exv10w2






Exhibit 10.2




Activant

Executive Severance Plan




Amended and Restated

Effective as of January 1, 2010



 









 





Table of Contents




	 
	 	 	 	 	 	 	 	 	 	Page	 
	I Definitions and Construction	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	1.1	 	Definitions	 	 	1	 
	 

	 	 	(1	)	 	Base Pay
	 	 	1	 
	 

	 	 	(2	)	 	Board
	 	 	1	 
	 

	 	 	(3	)	 	Cause
	 	 	1	 
	 

	 	 	(4	)	 	COBRA
	 	 	2	 
	 

	 	 	(5	)	 	Company
	 	 	2	 
	 

	 	 	(6	)	 	Effective Date
	 	 	2	 
	 

	 	 	(7	)	 	Eligible Employee
	 	 	2	 
	 

	 	 	(8	)	 	Employer
	 	 	2	 
	 

	 	 	(9	)	 	ERISA
	 	 	2	 
	 

	 	 	(10	)	 	Participant
	 	 	2	 
	 

	 	 	(11	)	 	Participating Entity
	 	 	2	 
	 

	 	 	(12	)	 	Plan
	 	 	2	 
	 

	 	 	(13	)	 	Plan Administrator
	 	 	2	 
	 

	 	 	(14	)	 	Qualified Termination
	 	 	2	 
	 

	 	 	(15	)	 	Severance Pay
	 	 	3	 
	 

	 	 	(16	)	 	Severance Benefit
	 	 	3	 
	 

	 	 	(17	)	 	Target Incentive Bonus
	 	 	3	 
	 

	 	 	(18	)	 	Number and Gender
	 	 	3	 
	 

	 	 	(19	)	 	Headings
	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	II Participation	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	2.1

	 	 	 	 	 	Eligibility
	 	 	3	 
	2.2

	 	 	 	 	 	Commencement of Participation
	 	 	3	 
	2.3

	 	 	 	 	 	Termination of Participation
	 	 	3	 
	2.4

	 	 	 	 	 	Resumption of Participation
	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	III Severance Benefits	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 
	3.1

	 	 	 	 	 	Eligibility for Severance Benefit
	 	 	4	 
	3.2

	 	 	 	 	 	Severance Benefit
	 	 	4	 
	3.3

	 	 	 	 	 	Offset for Other Severance Payments
	 	 	5	 
	3.4

	 	 	 	 	 	Release and Full Settlement
	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	IV Benefit Claims Procedure	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	4.1

	 	 	 	 	 	Benefit Claims Procedure.
	 	 	5	 
	4.2

	 	 	 	 	 	Review of Denied or Modified Claims.
	 	 	6	 
	4.3

	 	 	 	 	 	Exhaustion of Administrative Remedies
	 	 	7	 
	 
	 	 	 	 	 	 	 	 	 	 
	V Funding of Plan	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	5.1

	 	 	 	 	 	Funding of Plan
	 	 	8	 






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	5.2

	 	 	 	 	 	No Participant Contributions
	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	VI Administration of Plan	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	6.1

	 	 	 	 	 	Plan Administrator
	 	 	8	 
	6.2

	 	 	 	 	 	Right to Delegate
	 	 	8	 
	6.3

	 	 	 	 	 	Discretion to Interpret Plan
	 	 	8	 
	6.4

	 	 	 	 	 	Powers and Duties
	 	 	8	 
	6.5

	 	 	 	 	 	Expenses
	 	 	9	 
	6.6

	 	 	 	 	 	Indemnification
	 	 	9	 
	 
	 	 	 	 	 	 	 	 	 	 
	VII Amendment and Termination	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	7.1

	 	 	 	 	 	Right to Amend Plan
	 	 	10	 
	7.2

	 	 	 	 	 	Right to Terminate Plan
	 	 	10	 
	7.3

	 	 	 	 	 	Effect of Amendment or Termination
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	VIII Miscellaneous Provisions	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	8.1

	 	 	 	 	 	No Guarantee of Employment
	 	 	10	 
	8.2

	 	 	 	 	 	Payments to Minors and Incompetents
	 	 	11	 
	8.3

	 	 	 	 	 	No Vested Right to Benefits
	 	 	11	 
	8.4

	 	 	 	 	 	Nonalienation of Benefits
	 	 	11	 
	8.5

	 	 	 	 	 	Unknown Whereabouts
	 	 	11	 
	8.6

	 	 	 	 	 	Other Participating Entities
	 	 	11	 
	8.7

	 	 	 	 	 	Jurisdiction
	 	 	12	 
	8.8

	 	 	 	 	 	Severability
	 	 	12	 
	8.9

	 	 	 	 	 	Notice and Filing
	 	 	12	 
	8.10

	 	 	 	 	 	Plan Year
	 	 	12	 
	8.11

	 	 	 	 	 	Incorrect Information, Fraud, Concealment, or Error
	 	 	12	 
	8.12

	 	 	 	 	 	Withholding of Taxes and Other Deductions
	 	 	13	 






Appendix A (Specifically Designated Plan Participants)





ii 











 





