Mr. Michael A. Aviles
6604 Canyon Wren Drive
Austin, Texas 78746
Re: Stock
Repurchase, Separation Agreement and General
Release
This
is to confirm our agreements relating to the repurchase of stock
related to your currently exercisable stock options and your
separation from employment. For purposes of this Stock Repurchase,
Separation Agreement and General Release (the
“Agreement”), the terms “You” or
“Your” shall refer to Mr. Aviles and the
“Company” shall refer collectively to Activant
Solutions Inc., formerly known as Cooperative Computing, Inc., and
Activant Solutions Holdings Inc.
In
consideration of the covenants, agreements, and promises set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Your
employment by the Company ended effective as of the close of
business, October 7, 2004.
2. As
consideration for this Agreement, You shall receive the following
payments(s) and benefits for the period(s) indicated, less any
payroll deductions required by law, which shall be in lieu of any
other payments or benefits to which you otherwise might be
entitled:
(a) As
consideration for the agreements, promises and releases contained
herein, and set forth in Section 8, the Company hereby
purchases, and You hereby sell to the Company, the 300,000 shares
of common stock otherwise issuable on exercise of Your vested stock
options (the “Activant Options”), pursuant to the
Incentive Stock Option Agreement for Key Employees by and between
You and the Company dated February 16, 2000 (the “Option
Agreement”), with a gross value of $1,140,000 less $300,000
of option exercise proceeds for a purchase price equal to $840,000
(the “Option Purchase Price”). Pursuant to the Option
Agreement between You and the Company, the Company is required to
withhold taxes on Your behalf. The Company will withhold and pay in
on Your behalf, the sum of $250,000 for applicable Federal income
taxes and $12,180 for Medicare withholdings, and this results in a
net payment to you
of $577,820.
You acknowledge that for purposes hereof You will be deemed to have
exercised Your Activant Options, which exercise is being treated as
a cashless exercise, that the Company will not issue a stock
certificate to evidence the shares of common stock issuable on
exercise of Your vested Activant Options, and that upon your
receipt of the Option Purchase Price listed above (less
withholdings), the Option Agreement shall terminate and cease to be
of any further force and effect.
(b) The Company
shall also pay an additional amount of $510,000, less $150,000 for
applicable Federal income taxes and $7,395 for Medicare
withholdings, to You as further consideration for this Agreement
and the ADEA release contained herein, as discussed in more detail
in Sections 8 and 9 of this Agreement. This results in a net
payment to you of $352,605 to be made in two installments of
$181,230 (which consists of $260,000 less $75,000 for applicable
Federal income taxes and $3,770 for Medicare withholdings) and
$171,375 (which consists of $250,000 less $75,000 for applicable
Federal income taxes and $3,625 for Medicare withholdings) as
discussed in more detail in Section 3 of this
Agreement.
(c) In addition to
the foregoing, You will receive a lump sum payment, rather than
installment payments, in the amount of $190,892.61, constituting
(i) your remaining severance in the gross amount of $265,625,
less (ii)Federal income tax withholdings of $90,000 and Medicare
withholdings in the amount of $3,851.56, plus (iii) $19,119.17 in
COBRA benefit payments under the Executive Employment Agreement
(the “Employment Agreement”). Your COBRA benefits and
premiums have been grossed up to ensure that there is no tax
consequence to you for these additional monies paid to
you.
3. The
Company will pay You, by wire transfer of immediately available
funds to Bank of America Checking Account No. 129-114-3882,
not later than five (5) business days following the execution
of this Agreement, the sum of $949,942.61, constituting
(a) $577,820 as
set forth in Section 2(a) above;
(b) $181,230 of
the lump sum payment set forth in Section 2(b) above;
and
(c) $190,892.61 as
set forth in Section 2(c) above.
The remaining
$171,375 net sum of the payment discussed in Section 2(b) will be
paid to You following the date when the ADEA Revocation Period, as
such term is defined in Section 8, below, expires without You
revoking the release contained in Section 8 of this Agreement.
It is understood that if You revoke such provisions pursuant to
Section 8, You will not be entitled to receive the additional
payment. Such payment will be made to You upon (i) your
written notification to the Company that the ADEA Revocation
Period
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has expired and
(ii) Your execution of and delivery to the Company of the
release in the form attached hereto as Exhibit A.
4. The
Company agrees to and reaffirms its obligations to You set forth in
Paragraph 12 of the Employment Agreement, including its
obligation to provide indemnification of You and to include You as
an additional insured on its directors and officers’
liability policy. Paragraph 12 of the Employment Agreement is
incorporated herein for all purposes.
5. You and
the Company agree that in the event You apply for unemployment
insurance benefits, the Company shall respond to any inquiry from
the applicable governmental authority that your employment ended as
a result of a “business reorganization.”
6. You
represent and warrant that you have made reasonable efforts to
return to the Company all non-public documents and other property
of the company which are in Your possession or control.
7. Neither by
offering to make nor by making this Agreement does either party
admit any failure of performance, wrongdoing, or violation of
law.
8. Effective
as of the execution of this Agreement, You ON BEHALF OF YOURSELF,
YOUR SPOUSE, ATTORNEYS, HEIRS, EXECUTORS, ADMINISTRATORS, AGENTS,
ASSIGNS, AND ANY TRUSTS, PARTNERSHIPS AND OTHER ENTITIES UNDER YOUR
CONTROL (TOGETHER, THE “ EXECUTIVE PARTIES ”),
HEREBY GENERALLY RELEASE AND FOREVER DISCHARGE each of the Company,
its respective subsidiaries and affiliates, its respective
predecessors, successors and assigns and their respective past and
present stockholders, members, directors, officers, employees,
agents, representatives, principals, insurers and attorneys
(together the “ Activant Companies Parties ”)
and Hicks, Muse, Tate & Furst Equity Fund III, L.P., HM3
Coinvestors, L.P., Hicks, Muse, Tate, & Furst Incorporated,
their respective subsidiaries and affiliates, their respective
predecessors, successors and assigns and their respective past and
present stockholders, members, directors, officers, employees,
agents, representatives, principals, insurers and attorneys
(together the “ HM Released Parties ”) from any
and all claims, demands, liabilities, suits, damages, losses,
expenses, attorneys’ fees, obligations or causes of action,
KNOWN OR UNKNOWN of any kind and every nature whatsoever, and
WHETHER OR NOT ACCRUED OR MATURED, which any of them have or may
have, arising out of or relating to any transaction, dealing,
relationship, contract, conduct, act or omission, OR ANY OTHER
MATTERS OR THINGS OCCURRING OR EXISTING AT ANY TIME PRIOR TO AND
INCLUDING THE EXECUTION OF THIS AGREEMENT (including, but not
limited to, any claim against the Activant Companies Parties and/or
the HM Released Parties based on, relating to or arising under
wrongful discharge, breach of contract (whether oral or written),
tort, fraud (including fraudulent inducement into this Agreement),
defamation, negligence, promissory estoppel, retaliatory discharge,
Title VII of the Civil Rights Act of 1964, as amended, any other
civil or human rights law, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act,
3
Employee
Retirement Income Security Act of 1974, as amended, or any other
federal, state or local law relating to employment or
discrimination in employment, including, without limitation, the
Texas Commission on Human Rights Act, the Texas Worker’s
Compensation Act an
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