Exhibit 4
Share Pledge Agreement
by and between
Xxxxxxx X. Xxxx, 0000 Xxx Xxxxxxx Xxxx, Xxxxxxxxx, 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 April 3, 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originally made between the Pledgor as Borrower and the Pledgee as Lender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 2,681,221 shares of common stock
of Computer Associates International, Inc. represented by Certificate
Nos. NU 119282 (representing 1,000,000 shares), NU 119283 (representing
1,000,000 shares), and NU 119284 (representing 1,000,000 shares) (the
"Shares") to the Pledgee.
The Pledgor shall have the right to deliver to the Pledgee a Certificate
representing 681,221 shares of common stock of Computer Associates
International, Inc. in exchange for the Certificate No. NU 119284.
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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.
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 Share Pledge 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 pre-emptive 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
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in a manner that otherwise will not lead to a material deterioration in
value of the Shares.
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 and do not contain any
restrictive legend;
(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;
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(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.
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
Xxxxxx 00000, XXX
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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Plainview N.Y. 04/03/03 Zurich, 04/03/03
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Place, Date Place, Date
Xxxxxxx X. Xxxx, as Pledgor Careal Holding AG, as Pledgee
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx Xxxxxxx
------------------------------ ------------------------------
Xxxxxx Xxxxxxx
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