Activant Executive Severance Plan




WITNESSETH:



     WHEREAS, Activant Solutions Inc. (the “Company”) wishes to provide severance benefits to
certain of its employees upon the occurrence of certain involuntary terminations of employment;



     NOW, THEREFORE, the Activant Executive Severance Plan which was originally adopted, effective
January 1, 2005 is hereby amended and restated in its entirety as set forth in this document,
effective as of January 1, 2010:



I




Definitions and Construction



          1.1 Definitions. Where the following capitalized words and phrases appear in the Plan,
each has the respective meaning set forth below, unless the context clearly indicates to the
contrary.




               (1) Base Pay. The actual base rate of compensation paid by the Employer to such
Participant, including, as applicable, all wages, salaries, fees, and other amounts received in
cash or in kind, and including amounts to which such Participant could have received in cash had he
not elected to contribute to an employee benefit plan maintained by the Employer, but excluding
commissions, bonuses, added premiums, allowables, employee benefits, deferred compensation,
perquisites provided by the Employer, or other supplemental or incentive compensation, and
determined as of the date of such Participant’s Qualified Termination.



               (2) Board. The Board of Directors of the Company.



               (3) Cause. Either (a) “cause” as defined in the Participant’s employment agreement or
(b) in the absence of such an agreement or such a definition, a determination by the Plan
Administrator that the Participant (i) has engaged in personal dishonesty, willful violation of any
law, rule, or regulation (other than minor traffic violations or similar offenses), or breach of
fiduciary duty involving personal profit, (ii) is unable to satisfactorily perform or has failed to
satisfactorily perform Participant’s duties and responsibilities for the Employer or any Employer
affiliate, (iii) has been convicted of, or plead nolo contendere to, any felony or a crime
involving moral turpitude, (iv) has engaged in negligence or willful misconduct in the performance
of his or her duties, including but not limited to willfully refusing without proper legal reason
to perform Participant’s duties and responsibilities, (v) has materially breached any corporate
policy or code of conduct established by the Employer or any Employer affiliate as such policies or
codes may be adopted from time to time, (vi) has violated the terms of any confidentiality,
nondisclosure, intellectual property, non-solicitation, non-competition, proprietary information
and inventions, or any other agreement between Participant and the Employer related to
Participant’s employment, or (vii) has engaged



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in conduct that is likely to have a deleterious
effect on the Employer or any Employer affiliate or its legitimate business interests, including
but not limited to its goodwill and public image.



               (4) COBRA. The Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.



               (5) Company. Activant Solutions Inc.



               (6) Effective Date. The effective date of this amended and restated Plan is January 1,
2010.



               (7) Eligible Employee. Each employee of the Employer who is (i) either a Senior Vice
President, Executive Vice President or Vice President (each as designated by the Employer) of the
Employer, or (ii) another senior executive level employee of the Employer who is specifically
designated as an Eligible Employee by and in the discretion of the Plan Administrator and listed on
Appendix A, as it may be amended from time to time (hereinafter referred to as “Specially
Designated Participant”), except that “Eligible Employee” does not include the Chief Executive
Officer of the Company.



               (8) Employer. The Company and each Participating Entity.



               (9) ERISA. The Employee Retirement Income Security Act of 1974, as amended.



               (10) Participant. Each Eligible Employee who is participating in the Plan in
accordance with Article II.



               (11) Participating Entity. Each subsidiary or affiliate of the Company that has been
designated as a participating entity pursuant to Section 8.6.



               (12) Plan. This Activant Executive Severance Plan, as amended from time to time.



               (13) Plan Administrator. The Chief Executive Officer of the Company.



               (14) Qualified Termination. An involuntary termination of a Participant’s employment
with the Employer, which is wholly initiated by the Employer and (i) is not a termination for
Cause; (ii) is not a termination of employment as a result of such Participant’s death or
disability; or (iii) is not a termination of employment with the Employer occurring as a result of
or in connection with the sale or other divestiture of the Employer or the sale or other
divestiture by the Employer of a division, subsidiary, assets, or other entity or business segment
if such Participant continues employment, or is offered continued employment, with the acquirer of
the Employer or such division, subsidiary, assets, or other entity or business segment within 30
days of such sale or divestiture and the terms of such continued employment (or offer of continued
employment) do not require either (A) employment at a job site over 50 miles from such
Participant’s job site immediately prior to such sale or divestiture or (B) a reduction of over 10%
in the Base Pay immediately prior to such sale or divestiture.



