ASSUMPTION AND RELEASE AGREEMENT
Exhibit
10.12
THIS ASSUMPTION AND RELEASE AGREEMENT (the “Agreement”) is made effective as of October 13,
2006, by and among Lone Star Holding Corp., a Delaware corporation (“Lone Star”), Xxxxxxx &
Xxxxxxxx Capital Partners V, L.P., a Delaware corporation (“H&F”), Xxxxx Xxxxxxx Fund VII,
L.P., a Delaware limited partnership (“TCEP”), and Xxxxxx Xxxxxxx, an individual.
A. Affiliates of each of H&F and TCEP entered into a letter agreement (the “Letter”),
dated as of April 7, 2006, with Xxxxxx Xxxxxxx, regarding, among other things, his role and
responsibilities at Activant Solutions Holdings Inc., a Delaware corporation (“ASHI”) or
its holding company.
B. On May 2, 2006, Lone Star Merger Corp., a Delaware corporation and wholly-owned subsidiary
of Lone Star merged with and into ASHI, with ASHI surviving the merger (the “First
Merger”). Immediately following the First Merger, ASHI merged with and into Activant Solutions
Inc., a Delaware corporation (“ASI”), and wholly-owned subsidiary of ASHI, with ASI
surviving the merger (the “Second Merger”). As a result of the Second Merger, Lone Star
became the holding company of ASI.
C. As of the date of this Agreement, Xxxxxx Xxxxxxx is a member of the board of directors of
ASI and Lone Star.
D. The parties hereto have each agreed to execute and deliver this Agreement to confirm that
(i) Lone Star will assume the obligations and liabilities of H&F and TCEP under the Letter from and
after the date hereof and (ii) each of H&F and its affiliates, TCEP and its affiliates and each of
their respective directors, officers, employees, partners, members, managers and representatives
shall be fully released of any and all obligations and liabilities thereunder as of the date
hereof.
In consideration of the foregoing and the mutual covenants and promises set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lone Star, H&F, TCEP and Xxxxxx Xxxxxxx agree as follows:
1. Assumption of Obligation. Lone Star agrees to, and does hereby assume, the
performance of all of the terms, covenants and conditions of the Letter and all of the obligations
and liabilities of H&F and TCEP, arising out of, or relating to, the Letter, whether accruing, or
being required to be paid or performed, prior to, on or after the date hereof. Lone Star further
agrees to abide by, and be bound by, all of the terms of the Letter, as though the Letter had been
made, executed and delivered by Lone Star. The provisions of the Letter are incorporated herein by
this reference, as if fully set forth herein. Lone Star acknowledges and agrees that any reference
to H&F or TCEP in the Letter shall be deemed to refer to Lone Star from and after the date of this
Agreement.
2. Release of H&F and TCEP. In consideration of the mutual covenants contained
herein, Xxxxxx Xxxxxxx unconditionally and irrevocably releases and forever discharges H&F and its
affiliates, TCEP and its affiliates and each of their respective directors, officers, employees,
partners, members, managers and representatives (each of the foregoing, a “Releasee,” and
collectively, the “Releasees”) from any and all obligations and liabilities arising out of
or relating to the Letter, whether accruing, or being required to be paid or performed, prior to,
on or after the date hereof (the “Released Matters”). Each of Lone Star and Xxxxxx Xxxxxxx
expressly acknowledges that it or he has had, or has had and waived, the opportunity to be advised
by independent legal counsel and hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the California Civil Code with respect to the Released Matters and does so
understanding and acknowledging the significance and consequence of such specific waiver of Section
1542 which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
3. Miscellaneous.
(a) This Agreement shall be construed according to and governed by the laws of the
State of California without regard to its conflicts of law principles.
(b) If any provision of this Agreement is adjudicated to be invalid, illegal or
unenforceable, in whole or in part, it will be deemed omitted to that extent and all other
provisions of this Agreement will remain in full force and effect.
(c) No change or modification of this Agreement shall be valid unless the same is in
writing and signed by all parties hereto.
(d) The captions contained in this Agreement are for convenience of reference only and
in no event define, describe or limit the scope or intent of this Agreement or any of the
provisions or terms hereof.
(e) This Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, legal representatives, successors and permitted assigns. In
addition, the provisions of Section 2 of this Agreement are also intended to be for the
benefit of, and shall be enforceable by, each Releasee, and each such of such Releasee’s
heirs, representatives, successors or assigns, it being expressly agreed that the Releasees
shall be third party beneficiaries of Section 2 of this Agreement.
(f) This Agreement may be executed in any number of counterparts with the same effect
as if all parties hereto had signed the same document. All such counterparts shall be
construed together and shall constitute one instrument, but in making proof hereof it shall
only be necessary to produce one such counterpart.
(g) This Agreement represents the final agreement between the parties hereto and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Assumption and Release Agreement as of the date
first above written.
| LONE STAR HOLDING CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | President & Chief Executive Officer | |||||
| XXXXXXX & XXXXXXXX CAPITAL PARTNERS V, L.P. | ||||||
| By: | ||||||
+
|
Name: | |||||
| Title: | Managing Director | |||||
| XXXXX XXXXXXX EQUITY PARTNERS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Managing Partner | |||||
| Xxxxxx Xxxxxxx | ||||||