exv10w27



 





Exhibit 10.27




Activant

Executive Severance Plan




Amended and Restated

Effective as of November 1, 2007




 









 






Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Article I — Definitions and Construction	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	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	 	 	2	 
	 
	 	(16)	 	Severance Benefit	 	 	3	 
	 
	 	(17)	 	Target Incentive Bonus	 	 	3	 
	1.2	 	Number and Gender	 	 	3	 
	1.3	 	Headings	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	Article II — Participation	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2.1	 
	 	 	Eligibility	 	 	3	 
	2.2	 
	 	 	Commencement of Participation	 	 	3	 
	2.3	 
	 	 	Termination of Participation	 	 	3	 
	2.4	 
	 	 	Resumption of Participation	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	Article III — Severance Benefits	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	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	 
	 
	 	 	 	 	 	 	 	 
	Article IV — Benefit Claims Procedure	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	4.1	 
	 	 	Benefit Claims Procedure	 	 	5	 
	4.2	 
	 	 	Review of Denied or Modified Claims	 	 	6	 
	4.3	 
	 	 	Exhaustion of Administrative Remedies	 	 	7	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Article V — Funding of Plan	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	5.1	 
	 	 	Funding of Plan	 	 	8	 
	5.2	 
	 	 	No Participant Contributions	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	Article VI — Administration of Plan	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	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	 
	 
	 	 	 	 	 	 	 	 
	Article VII — Amendment and Termination	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	7.1	 
	 	 	Right to Amend Plan	 	 	9	 
	7.2	 
	 	 	Right to Terminate Plan	 	 	10	 
	7.3	 
	 	 	Effect of Amendment or Termination	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	Article VIII Miscellaneous Provisions	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	8.1	 
	 	 	No Guarantee of Employment	 	 	10	 
	8.2	 
	 	 	Payments to Minors, and Incompetents	 	 	10	 
	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	 	 	12	 





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 November 1, 2007:



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 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.




1









 





          (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 November
1, 2007.




          (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.




          (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.




2









 





          (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 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.




     1.2 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.



     1.3 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 All Severance Pay benefits are subject to applicable withholdings and shall be paid as
soon as administratively feasible after the receipt of an executed release and the expiration of
any applicable rescission period, as required under Section 3.4, either in a single lump sum or in
accordance with the Employer’s normal payroll procedures for the period of 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.




          3.2.3 This Plan is intended to meet the short term deferral exception and/or be a separation
pay plan due to an involuntary separation from service under Treasury Regulation Sections
1.409A-1(b)(4) and 1.409A-1 (b)(9)(iii) and therefore exempt from Code Section 409A. Plan
provisions to the contrary notwithstanding, in no event will Severance Pay (in excess of any
amount that constitutes a short term deferral under Code Section 409A) payable under the Plan to a
Participant, 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) the maximum amount




4









 




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. In no event will Severance Pay be paid,
later then the last day of the second calendar year following the year of the Participant’s
Qualified Termination.




     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.




          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




5









 




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 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




6









 




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 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.




7









 





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:



          (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;





8











 








          (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.



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



9









 






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 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



10









 




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 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
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



11









 




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 noncorporate 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 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



12









 




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 5th day of  November 2007.



Activant Solutions Inc.




By:/s/ Beth A. Taylor                                                         



Printed Name: Beth Taylor



Printed Title: SVP of HR




13









 





Appendix A




Specifically Designated Plan Participants

As of                                         ]




	 	 	 	 	 
	Participant Name	 	Title	 	 
	 


	 	 

	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 






14