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               (15) Severance Pay. The amount of Base Pay and Target Incentive Bonus payable to a
Participant as a Severance Benefit in accordance with Article III.



               (16) Severance Benefit. A benefit payable under the Plan in accordance with Article
III.



               (17) Target Incentive Bonus. The annualized target incentive bonus payable by the
Employer to such Participant, if any, under the terms of the Employer’s incentive bonus program, as
such program may be amended from time to time, in effect as of the date of such Participant’s
Qualified Termination.



               (18) Number and Gender. Wherever appropriate herein, words used in the singular will
be considered to include the plural, and words used in the plural will be considered to include the
singular. The masculine gender, where appearing in the Plan, will be deemed to include the feminine
gender.



               (19) Headings. The headings of Articles and Sections herein are included solely for
convenience, and, if there is any conflict between such headings and the text of the Plan, the text
will control. All references to Articles, Sections, Subsections, and Clauses are to this document
unless otherwise indicated.



II




Participation




          2.1 Eligibility. Each Eligible Employee (and only such individual) is eligible to
become a Participant in the Plan.




          2.2 Commencement of Participation. Each Eligible Employee who is employed on the
Effective Date will become a Participant on the Effective Date. Each other Eligible Employee will
become a Participant on the date he or she becomes an Eligible Employee. Any Eligible Employee
whose eligibility is based on being named a Specially Designated Participant by the Plan
Administrator, will become a Participant only upon such designation by the Plan Administrator.




          2.3 Termination of Participation. An Eligible Employee who has become a Participant
will cease to be a Participant as of the earliest to occur of (1) the date such Participant is no
longer an Eligible Employee, (2) with respect to Specially Designated Participants, the termination
of participation date designated by the Plan Administrator in his discretion and communicated to
affected individual prior to the effective date of termination of participation, or (3) the
effective date of termination of the Plan.




          2.4 Resumption of Participation. An individual who ceases to be a Participant in
accordance with Clause (1) or (2) of Section 2.3 will again become a Participant upon (and only
upon) his or her again becoming an Eligible Employee and, if required, being named by the Plan
Administrator as a Specially Designated Participant.







3









 








III




Severance Benefits



          3.1 Eligibility for Severance Benefit. Subject to the remaining Sections of this
Article, a Participant will be eligible to receive a Severance Benefit if (and only if) such
Participant’s employment with the Employer is terminated while he is a Participant and such
termination is a Qualified Termination.




          3.2 Severance Benefit.




               3.2.1 Subject to Subsections 3.2.2 and 3.2.3, Section 3.3, and Section 3.4, a Participant who
becomes eligible under Section 3.1 will be entitled to receive a “Severance Benefit” as follows:




          A. Senior Vice Presidents/Executive Vice Presidents.




          With respect to each Participant whose job position is designated by the Employer as a
Senior Vice President or Executive Vice President, immediately prior to his Qualified
Termination, his Severance Benefit will consist of (i) Severance Pay equal to nine (9)
months of such Participant’s Base Pay and Target Incentive Bonus (as in effect on the date
of the Participant’s Qualified Termination); and (ii) nine (9) months of COBRA premiums,
assuming eligibility for and timely election of COBRA.




          B. Vice Presidents and Specifically Designated Participants.




          With respect to Vice Presidents and Specifically Designated Participants, Severance
Benefits will consist of (i) Severance Pay equal to six (6) months of such Participant’s
Base Pay and Target Incentive Bonus (as in effect on the date of the Participant’s Qualified
Termination); and (ii) six (6) months of COBRA premiums, assuming eligibility for and timely
election of COBRA.



               3.2.2 It is expected that, in most cases, benefits payable under the Plan will be exempt from
the limitations of Code Section 409A applicable to separation pay. To the extent, however, that
payments would exceed the lesser of (i) twice the annual rate of compensation of such Participant
for the calendar year immediately preceding the calendar year during which his Qualified
Termination occurred (adjusted for any increase during that year that was expected to continue
indefinitely if the Participant had not had a Qualified Termination) or (ii) twice the maximum
amount that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17)
for the year in which the Participant has a Qualified Termination (the “Separation Pay Threshold”),
it is intended that the payments meet the requirements for the exemption from the limitations of
Code Section 409A applicable to short-term deferrals. Accordingly, and notwithstanding the
provisions of Sections 3.2.3 and 3.4, any Severance Pay Benefits payable to a Participant in excess
of the Separation Pay Threshold will be paid to the Participant in a single sum no later than March
15 of the calendar year following the date of his Qualified Termination.



