EX-10.2






Exhibit 10.2




November 22, 2004 and as Amended and Restated through December 8, 2008




Mr. John A. Swainson




          Re: Employment Agreement




Dear John:




          This is your Employment Agreement (the “Agreement”) with Computer Associates
International, Inc., a Delaware corporation (the “Company”). It sets forth the terms of your
employment with the Company and its affiliates from time to time (together, the “Group”).




1. Your Position, Performance and Other Activities




          (a) Position.
You will be employed in the position of Chief Executive Officer of the Company. It is
anticipated that you will be employed in the position of Chief Executive Officer of the Company
within six (6) months of your Start Date (as defined in Section 2). You will be appointed to the
Company’s Board of Directors (the “Board”) as of your Start Date (as defined in Section 2) and the
Company will use all reasonable efforts to cause you to be nominated for re-election each time your
term expires during your employment. You agree to serve as a member of the Board, as well as a
member of any Board committee to which you may be elected or appointed. You also agree that you
will be deemed to have resigned from the Board and each Board committee voluntarily, without any
further action by you, as of the end of your employment.




          (b) Authority, Responsibilities and Reporting.
You will have the authority, responsibilities and reporting relationships that correspond to
your position, including any particular authority, responsibilities and reporting relationships
consistent with your position that the Board may assign to you from time to time and compliance
with such policies of the Company as may be adopted from time to time.




          (c) Performance.
During your employment, you will devote substantially all of your business time and attention
to the Group and will use good faith efforts to discharge your responsibilities under this
Agreement to the best of your ability. During your employment, your place of performance will be
Islandia, New York or such other place as the Board determines.




          (d) Other Activities.
During your employment, you will not render any business, commercial or professional services
to any non-member of the Group. However, you may (1)
serve on corporate, civic or charitable boards, (2) manage personal investments, or (3)
deliver lectures, or fulfill speaking engagements or teach at educational institutions, so long as
(A) these activities do not interfere with your performance of your responsibilities under this
Agreement and (B) any service on a corporate, civic or charitable board is approved by the Board.




 









 








2. Term of Your Employment



Subject to your satisfactory completion of pre- and post-employment background, reference and other
checks, your employment under this Agreement will (a) begin on November 22, 2004 (the “Start Date”
of this Agreement) and (b) end at the close of business on the earlier of (1) the end of the
Compensation Period or (2) the effective date of early termination of your employment. Your
“Compensation Period” begins on your Start Date and is initially scheduled to end on the fifth
anniversary of your Start Date. Beginning on the fifth anniversary of your Start Date and on each
following anniversary, your Compensation Period will automatically extend for one year unless
either you or the Company gives at least 90 days’ prior notice of non-extension. In no event,
however, will your Compensation Period extend beyond the end of the Company’s fiscal year in which
your 65th birthday occurs. References in this Agreement to “your employment” are to
your employment under this Agreement.




3. Your Compensation




          (a) Salary.
During your employment, you will receive an annual base salary (as increased from time to
time, your “Salary”). The starting amount of your Salary is $1,000,000. The Company will review
your Salary at least annually and may increase it at any time for any reason. However, your Salary
may not be decreased at any time (including after any increase) without your written consent and
any increase in your Salary will not reduce or limit any other obligation to you under this
Agreement. Your Salary will be paid in accordance with the Group’s normal practices for senior
executives.




          (b) Bonus.
You will be eligible to receive an annual cash bonus (your “Bonus”) for each fiscal year of
the Company ending during your employment. The target level for your Bonus in each full fiscal
year of your employment will be at least 100% of your Salary (the “Target Annual Bonus”) and the
maximum level for your Bonus will be 200% of your Salary. You will be entitled to a minimum Bonus
of $333,334 for the Company’s fiscal year ending March 31, 2005. Your Bonus will be paid at the
same time as such bonuses are paid to other senior executives of the Company.




          (c) Long-Term Incentive Awards.
You will be eligible to receive long-term incentive awards (“Long-Term Incentive Awards”) as
determined by the Company in accordance with the Company’s Long-Term Incentive Plan (and any
successor plan) in which you will begin to participate for the performance period starting April 1,
2005. The target award level under the Company’s Long-Term Incentive Plan initially will be 2.5
times your Salary. The maximum award level under the Company’s Long-Term Incentive Plan
initially will be 3.75 times your Salary.




          (d) Initial Incentive Awards.
(1) In addition to your Salary and Bonus, on your Start Date you will be awarded (A) stock
options to purchase 350,000 shares of the Company’s common stock (your “Sign-On Options”) and (B)
100,000 restricted shares of the Company’s common stock (your “Sign-On Stock”).





     (2) Your Sign-On Options will be granted under the Company’s 2002 Incentive Plan
and will have an exercise price equal to the Start Date



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Closing Price. Your Sign-On
Options will vest 34%, 33% and 33% on the first, second and third anniversaries of the
Start Date.




