exv4w14



 








Exhibit 4.14




ACTIVANT SOLUTIONS HOLDINGS INC.




$40,000,000

Senior Floating Rate PIK Notes due 2011




PURCHASE AGREEMENT




October 6, 2005




DEUTSCHE BANK SECURITIES INC.

J.P. MORGAN SECURITIES INC.

c/o Deutsche Bank Securities Inc.

     60 Wall Street

     New York, New York 10005




Ladies and Gentlemen:




          Activant Solutions Holdings Inc., a Delaware corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell (the “Offering”)
$40,000,000 aggregate principal amount of the Company’s Senior Floating Rate PIK Notes due 2011
(the “Securities”). The Securities will be issued pursuant to an indenture dated October 17, 2005,
(the “Indenture”), between the Company, and Wells Fargo Bank, N.A., as trustee (the
“Trustee”). The Company hereby confirms its agreement with Deutsche Bank Securities Inc.
and J.P. Morgan Securities Inc. (each an “Initial Purchaser”, and together the “Initial
Purchasers”) concerning the purchase of the Securities from the Company by the Initial
Purchasers.



          The Securities will be offered and sold to the Initial Purchasers without being registered
under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon
exemptions therefrom. The Company has prepared a preliminary offering memorandum dated September
26, 2005 (the “Preliminary Offering Memorandum”) and will prepare a final offering
memorandum dated the date hereof (the “Final Offering Memorandum”) setting forth
information concerning the Company and the Securities. Copies of the Preliminary Offering
Memorandum have been, and copies of the Final Offering Memorandum will be, delivered by the Company
to the Initial Purchasers pursuant to the terms of this Agreement. Any references herein to the
Preliminary Offering Memorandum and the Final Offering Memorandum shall be deemed to include all
amendments and supplements thereto and any documents incorporated by reference therein, unless
otherwise noted. The Company hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Final Offering Memorandum in connection with the offering and resale of
the Securities by the Initial Purchasers in accordance with Section 2.









 



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          Holders of the Securities (including the Initial Purchasers and their direct and indirect
transferees) will be entitled to the benefits of an Exchange and Registration Rights Agreement
substantially in the form attached hereto as Annex A (the “Registration Rights Agreement”),
pursuant to which the Company will agree to file with the Securities and Exchange Commission (the
“Commission”) (i) a registration statement under the Securities Act (the “Exchange
Offer Registration Statement”) registering an issue of senior notes of the Company (the
“Exchange Securities”) which are identical in all material respects to the Securities
(except that the Exchange Securities will not contain terms with respect to transfer restrictions),
and (ii) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the “Shelf Registration Statement”).



          Prior to the Offering,




	 	(i)	 	Activant Solutions Inc., a Delaware corporation
(“Activant”) acquired (the “Acquisition”) all of the
outstanding capital stock of Prophet 21, Inc. (“P-21”) pursuant to
that certain Agreement and Plan of Merger Agreement dated August 15, 2005 (the
“Acquisition Agreement”), between P-21, Activant, P21 Merger
Corporation and, for certain limited purposes, Thoma Cressey Equity Partners,
Inc.;
	 
	 	(ii)	 	Activant entered into that certain Senior Bridge Loan
Agreement dated as of September 13, 2005, among the Company, as parent
guarantor, Activant, Deutsche Bank AG Cayman Islands Branch and JPMorgan Chase
Bank, N.A., as initial lenders, the other lenders, the Initial Purchasers as
joint lead arrangers and joint book runners, and Deutsche Bank AG Cayman
Islands Branch, as administrative agent (the “Activant Bridge Loan”);
	 
	 	(iii)	 	the Company entered into that certain Senior Bridge Loan
Agreement dated as of September 13, 2005, among the Company, Deutsche Bank AG
Cayman Islands Branch and JPMorgan Chase Bank, N.A., as initial lenders, the
other lenders, Deutsche Bank Securities Inc. and J.P. Morgan Securities Inc.
as joint lead arrangers and joint book runners, and Deutsche Bank AG Cayman
Islands Branch, as administrative agent (the “Holdings Bridge Loan”);
and
	 
	 	(iv)	 	Activant entered into that certain Fourth Amended and
Restated Credit Agreement (the “Credit Agreement Amendment”), dated as
of September 13, 2005, among Activant as the Borrower, the Company, the
several banks and other financial institutions from time to time parties
thereto, JPMorgan Chase Bank, N.A., as administrative agent, and Deutsche Bank
Securities Inc. and J.P. Morgan Securities Inc. as joint lead arrangers and
joint bookrunners (the “Credit Facility”).











 



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          The proceeds of the Offering will be used to repay the Holdings Bridge Loan which was used to
fund a portion of the purchase price necessary to purchase all of the outstanding capital stock of
P-21 and pay transaction fees and expenses related to the Offering.



          Capitalized terms used but not defined herein shall have the meanings given to such terms in
the Final Offering Memorandum.



          1. Representations, Warranties and Agreements of the Company. The Company represents
and warrants to, and agrees with, the Initial Purchasers on the date hereof and the Closing Date
(with respect to those made at the Closing Date, after giving effect to the transactions
contemplated by this Agreement) that:




       (a) The Preliminary Offering Memorandum, as of its date did not, and the Final
Offering Memorandum, as of its date and as of the Closing Date (as defined in Section 3),
did not (or will not) contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the Final Offering
Memorandum in reliance upon and in conformity with written information relating to the
Initial Purchasers furnished to the Company by or on behalf of the Initial Purchasers
specifically for use therein (the “Initial Purchasers’ Information”). The
parties hereto acknowledge and agree that, for all purposes of this Agreement, the
Initial Purchasers’ Information consists solely of the statements relating to the Initial
Purchasers in the third paragraph, fifth and sixth sentences of the tenth paragraph, and
the twelfth paragraph under the heading “Plan of distribution” in the Final Offering
Memorandum.




       (b) The Preliminary Offering Memorandum as of its date contained, and the Final
Offering Memorandum, as of its date and as of the Closing Date, contained and will
contain all of the information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective purchaser pursuant to
Rule 144A(d)(4) under the Securities Act.




       (c) Assuming the accuracy of the representations and warranties of the Initial
Purchasers contained in Section 2 and their compliance with the agreements set forth
herein, it is not necessary, in connection with the issuance and sale of the Securities
to the Initial Purchasers and the offer, resale and delivery of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement and the Final Offering
Memorandum, to register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).









 



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     (d) The Company and each of its subsidiaries have been duly organized and are
validly existing as corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries taken as
a whole (a “Material Adverse Effect”).




