Employee Benefits Agreement

EXHIBIT 10.4


EMPLOYEE BENEFITS AGREEMENT


BY AND BETWEEN

RADIANT SYSTEMS, INC.

AND


WAVE ENTERPRISE SYSTEMS, INC.


Dated as of , 2003


EMPLOYEE BENEFITS AGREEMENT


TABLE OF CONTENTS

Page


Article 1

Definitions and References 1 1.1

Definitions 1 1.2

References 4

Article 2

General Principles 4 2.1

Assumption of Liabilities 4 2.2

Enterprise Continuing Participation In Radiant Health and Welfare Plans 5 2.3

Establishment of the Enterprise Mirror Plans 7 2.4

Terms of Participation by Transferred Individuals 8

Article 3

Health and Welfare Plans 8 3.1

COBRA and HIPAA 8 3.2

Leave of Absence Programs 8 3.3

Coverage Under Plans 8

Article 4

Miscellaneous Employee Benefits 9 4.1

Stock Options 9 4.2

Employee Stock Purchase Plan 10 4.3

Bonuses 10 4.4

Paid Time Off 10 4.5

Severance/Separation Pay 11 4.6

Immigration Matters 11 4.7

Enterprise 401(k) Plan 11

Article 5

General 11 5.1

Sharing of Participant Information and Access to Information 11 5.2

Reporting and Disclosure and Communications to Participants 12 5.3

Plan Audits 12 5.4

Requests for Internal Revenue Service Rulings and United States Department of Labor Opinions 13 5.5

Fiduciary and Related Matters 13 5.6

No Third-Party Beneficiaries; Non-Termination of Employment 14 5.7

Consent of Third Parties 14 5.8

Effect if Separation Does Not Occur 14 5.9

Relationship of Parties 14 5.10

Dispute Resolution 15 5.11

Indemnification 15 5.12

W-2 Matters 15 5.13

Confidentiality 15 5.14

Notices 16

5.15

Interpretation 17


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5.16

Severability 17

5.17

Governing Law/Execution 17


Appendix A

Enterprise Mirror Plans

Appendix B

Radiant Health and Welfare Plans

Appendix C

Form of Certification Regarding Enterprise 401(K) Plan


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EMPLOYEE BENEFITS AGREEMENT


This EMPLOYEE BENEFITS AGREEMENT, dated as of the day of , 2003, is by and between Radiant Systems, Inc., a Georgia corporation ("Radiant"), and Wave Enterprise Systems, Inc., a Georgia corporation ("Enterprise").


WHEREAS, Radiant and Enterprise have entered into a Separation Agreement, dated as of , 2003 (the "Separation Agreement") pursuant to which Radiant will contribute to Enterprise certain assets of Radiant and Enterprise will assume certain liabilities of Radiant as particularly described in the Separation Agreement; and

WHEREAS, pursuant to the Separation Agreement, Radiant and Enterprise have agreed to enter into this Agreement for the purpose of allocating assets, liabilities, and responsibilities with respect to certain employee compensation and benefit plans and programs between them.

NOW, THEREFORE, in consideration of the mutual promises contained herein and in the Separation Agreement, the parties agree as follows:


Article 1 Definitions and References

1.1 Definitions

For purposes of this Agreement, capitalized terms used (other than the formal names of Radiant Plans (as defined below)) and not otherwise defined shall have the respective meanings assigned to them below or as assigned to them in the Separation Agreement (as defined above):

(a) "Action" means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal.


(b) "Agreement" means this Employee Benefits Agreement, including all the attached Appendices.

(c) "Benefit Transition Period" means the period beginning Immediately after the Closing Date until 11:59 P.M., Eastern Time, May 31, 2004, unless the parties mutually agree otherwise.


(d) "Closing Date" has the meaning ascribed to such term in the Separation Agreement.

(e) "Code" means the Internal Revenue Code of 1986, as amended, or any successor federal income tax law. Reference to a specific Code provision also includes any temporary or final regulation in force under that provision.

(f) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. Reference to a specific provision of ERISA also includes any temporary or final regulation in force under that provision.

(g) "Enterprise Business" has the meaning given that term under the Separation Agreement.

(h) "Enterprise Employee" means an employee, director, officer, consultant, independent contractor, contingent worker or leased employee who is employed by or provides services to Enterprise or any Subsidiary of Enterprise.


(i) "Enterprise Mirror Plan" means any of the Plans to be established by Enterprise Immediately after the Closing Date as set forth on Appendix A hereto, which Plan shall provide benefits in the aggregate comparable to the benefits provided by the corresponding Radiant Plan.

(j) "Governmental Authority" means any federal, state, local, foreign, or international court, government, department, commission, board, bureau, agency, official, or other regulatory, administrative, or governmental authority, including the Department of Labor, the Securities and Exchange Commission, the Internal Revenue Service, and the Pension Benefit Guaranty Corporation.


