exv10w1



 






Exhibit 10.1




INDEMNIFICATION AGREEMENT




     THIS INDEMNIFICATION AGREEMENT (“Agreement”) is entered into as of July 28, 2005 (the
“Effective Date”), among Activant Solutions Holdings Inc., a Delaware corporation formerly
known as Cooperative Computing Holdings Company, Inc. (“ASHI”), Activant Solutions Inc., a
Delaware corporation formerly known as Cooperative Computing, Inc. (“ASI” and, together
with ASHI, the “Indemnitors”), and Mr. Robert Shaw (“Indemnitee”).



RECITALS




     A. Highly competent and experienced persons are becoming more reluctant to serve corporations
as directors, executive officers or in other capacities unless they are provided with adequate
protection through insurance and adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of the corporation.



     B. The Board of Directors of each of the Indemnitors has determined that the inability to
attract and retain such persons would be detrimental to the best interests of the Indemnitors and
their respective subsidiaries (collective, the “Company”).



     C. The Board has also determined that it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified.



     In consideration of the foregoing and the mutual covenants herein contained, and other good
and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereby agree as follows:



ARTICLE I




INDEMNIFICATION




     Section 1.1 General. The Indemnitors shall indemnify, and advance expenses to,
Indemnitee, to the fullest extent provided in their respective Certificates of Incorporation, as
the same is in effect on the date hereof and, subject to Section 1.2, as the same may be amended or
modified from time to time.



     Section 1.2 Non-Exclusivity. The rights of Indemnitee to receive indemnification and
advancement of expenses under this agreement shall not be deemed exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable law, the Bylaws of either ASHI or
ASI, or any other agreement, vote of stockholders or a resolution of directors, or otherwise.
Except as required by law, neither Indemnitor shall, without the prior written consent of
Indemnitee, adopt any amendment to their respective Certificates of Incorporation which would have
the effect of adversely affecting Indemnitee’s rights to indemnification set forth herein.



 









 





     Section 1.3 Duration of Agreement. This Agreement shall continue for so long as
Indemnitee serves as a director or officer of the Company or, at the request of the Company, as a
director or officer of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, and thereafter shall survive until and terminate upon the latest to occur
of (a) the expiration of six (6) years after the latest date that Indemnitee shall have ceased to
serve in any such capacity; (b) the final termination of all pending proceedings in respect of
which Indemnitee is granted rights of indemnification or advancement of expenses hereunder; or (c)
the expiration of all statutes of limitation applicable to possible claims arising out of
Indemnitee’s status as an officer or director of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise which such Indemnitee
is or was serving at the request of the Company.



     Section 1.4 Notice by Each Party. Indemnitee shall promptly notify the Indemnitors in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document or communication relating to any claim which Indemnitee may be entitled to
indemnification or advancement of expenses hereunder; provided, however, that any failure of
Indemnitee to so notify the Indemnitors shall not adversely affect Indemnitee’s rights under this
Agreement except to the extent the Company shall have been materially prejudiced as a direct result
of such failure.



ARTICLE II




MISCELLANEOUS




     Section 2.1 Enforcement. The Indemnitors agree that its execution of this Agreement
shall constitute a stipulation by which it shall be irrevocably bound in any court or arbitration
in which a proceeding by Indemnitee for enforcement of his rights hereunder shall have been
commenced, continued or appealed, that its obligations set forth in this Agreement are unique and
special, and that failure of any Indemnitor to comply with the provisions of this Agreement will
cause irreparable and irremediable injury to Indemnitee, for which a remedy at law will be
inadequate. As a result, in addition to any other right or remedy he may have at law or in equity
with respect to breach of this Agreement, Indemnitee shall be entitled to injunctive or mandatory
relief directing specific performance by the Indemnitors of their respective obligations under this
Agreement.