               3.2.3 All Severance Pay Benefits are subject to required tax and other withholdings and shall
commence on the first payroll date following the later of the delivery of



4









 







an effective release of claims in favor of the Employer, as required under Section 3.4, or the
expiration of any statutory notice and waiver period applicable to such release. Except to the
extent that payment is required to be made in a single lump sum by virtue of the last sentence of
Section 3.2.2, payment shall be made either in a single lump sum or in accordance with the
Employer’s normal payroll procedures for the period of the Severance Pay, as determined by the Plan
Administrator in its sole discretion. Participants will be notified whether Severance Pay will be
paid in a lump sum or in accordance with the Employer’s normal payroll procedures.



          3.3 Offset for Other Severance Payments. The amount of the Severance Benefit
determined in Section 3.2 for any Participant upon a Qualified Termination will be offset and
reduced in any manner deemed appropriate by the Plan Administrator for any and all amounts paid or
payable to such Participant on account of the same termination of employment under (1) any
employment agreement or individual severance agreement to which the Participant is a party or (2)
any applicable law.



          3.4 Release and Full Settlement. As a condition to the receipt of any
Severance Benefit hereunder and notwithstanding any provision of the Plan to the contrary, a
Participant will be required to execute a release in the form established by the Plan Administrator
releasing the Plan, the Plan Administrator, the Plan fiduciaries, the Employer’s employee benefit
plans, the Employer, the Employer’s affiliates, and their shareholders, partners, officers,
directors, employees, and agents from any and all claims and from any and all causes of action of
any kind or character, including, but not limited to, all claims or causes of action arising out of
or in connection with such Participant’s employment with the Employer, the termination of such
employment, or any actions or omissions occurring during such employment. The performance of the
Employer’s and the Plan’s obligations hereunder and the receipt by such Participant of any benefits
provided hereunder will constitute full settlement of all such claims and causes of action.



IV




Benefit Claims Procedure



          4.1 Benefit Claims Procedure.




               4.1.1 Any Participant who is determined by the Plan Administrator to be entitled to a
Severance Benefit under the Plan is not required to file a claim for benefits. In the event an
individual (1) does not receive a benefit but believes he or she is entitled to one or (2) receives
a benefit but believes he or she is entitled to a greater amount, such individual or his or her
representative (the “Claimant”) may file with the Plan Administrator a written claim for such
benefit, which claim must be filed within 60 days of either the date upon which such individual
received a benefit that he or she felt was insufficient or, if later, the date upon which occurred
the event that such individual believes entitled him or her to a benefit. In connection with the
submission of such claim, the Claimant may examine the Plan and any other relevant documents
relating to the claim and may submit written comments relative to the claim to the Plan
Administrator coincident with the filing of the claim, and the Plan Administrator may require
additional information to be furnished in connection with such claim. If a Claimant fails to timely
file a claim for benefits in accordance with this Subsection, such individual loses his or her
right to make a claim under the Plan.



5









 





               4.1.2 If (and only if) a Claimant timely files a claim in accordance with Subsection 4.1.1,
the Plan Administrator will grant, modify, or deny such claim. If such claim is granted, the
Claimant will be given the benefit so claimed. In any case in which a claim for Plan benefits is
denied or modified, the Plan Administrator will furnish written notice to the Claimant within 90
days after such claim is filed with the Plan Administrator; provided, however, that if the need for
additional information relating to such claim necessitates an extension of the 90-day period, the
Claimant will be informed in writing prior to the end of the initial 90-day period of the need for
an extension of time, and written notice of the disposition of such claim will be provided to the
Claimant within 180 days after the date the claim is filed with the Plan Administrator. The
extension notice will indicate the special circumstances requiring the extension of time and the
date by which a decision will be made. If the extension is due to the Claimant’s failure to submit
information necessary to review the claim, the notice of extension will afford the Claimant 45 days
to provide the required information, and the Plan Administrator’s deadline to provide notice of
disposition of the claim will be tolled from the date the Plan Administrator sends the notice of
extension to the earlier of (1) the date the Plan Administrator receives the requested information
or (2) the expiration of the 45-day period afforded to the Claimant to provide the requested
information. If the Claimant fails to provide the requested information by the expiration of such
45-day period, the benefit determination will be made without regard to the requested information.