     (3) Your Sign-On Stock will be granted under the Company’s 2002 Incentive Plan.
Initially, your Sign-On Stock may not be transferred or assigned and will be forfeited
to the Company for zero (0) consideration if your employment with the Company is
terminated for any reason prior to vesting. Your Sign-On Stock will vest in equal
installments on each of the first three one-year anniversaries of your Start Date (such
restricted stock is “vested” when it is no longer subject to such transfer restrictions
and forfeiture provisions).




     (4) Except as provided in this Agreement, your Sign-On Options and Sign-On Stock
will be subject to the terms of the Company’s 2002 Incentive Plan and to the terms of
your award agreement under it (which will contain the Group’s normal provisions for
senior executives).



          (e) Relocation Benefit. In accordance with the Company’s Relocation Policy, you will be
eligible to be reimbursed for your reasonable costs incurred in connection with your relocation to
the Company’s headquarters in Islandia, New York. In addition, you shall receive temporary
corporate housing in accordance with the Company’s policies and you shall be eligible to receive
relocation benefits in accordance with the Company’s policies, in each case, until no later than
November 22, 2006.




          (f) Restricted Stock Units. In addition to your Sign-On Stock, on your Start Date you will be
awarded restricted stock units with respect to 100,000 shares of the Company’s common stock (your
“RSUs”). Your RSUs will be granted under the Company’s 2002 Incentive Plan. Your RSUs may not be
transferred or assigned until six (6) months after the date on which your employment with the Group
terminates for any reason. Six (6) months after your date of termination, your RSUs will fully
vest, be transferable and be paid to you. You will also receive dividend equivalent rights
entitling you to be paid, at the same time as other shareholders of the Company, any dividends
declared and paid in respect of the 100,000 shares of the Company’s common stock underlying your
RSUs.




          (g) Signing Bonus. Within 30 days of your Start Date, you will receive a signing bonus equal
to $2.5 million in cash. Additionally, you will receive the present value of $2.8 million, the
form and manner of such payment to be agreed by you and the Company; provided, however, if you and
the Company fail to agree
on a form and manner of this payment within 60 days of the Start Date, the Company has the
right to make the $2.8 million payment in cash.




4. Other Employee Benefits




          (a) Vacation.
You will be entitled to paid annual vacation during your employment (totaling at least four
(4) weeks a year) on a basis that is at least as favorable as that provided to other senior
executives of the Group.




          (b) Business Expenses.
You will be reimbursed for all business and entertainment expenses incurred by you in
performing your responsibilities under this Agreement. The Company is responsible for ensuring
that business expenses




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under 4(b) are reimbursed to you as soon as practicable but in no event
later than the end of the calendar year following the year in which such reimbursable expenses were
incurred. Any such reimbursements under 4(b) shall be subject to the Group’s normal practice for
senior executives.




          (c) Facilities.
During your employment, you will be provided with office space, facilities, secretarial
support and other business services consistent with your position on a basis that is at least as
favorable as that provided to other senior executives of the Group.




          (d) Indemnification.
To the extent permitted by law, the Company will indemnify you against any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative or investigative,
arising by reason of your status as a director, officer, employee and/or agent of the Group during
your employment. In addition, to the extent permitted by law, the Company will pay or reimburse
any expenses, including reasonable attorney’s fees, you incur in investigating and defending any
actual or threatened action, suit or proceeding for which you may be entitled to indemnification
under this Section 4(d). However, you agree to repay any expenses paid or reimbursed by the
Company if it is ultimately determined that you are not legally entitled to be indemnified by the
Company. If the Company’s ability to make any payment contemplated by this Section 4(d) depends on
an investigation or determination by the board of directors of any member of the Group, at your
request the Company will use its best efforts to cause the investigation to be made (at the
Company’s expense) and to have the relevant board reach a determination as soon as reasonably
possible. This indemnification will be at least as favorable as that provided to other senior
executives and directors of the Group.




          (e) Employee Benefit Plans.
During your employment, you will be eligible to participate in the Group’s employee benefit
and welfare plans, including plans providing retirement benefits,
medical, dental, hospitalization, life or disability insurance, on a basis that is at least as
favorable as that provided to other senior executives of the Group.




5. Early Termination of Your Employment




          (a) No Reason Required.
You or the Company may terminate your employment early at any time for any reason, or for no
reason, subject to compliance with Section 5(e).




          (b) Termination by the Company for Cause.





     (1) “Cause” means any of the following:




     (A) Your continued failure, either due to willful action or as a result of
gross neglect, to substantially perform your duties and responsibilities to the
Group under this Agreement (other than any such failure resulting from your
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 you by
the Board, which notice specifies in reasonable detail the manner in which the



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Company believes you have not substantially performed your duties and
responsibilities.




     (B) Your 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.




     (C) Your indictment or conviction of, or plea of guilty or nolo contendere to,
a felony or any other crime involving dishonesty, fraud or moral turpitude.




     (D) Your 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 you admit or deny liability).




     (E) Your breach of your 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 you notice and a reasonable
opportunity to cure.