     (e) The authorized capital stock of the Company consists of 25,000,000 shares of
Class A common stock, par value $0.000125 per share and 100,000,000 shares of common
stock, par value $0.000125 per share. All of the outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the Company, free
and clear of any lien, charge, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party (other than liens and security interests
created pursuant to the Credit Facility, the related guarantees and security documents or
any document or agreements contemplated thereby, or applicable law).




     (f) The Company has all requisite corporate power and authority to execute and
deliver this Agreement, the Registration Rights Agreement, the Securities and the
Exchange Securities (collectively, the “Transaction Documents”) and to perform
its obligations hereunder and thereunder.




     (g) This Agreement has been duly authorized, executed and delivered by the Company.




     (h) The Registration Rights Agreement has been duly authorized by the Company, and,
when duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) to the extent
that such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors’ rights generally
and by general equitable principles (whether considered in a proceeding in equity or at
law) (the “Enforceability Exceptions”) and (ii) to the extent that the
enforceability of rights to indemnification and contribution thereunder may be limited by
federal or state securities laws or regulations or the public policy underlying such laws
or regulations.









 



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     (i) The Indenture was duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that such enforceability may
be limited by the Enforceability Exceptions.




     (j) The Securities have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the extent that
such enforceability may be limited by the Enforceability Exceptions.




     (k) The Exchange Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and the
Registration Rights Agreement, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their terms,
except to the extent that such enforceability may be limited by the Enforceability
Exceptions.




     (l) The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance, authentication, sale and delivery of the Securities
by the Company and compliance by the Company with the terms thereof and the consummation
by the Company of the transactions contemplated by the Transaction Documents (the
“Transactions”) do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or, except
as permitted by the Transaction Documents, result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries are parties or by
which the Company or any of its subsidiaries are bound or to which any of the property or
assets of the Company or any of its subsidiaries are subject, except for any such
conflict, breach, violation, default, lien, charge or encumbrance that has been waived
and except for any such conflict, breach, violation, default, lien, charge or encumbrance
that could not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect or any material adverse effect on the ability of the Company to perform
its obligations under the Transaction Documents; nor will such actions result in any
violation of the provisions of the charter or bylaws of the Company or any of its
subsidiaries or result in any violation of any statute or any order, rule or regulation
of any court or arbitrator or governmental agency or body having jurisdiction over
the Company or









 



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any of its subsidiaries or any of their properties or assets except
such violation of any statute or any order, rule or regulation that could not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect; and, except
for such consents, approvals, authorizations, orders, filings, registrations or
qualifications which have been obtained or made or as may be required under (i)
applicable Blue Sky or securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers, (ii) the Trust Indenture Act in connection with the
Exchange Securities or (iii) the Securities Act and state Blue Sky laws or securities
laws in connection with the actions contemplated by the Registration Rights Agreement, no
material consent, approval, authorization or order of, or filing or registration with,
any such court or arbitrator or governmental agency or body is required for the
execution, delivery and performance by the Company of each of the Transaction Documents,
the issuance, authentication, sale and delivery by the Company of the Securities and
compliance by the Company with the terms thereof and the consummation by the Company of
the other Transactions.




     (m) Each Transaction Document, to the extent described in the Final Offering
Memorandum, will conform in all material respects to the description of such Transaction
Document contained in the Final Offering Memorandum.




     (n) (i) Ernst & Young LLP are independent public accountants with respect to the
Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants (“AICPA”) and
its interpretations and rulings thereunder, (ii) the historical financial statements of
the Company (including the related notes) contained in the Preliminary Offering
Memorandum and the Final Offering Memorandum have been prepared in conformity with
generally accepted accounting principles in the United States consistently applied
throughout the periods covered thereby and fairly present, in all material respects, the
financial condition and the results of operations of the entities purported to be covered
thereby for the respective periods indicated except as otherwise disclosed therein and
(iii) the unaudited pro forma condensed combined financial statements
(including the notes thereto) and the other pro forma financial
information included in the Preliminary Offering Memorandum and the Final Offering
Memorandum comply as to form in all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), except for the inclusion of the additional twelve month period
ended June 30, 2005; the assumptions underlying the pro forma financial
information included in the Preliminary Offering Memorandum and the Final Offering
Memorandum include all assumptions required to give effect to the transactions and events
described in the notes thereto, are reasonable and are set forth in the Preliminary
Offering Memorandum and the Final Offering Memorandum and the pro forma adjustments give proper effect to those
assumptions









 



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and reflect the proper application of those adjustments to the applicable
historical financial statements included in the Preliminary Offering Memorandum and the
Final Offering Memorandum. The financial information contained in the Preliminary
Offering Memorandum and the Final Offering Memorandum under the headings “Summary
Unaudited Pro Forma Condensed Combined Financial and Operating Data of Holdings and the
Company,” “Capitalization,” “Selected Historical Consolidated Financial Data of Holdings
and the Company” and “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” is derived from the accounting records of the entities purported
to be covered thereby and fairly present in all material respects the information
purported to be shown thereby.




     (o) To the Company’s knowledge, (i) KPMG LLP (Montreal) are auditors of Speedware
Corporation Inc. (“Speedware”) and independent within the meaning of the Code of
Ethics of the Ordre des comptables agréés du Québec and within the meaning of the
Securities Act and the applicable rules and regulations thereunder and (ii) the
historical financial statements of Speedware, including the notes thereto, as contained
in the Preliminary Offering Memorandum and the Final Offering Memorandum were prepared in
accordance with generally accepted accounting principles in Canada applied on a basis
consistent with prior periods, except as noted therein, are correct in all material
respects, are complete and present fairly the assets, liabilities (whether accrued,
absolute, contingent or otherwise) and financial condition of Speedware and its
subsidiaries on a consolidated basis as at the respective dates thereof and the results
of operations of Speedware and its subsidiaries on a consolidated basis for the
respective periods covered thereby.




     (p) To the Company’s knowledge, (i) KPMG LLP (Philadelphia) are independent public
accountants with respect to P-21 and its subsidiaries within the meaning of Rule 101 of
the Code of Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) the historical financial statements of P-21 (including the related
notes) contained in the Preliminary Offering Memorandum and the Final Offering Memorandum
have been prepared in conformity with generally accepted accounting principles in the
United States consistently applied throughout the periods covered thereby, except as
noted therein, are correct in all material respects, are complete and present fairly the
assets, liabilities (whether accrued, absolute, contingent or otherwise) and financial
condition of P-21 and its subsidiaries on a consolidated basis as at the respective dates
thereof and the results of operations of P-21 and its subsidiaries on a consolidated
basis for the respective periods covered thereby.