               4.1.3 The notice of a claim’s disposition provided to the Claimant will contain the following:



               (1) The specific reason or reasons for the denial or modification;



               (2) Specific reference to pertinent Plan provisions on which the denial or modification is
based;



               (3) A description of any additional material or information necessary for the Claimant to
perfect the claim and an explanation of why such material or information is necessary; and



               (4) An explanation of how the Claimant may perfect the claim and obtain a full and fair review
of such denial or modification pursuant to Section 4.2, including the time limits applicable to
such review and a statement of the Claimant’s right to bring a civil action under section 502(a) of
ERISA following an adverse determination on review.



          4.2 Review of Denied or Modified Claims.




               4.2.1 In the event a claim for benefits is denied or modified, if the Claimant desires to have
such denial or modification reviewed, he or she must, within 60 days following receipt of the
notice of such denial or modification, submit a written request for a review to the Plan
Administrator. A Claimant will be provided, upon request and free of charge, access to and copies
of all documents, records, and other information relevant to the claim for benefits, which consist
of: (1) documents, records, or other information relied upon for the benefit determination, (2)
documents, records, or other information submitted, considered or generated without regard to
whether such document, record, or other information was relied upon in making the benefit
determination, and (3) documents, records, or other information that



6









 







demonstrates compliance with the administrative processes and safeguards designed to ensure
and verify that benefit claim determinations are made in accordance with governing Plan documents
and that, where appropriate, the Plan provisions have been applied consistently with respect to
similarly-situated individuals. A Claimant will be entitled to submit written comments, documents,
records, and other information relating to the claim for benefits. The review will take into
account all comments, documents, records, and other information submitted by the Claimant relating
to the claim, without regard to whether such information was submitted or considered in the initial
benefit determination.



               4.2.2 Within 60 days following such request for a review, the Plan Administrator will, after
providing a full and fair review, render his final decision in writing to the Claimant. The written
decision will:



               (1) State specific reasons for such decision;



               (2) Provide specific reference to the specific Plan provisions on which the decision is based;



               (3) Inform the Claimant that he or she is entitled to receive, upon request and free of
charge, reasonable access to and copies of all documents, records, and other information relevant
to the claim for benefits, which consist of: (i) documents, records, or other information relied
upon for the benefit determination, (ii) documents, records, or other information submitted,
considered, or generated without regard to whether such document, record, or other information was
relied upon in making the benefit determination, and (iii) documents, records, or other information
that demonstrates compliance with the administrative processes and safeguards designed to ensure
and verify that benefit claim determinations are made in accordance with governing Plan documents
and that, where appropriate, the Plan provisions have been applied consistently with respect to
similarly-situated individuals; and



               (4) Inform the Claimant of his or her right to bring an action under section 502(a) of ERISA.
If special circumstances require an extension of such 60-day period, the Plan Administrator’s
decision will be rendered as soon as possible, but not later than 120 days after receipt of the
request for review. If such an extension of time for review is required, written notice of the
extension will be furnished to the Claimant prior to the commencement of the extension period,
indicating the special circumstances requiring an extension of time and the date by which the
determination will be made. If the extension is required due to the Claimant’s failure to submit
information necessary to review the claim, the extension notice will afford the Claimant 45 days to
provide the required information, and the Plan Administrator’s deadline to provide notice of the
benefit determination on review will be tolled from the date the Plan Administrator sends the
notice of extension to the earlier of (1) the date the Plan Administrator receives the requested
information or (2) the expiration of the 45-day period afforded to the Claimant to provide the
requested information. If the Claimant fails to provide the requested information by the expiration
of such 45-day period, the benefit determination will be made without regard to the requested
information. The decision on review by the Plan Administrator will be binding and conclusive upon
all persons.



          4.3 Exhaustion of Administrative Remedies. Completion of the claims procedures
described in this Article is a condition precedent to the commencement of any legal




7









 







or equitable action in connection with a claim for benefits under the Plan by any employee or
former employee of the Employer or any of its affiliates or by any other person or entity claiming
rights individually or through any employee or former employee of the Employer or any of its
affiliates in connection with the Plan.




V




Funding of Plan



          5.1 Funding of Plan. The Plan will be unfunded, and benefits provided hereunder will
be paid from the general assets of the Employer.




          5.2 No Participant Contributions. The entire cost of the Plan will be paid by the
Employer, and no contributions will be required of, or permitted by, Participants.




VI




Administration of Plan



          6.1 Plan Administrator. The general administration of the Plan will be vested in the
Plan Administrator. For purposes of ERISA, the Plan Administrator will be the “administrator” and
the “named fiduciary” with respect to the general administration of the Plan.