     (F) Your (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, your failure to waive attorney-client privilege
relating to communications with your own attorney in connection with an
Investigation shall not constitute “Cause”.




     (G) Your removing, concealing, destroying, purposely withholding, altering or
by any other means falsifying any material which is requested in connection with an
Investigation.




     (H) Your disqualification or bar by any governmental or self-regulatory
authority from serving in the capacity contemplated by this Agreement or your loss
of any governmental or self-regulatory license that is reasonably necessary for you
to perform your responsibilities to the Group under this Agreement, if (i) the
disqualification, bar or loss continues for more than 30 days and
(ii) 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 your employment, you will serve in
the capacity contemplated by this Agreement to whatever extent legally permissible
and, if your employment is not permissible, you will be placed on leave (which will
be paid to the extent legally permissible).




     (I) Your unauthorized use or disclosure of confidential or proprietary
information, or related materials, or the violation of any of



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the terms of the
Company’s standard confidentiality policies and procedures, in the case of any item
identified in this clause (I) 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 you by the Company,
which notice specifies in reasonable detail the alleged unauthorized use or
disclosure or violation.




     (J) Your 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 you will be “willful” unless it is made by
you in bad faith or without a reasonable belief that your act or omission was in the
best interests of the Group.




     (2) To terminate your employment “for Cause”, the Board must determine in good
faith that Cause has occurred, the Company must comply with Section 5(e) and the Company
must deliver to you a copy of a resolution duly adopted by a majority of the entire
Board (excluding you) at a meeting of the Board called and held for such purpose (after
reasonable notice to you and a reasonable opportunity for you and your counsel to be
heard) that finds that in the good faith opinion of the Board, Cause has occurred and
states the basis for that belief.



          (c) Termination by You for Good Reason.





     (1) “Good Reason” means any of the following:




     (A) Any material and adverse change in your position with the Group (including
by reason of the Company’s failure to cause you to be nominated to the Board).




     (B) Any material failure by the Company to provide you with authority,
responsibilities and reporting relationships as provided in Section 1(b) or any
material and adverse reduction in your authority, responsibility or reporting
relationships or the assignment of any duties inconsistent in any material respect
with your position, authority, duties or responsibilities, in each case other than
any isolated, insubstantial and inadvertent failure by the Company that is not in
bad faith and is cured promptly on your giving the Company notice.




     (C) Any material reduction by the Company in your Salary or Target Annual
Bonus, other than any such reduction agreed to by you in writing or any
insubstantial or inadvertent reduction by the Company that is cured promptly on
your giving the Company notice.




     (D) Any material failure by the Company to comply with Section 3, other than
any isolated, insubstantial and inadvertent failure by the Company that is not in
bad faith and is cured promptly on your giving the Company notice.



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     (E) Any purported termination by the Company of your employment that is in
breach of this Agreement.




     (F) Any failure by the Company to comply with Section 11(c).




     (2) The Company’s placing you on paid leave for up to 90 consecutive days while it
is determining whether there is a basis to terminate your employment for Cause will not
constitute Good Reason.




     (3) To terminate your employment “for Good Reason”, Good Reason must have occurred
and you must comply with Section 5(e). However, (A) if you do not give a Termination
Notice within 90 days after you have knowledge that an event constituting Good Reason
has occurred, the event will no longer constitute Good Reason; (B) you must give the
Company notice and a 30-day period to cure the event constituting Good Reason under
Section 5(c)(1); and (C) you must terminate your employment within the two years after
the initial existence of an event constituting Good Reason.



          (d) Termination on Disability or Death.





     (1) The term “Disability” means your absence from your responsibilities with the
Company on a full-time basis for 180 business days in any consecutive 12 months as a
result of incapacity due to mental or physical illness or injury. If a doctor mutually
acceptable to you and the Company determines in good faith that your Disability has
occurred, the Company may give you Termination Notice. If within 30 days of the
Termination Notice you do not return to full-time performance of your responsibilities,
your employment will terminate. If you do return to full-time performance in that
30-day period, the Termination Notice will be cancelled for all purposes of this
Agreement. Except as provided in this
Section 5(d), your incapacity due to mental or physical illness or injury will not
affect the Company’s obligations under this Agreement.




     (2) Your employment will terminate automatically on your death. If you die before
your employment starts, all the provisions of this Agreement will also terminate and
there will be no liability of any kind under this Agreement.



          (e) Advance Notice Generally Required.





     (1) To terminate your employment before the end of your Compensation Period, either
you or the Company must provide a Termination Notice to the other. A “Termination
Notice” is a written notice that states the specific provision of this Agreement on
which termination is based, including, if applicable, the specific clause of the
definition of Cause or Good Reason and a reasonably detailed description of the facts
that permit termination under that clause. (The failure to include any fact in a
Termination Notice that contributes to a showing of Cause or Good Reason does not
preclude either party from asserting that fact in enforcing its rights under this
Agreement.)