     (q) There are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property or assets









 



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of the Company or any of its subsidiaries or affiliates is the subject which, singularly or in the
aggregate, if determined adversely to the Company or any of its subsidiaries or
affiliates, could reasonably be expected to have a Material Adverse Effect; and to the
best knowledge of the Company no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.




     (r) No injunction, restraining order or order of any nature by any federal or state
court of competent jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Securities or the
use of the Final Offering Memorandum in any jurisdiction; no action, suit or proceeding
is pending against or, to the best knowledge of the Company threatened against or
affecting the Company or any of its subsidiaries before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the Securities or in any
manner draw into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto.




     (s) None of the Company nor any of its subsidiaries is (i) in violation of its
charter or by-laws, (ii) in default, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or instrument to
which it is a party or by which it is bound or to which any of its property or assets is
subject which could reasonably be expected to have a Material Adverse Effect or (iii) in
violation of any applicable law, ordinance, court decree, governmental rule or regulation
to which it or its material property or assets may be subject which could reasonably be
expected to have a Material Adverse Effect.




     (t) The Company and each of its subsidiaries possess all licenses, orders,
certificates, authorizations, approvals and permits issued by, and have made all
declarations, applications, reports, instruments, information and filings with, the
appropriate federal, state or foreign regulatory agencies or bodies that are necessary or
desirable for the ownership of its properties or the conduct of its businesses as
described in the Final Offering Memorandum and such declarations, applications, reports,
instruments, information and filings are true, correct and complete in all material
respects, except where the failure to possess or make the same would not, singularly or
in the aggregate, have a Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received notification of any revocation or modification of any such
license, certificate, authorization or permit that is generally renewable in the ordinary course or has any reason to believe that any
such license, certificate, authorization or permit will not be renewed in the ordinary
course.









 



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     (u) Neither the Company nor any of its subsidiaries is an open-end investment
company, unit investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company Act of 1940, as
amended (the “Investment Company Act”), nor are any of them a closed-end
investment company required to be registered, but not registered, thereunder; and neither
the Company nor any of its subsidiaries is and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the
Final Offering Memorandum, neither the Company nor any of its subsidiaries will be, an
“investment company” as defined in the Investment Company Act.




     (v) The Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.




     (w) The Company and each of its subsidiaries has insurance covering its properties,
operations, personnel and businesses, which insurance is in amounts and insures against
such losses and risks as are in the Company’s opinion adequate to protect the Company and
its subsidiaries and their respective businesses. None of the Company nor any of
Company’s subsidiaries has received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or necessary to be made in order
to continue such insurance.




     (x) The Company and each of its subsidiaries owns or possesses adequate rights to
use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of its
businesses as described in the Final Offering Memorandum; and the conduct of its
businesses does not conflict in any material respect with, and the Company and its
subsidiaries have not received any notice of any claim of conflict with, any such rights
of others.




     (y) The Company and each of its subsidiaries has good and marketable title in fee
simple to, or has valid rights to lease or otherwise use, all items of real and personal
property which are material to the business of the Company and its









 



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subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects other than
(i) liens and encumbrances granted pursuant to the Credit Facility and (ii) liens,
encumbrances and defects that do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries or could not reasonably
be expected to have a Material Adverse Effect.




     (z) No labor disturbance by or dispute with the employees of the Company or any of
its subsidiaries exists or, to the best knowledge of the Company is imminent, which could
reasonably be expected to have a Material Adverse Effect.




     (aa) There has been no storage, generation, transportation, handling, treatment,
disposal, discharge, emission or other release or threatened release of any kind of toxic
or other wastes or other hazardous substances by, due to or caused by the Company or any
of its subsidiaries (or, to the best knowledge of the Company, any other entity
(including any predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) upon any property now or
previously owned or leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or permit, give rise
to any liability except for any violation or liability which would not have, singularly
or in the aggregate with all such violations and liabilities, a Material Adverse Effect;
and there has been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of any kind which
would not have, singularly or in the aggregate with all such disposal, discharge,
emission and other release, a Material Adverse Effect.




     (bb) No “prohibited transaction” (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ERISA”), or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated
funding deficiency” (as defined in Section 302 of ERISA) or any of the events set forth
in Section 4043(b) of ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has occurred with respect to any
employee benefit plan of the Company or any of its subsidiaries which could reasonably be expected to have a Material
Adverse Effect; each such employee benefit plan is in compliance in all material respects
with applicable law, including ERISA and the Code; the Company and each of its
subsidiaries have not incurred and do not expect to incur liability under









 



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Title IV of ERISA with respect to the termination of, or withdrawal from, any pension plan for which
the Company or any of its subsidiaries would have any liability; and each such pension
plan that is intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or by failure to act,
which could reasonably be expected to cause the loss of such qualification.




     (cc) On the Closing Date, the Company and its subsidiaries taken as a whole (after
giving effect to the Transactions), will be Solvent. As used in this paragraph, the term
“Solvent” means, with respect to a particular date, that on such date (i) the present
fair market value (or present fair saleable value) of the assets of the Company and its
subsidiaries is not less than the total amount of the liabilities of the Company and its
subsidiaries on their total existing debts and liabilities (including contingent
liabilities); (ii) the Company and its subsidiaries are able to realize upon their assets
and pay their debts and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business; (iii) assuming consummation of
the issuance of the Securities and the related transactions as contemplated by this
Agreement and the Final Offering Memorandum, the Company and its subsidiaries are not
incurring debts or liabilities beyond their ability to pay as such debts and liabilities
mature; (iv) the Company and its subsidiaries are not engaged in any business or
transaction, and does not propose to engage in any business or transaction, for which
their property would constitute unreasonably small capital after giving due consideration
to the prevailing practice in the industry in which the Company is engaged; and (v) the
Company and its subsidiaries are not otherwise insolvent under applicable federal or
state laws.




     (dd) No holder of securities of the Company or any of its subsidiaries will be
entitled to have such securities registered under the registration statements required to
be filed by the Company pursuant to the Registration Rights Agreement, other than as
expressly permitted thereby or that has been waived.




     (ee) No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in the Preliminary Offering
Memorandum and the Final Offering Memorandum has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.




     (ff) Nothing has come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in the Preliminary Offering
Memorandum and the Final Offering Memorandum is not based on or derived from sources that
are reliable and accurate in all material respects.









 



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     (gg) None of the proceeds of the sale of the Securities will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for the
purpose of reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might cause any of
the Securities to be considered a “purpose credit” within the meanings of Regulation T, U
or X of the Board of Governors of the Federal Reserve System.




     (hh) Except as disclosed in the Final Offering Memorandum, neither the Company nor
any of its subsidiaries is a party to any contract agreement or understanding with any
person that would give rise to a valid claim against the Company or the Initial
Purchasers for a brokerage commission, finders’ fee or like payment in connection with
the offering and sale of the Securities.