          6.2 Right to Delegate. The Plan Administrator may from time to time allocate to one or
more of the Employer’s officers, employees, directors, or agents, and may delegate to any person or
organization, any of his respective powers, duties, and responsibilities with respect to the
operation and administration of the Plan, including, without limitation, the administration of
claims, the authority to authorize payment of benefits, the review of denied or modified claims,
and the discretion to decide matters of fact and to interpret Plan provisions. In addition, the
Plan Administrator may employ persons to render advice with regard to any fiduciary responsibility
held hereunder and may authorize any person to whom any of his fiduciary responsibilities have been
delegated to employ persons to render such advice. Upon such designation and acceptance, the Plan
Administrator will have no liability for the acts or omissions of any such designee as long as the
Plan Administrator did not violate his fiduciary responsibility, if any, in making or continuing
such designation. All allocations and delegations of fiduciary responsibility will be terminable
upon such notice as the Plan Administrator in his discretion deems reasonable and prudent under the
circumstances.




          6.3 Discretion to Interpret Plan. The Plan Administrator has absolute discretion to
construe and interpret any and all provisions of the Plan and to decide all matters of fact in
determining eligibility and granting or denying benefit claims, including, but not limited to, the
discretion to resolve ambiguities, inconsistencies, or omissions conclusively. The decisions of the
Plan Administrator will be binding and conclusive upon all persons.




          6.4 Powers and Duties. In addition to the power described in Section 6.3 and all other
powers specifically granted under the Plan, the Plan Administrator has all powers necessary or
proper to administer the Plan and to discharge his duties under the Plan, including, but not
limited to, the following powers:







8









 








               (1) To make and enforce such rules, regulations, and procedures as he may deem necessary or
proper for the orderly and efficient administration of the Plan;



               (2) In his discretion, to interpret and decide all matters of fact in granting or denying
benefits under the Plan, his interpretation and decision thereof to be final and conclusive on all
persons claiming benefits under the Plan;



               (3) In his discretion, to decide all questions concerning the Plan and the eligibility of any
person to participate in the Plan, his decision thereof to be final and conclusive on all persons;



               (4) In his discretion, to make a determination as to the right of any person to a benefit
under the Plan (including, without limitation, to determine whether and when there has been a
termination of a Participant’s employment and the cause of such termination), his decision thereof
to be final and conclusive on all persons;



               (5) In his discretion, to determine the amount, form, and conditions of any Severance Benefit
under the Plan, and to authorize or deny the payment of benefits under the Plan, his decision
thereof to be final and conclusive on all persons;



               (6) To prepare and distribute information explaining the Plan;



               (7) To obtain from the Employer and employees of the Employer such information as is necessary
for the proper administration of the Plan; and



               (8) To sue or cause suit to be brought in the name of the Plan.



          6.5 Expenses. Reasonable expenses incident to the administration of the Plan,
including, without limitation, the compensation of legal counsel, advisors, and other technical or
clerical assistance as may be required, the payment of any bond or security, and any other expenses
incidental to the operation of the Plan, that the Plan Administrator determines are proper will be
paid by the Employer. Expenses of the Plan may be prorated among the Company, Participating
Entities, and affiliates as determined by the Plan Administrator.




          6.6 Indemnification. The Company will indemnify and hold harmless the Plan
Administrator, each employee of the Employer and its affiliates, and each member of the Board
against any and all expenses and liabilities arising out of such individual’s Plan administrative
functions or fiduciary responsibilities, including, without limitation, any expenses and
liabilities that are caused by or result from an act or omission constituting the negligence of
such individual in the performance of such functions or responsibilities, but excluding expenses
and liabilities arising out of such individual’s own gross negligence or willful misconduct.
Expenses against which such person will be indemnified hereunder include, without limitation, the
amounts of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred
in connection with a claim asserted or a proceeding brought or settlement thereof.