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     (2) You and the Company agree to provide 90 days’ advance Termination Notice of any
early termination, unless your employment is terminated by the Company for Cause or
because of your Disability or death. Accordingly, the effective date of early
termination of your employment will be 90 days after Termination Notice is given except
that (A) the effective date will be the date of the Company’s Termination Notice if your
employment is terminated by the Company for Cause, although the Company may provide a
later effective date in the Termination Notice,
(B) the effective date will be 30 days after Termination Notice is given if your
employment is terminated because of your Disability, and (C) the effective date will be
the time of your death if your employment is terminated because of your death. The
Company may elect to place you on paid leave for all or part of the advance notice
period.



6. The Company’s Obligations in Connection With Your Termination




          (a) General Effect.
On termination in accordance with Sections 2 and 5, your employment will end and the Group
will have no further obligations to you except as provided in this Section 6.




          (b) With Good Reason or Without Cause.
If, during your Compensation Period, the Company terminates your employment without Cause or
you terminate your employment for Good Reason:





     (1) The Company will pay you the following as of the end of your employment: (A)
your unpaid Salary through the date of termination, (B)
your Salary for any accrued but unused vacation, (C) any accrued expense
reimbursements and other cash entitlements, (D) any unpaid but awarded Bonus and (E) any
unpaid compensation deferred by you (together with any interest and/or earnings through
the end of your employment) other than pursuant to a tax-qualified plan (together, your
“Accrued Compensation”). In addition, the Company will timely pay you any amounts and
provide to you any benefits that are required, or to which you are entitled, under any
plan, contract or arrangement of the Group (together, the “Other Benefits”).




     (2) The Company will pay you your Accrued Bonus. Your “Accrued Bonus” means, to
the extent not previously awarded or paid, your Target Annual Bonus for the fiscal year
in which the Termination Notice is given multiplied by the number of days of your
employment since the fiscal year ending before Termination Notice is given divided by
365.




     (3) The Company will pay you a lump sum cash amount equal to two (2) times the sum
of your (A) then current Salary and (B) average Bonus earned over the three (3) most
recently completed fiscal years (or, if you have worked less than three (3) fiscal
years, the number of fiscal years worked) prior to the date of termination, but in no
event will this bonus amount be greater than your Target Annual Bonus for the fiscal
year in which the Termination Notice is given.




     (4) The unvested stock options issued by the Group to you, that, absent the end of
your employment, would have vested in the 24-month



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period following your termination,
will immediately vest and become exercisable. The restricted stock and other
equity-based compensation (excluding any Long-Term Incentive Awards not yet granted for
any then outstanding performance cycles) awarded by the Group to you, that, absent the
end of your employment, would have vested in the 24-month period following your
termination, will vest and become immediately payable.




     (5) The Company will pay you a lump-sum payment equal to your continuation coverage
cost under COBRA for 18 months. The payments in this Section 6(b)(5) are referred to as
your “Welfare Benefits”.



          (c) Company Non-Renewal of Compensation Period.
If the Company elects not to renew your Compensation Period in accordance with Section 2:





     (1) The Company will pay you your Accrued Compensation, Accrued Bonus and your
Other Benefits.




     (2) The unvested stock options issued by the Group to you, that, absent the end of
your employment, would have vested in the 12-month period following your termination
will immediately vest and become exercisable. The restricted stock and other
equity-based compensation (excluding any Long-Term Incentive Awards not yet granted for
any then outstanding performance cycles) awarded by the Group to you, that,
absent the end of your employment, would have vested in the 12-month period
following your termination will vest and become immediately payable. The benefits in
this Section 6(c)(2) are referred to as your “Accelerated Equity Vesting.”




     (3) The Company will pay you a lump sum amount equal to one (1) times your then
current Salary.




     (4) The Company will pay you a lump-sum payment equal to your continuation coverage
cost under COBRA for 12 months.



          (d) For Cause or without Good Reason.
If the Company terminates your employment for Cause or you terminate your employment without
Good Reason, the Company will pay your Accrued Compensation and provide your Other Benefits.




          (e) For Your Disability or Death.
If, during the Compensation Period, your employment terminates as a result of your death or
Disability, the Company will pay your Accrued Compensation and Accrued Bonus and will provide
Accelerated Equity Vesting and your Other Benefits and Welfare Benefits.




          (f) Change in Control.
If there is a “Change in Control”, as defined in the Company’s Change in Control Severance
Policy (the “CIC Severance Policy”), and you are entitled to the payments and benefits provided in
the CIC Severance Policy they 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 you the
greater of the two payments or benefits but not to duplicate them. The equity awards granted in
this Agreement shall have the benefit of the potential accelerated vesting contained in the
Company’s 2002 Incentive Plan as in effect on the Start




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Date. Under the terms of the CIC Severance
Policy you will be considered a Schedule A participant. If the CIC Severance Policy were to be
changed during your Compensation Period, the Company will establish change in control terms
applicable to you on a basis no less favorable to you than as are set forth in the CIC Severance
Policy on the Start Date.