(k) "Health and Welfare Plans," when immediately preceded by "Radiant" means the health and welfare benefit plans, programs, and policies (including the Reimbursement Plans) which are sponsored by Radiant, including those plans, programs and policies set forth in Appendix B which are sponsored by Radiant as of the Closing Date and in which Enterprise will be a Participating Company through the Benefit Transition Period. When immediately preceded by "Enterprise," "Health and Welfare Plans" means any benefit plans, programs, and policies (including the Reimbursement Plans) to be established by Enterprise Immediately after the Closing Date or after the end of the Benefit Transition Period.

(l) "HMO" means a health maintenance organization that provides benefits under the Radiant Health and Welfare Plans or the Enterprise Health and Welfare Plans, as applicable.

(m) "HMO Agreements" means contracts, letter agreements, practices, and understandings with HMOs that provide medical, dental, prescription drug, or vision services under the Radiant Health and Welfare Plans and the Enterprise Health and Welfare Plans, as applicable.

(n) "Immediately after the Closing Date" means 12:00 A.M., Eastern Time, on the day after the Closing Date.


(o) "Law" means all laws, statutes and ordinances and all regulations, rules and other pronouncements of Governmental Authorities having the effect of law of the United States, any foreign country, or any domestic or foreign state, province, commonwealth, city, country, municipality, territory, protectorate, possession or similar instrumentality, or any Governmental Authority thereof.

(p) "Liabilities" means any and all debts, liabilities, obligations, responsibilities, response actions, losses, claims, charges, demands, causes of actions, payments, costs and expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities and similar obligations, exoneration, covenants, contracts, damages (whether compensatory, punitive or treble), fines, penalties and sanctions, controversies, agreements, promises, doings, omissions, variances, guarantees, make whole agreements and similar obligations, and other liabilities and requirements, all contractual obligations,


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absolute or contingent, matured or unmatured, liquidated or unliquidated, foreseen or unforeseen, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising, including those arising under or in connection with any Law, Action, threatened Action, order or consent decree of any Governmental Authority, or any award of any arbitration tribunal, and those arising under any contract, guarantee, commitment or undertaking, whether sought to be imposed by a Governmental Authority, private party, or party to this Agreement, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys' fees, disbursements and expenses of counsel, expert and consulting fees and costs related thereto or to the investigation or defense thereof, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.


(q) "Participating Company" means any Person (other than an individual) that is a participating employer in a Radiant Plan.


(r) "Person" means any natural person, corporation, business trust, limited liability company, joint venture, association, company, partnership or government, or any agency or political subdivision thereof.

(s) "Plan," when immediately preceded by "Radiant," means any plan, policy, program, payroll practice (including short-term disability, paid time off and all other leave policies), on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle, whether written or unwritten, providing benefits to employees or former employees of Radiant or, for periods before the close of the Benefit Transition Period, providing benefits to employees or former employees of Enterprise. When immediately preceded by "Enterprise," means any plan, policy, program, payroll practice (including short-term disability, paid time off and all other leave policies), on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle, whether written or unwritten, providing benefits to employees or former employees of Enterprise.

(t) "Reimbursement Plans," when immediately preceded by "Radiant," means the Radiant Systems Flexible Benefit Plans. When immediately preceded by "Enterprise," "Reimbursement Plans" means the health care flexible spending account plan and the dependent care flexible spending account plan to be established or maintained by Enterprise as of the Closing Date pursuant to Section 2.3 that corresponds to the corresponding Radiant Reimbursement Plans.

(u) "Separation" has the meaning given that term under the Separation Agreement.

(v) "Separation Agreement" is defined in the preamble of this Agreement.


(w) "Subsidiary" shall mean with respect to any specified Person, any corporation or other legal entity of which such Person or any of its Subsidiaries controls or owns, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of members to the board of directors or similar governing body.


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(x) "Transferred Individual" means any individual who:

(i) is actively employed by, or on a leave of absence (including, but not limited to, a leave due to short-term disability and leave pursuant to the Family and Medical Leave Act of 1993, as amended) from, Radiant in the Enterprise Business as of the Closing Date and, Immediately after the Closing Date, will be actively employed by, or on a leave of absence from, Enterprise


(ii) is actively employed by, or on a leave of absence (including, but not limited to, a leave due to short-term disability and leave pursuant to the Family and Medical Leave Act of 1993, as amended from, Radiant in the Enterprise Business as of the Closing Date and will continue to be employed by Radiant for a transition period after the Closing Date, with such period to be agreed upon by the parties (the "Transition Period"), and after the Transition Period will be employed by Enterprise; or


(iii) any other employee of Radiant or group of employees of Radiant designated as a Transferred Individual by agreement of the parties.