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VII




Amendment and Termination



          7.1 Right to Amend Plan. Notwithstanding any contrary provision(s) of any other
communication, either oral or written, made by the Employer, the Plan Administrator, or any other
individual or entity to employees of the Employer or to any other individual or entity, the
Company, by action of the Board or the Compensation Committee of the Board, reserves the absolute
and unconditional right to amend the Plan from time to time on behalf of the Company and each
Participating Entity, including, but not limited to, the right to reduce or eliminate benefits
provided pursuant to the provisions of the Plan as such provisions currently exist or may hereafter
exist; provided, however, that no amendment will be made that would reduce the amount of any
Severance Benefit for any Participant if such Participant has incurred a Qualified Termination and
has been determined by the Plan Administrator to be entitled to such Severance Benefit under the
Plan on or prior to the effective date of such amendment, except to the extent such Severance
Benefit could be reduced under the terms of the Plan prior to such amendment. All amendments to the
Plan must be in writing, signed by an authorized officer of the Company, and adopted by the Board
or the Compensation Committee of the Board, which action may be prior to the effective date of the
amendment or subsequent to the effective date of the amendment by ratification. Any oral statements
or representations made by the Employer, the Plan Administrator, or any other individual or entity
that alter, modify, amend, or are inconsistent with the written terms of the Plan will be invalid
and unenforceable and may not be relied upon by any employee of the Employer or by any other
individual or entity.




          7.2 Right to Terminate Plan. Notwithstanding any contrary provision(s) of any other
communication, either oral or written, made by the Employer, the Plan Administrator, or any other
individual or entity to employees of the Employer or to any other individual or entity, the
Company, by action of the Board or the Compensation Committee of the Board, reserves the absolute
and unconditional right to terminate the Plan, in whole or in part, on behalf of itself and each
Participating Entity with respect to some or all of the employees of the Employer; provided,
however, that no termination will reduce the amount of any Severance Benefit for any Participant if
such Participant has incurred a Qualified Termination and has been determined by the Plan
Administrator to be entitled to such Severance Benefit under the Plan on or prior to the effective
date of such termination, except to the extent such Severance Benefit could be reduced under the
terms of the Plan prior to such termination.




          7.3 Effect of Amendment or Termination. In the event of an amendment or termination of
the Plan as provided under this Article, each Participant will have no further rights hereunder,
and the Employer will have no further obligations hereunder, except as otherwise specifically
provided under the terms of the Plan as so amended or terminated.




VIII




Miscellaneous Provisions



          8.1 No Guarantee of Employment. Neither the Plan nor any provisions contained in the
Plan will be construed to be a contract between the Employer and any employee of the Employer or to
be consideration for, or an inducement of, the employment of any






10









 







individual by the Employer. Nothing contained in the Plan grants any individual the right to
be retained in the service of the Employer or limits in any way the right of the Employer to
discharge or to terminate the service of any employee at any time, without regard to the effect
such discharge or termination may have on any rights under the Plan.




          8.2 Payments to Minors and Incompetents. If a Participant entitled to receive any
benefits under the Plan is a minor, is determined by the Plan Administrator in his sole discretion
to be incompetent, or is adjudged by a court of competent jurisdiction to be legally incapable of
giving valid receipt and discharge for benefits provided under the Plan, the Plan Administrator may
pay such benefits to the duly appointed guardian or conservator of such person or to any third
party who is determined in the discretion of the Plan Administrator to be eligible to receive any
benefit under the Plan for the account of such Participant. Such payment will operate as a full
discharge of all liabilities and obligations of the Employer, the Plan Administrator, and each
fiduciary under the Plan with respect to such benefits.




          8.3 No Vested Right to Benefits. No employee of the Employer or any affiliate of the
Employer or person claiming through such employee will have any right to, or interest in, any
benefits provided under the Plan upon termination of his or her employment, retirement, termination
of Plan participation (if applicable), or otherwise, except as specifically provided under the
Plan.




          8.4 Nonalienation of Benefits. Except as the Plan Administrator may otherwise permit
by rule or regulation, (1) no interest in or benefit payable under the Plan will be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and
any action by a Participant to anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same will be void and of no effect, and (2) no interest in or benefit payable under the
Plan will be in any way subject to any legal or equitable process, including, but not limited to,
garnishment, attachment, levy, seizure, or the lien of any person. This provision will be construed
to provide each Participant, or other person claiming any interest or benefit in the Plan through a
Participant, with the maximum protection against alienation, encumbrance, and any legal and
equitable process, including, but not limited to, attachment, garnishment, levy, seizure, or other
lien, afforded his interest in the Plan (and the benefits provided thereunder) by law and any
applicable regulations.




          8.5 Unknown Whereabouts. It will be the affirmative duty of each Eligible Employee and
each Participant to inform the Plan Administrator of, and to keep on file with the Plan
Administrator, his or her current mailing address. If an Eligible Employee or a Participant fails
to inform the Plan Administrator of his or her current mailing address, neither the Plan
Administrator nor the Employer will be responsible for any late payment or loss of benefits or for
failure of any notice to be provided or provided timely under the terms of the Plan to such
individual.




