only be modified or amended by a
document signed by all parties. Any provision contained in this Share
Pledge Agreement may only be waived by a document signed by the party
waiving such provision.
9. Applicable Law and Jurisdiction
This Share Pledge Agreement shall be governed by, and construed in
accordance with the substantive laws of Switzerland.
All disputes arising out of or in connection with this Share Pledge
Agreement shall be settled exclusively before the ordinary courts of
the Canton of Zurich, place of jurisdiction being Zurich 1.
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01/06/03 01/10/03
------------------------------ -----------------------------
Place, Date Place, Date
Xxxxxxx X. Xxxx, as Borrower Careal Holding AG, as Lender
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx Xxxxxxx
------------------------------ ------------------------------
Xxxxxx Xxxxxxx
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