An individual described in (ii) or (iii) above shall become a Transferred Individual as of the first date as of which such individual becomes employed by Enterprise.

1.2 References

Unless the context clearly indicates otherwise, reference to a particular Article, Section, subsection or paragraph means the Article, Section, subsection or paragraph so delineated in this Agreement.


Article 2 General Principles

2.1 Assumption of Liabilities

(a) By Enterprise . Effective as of the Closing Date, Enterprise shall assume and be responsible for

(i) all employment and employee benefit-related matters, obligations and Liabilities related to any Enterprise Employee, including any Transferred Individual, and the dependents or beneficiaries of any of them, to the extent arising out of any period of employment with Enterprise or any Subsidiary of Enterprise after the Closing Date;


(ii) all obligations and Liabilities related to any Enterprise Mirror Plan, whether incurred before or after the Closing Date;

(iii) all obligations and Liabilities to administer leaves of absence and related programs affecting Transferred Individuals for the period after the Closing Date as described in Section 3.2;


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(iv) the obligations and Liabilities for quarterly bonuses and commissions as described in Section 4.3;


(v) all obligations and Liabilities for accrued and unused paid time off as described in Section 4.4;


(vi) the obligations and Liabilities for immigration-related matters as described in Section 4.6; and

(vii) all obligations and Liabilities related to or arising out of a claim that any Radiant Plan is a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA) with respect to participation in such plan by Enterprise Employees at any time during the Benefit Transition Period.


(b) By Radiant . Effective as of the Closing Date, Radiant shall assume and be responsible for


(i) all employment and employee benefit-related matters, obligations and Liabilities, related to any Transferred Individual and the dependents or beneficiaries of any of them, arising out of any period of employment occurring before and ending on or before the Closing Date, whether such matters, obligations or Liabilities arise before, on or after the Closing Date (other than the obligations and Liabilities specifically assumed by Enterprise herein);


(ii) the employment and employee benefit-related matters, obligations and Liabilities, related to any employee, director, officer, consultant, independent contractor, contingent worker or leased employee of Radiant or any Subsidiary of Radiant (other than a Transferred Individual) and the dependents or beneficiaries of any of them, whether such matters, obligations or Liabilities arise before, on or after the Closing Date; and

(iii) all obligations and Liabilities related to any Radiant Plan, except the obligation to fund benefits and expenses related to coverage of Enterprise Employees during the Benefit Transition Period.


From and after the Closing Date, Radiant shall have no obligations and Liabilities with respect to any Enterprise Employee except as specifically provided in (b) above and such obligations and Liabilities that arise out of or relate to its status as plan sponsor, plan administrator or fiduciary of a Radiant Plan described in Section 2.2(a) during the Benefit Transition Period.

2.2 Enterprise Continuing Participation In Radiant Health and Welfare Plans

(a) Participation in Radiant Plans

Subject to the terms and conditions of this Agreement, with respect to each Radiant Health and Welfare Plan listed in Appendix B hereto, Enterprise and each of its Subsidiaries shall be a Participating Company in such Radiant Plan during the Benefit Transition Period unless the parties mutually agree to an earlier date as of which Enterprise and its Subsidiaries shall cease to participate in a Radiant Plan.


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Radiant shall take such steps as are necessary under each Radiant Plan described in this Section 2.2(a) to permit Enterprise Employees (and their dependents and beneficiaries) to participate in each such Plan through the Benefit Transition Period.


Radiant shall cause the Radiant Health and Welfare Plans listed in Appendix B hereto to recognize and maintain after the Closing Date all coverage and contribution elections and designations of beneficiaries made by Transferred Individuals as such elections were last in effect during the period immediately prior to the Closing Date and shall apply such elections for the Benefit Transition Period (subject to applicable election change rights).

(b) Radiant's General Obligations and Rights As Plan Sponsor

Radiant shall continue as the, and shall have all the rights, duties and responsibilities of, plan sponsor of each Radiant Plan described in Section 2.2(a) and shall administer, or cause to be administered, each such plan in accordance with its terms and applicable law during the Benefit Transition Period while Enterprise and its Subsidiaries continue to participate in such plan.


Nothing contained in this Section 2.2 shall preclude Radiant from choosing to enter into contracts, insurance policies, HMO Agreements, letters of understanding, or other arrangements with new or different vendors than those in effect as of the Closing Date; provided, if such change is made during the Benefit Transition Period, Radiant shall give Enterprise notice at least thirty (30) days prior to the effective date of such change of any decision to change or add vendors, and if such change results in an increase in premiums, Enterprise may elect to terminate the Benefit Transition Period and to establish Enterprise Health and Welfare Plans to replace the Radiant Plans described in Section 2.2(a) above.

(c) Enterprise's General Obligations and Rights as Participating Company


With respect to each Radiant Plan described in Section ...