          8.6 Other Participating Entities. The Plan Administrator may designate any affiliate
of the Company that is eligible by law to participate in the Plan as a Participating Entity by
written instrument delivered to such designated affiliate and to the Secretary of the Company, Such
written instrument will specify the effective date of such designated participation, may
incorporate specific provisions relating to the operation of the Plan that apply to the designated
Participating Entity only, and will become, as to such designated Participating Entity and its






11









 







employees, a part of the Plan. Each designated Participating Entity will be conclusively
presumed to have consented to its designation and to have agreed to be bound by the terms of the
Plan and any and all current and future amendments thereto upon its submission of information to
the Company or the Plan Administrator required by the terms of, or with respect to, the Plan;
provided, however, that the terms of the Plan may be modified so as to increase the obligations of
a Participating Entity only with the consent of such Participating Entity, which consent will be
conclusively presumed to have been given by such Participating Entity upon its submission of any
information to the Company or the Plan Administrator required by the terms of, or with respect to,
the Plan after receiving notice of such modification. Except as modified by the Plan Administrator
in such written instrument, the provisions of the Plan will apply separately and equally to each
Participating Entity and its employees in the same manner as is expressly provided for the Company
and its employees, except that the power to amend or termination the Plan will be exercised by the
Company, by action of the Board or the Compensation Committee of the Board, alone. Transfer of
employment among the Company and Participating Entities will not be considered a termination of
employment hereunder. Any Participating Entity may, by appropriate action of its board of directors
or non-corporate counterpart and prior written notice to the Secretary of the Company and the Plan
Administrator, terminate its participation in the Plan. Moreover, the Plan Administrator, by prior
written notice to the Participating Entity and to the Secretary of the Company, may terminate a
Participating Entity’s Plan participation at any time.




          8.7 Jurisdiction. Except to the extent that ERISA or any other federal law applies to
the Plan and preempts state law, the Plan will be construed, enforced, and administered according
to the laws of the state of Texas, excluding any conflict-of-law rule or principle that might refer
to the laws of another state.




          8.8 Severability. In case any provision of the Plan is held to be illegal, invalid, or
unenforceable for any reason, such illegal, invalid, or unenforceable provision will not affect the
remaining provisions of the Plan, but the Plan will be construed and enforced as if such illegal,
invalid, or unenforceable provision had not been included therein.




          8.9 Notice and Filing. Any notice, administrative form, or other communication
required to be provided to, delivered to, or filed under the terms of the Plan will include
provision to, delivery to, or filing with any person or entity designated in writing by the
intended recipient to be an agent for the disbursement and receipt of administrative forms and
communications. Except as otherwise provided herein, where such provision, delivery, or filing is
required, such provision, delivery, or filing will be deemed to have occurred only (1) upon actual
receipt of such notice, administrative form, or other communication by the intended recipient or
designated agent or (2) on the third business day after mailing by certified mail, return receipt
requested.




          8.10 Plan Year. The Plan will operate on a “plan year” consisting of the
12-consecutive- month period commencing on January 1 of each year.




          8.11 Incorrect Information, Fraud, Concealment, or Error. Any contrary provisions of
the Plan notwithstanding, in the event the Plan, a Plan fiduciary, or the Employer pays a benefit,
incurs a liability for failure to so pay a benefit, or makes any overpayment or erroneous payment
to any individual or entity because of a human or systems error or because of






12









 







incorrect information provided by, correct information failed to be provided by, or fraud,
misrepresentation, or concealment of any relevant fact (determined in the sole opinion of the Plan
Administrator) by any Participant or other individual, the Plan Administrator will be entitled to
recover in any manner deemed necessary or appropriate for such recovery (in the sole opinion of the
Plan Administrator) from such Participant or other individual such benefit paid or the amount of
such liability incurred and any and all expenses incidental to or necessary for such recovery.
Human or systems error or omission will not affect in any way the amount of a benefit to which such
Participant is otherwise entitled under the terms of the Plan.




          8.12 Withholding of Taxes and Other Deductions. All payments made under the Plan are
subject to (1) all federal, state, city, and other taxes and applicable withholding as may be
required pursuant to any law or governmental regulation or ruling and (2) all other deductions for
any amounts owed to the Employer, to the extent permissible under applicable law.




Executed this 8th day of February, 2010.





	 	 	 	 	 
	Activant Solutions Inc.
 	 	 
	By:  	/s/ Dawn Pollard 	 	 
	 	Printed Name:  	Dawn Pollard 	 	 
	 	Printed Title:  	Acting Vice President, Human Resources 	 	 



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Appendix A




Specifically Designated Plan Participants

As of _________]



	 	 	 
	Participant Name	 	Title






14