     (ii) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the Securities Act.




     (jj) Neither the Company nor any Affiliate (as defined in Rule 501(b) of Regulation
D under the Securities Act (“Regulation D”)) has directly, or through any agent
(provided that no representation is made as to the Initial Purchasers or any
Person acting on its behalf): (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any “security” (as defined in the Securities Act)
which sale, offer, solicitation or negotiation is or will be integrated with the sale of
the Securities in a manner that would require the registration under the Securities Act
of the Securities or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D) in connection with the offering of
the Securities.




     (kk) When the Securities are delivered pursuant to this Agreement, none of the
Securities will be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities of the Company or any of its subsidiaries that are listed
on a national securities exchange registered under Section 6 of the Exchange Act or that
are quoted in a United States automated inter-dealer quotation system other than the
PORTAL market.




     (ll) None of the Company or any of its Affiliates (as defined in Rule 501(b) of
Regulation D), nor any person acting on behalf of any of them (other than the Initial Purchasers) (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Securities Act (“Regulation S”)) the Securities
or any security of the same class or series as the Securities (A) in the United States by
means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act or (B) with respect to any such securities









 



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sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the
meaning of Rule 902(b) of Regulation S. The Company and its affiliates, and any person
acting on behalf of any of them (other than the Initial Purchasers) have complied and
will comply with the offering restrictions requirement of Regulation S. The Company has
not entered and will not enter into any contractual arrangement with respect to the
distribution of the Securities except for this Agreement and the Registration Rights
Agreement, to the extent each is party thereto.




          (mm) Since June 30, 2005, except as set forth in the Final Offering Memorandum (i)
both before and after giving effect to the Transactions, there has been no material
adverse change or any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs, management or
business prospects of the Company, whether or not arising in the ordinary course of
business, (ii) neither the Company, nor any of its subsidiaries has incurred any
liability or obligation, direct or indirect, absolute or contingent, other than in the
ordinary course of business, which would, singly or in the aggregate, have a Material
Adverse Effect, (iii) there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, paid or made by the Company or any of its subsidiaries on any class of its
capital stock.




     2. Purchase and Resale of the Securities.



     (a) On the basis of the representations, warranties and agreements contained herein, and
subject to the terms and conditions set forth herein, the Company agrees to issue and sell to the
Initial Purchasers, and each of the Initial Purchasers agrees, severally and not jointly, to
purchase from the Company, the aggregate principal amount of Securities set forth opposite its name
in Schedule 1 hereto at a purchase price equal to 97% of the principal amount thereof. The
Company shall not be obligated to deliver any of the Securities except upon payment for all of the
Securities to be purchased from the Company as provided herein.



     (b) The Initial Purchasers have advised the Company that they propose to offer the Securities
for resale upon the terms and subject to the conditions set forth herein and in the Final Offering
Memorandum. Each Initial Purchaser, severally and not jointly, represents and warrants to, and
agrees with, the Company that (i) it is purchasing the Securities pursuant to a private sale exemption from registration under the Securities Act,
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer
or sell, the Securities by means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers
for the Securities only from, and has offered or sold and will offer, sell or deliver the
Securities,









 



-14-

as part of its initial offering, only (A) within the United States to persons whom it
reasonably believes to be qualified institutional buyers (“Qualified Institutional
Buyers”), as defined in Rule 144A under the Securities Act (“Rule 144A”), or if any
such person is buying for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being
made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S.




     (c) In connection with the offer and sale of Securities in reliance on Regulation S, each
Initial Purchaser, severally and not jointly, represents, warrants and agrees that:




     (i) The Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit of, U.S.
persons except pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.




     (ii) The Initial Purchasers have offered and sold the Securities, and will offer and
sell the Securities, (A) as part of their distribution at any time and (B) otherwise until
40 days after the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act.




     (iii) Neither of the Initial Purchasers nor any of their respective affiliates nor any
other person acting on their behalf has engaged or will engage in any directed selling
efforts (as defined in Regulation S) with respect to the Securities, and all such persons
have complied and will comply with the offering restrictions requirement of Regulation S.




     (iv) At or prior to the confirmation of sale of any Securities sold in reliance on
Regulation S, the Initial Purchasers will have sent to each distributor, dealer or other
person receiving a selling concession, fee or other remuneration that purchases Securities
from them during the restricted period a confirmation or notice to substantially the
following effect:




“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available exemption









 



-15-



from registration under the Securities Act. Terms used above have the meanings
given to them by Regulation S.”




     (v) The Initial Purchasers have not and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the Securities, except with their
affiliates or with the prior written consent of the Company.



Terms used in this Section 2(c) have the meanings given to them by Regulation S.




     (d) Each Initial Purchaser, severally and not jointly, agrees that, prior to or simultaneously
with the confirmation of sale by such Initial Purchaser to any purchaser of any of the Securities
purchased by such Initial Purchaser from the Company pursuant hereto, such Initial Purchaser shall
furnish to that purchaser a copy of the Final Offering Memorandum (and any amendment or supplement
thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such
confirmation of sale), but excluding any document incorporated by reference therein. In addition
to the foregoing, each Initial Purchaser, severally and not jointly, acknowledges and agrees that
the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 5(d), 5(e) and 5(f) counsel for the Company and for the Initial Purchasers, respectively,
may rely upon the accuracy of the representations and warranties of each Initial Purchaser and
their compliance with their agreements contained in this Section 2, and each Initial Purchaser
hereby consents to such reliance.



     (e) The Company acknowledges and agrees that each Initial Purchaser may sell Securities to any
affiliate of such Initial Purchaser and that any such affiliate may sell Securities purchased by it
to such Initial Purchaser.



     (f) Each Initial Purchaser, severally and not jointly, agrees that:




     (i) it has not offered or sold and, prior to the date six months after the
Closing Date, will not offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);




     (ii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the United Kingdom
Financial Services and Markets Act 2000 (the “FSMA”)) received by it in
connection with the issue or sale of any Securities in circumstances









 



-16-



in which Section 21(1) of the FSMA does not apply to the Company; and




     (iii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom.




     (iv) in relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), from
and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the “Relevant Implementation Date”) it has not made
and will not make an offer of the Securities to the public in that Relevant Member
State prior to the publication of a prospectus in relation to the Securities which
has been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of the Securities to the public in that Relevant
Member State at any time:




(a) to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;




(b) to any legal entity which meets two or more of
the following criteria: (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than
€43,00,000; and (3) an annual net turnover of more than
€50,000,000, in each case as determined in accordance with the
Prospectus Directive and as shown in its last annual or consolidated
accounts; or




(c) in any other circumstances which do not require
the publication of a prospectus pursuant to Article 3 of the Prospectus
Directive.