     Section 2.2 Successors and Assigns. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto
and their respective successors, assigns, heirs, executors, administrators, legal representatives.
In the event any Indemnitor or any of their respective successors or assigns (a) consolidates or
merges into any other person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (b) transfers all or substantially all of its properties and assets
to any person, then in each such case, proper provision shall be made so that the successors and
assigns



 









 







of the applicable Indemnitor shall assume the obligations set forth herein; provided, however, that
in the event ASI engages in a transaction of the type described in clauses (a) or (b) of this
sentence pursuant to which ASHI is not acquired in such transaction, then ASHI shall be released
from its obligations hereunder effective upon the assumption of the obligations set forth herein by
ASI’s successors and assigns pursuant to this sentence.



     Section 2.3 Amendment. This Agreement may not be modified or amended except by a
written instrument executed by or on behalf of the parties hereto.



     Section 2.4 Waivers. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively) by the
party entitled to enforce such term only by a writing signed by the party against which such waiver
is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder.;



     Section 2.5 Entire Agreement. This Agreement and the documents expressly referred to
herein constitute the entire agreement between the parties hereto with respect to the matters
covered hereby, and any other prior or contemporaneous or oral or written understandings or
agreements with respect to the matters covered hereby are expressly superseded by this Agreement.



     Section 2.6 Severability. If any provision of this Agreement (including any provision
within a single section, paragraph or sentence) or the application of such provision to any person
or circumstance, shall be judicially declared to be invalid, unenforceable or void, such decision
will not have the effect of invalidating or voiding the remainder of this Agreement or affect the
application of such provision to other persons or circumstances, it being the intent and agreement
of the parties that this Agreement shall be deemed amended by modifying such provision to the
extent necessary to render it valid, legal and enforceable while preserving its intent, or if such
modification is not possible, by substituting therefore another provision that is valid, legal and
enforceable and that achieves the same objective. Any such finding of invalidity or enforceability
shall not prevent the enforcement of such provision in any other jurisdiction to the maximum extent
permitted by applicable law.



     Section 2.7 Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter’s confirmation of a receipt of a facsimile
transmission, (b) confirmed delivery of a standard overnight courier or when delivered by hand or
(c) the expiration of five business days after the date mailed by certified or registered mail
(return receipt requested), postage prepaid, to the parties at the following addresses (or at such
other addresses for a party as shall be specified by like notice):



 









 





     If to any Indemnitor, to:


c/o Activant Solutions Inc.

804 Las Cimas Parkway, Suite 200

Austin, Texas 78746

Attention: General Counsel

Facsimile: (512) 278-5138




     If to Indemnitee, to the address indicated on the signature page hereof.



     Section 2.8 Certain Construction Rules.



          The article and section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement. As used in this
Agreement, unless otherwise provided to the contrary, (i) all references to days shall be deemed
references to calendar days and (ii) any reference to a “Section” or “Article” shall be deemed to
refer to a section or article of this Agreement. The words “hereof,” “herein,” and “hereunder” and
words of similar import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed with the words “without
limitation.” Unless otherwise specifically provided for herein, the term “or” shall not be deemed
to be exclusive. Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular form of nouns,
pronouns and verbs shall include the plural and vice versa.




     Section 2.9 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to the conflicts of laws
principles thereof.



     Section 2.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument, notwithstanding that both parities are not signatories to
the original or the same counterpart.



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     IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of
the date first above written.



	 	 	 	 	 
	 	ACTIVANT SOLUTIONS HOLDING 

COMPANY INC.

 	 
	 	By:  	/s/ Richard W. Rew, II
 	 
	 	 	Name:  	Richard W. Rew II 	 
	 	 	Title:  	General Counsel & Secretary 	 
	 



	 	 	 	 	 
	 	ACTIVANT SOLUTIONS INC.

 	 
	 	By:  	/s/ Richard W. Rew, II
 	 
	 	 	Name:  	Richard W. Rew, II  	 
	 	 	Title:  	General Counsel & Secretary 	 
	 



	 	 	 	 	 
	 	INDEMNITEE:

 	 
	 	/s/  Robert Shaw
 	 
	 	Name:  	Robert Shaw 

	 
	 	Address: 	

 P.O. Box 627

68050 Gallatin Road

Gallatin Gateway, MT 59730
 	 
	 	Fax No.: 	
 (408) 342-1615___