          (g) Condition.
The Company will not be required to make the payments and provide the benefits stated in this
Section 6 unless within fifty-five (55) days following the termination of your employment you
execute and deliver to the Company, and do not revoke, an agreement releasing from all liability
(other than the payments and benefits contemplated by this Agreement) each member of the Group and
any of their respective past or present officers, directors, employees or agents. This agreement
will be in the form normally used by the Group senior executives at the time.




          (h) Timing.
The payments and benefits provided in this Section 6 will begin within sixty (60) days of the
end of your employment, subject to your compliance with the requirements of Section 6(g), but in
any event no later than two and one-half (2 1/2) months following the end of the year in which your
employment terminates.




          (i) Section 409A.




          To extent you would otherwise be entitled to any payment that under this Agreement, or any
plan or arrangement of the Company or its affiliates, constitutes “deferred compensation” subject
to Section 409A and that if paid during the six months beginning on the date of termination of your
employment would be subject to the Section 409A additional tax because you are a “specified
employee” (within the meaning of Section 409A and as determined by the Company), the payment will
be paid to you on the earlier of the six-month anniversary of your date of termination, a change in
ownership or effective control of the Company (within the meaning of Section 409A) or your death.
Similarly, to the extent you would otherwise be entitled to any benefit (other than a payment)
during the six months beginning on termination of your employment 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 your date of termination, a change in ownership or
effective control of the Company (within the meaning of Section 409A) or your death. In addition,
any payment or benefit due upon a termination of your employment that represents a “deferral of
compensation” within the meaning of Section 409A shall be paid or provided to you only upon a
“separation from service” as defined in Treas. Reg. 1.409A-1(h). 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 you only to the extent that the expenses
are not incurred, or the




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benefits are not provided, beyond the last day of your second taxable year
following your taxable year in which the “separation from service” occurs; and provided further
that such expenses are reimbursed no later than the last day of your third taxable year following
the taxable year in which your “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 taxable 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
you incurred such expenses, and in no event shall any right to reimbursement or the provision of
any in-kind benefit be subject to liquidation or exchange for another benefit.




7. Proprietary Information




          (a) Definition.
“Proprietary Information” means confidential or proprietary information, knowledge or data
concerning (1) the Group’s businesses, strategies, operations, financial affairs, organizational
matters, personnel matters, budgets, business plans, marketing plans, studies, policies,
procedures, products, ideas, processes, software systems, trade secrets and technical know-how, (2)
any other matter relating to the Group and (3) any matter relating to clients of the Group or other
third parties having relationships with the Group. Proprietary Information includes (1)
information regarding any aspect of your tenure as an employee of the Group or the termination of
your employment, (2) the names, addresses, and phone numbers and other information concerning
clients and prospective clients of the Group, (3) investment techniques and trading strategies used
in, and the performance records of, client accounts or other investment products, and
(4) information and materials concerning the personal affairs of employees of the Group. In
addition, Proprietary Information may include information furnished to you orally or in writing
(whatever the form or storage medium) or gathered by inspection, in each case before or after the
date of this Agreement. However, Proprietary Information does not include information (1) that was
or becomes generally available to the public, other than as a result of a disclosure by you,
directly or indirectly, or as a result of the violation by a third party of the Group’s
confidentiality rights, or (2) that you can establish was independently developed by you without
reference to any Proprietary Information.




          (b) Use and Disclosure.
You will obtain or create Proprietary Information in the course of your involvement in the
Group’s activities and may already have Proprietary Information. You agree that the Proprietary
Information is the exclusive property of the Group, and that, during your employment, you will use
and disclose Proprietary Information only for the Group’s benefit and in accordance with any
restrictions placed on its use or disclosure by the Group. After your employment, you will not use
or disclose any Proprietary Information. In addition, nothing in this Agreement will operate to
weaken or waive any rights that the Group may have under statutory or common law, or any other
agreement, to the protection of trade secrets, confidential business information and other
confidential information.




          (c) Limitations.
Nothing in this Agreement prohibits you from providing truthful testimony or information
concerning the Group to governmental, regulatory




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or self-regulatory authorities. Also, the parties
(and their respective employees, representatives and agents) may disclose to any and all persons,
without any limitation of any kind, the tax treatment and tax structure of this Agreement and all
materials of any kind (including opinions and other tax analysis) that are provided to either party
related to such tax treatment and structure.




8. Ongoing Restrictions on Your Activities




          (a) General Effect.
This Section 8 applies during your employment and for the 12-month period after your
employment ends. This Section uses the following defined terms:





     “Competitive Enterprise” means any business enterprise that either (1) engages in
any material activity that competes anywhere with any material activity in which the
Group is then engaged or (2) holds a 5% or greater equity, voting or profit
participation interest in any enterprise that engages in such a competitive activity.




     “Client” means any client or prospective client of the Group to whom you provided
services, or for whom you transacted business, or whose identity became known to you in
connection with your relationship with or employment by the Group.