      For the purposes of this clause (f), the expression an “offer of the Securities
to the public” in relation to any Securities in any Relevant Member State means the
communication in any form and by any means, presenting sufficient information on the
terms of the offer and the Securities to be offered, so as to enable an investor to
decide to purchase or subscribe to the Securities, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus Directive in that
Member State and the expression









 



-17-



“Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in the applicable Relevant Member
State.



          3. Delivery of and Payment for the Securities. (a) Delivery of and payment for the
Securities shall be made at the offices of Weil, Gotshal & Manges LLP, Dallas, Texas or at such
other place as shall be agreed upon by the Initial Purchasers and the Company, at 9:00 A.M., Dallas
time, on October 17, 2005, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchasers and the Company (such date and time
of payment and delivery being referred to herein as the “Closing Date”).



     (b) On the Closing Date, payment of the purchase price for the Securities shall be made to the
Company by wire or book-entry transfer of same-day funds to such account or accounts as the Company
shall specify prior to the Closing Date or by such other means as the parties hereto shall agree
prior to the Closing Date against delivery to the Initial Purchasers of the certificates evidencing
the Securities. Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of each Initial Purchaser
hereunder. Upon delivery, the Securities shall be in global form, registered in such names and in
such denominations as the Initial Purchasers shall have requested in writing not less than two full
business days prior to the Closing Date. The Company agrees to make one or more global
certificates evidencing the Securities available for inspection by the Initial Purchasers in New
York, New York at least 24 hours prior to the Closing Date.



          4. Further Agreements of the Company. The Company agrees with each Initial Purchaser:




       (a) to advise the Initial Purchasers promptly and, if requested, confirm such advice
in writing, of the happening of any event which makes any statement of a material fact
made in the Preliminary Offering Memorandum or the Final Offering Memorandum untrue or
which requires the making of any additions to or changes in the Preliminary Offering
Memorandum or the Final Offering Memorandum (as amended or supplemented from time to
time) in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Final Offering
Memorandum, of any suspension of the qualification of the Securities for offering or sale
in any jurisdiction and of the initiation or threatening of any proceeding for any such
purpose; and to use their reasonable best efforts to prevent the issuance of any such
order preventing or suspending the use of the Preliminary Offering Memorandum or the
Final Offering Memorandum or suspending any such qualification and, if any such
suspension is issued, to obtain the lifting thereof at the earliest possible time;









 



-18-



     (b) to furnish to the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or
supplements thereto) as may be reasonably requested; provided that, in the event
of any amendment or supplement to the Final Offering Memorandum, the Initial Purchasers
shall have been given a reasonable opportunity to comment thereon, and copies thereof
shall have been delivered to the Initial Purchasers reasonably in advance of the Closing
Date;




     (c) prior to making any amendment or supplement to the Preliminary Offering
Memorandum or the Final Offering Memorandum, to furnish a copy thereof to the Initial
Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by notice to the
Company after a reasonable period of review, which shall not be in any case longer than
five business days after receipt of such copy;




     (d) if, at any time prior to completion of the initial resale of the Securities by
the Initial Purchasers, any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the
Company, to amend or supplement the Final Offering Memorandum in order that the Final
Offering Memorandum will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, or if it is necessary to amend or supplement
the Final Offering Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue statement or omission
so that the Final Offering Memorandum, as so amended or supplemented, will comply with
applicable law;




     (e) for so long as the Securities are outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of
the Securities and prospective purchasers of the Securities designated by such holders,
upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance with Section 13
or 15(d) of the Exchange Act;




     (f) for a period of three years following the Closing Date, to furnish to the
Initial Purchasers copies of any annual reports, quarterly reports and current reports
filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company to the Trustee or to the holders of
the Securities pursuant to the Indenture or the Exchange









 



-19-



Act or any rule or regulation of the Commission thereunder; provided, however, that any reports or
information accepted for filing by the Commission and readily available on the Internet
shall be deemed to have been provided to the Initial Purchasers;




     (g) to use their reasonable best efforts to qualify the Securities for sale under
the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may
reasonably designate and to continue such qualifications in effect for so long as
required for the distribution of the Securities; provided, however, that
the Company and its subsidiaries shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not then qualified or to take any action
which would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject;




     (h) to use their reasonable best efforts to assist the Initial Purchasers in
arranging for the Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages (“PORTAL”) Market securities in accordance with the
rules and regulations adopted by the National Association of Securities Dealers, Inc.
(“NASD”) relating to trading in the PORTAL Market and for the Securities to be
eligible for clearance and settlement through The Depository Trust Company
(“DTC”);




     (i) not to, and to cause their affiliates not to, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as such term is defined
in the Securities Act) which could be integrated with the sale of the Securities in a
manner which would require registration of the Securities under the Securities Act;




     (j) except following the effectiveness of the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, not to, and to cause its
affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to
authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer
to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of
Regulation D or in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act or (ii) engage in any directed selling efforts within the
meaning of Regulation S, and all such persons will comply with the offering restrictions
requirement of Regulation S; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances where such offer,
sale, contract or disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offering and sale of the Securities as
contemplated by this Agreement and the Final Offering Memorandum;









 



-20-



     (k) for a period of 90 days from the date hereof, not to offer for sale, sell,
contract to sell or otherwise dispose of, directly or indirectly, or file a registration
statement (except as required by the Registration Rights Agreement or the Exchange and
Registration Rights Agreement dated March 30, 2005 among the Company, the Company’s
subsidiaries identified therein and the Initial Purchasers (the “Initial Registration
Rights Agreement”)) for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than (i) the Securities or the Exchange Securities or (ii) the
Securities or the Exchange Securities as defined in the Initial Registration Rights
Agreement) without the prior written consent of the Initial Purchasers (which consent may
not be unreasonably withheld);




     (l) until the earlier of (i) the date that all the Securities have either been
exchanged or registered under a shelf registration statement in accordance with the terms
of the Registration Rights Agreement and (ii) two years after the Closing Date, without
the prior written consent of the Initial Purchasers, not to, and not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been reacquired by them, except for Securities purchased by the
Company or any of their affiliates and resold in a transaction registered under the
Securities Act;




     (m) in connection with the offering of the Securities, until the Initial Purchasers
shall have notified the Company of the completion of the resale of the Securities, not
to, and to cause their affiliated purchasers (as defined in Regulation M under the
Exchange Act), not to, either alone or with one or more other persons, bid for or
purchase, for any account in which they or any of their affiliated purchasers have a
beneficial interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause their affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active trading in or of raising
the price of the Securities;




     (n) not to take any action prior to the Closing Date which would require the Final
Offering Memorandum to be amended or supplemented pursuant to Section 4(d); and




     (o) to apply the net proceeds from the sale of the Securities as set forth in the
Final Offering Memorandum under the heading “Use of proceeds.”



