INDEMNIFICATION PRIORITY
AGREEMENT
This
Indemnification Priority Agreement is dated as of [
] , 2009 (this “ Agreement ”) and is
among Activant Group Inc., a Delaware corporation (“
Activant Group ”), Activant Solutions Inc., a Delaware
corporation (“ Activant Solutions ”, and
together with Activant Group, the “ Companies
”), and [
] (“ Indemnitee ”).
WHEREAS,
Indemnitee is a director of the Companies and may also serve as a
director, officer, employee, consultant, fiduciary or agent
(collectively, the “ Indemnifiable Positions ”)
of other corporations, limited liability companies, partnerships,
joint ventures, trusts, employee benefit plans or other enterprises
controlled by each of the Companies (collectively, the “
Controlled Entities ”);
WHEREAS, in order
to induce Indemnitee to continue to serve as a director of the
Companies and/or in other Indemnifiable Positions of the Controlled
Entities, the Companies wish to provide for the indemnification of,
and the advancement of expenses to, Indemnitee to the fullest
extent permitted by law;
WHEREAS, the
Restated Certificate of Incorporation of Activant Group (the
“ Activant Group Charter ”) provides for the
indemnification of Activant Group’s directors to the fullest
extent permitted under the Delaware General Corporation Law (the
“ DGCL ”);
WHEREAS, the
Amended and Restated Certificate of Incorporation of Activant
Solutions (the “ Activant Solutions Charter ”)
provides for the indemnification of Activant Solution’s
directors to the fullest extent permitted under the
DGCL;
WHEREAS, in view
of the considerations set forth above, the Companies entered into
an Indemnification Agreement with Indemnitee, dated as of [
] , 200 [ ] (the
“ Indemnification Agreement ”); and
WHEREAS, the
Companies and Indemnitee desire to enter into this Agreement to
clarify the priority of the indemnification and advancement of
expenses with respect to certain Jointly Indemnifiable Claims
(defined below).
NOW, THEREFORE, in
consideration of Indemnitee’s service or continued service to
the Companies and/or the Controlled Entities and the covenants and
agreements set forth below, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows.
1. Given that
certain Jointly Indemnifiable Claims may arise due to the service
of the Indemnitee as a director of the Companies and/or in other
Indemnifiable Positions of the Controlled Entities, the Companies
acknowledge and agree that the Companies shall, and to the extent
applicable shall cause the Controlled Entities to, be fully and
primarily responsible for the payment to the Indemnitee in respect
of indemnification or advancement of expenses in connection with
any such Jointly Indemnifiable Claim, pursuant to and in accordance
with (as applicable) the terms of (i) the DGCL, (ii) the
Activant Group Charter, (iii) the Activant Solutions Charter,
(iv) the Indemnification Agreement, (v) the bylaws of the
Companies, (vi) any
other agreement
between either Company or any Controlled Entity and the Indemnitee
pursuant to which the Indemnitee is indemnified, (vii) the
laws of the jurisdiction of incorporation or organization of any
Controlled Entity and/or (viii) the certificate of
incorporation, certificate of organization, bylaws, partnership
agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organizational or
governing documents of any Controlled Entity ((i) through
(viii) collectively, the “ Indemnification
Sources ”), irrespective of any right of recovery the
Indemnitee may have from the Indemnitee-Related Entities. Under no
circumstance shall either Company or any Controlled Entity be
entitled to any right of subrogation or contribution by the
Indemnitee-Related Entities and no right of advancement
or
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