     “Solicit” means any direct or indirect communication of any kind, regardless of who
initiates it, that in any way invites, advises, encourages or requests any person to
take or refrain from taking any action. A general employment advertisement by an entity
of which you are a part is excluded from the definition of Solicit.



          (b) Your Importance to the Group and the Effect of this Section 8.
You acknowledge that:





     (1) In the course of your involvement in the Group’s activities, you will have
access to Proprietary Information and the Group’s client base and will profit from the
goodwill associated with the Group. On the other hand, in view of your access to
Proprietary Information and your importance to the Group, if you compete with the Group
for some time after your employment, the Group will likely suffer significant harm. In
return for the benefits you will receive from the Group and to induce the Group to enter
into this Agreement, and in light of the potential harm you could cause the Group, you
agree to the provisions of this Section 8. The Company would not have entered into this
Agreement if you did not agree to this Section 8.




     (2) In light of Section 8(b)(1), if you breach any provision of this Section 8, the
loss to the Company would be material but the amount of loss would be uncertain and not
readily ascertainable.




     (3) This Section 8 limits your ability to earn a livelihood in a Competitive
Enterprise and your relationships with Clients. You acknowledge, however, that
complying with this Section 8 will not result in severe economic hardship for you or
your family.



12









 






(c) Your Payment Obligations.
If you fail to comply with this Section 8 during the Compensation Period and for a
12-month period thereafter, other than any isolated, insubstantial and inadvertent
failure that is not in bad faith, you will forfeit all (i) remaining payments owed to
you under Section 6 and (ii) restricted stock and other equity-based compensation
(without features
similar to exercise) that have been awarded by the Group and not vested at the time
of determination.



          (d) Non-Competition.
During your Compensation Period and for a 12-month period after termination of your
employment, you will not directly or indirectly:





     (1) hold a 10% or greater equity, voting or profit participation interest in a
Competitive Enterprise; or




     (2) associate (including as a director, officer, employee, partner, consultant,
agent or advisor) with a Competitive Enterprise and in connection with your association
engage, or directly or indirectly manage or supervise personnel engaged, in any
activity:




     (A) that is substantially related to any activity that you were engaged in,




     (B) that is substantially related to any activity for which you had direct or
indirect managerial or supervisory responsibility, or




     (C) that calls for the application of specialized knowledge or skills
substantially related to those used by you in your activities;




in each case, for the Group at any time during the year before the end of your
employment (or, if earlier, the year before the date of determination).



          (e) Non-Solicitation of Clients.
During your Compensation Period and for a 12-month period after termination of your
employment, you will not attempt to:





     (1) Solicit any Client to transact business with a Competitive Enterprise or to
reduce or refrain from doing any business with the Group (excluding any business that is
not a material activity of the Group),




     (2) transact business with any Client that would cause you to be a Competitive
Enterprise or that would cause any Client to reduce or refrain from doing any business
with the Group, or




     (3) interfere with or damage any relationship between the Group and a Client.



          (f) Non-Solicitation of Group Employees.
During your Compensation Period and for a 12-month period after termination of your
employment, you will not attempt to Solicit anyone who is then an employee of the Group (or who was
an employee of the group within the prior three (3) months) to resign from the Group or to apply
for or accept employment with any Competitive Enterprise, except that you may Solicit your
administrative assistant.




13









 








          (g) Notice to New Employers.
Before you either apply for or accept employment with any other person or entity while any of
Section 8(d), (e) or (f) is in effect, you will provide the prospective employer with written
notice of the provisions of this Section 8 and will deliver a copy of the notice to the Group.




9. No Public Statements or Disparagement



You agree that you will not make any public statement that would libel, slander or disparage any
member of the Group or any of their respective past or present officers, directors, employees or
agents. This Section 9 is subject to Section 7(c).




10. Effect on Other Agreements; Entire Agreement



This Agreement is the entire agreement between you and the Company with respect to the relationship
contemplated by this Agreement and supersedes any earlier agreement, written or oral, with respect
to the subject matter of this Agreement. In entering into this Agreement, no party has relied on
or made any representation, warranty, inducement, promise or understanding that is not in this
Agreement. You hereby acknowledge that you are not subject to any obligation which would in any
way restrict the performance of your duties hereunder.




11. Successors




          (a) Payments on Your Death.
If you die and any amounts become payable under this Agreement, we will pay those amounts to
your estate.




          (b) Assignment by You.
You may not assign this Agreement without the Company’s consent. Also, except as required by
law, your right to receive payments or benefits under this Agreement may not be subject to
execution, attachment, levy or similar process. Any attempt to effect any of the preceding in
violation of this Section 11(b), whether voluntary or involuntary, will be void.