          5. Conditions to Closing. The obligations of the Initial Purchasers hereunder are
subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations
and warranties of the Company contained herein, to the accuracy of the statements of the Company
and its officers made in any certificates delivered pursuant hereto, to









 



-21-

the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:





     (a) The Final Offering Memorandum (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Initial Purchasers as promptly as
practicable on or following the date of this Agreement or at such other date and time as
to which the Initial Purchasers may designate; and no stop order suspending the sale of
the Securities in any jurisdiction shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or threatened.




     (b) The Initial Purchasers shall not have discovered and disclosed to the Company on
or prior to the Closing Date that the Final Offering Memorandum or any amendment or
supplement thereto contains an untrue statement of a fact which is material or omits to
state any fact which, in the opinion of counsel to the Initial Purchasers, is material
and is necessary to make the statements therein not misleading.




     (c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of each of the Transaction Documents, the Preliminary Offering
Memorandum and the Final Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the Transactions, shall be reasonably satisfactory in all
material respects to the Initial Purchasers, and the Company shall have furnished to the
Initial Purchasers all documents and information that they or their counsel may
reasonably request to enable them to pass upon such matters.




     (d) Weil, Gotshal & Manges LLP shall have furnished to the Initial Purchasers their
written opinion, as counsel for the Company, addressed to the Initial Purchasers and
dated the Closing Date, substantially to the effect set forth in Annex B hereto.




     (e) The Initial Purchasers shall have received from Cahill Gordon & Reindel
llp, counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Initial Purchasers may reasonably
require, and the Company shall have furnished to such counsel such documents,
certificates and information as they reasonably request for the purpose of enabling them
to pass upon such matters.




     (f) With respect to the letters (the “Initial Letters”) of Ernst & Young
LLP, KPMG LLP (Philadelphia) and KPMG LLP (Montreal) delivered by each of them to the
Initial Purchasers and dated the date hereof (which letters shall be in form and
substance reasonably satisfactory to the Initial Purchasers and counsel for









 



-22-



the Initial Purchasers), the Company shall have caused each of Ernst & Young LLP, KPMG LLP
(Philadelphia) and KPMG LLP (Montreal) to furnish to the Initial Purchasers letters (the
“Bring-Down Letters”) addressed to the Initial Purchasers and dated the Closing
Date (i) confirming that in the case of Ernst & Young LLP, they are independent public
accountants with respect to the Company and its subsidiaries, in the case of KPMG LLP
(Philadelphia) they are independent certified public accountants with respect to P-21 and
its subsidiaries, and in the case of KPMG LLP (Montreal) they are auditors of Speedware
and are independent, in the case of each of Ernst & Young LLP and KPMG LLP (Philadelphia)
within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its
interpretations and rulings thereunder, and in the case of KPMG LLP (Montreal) within the
meaning of the Code of Ethics of the Ordre des comptables agréés du Québec, (ii) stating,
as of the date of the Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial information is
given in the Final Offering Memorandum, as of a date not more than two business days
prior to the date of the Bring-Down Letter), that the conclusions and findings of such
accountants with respect to the financial information and other matters covered by its
Initial Letter are accurate and (iii) confirming in all material respects the conclusions
and findings set forth in its Initial Letter.




     (g) The Company shall have furnished to the Initial Purchasers a certificate, dated
the Closing Date, of a senior executive officer of the Company (acting in his or her
capacity as an officer of the Company and not as an individual) stating that (A) such
officer has reviewed the Final Offering Memorandum, (B) in his or her opinion, the Final
Offering Memorandum, as of its date, did not include any untrue statement of a material
fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading,
and since the date of the Final Offering Memorandum, no event has occurred which should
have been set forth in a supplement or amendment to the Final Offering Memorandum so that
the Final Offering Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading and (C) to the best of his or her knowledge, as of the Closing
Date, the representations and warranties of the Company in this Agreement are true and
correct in all material respects, the Company has complied in all material respects with
all agreements and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date in all material
respects, and since the date hereof or subsequent to the date of the most recent
financial statements of the Company contained in the Final Offering Memorandum, there has
been no material adverse change in the financial position or results of operations of the
Company, its subsidiaries taken as a whole, or any material









 



-23-



change, or any development including a prospective material change in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company, its subsidiaries
taken as a whole, except as set forth in the Final Offering Memorandum.




     (h) The Initial Purchasers shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its subsidiaries in their
respective jurisdictions of organization and, as applicable, their good standing in the
jurisdictions listed on Schedule II hereto, in each case in writing or any standard form
of telecommunication, from the appropriate governmental authorities of such
jurisdictions.




     (i) The Initial Purchasers shall have received a counterpart of the Registration
Rights Agreement which shall have been executed and delivered by a duly authorized
officer of the Company.




     (j) The Securities shall have been duly executed and delivered by the Company and
duly authenticated by the Trustee.




     (k) The offering of Floating Rate Notes by Activant shall have been consummated.




     (l) If any event shall have occurred that requires the Company under Section 4(d) to
prepare an amendment or supplement to the Final Offering Memorandum, such amendment or
supplement shall have been prepared, the Initial Purchasers shall have been given a
reasonable opportunity to comment thereon, and copies thereof shall have been delivered
to the Initial Purchasers reasonably in advance of the Closing Date.




     (m) There shall not have occurred any invalidation of Rule 144A under the Securities
Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any
amendment or proposed amendment thereof by the Commission which in the judgment of the
Initial Purchasers would materially impair the ability of the Initial Purchasers to
purchase, hold or effect resales of the Securities as contemplated hereby.




     (n) Other than as contemplated by the Transaction Documents or the Final Offering
Memorandum, since the dates (both before and after the Transactions) as of which
information is given in the Final Offering Memorandum (exclusive of any amendment or
supplement to the Final Offering Memorandum on or after the date of the Final Offering
Memorandum), there shall not have been any change in the capital stock or long-term debt
or any change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations,









 



-24-



business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Initial Purchasers, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated in the Final Offering Memorandum
(exclusive of any amendment or supplement thereto).




     (o) No action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which would, as
of the Closing Date, prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance, sale or resale of the Securities.




     (p) Subsequent to the execution and delivery of this Agreement (i) no downgrading
shall have occurred in the ratings accorded the Securities or any of the Company’s other
debt securities or preferred stock by any “nationally recognized statistical rating
organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2)
of the rules and regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or review or
changed its outlook with respect to its rating of the Securities or any of the Company’s
other debt securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).




