exv10w1






Exhibit 10.1




INDEMNIFICATION PRIORITY AGREEMENT




     This Indemnification Priority Agreement is dated as of [                    ], 2009 (this
“Agreement”) and is among Activant Group Inc., a Delaware corporation (“Activant
Group”), Activant Solutions Inc., a Delaware corporation (“Activant Solutions”, and
together with Activant Group, the “Companies”), and [                    ] (“Indemnitee”).



     WHEREAS, Indemnitee is a director of the Companies and may also serve as a director, officer,
employee, consultant, fiduciary or agent (collectively, the “Indemnifiable Positions”) of
other corporations, limited liability companies, partnerships, joint ventures, trusts, employee
benefit plans or other enterprises controlled by each of the Companies (collectively, the
“Controlled Entities”);



     WHEREAS, in order to induce Indemnitee to continue to serve as a director of the Companies
and/or in other Indemnifiable Positions of the Controlled Entities, the Companies wish to provide
for the indemnification of, and the advancement of expenses to, Indemnitee to the fullest extent
permitted by law;



     WHEREAS, the Restated Certificate of Incorporation of Activant Group (the “Activant Group
Charter”) provides for the indemnification of Activant Group’s directors to the fullest extent
permitted under the Delaware General Corporation Law (the “DGCL”);



     WHEREAS, the Amended and Restated Certificate of Incorporation of Activant Solutions (the
“Activant Solutions Charter”) provides for the indemnification of Activant Solution’s
directors to the fullest extent permitted under the DGCL;



     WHEREAS, in view of the considerations set forth above, the Companies entered into an
Indemnification Agreement with Indemnitee, dated as of [                    ], 200[   ] (the “Indemnification
Agreement”); and



     WHEREAS, the Companies and Indemnitee desire to enter into this Agreement to clarify the
priority of the indemnification and advancement of expenses with respect to certain Jointly
Indemnifiable Claims (defined below).



     NOW, THEREFORE, in consideration of Indemnitee’s service or continued service to the Companies
and/or the Controlled Entities and the covenants and agreements set forth below, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows.



     1. Given that certain Jointly Indemnifiable Claims may arise due to the service of the
Indemnitee as a director of the Companies and/or in other Indemnifiable Positions of the Controlled
Entities, the Companies acknowledge and agree that the Companies shall, and to the extent
applicable shall cause the Controlled Entities to, be fully and primarily responsible
for the payment to the Indemnitee in respect of indemnification or advancement of expenses in
connection with any such Jointly Indemnifiable Claim, pursuant to and in accordance with (as
applicable) the terms of (i) the DGCL, (ii) the Activant Group Charter, (iii) the Activant
Solutions Charter, (iv) the Indemnification Agreement, (v) the bylaws of the Companies, (vi) any



 









 







other agreement between either Company or any Controlled Entity and the Indemnitee pursuant to
which the Indemnitee is indemnified, (vii) the laws of the jurisdiction of incorporation or
organization of any Controlled Entity and/or (viii) the certificate of incorporation, certificate
of organization, bylaws, partnership agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organizational or governing documents of any Controlled
Entity ((i) through (viii) collectively, the “Indemnification Sources”), irrespective of
any right of recovery the Indemnitee may have from the Indemnitee-Related Entities. Under no
circumstance shall either Company or any Controlled Entity be entitled to any right of subrogation
or contribution by the Indemnitee-Related Entities and no right of advancement or recovery the
Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights
of the Indemnitee or the obligations of either Company or any Controlled Entity under the
Indemnification Sources. In the event that any of the Indemnitee-Related Entities shall make any
payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to
any Jointly Indemnifiable Claim, (i) the Companies shall, and to the extent applicable shall cause
the Controlled Entities to, reimburse the Indemnitee-Related Entity making such payment to the
extent of such payment promptly upon written demand from such Indemnitee-Related Entity, (ii) to
the extent not previously and fully reimbursed by the Companies and/or any Controlled Entity
pursuant to clause (i), the Indemnitee-Related Entity making such payment shall be subrogated to
the extent of the outstanding balance of such payment to all of the rights of recovery of the
Indemnitee against the Companies and/or any Controlled Entity, as applicable, and (iii) Indemnitee
shall execute all papers reasonably required and shall do all things that may be reasonably
necessary to secure such rights, including the execution of such documents as may be necessary to
enable the Indemnitee-Related Entities effectively to bring suit to enforce such rights. The
Companies and Indemnitee agree that each of the Indemnitee-Related Entities shall be third-party
beneficiaries with respect to this Agreement entitled to enforce this Agreement as though each such
Indemnitee-Related Entity were a party to this Agreement. The Companies shall cause each of the
Controlled Entities to perform the terms and obligations of this Agreement as though each such
Controlled Entity was a party to this Agreement.



     2. For purposes of this Agreement, the following terms shall have the following meanings:




     (a) The term “Indemnitee-Related Entities” means any corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise (other than the Companies, any Controlled Entity or the insurer under and
pursuant to an insurance policy of either Company or any Controlled Entity) from whom an
Indemnitee may be entitled to indemnification or advancement of expenses with respect to
which, in whole or in part, either Company or any Controlled Entity may also have an
indemnification or advancement obligation.




     (b) The term “Jointly Indemnifiable Claims” shall be broadly construed and
shall include, without limitation, any Action, Suit or Proceeding for which
the Indemnitee shall be entitled to indemnification or advancement of expenses from (i)
either Company and/or any Controlled Entity pursuant to the Indemnification Sources, on the
one hand, and (ii) any Indemnitee-Related Entity pursuant to any other agreement between any
Indemnitee-Related Entity and the Indemnitee pursuant to which the



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Indemnitee is
indemnified, the laws of the jurisdiction of incorporation or organization of any
Indemnitee-Related Entity and/or the certificate of incorporation, certificate of
organization, bylaws, partnership agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organizational or governing documents of any
Indemnitee-Related Entity, on the other hand.




     (c) The term “Action, Suit or Proceeding” shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed claim, action, suit, arbitration, investigation, inquiry, alternative
dispute mechanism or proceeding, whether civil (including intentional and unintentional tort
claims), criminal, administrative or investigative.



     3. No supplement, modification, waiver or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. 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, spouses, heirs, executors, administrators
and legal representatives. Each Company shall require and cause any direct or indirect successor
(whether by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of such Company, by written agreement in form and substance reasonably
satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that such Company would be required to perform if no such succession
had taken place. This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware. 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 parties are not signatories to the original or same
counterpart. Nothing herein shall be deemed to create any obligation or liability of the Companies
or the Controlled Entities beyond those contained in the Indemnification Sources in respect of
indemnification or the advancement of expenses to Indemnitee.



[Signature Page Follows]




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     This Indemnification Priority Agreement has been duly executed and delivered to be effective
as of the date stated above.



	 	 	 	 	 
	 	ACTIVANT GROUP INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Address:



Attention:

Facsimile:

 	 



	 	 	 	 	 
	 	ACTIVANT SOLUTIONS INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Address:



Attention:

Facsimile:

 	 
	 	INDEMNITEE

 	 
	 	
 	 
	 
	 	Address: 	 
	 
	 	Attention:

Facsimile: 	 
	 



[Signature Page to Indemnity Priority Agreement]