          (c) Assumption by any Surviving Company.
Before the effectiveness of any merger, consolidation, statutory share exchange or similar
transaction (including an exchange offer combined with a merger or consolidation) involving the
Company (a “Reorganization”) or any sale, lease or other disposition (including by way of a series
of transactions or by way of merger, consolidation, stock sale or similar transaction involving one
or more subsidiaries) of all or substantially all of the Company’s consolidated assets (a “Sale”),
the Company will cause (1) the Surviving Company to unconditionally assume this Agreement in
writing and (2) a copy of the assumption to be provided to you. After the Reorganization or Sale,
the Surviving Company will be treated for all purposes as the Company under this Agreement. The
“Surviving Company” means (i) in a Reorganization, the entity resulting from the Reorganization or
(ii) in
a Sale, the entity that has acquired all or substantially all of the assets of the Company.




12. Disputes




          (a) Employment Matter.
This Section 12 applies to any controversy or claim between you and the Group arising out of
or relating to or concerning this Agreement or any aspect of your employment with the Group or the
Seller or the termination of that employment (together, an “Employment Matter”).




14









 








          (b) Mandatory Arbitration.
Subject to the provisions of this Section 12, any Employment Matter will be finally settled by
arbitration in the County of New York administered by the American Arbitration Association under
its Commercial Arbitration Rules then in effect. However, the rules will be modified in the
following ways: (1) the decision must not be a compromise but must be the adoption of the
submission by one of the parties, (2) each arbitrator will agree to treat as confidential evidence
and other information presented to the same extent as the information is required to be kept
confidential under Section 7, (3) there will be no authority to amend or modify the terms of this
Agreement except as provided in Section 13(c) (and you and the Group agree not to request any such
amendment or modification), (4) a decision must be rendered within 10 business days of the parties’
closing statements or submission of post-hearing briefs and
(5) the arbitration will be conducted before a panel of three arbitrators, one selected by you
within 10 days of the commencement of arbitration, one selected by the Company in the same period
and the third selected jointly by these arbitrators (or, if they are unable to agree on an
arbitrator within 30 days of the commencement of arbitration, the third arbitrator will be
appointed by the American Arbitration Association; provided that the arbitrator shall be a partner
or former partner at a nationally recognized law firm).




          (c) Limitation on Damages.
You and the Group agree that there will be no punitive damages payable as a result of any
Employment Matter and agree not to request punitive damages.




          (d) Injunctions and Enforcement of Arbitration Awards.
You or the Group may bring an action or special proceeding in a state or federal court of
competent jurisdiction sitting in the County of New York to enforce any arbitration award under
Section 12(b). Also, the Group may bring such an action or proceeding, in addition to its rights
under Section 12(b) and whether or not an arbitration proceeding has been or is ever initiated, to
temporarily, preliminarily or permanently enforce any part of Sections 7 and 8. You agree that (1)
your violating any part of Sections 7 and 8 would cause damage to the Group that cannot be measured
or repaired, (2) the Group therefore is entitled to an injunction, restraining order or other
equitable relief restraining any actual or threatened violation of those Sections, (3) no bond will
need to be posted for the
Group to receive such an injunction, order or other relief, (4) no proof will be required that
monetary damages for violations of those Sections would be difficult to calculate and that remedies
at law would be inadequate and (5) the General Counsel of the Company is irrevocably appointed as
your agent for service of process in connection with any such action or proceeding (the General
Counsel will promptly advise you of any such service of process).




          (e) Jurisdiction and Choice of Forum.
You and the Group irrevocably submit to the exclusive jurisdiction of any state or federal
court located in the County of New York over any Employment Matter that is not otherwise arbitrated
or resolved according to Section 12(b). This includes any action or proceeding to compel
arbitration or to enforce an arbitration award. Both you and the Group (1) acknowledge that the
forum stated in this Section 12(e) has a reasonable relation to this Agreement and to the
relationship between you and the Group and that the submission to the forum will apply even if the
forum chooses to apply non-forum law, (2) waive, to the extent permitted by law, any objection to
personal jurisdiction or to the laying of venue of any action or proceeding covered




15









 




by this Section
12(e) in the forum stated in this Section, (3) agree not to commence any such action or proceeding
in any forum other than the forum stated in this Section 12(e) and (4) agree that, to the extent
permitted by law, a final and non-appealable judgment in any such action or proceeding in any such
court will be conclusive and binding on you and the Group. However, nothing in this Agreement
precludes you or the Group from bringing any action or proceeding in any court for the purpose of
enforcing the provisions of Sections 12(b) and this 12(e).




          (f) Waiver of Jury Trial.
To the extent permitted by law, you and the Group waive any and all rights to a jury trial
with respect to any Employment Matter.




          (g) Governing Law.
This Agreement will be governed by and construed in accordance with the law of the State of
New York applicable to contracts made and to be performed entirely within that State.




          (h) Costs.
To the extent permitted by law, the Company will reimburse any reasonable expenses, including
reasonable attorney’s fees, you incur as a result of any Employment Matter, provided that you
prevail on a material issue in such dispute. Additionally, the Company will reimburse your
reasonable attorney’s fees, not to exceed $40,000, incurred to negotiate this Employment Agreement.
Any reimbursements made to you by the Company under this Section 12(h) will be paid to you as soon
as practicable but in no event later than the end of the calendar year following the year in which
such reimbursable expenses were incurred.