     (q) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established on any such exchange
or market by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of the Company
on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall
have been declared by federal or New York state authorities or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a national emergency
or war or any calamity or crisis or (iv) a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) the effect of which, in the case of
this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse
as to make it impracticable or inadvisable to proceed with the offering, sale or the
delivery of the Securities on the terms and in the manner contemplated by this Agreement
and in the Final Offering Memorandum (exclusive of any amendment or supplement thereto).









 



-25-


          All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial Purchasers.



          6. Termination. The obligations of the Initial Purchasers hereunder may be terminated
by the Initial Purchasers, in their absolute discretion, by notice given to and received by the
Company prior to delivery of and payment for the Securities if, prior to that time, any of the
events described in Sections 5(m), (n), (o), (p), (q), or (r) shall have occurred and be
continuing.



          7. Reimbursement of Initial Purchasers’ Expenses. If (a) this Agreement shall have
been terminated pursuant to Section 6, (b) the Company shall fail to tender the Securities for
delivery to the Initial Purchasers or (c) the Initial Purchasers shall decline to purchase the
Securities for any reason permitted under this Agreement, the Company shall reimburse the Initial
Purchasers for such out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchasers in connection with this Agreement
and the proposed purchase or resale of the Securities.



          8. Indemnification.




     (a) The Company shall indemnify and hold harmless the Initial Purchasers, their
affiliates, their respective officers, directors, employees, representatives, partners
and agents, and each person, if any, who controls either of the Initial Purchasers or any
affiliate within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 8(a) and Section 9 as the Initial Purchasers),
from and against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of the Securities), to which the Initial
Purchasers may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at common law
or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Final Offering Memorandum or in any amendment or
supplement thereto or in any information provided by the Company or on behalf of the
Company pursuant to Section 4(d) or (ii) the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and shall reimburse the
Initial Purchasers promptly upon demand for any legal or other expenses reasonably
incurred by the Initial Purchasers in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are









 



-26-



incurred; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out of, or is
based upon, an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any Initial
Purchasers’ Information; and provided, further, however, that
with respect to any such untrue statement in or omission from the Preliminary Offering
Memorandum or the Final Offering Memorandum, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of the Initial Purchasers to the extent that
such sale to the person asserting any such loss, claim, damage, liability or action was
an initial resale by the Initial Purchasers and any such loss, claim, damage, liability
or action of or with respect to the Initial Purchasers results from the fact that both
(A) a copy of the Final Offering Memorandum or any correcting amendments or supplements
thereto, as applicable, but excluding the documents incorporated by reference therein,
was not sent or given to such person at or prior to the written confirmation of the sale
of such Securities to such person and (B) the untrue statement in or omission from the
Preliminary Offering Memorandum or the Final Offering Memorandum, was corrected in the
Final Offering Memorandum or an amendment or supplement to the Final Offering Memorandum
and the Final Offering Memorandum (as amended or supplemented) does not contain any other
untrue statement or omission or alleged untrue statement or omission of a material fact
unless, in either case, such failure to deliver the Final Offering Memorandum (as amended
or supplemented) was a result of non-compliance by the Company with Section 4(b).




     (b) Each Initial Purchaser, severally and not jointly, shall indemnify and hold
harmless the Company, its affiliates, their respective officers, directors, employees,
representatives, partners and agents, and each person, if any, who controls the Company
or any such affiliate within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 8(b) and Section 9 as the
Issuers), from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Issuers may become
subject, whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Final Offering Memorandum or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, but in each of clause (i) and (ii) of this
Section 8(b) only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with any Initial
Purchaser’s Information provided by such









 



-27-



Initial Purchaser, and shall reimburse the Issuers for any legal or other expenses reasonably incurred by the Issuers in connection
with investigating or defending or preparing to defend against or appearing as a third
party witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred.




     (c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party pursuant to Section 8(a) or
8(b), notify the indemnifying party in writing of such claim or the commencement of such
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this Section 8
except to the extent that the indemnifying party was otherwise unaware of such claim or
the commencement of such action and it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and, provided
further, however, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an indemnified party otherwise
than under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have
the right to employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based upon advice
of counsel to the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel reasonably satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or









 



-28-



parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or parties.
Each indemnified party, as a condition of the indemnity agreements contained in Sections
8(a) and 8(b), shall use all reasonable efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written consent or if there
be a final judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party in form and substance satisfactory to
such indemnified party from all liability on claims that are the subject matter of such
proceeding.



          The obligations of the Issuers and the Initial Purchasers in this Section 8 and in Section 9
are in addition to any other liability that the Issuers or the Initial Purchasers, as the case may
be, may otherwise have, including in respect of any breaches of representations, warranties and
agreements made herein by any such party.



          9. Contribution. If the indemnification provided for in Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or 8(b), then each
indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuers on the one hand and the Initial Purchasers
on the other from the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Issuers on
the one hand and the Initial Purchasers on the other with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by the Issuers on the
one hand and the Initial Purchasers on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the Securities purchased
under this Agreement (before deducting expenses) received by or on behalf of the Issuers, on the
one hand, and the total discounts and commissions received by the Initial Purchasers with respect
to the Securities purchased under this Agreement, on the other, bear to









 



-29-

the total gross proceeds
from the sale of the Securities under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to the Issuers or information
supplied by the Issuers on the one hand or to any Initial Purchasers’ Information on the other, the
intent of the parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Issuers and the Initial Purchasers agree
that it would not be just and equitable if contributions pursuant to this Section 9 were to be
determined by pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 9 shall be deemed to include, for purposes of this
Section 9, any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating, preparing to defend or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the Securities purchased by it under this Agreement exceeds the amount of
any damages which such Initial Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.




          10. Defaulting Initial Purchaser.




      (a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to
purchase the Securities that it has agreed to purchase hereunder, the non-defaulting
Initial Purchaser may in its discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained
in this Agreement. If, within 36 hours after any such default by any Initial Purchaser,
the non-defaulting Initial Purchaser does not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of 36 hours within
which to procure other persons reasonable satisfactory to the non-defaulting Initial
Purchaser to purchase such Securities on such terms. If other persons become obligated
or agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchaser or the Company may postpone the Closing Date for up to
five full business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Initial Purchasers may be necessary in the Final Offering
Memorandum or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Final Offering Memorandum that effects any
such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all
purposes of this Agreement unless the context otherwise requires, any person not listed
in Schedule 1 hereto that, pursuant









 



-30-



to this Section 10, purchases Securities that a defaulting Initial Purchaser agreed but failed to purchase.