13. General Provisions




          (a) Construction.





     (1) References (A) to Sections are to sections of this Agreement unless otherwise
stated; (B) to any contract (including this Agreement) are to the contract as amended,
modified, supplemented or replaced from time to time; (C) to any statute, rule or
regulation are to the statute, rule or regulation as amended, modified, supplemented or
replaced from time to time (and, in the case of statutes, include any rules and
regulations promulgated under the statute) and to any section of any statute, rule or
regulation include any successor to the section; (D) to any governmental authority
include any successor to the governmental authority; (E) to any plan include any
programs, practices and policies; (F) to any entity include any corporation, limited
liability company, partnership, association, business trust and similar organization and
include any governmental authority; and (G) to any affiliate of any entity are to any
person or other entity directly or indirectly controlling, controlled by or under common
control with the first entity.




     (2) The various headings in this Agreement are for convenience of reference only
and in no way define, limit or describe the scope or intent of any provisions or
Sections of this Agreement.




     (3) Unless the context requires otherwise, (A) words describing the singular number
include the plural and vice versa, (B) words denoting any



16









 







gender include all genders and
(C) the words “include”, “includes” and “including” will be deemed to be followed by
the words “without limitation.”




     (4) It is your and the Group’s intention that this Agreement not be construed more
strictly with regard to you or the Group.



          (b) Withholding.
You and the Group will treat all payments to you under this Agreement as compensation for
services. Accordingly, the Group may withhold from any payment any taxes that are required to be
withheld under any law, rule or regulation.




          (c) Severability.
If any provision of this Agreement is found by any court of competent jurisdiction (or legally
empowered agency) to be illegal, invalid or unenforceable for any reason, then (1) the provision
will be amended automatically to the minimum extent necessary to cure the illegality or invalidity
and permit enforcement and (2) the remainder of this Agreement will not be affected. In
particular, if any provision of Section 8 is so found to violate law or be unenforceable because it
applies for longer than a maximum permitted period or to greater than a maximum permitted area, it
will be automatically amended to apply for the maximum permitted period and maximum permitted area.




          (d) No Set-off or Mitigation.
Except as provided in Section 8(c) or if your employment is terminated by the Company for
Cause, your and the Company’s respective obligations under this
Agreement will not be affected by any set-off, counterclaim, recoupment or other right you or any
member of the Group may have against each other or anyone else. You do not need to seek other
employment or take any other action to mitigate any amounts owed to you under this Agreement.




          (e) Notices.
All notices, requests, demands and other communications under this Agreement must be in
writing and will be deemed given (1) on the business day sent, when delivered by hand or facsimile
transmission (with confirmation) during normal business hours, (2) on the business day after the
business day sent, if delivered by a nationally recognized overnight courier or (3) on the third
business day after the business day sent if delivered by registered or certified mail, return
receipt requested, in each case to the following address or number (or to such other addresses or
numbers as may be specified by notice that conforms to this Section 13(e)):




          If to you, to your address then on file with the Company’s payroll department.




          If to the Company or any other member of the Group, to:



Computer Associates International, Inc.

World Headquarters

One Computer Associates Plaza

Islandia, New York 11749

Attention: General Counsel

Facsimile: (631) 342-4865




          (f) Consideration.
This Agreement is in consideration of the mutual covenants contained in it. You and the Group
acknowledge the receipt and




17









 




sufficiency of the consideration to this Agreement and intend this
Agreement to be legally binding.




          (g) Amendments and Waivers.
Any provision of this Agreement may be amended or waived but only if the amendment or waiver
is in writing and signed, in the case of an amendment, by you and the Company or, in the case of a
waiver, by the party that would have benefited from the provision waived. Except as this Agreement
otherwise provides, no failure or delay by you or the Group to exercise any right or remedy under
this Agreement will operate as a waiver, and no partial exercise of any right or remedy will
preclude any further exercise.




          (h) Third-Party Beneficiaries.
Subject to Section 11, this Agreement will be binding on, inure to the benefit of and be
enforceable by the parties and their respective heirs, personal representatives, successors and
assigns. This Agreement does not confer any rights, remedies, obligations or liabilities to any
entity or person other than you and the Company and your and the Company’s permitted successors and
assigns,
although (1) this Agreement will inure to the benefit of the Group and (2) Section 11(a) will
inure to the benefit of the most recent persons named in a notice under that Section.




          (i) Counterparts.
This Agreement may be executed in counterparts, each of which will constitute an original and
all of which, when taken together, will constitute one agreement. However, this Agreement will not
be effective until the date both parties have executed this Agreement.




	 	 	 	 	 
	 	Very truly yours,

 	 
	 	/s/ Andrew Goodman
 	 
	 	Andrew Goodman 	 
	 	Executive Vice President

Global Human Resources 	 
	 



Accepted and agreed to:




	 	 	 
	/s/ John A. Swainson
	 	 
	 

John A. Swainson

	 	 
	Title: Chief Executive Officer
	 	 
	December 8, 2008
	 	 







18