     (b) If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Initial Purchaser by the non-defaulting Initial Purchaser and the Company
as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased does not exceed one-eleventh of the aggregate principal amount
of all the Securities, then the Company shall have the right to require the
non-defaulting Initial Purchaser to purchase the principal amount of Securities that such
Initial Purchaser agreed to purchase hereunder plus such Initial Purchaser’s pro
rata share (based on the principal amount of Securities that such Initial
Purchaser agreed to purchase hereunder) of the Securities of such defaulting Initial
Purchaser for which such arrangements have not been made.




     (c) If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Initial Purchaser by the non-defaulting Initial Purchaser and the Company
as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all
the Securities, or if the Company shall not exercise the right described in paragraph (b)
above, then this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchaser. Any termination of this Agreement pursuant to this
Section 10 shall be without liability on the part of the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in Section 12 hereof
and except that the provisions of Section 7 hereof shall not terminate and shall remain
in effect.




     (d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any
liability it may have to the Company or the non-defaulting Initial Purchaser for damages
caused by its default.



          11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchasers and the Company and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except as provided in Sections 8 and 9 with respect to affiliates, officers,
directors, employees, representatives, partners, agents and controlling persons of the Company and
the Initial Purchasers and affiliates of the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the Securities. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein.



          12. Expenses. Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company agrees with the









 



-31-

Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (b) the costs incident to the preparation,
printing and distribution of the Preliminary Offering Memorandum and the Final Offering Memorandum
and any amendments or supplements thereto; (c) the costs of reproducing and distributing each of
the Transaction Documents; (d) the costs incident to the preparation, printing and delivery of the
certificates evidencing the Securities, including stamp duties and transfer taxes, if any, payable
upon issuance of the Securities; (e) the fees and expenses of the Company’s counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the securities laws of
the several jurisdictions as provided in Section 4(g) and of preparing, printing and distributing
Blue Sky Memoranda (including related fees and expenses of one counsel for the Initial Purchasers
in an amount not to exceed $10,000); (g) any fees charged by rating agencies for rating the
Securities; (h) the fees and expenses of the Trustee and any paying agent (including related fees
and expenses of any counsel to such parties); (i) all expenses and application fees incurred in
connection with the application for the inclusion of the Securities on the PORTAL Market and the
approval of the Securities for book-entry transfer by DTC; and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this Agreement which are not
otherwise specifically provided for in this Section 12; provided, however, that
except as provided in this Section 12 and Section 7, the Initial Purchasers shall pay their own
costs and expenses (including the costs and expenses of their counsel).




          13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Initial Purchasers contained in this Agreement or
any certificates delivered pursuant hereto made by or on behalf of the Company or the Initial
Purchasers pursuant to this Agreement shall survive the delivery of and payment for the Securities and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any investigation made by or on
behalf of any of them.



          14. Notices, etc. All statements, requests, notices and agreements hereunder shall be
in writing, and:




     (a) if to the Initial Purchasers, shall be delivered or sent by mail or telecopy
transmission to the Initial Purchasers c/o Deutsche Bank Securities Inc., 60 Wall Street,
New York, New York 10005, Attention: Corporate Finance Department; or




     (b) if to the Company, shall be delivered or sent by mail or telecopy transmission to
the address of the Company at Activant Solutions Holdings Inc., 804 Las Cimas Parkway,
Austin, Texas 78746, Attention: Greg Petersen (telecopier no: (512) 330-9273), with a copy
to Hicks, Muse, Tate & Furst Incorporated, 200 Crescent Court, Suite 1600, Dallas, Texas
75201, Attention: Peter Brodsky (telecopier no: (214) 740-7888);









 



-32-

Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made by the Initial Purchasers.




          15. Definition of Terms. For purposes of this Agreement, (a) the term “business day”
means any day on which the New York Stock Exchange, Inc. is open for trading, (b) the term
“subsidiary” has the meaning set forth in Rule 405 under the Securities Act and (c) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the
Securities Act.



          16. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflicts of law provisions thereof to
the extent the application of the laws of another jurisdiction would be required thereby.



          17. Counterparts. This Agreement may be executed in one or more counterparts (which
may include counterparts delivered by telecopier) and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.



          18. Amendments. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.



          19. No Advisory or Fiduciary Responsibility. The Company acknowledges and agrees that
(i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, on the one hand, and the Initial Purchasers, on the
other, (ii) in connection therewith and with the process leading to such transaction each Initial
Purchaser is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no
Initial Purchaser has assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto (irrespective of whether
such Initial Purchaser has advised or is currently advising the Company on other matters) or any
other obligation to the Company except the obligations expressly set forth in this Agreement and
(iv) the Company has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that any Initial Purchaser has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.









 



-33-


          20. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.



[Remainder of page intentionally left blank]










 



S-1


          If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us a counterpart hereof, whereupon this instrument will become a binding agreement
between the Company and the Initial Purchasers in accordance with its terms.



	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	ACTIVANT SOLUTIONS HOLDINGS INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Greg Petersen
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Greg Petersen
	 

	 	 	 	Title:
	 	Senior Vice President and Chief
	 

	 	 	 	 	 	Financial Officer












 



S-2


	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Accepted by:	 	 
	 
	 	 	 	 	 	 
	DEUTSCHE BANK SECURITIES INC.	 	 
	 
	 	 	 	 	 	 
	 	 	for itself and on behalf of the several	 	 
	 	 	Initial Purchasers listed on Schedule I hereto	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Alice J. Murphy	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Alice J. Murphy	 	 	 	 
	 

	 	Title: Director	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Sean Murphy	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Sean Murphy	 	 	 	 
	 

	 	Title: Director	 	 	 	 












 



 


SCHEDULE I




	 	 	 	 	 
	 	 	Aggregate Principal Interest
	Initial Purchaser	 	of Securities to be Purchased
	Deutsche Bank Securities Inc.
	 	$	20,000,000	 
	J.P. Morgan Securities Inc.
	 	$	20,000,000	 
	 
	 	 
	 	 
	 
	 	 	 	 
	Total
	 	$	40,000,000	 












 



 


SCHEDULE II




	 	 	 	 	 
	Applicable Jurisdiction for Good Standing Certificates	 	 	 	 
	 
	 	 	 	 
	Illinois
	 	 	 	 
	North Carolina
	 	 	 	 
	California
	 	 	 	 
	Texas
	 	 	 	 
	Florida
	 	 	 	 
	New York
	 	 	 	 
	Minnesota
	 	 	 	 
	Pennsylvania
	 	 	 	 
	Ohio
	 	 	 	 
	South Carolina
	 	 	 	 












 



 


ANNEX A




[Form of Registration Rights Agreement]




[See attached]










 



 


ANNEX B




[Form of Opinion of Weil, Gotshal & Manges LLP]




[See attached]