exv10w19



 



EXHIBIT 10.19



 


GE MONOGRAM LICENSE AGREEMENT


     This GE Monogram License Agreement (this “Agreement”), dated and effective
as of September 27, 2002 (the “Effective Date”), is made and entered into by
and between Monogram Licensing, Inc., a Connecticut corporation (“LICENSOR”),
and GXS Corporation, a Delaware corporation (“LICENSEE”), a wholly owned
subsidiary of GXS Holdings, Inc., f/k/a RMS Electronic Commerce Systems, Inc.,
a Delaware corporation (“Holdings”).


     A.     Whereas, the General Electric Company, a New York Corporation (“GE”),
owns the LICENSED MARKS (as hereinafter defined) and has registrations thereof
in certain countries throughout the world for various goods and services;


     B.     Whereas, pursuant to the Recapitalization Agreement dated June 21, 2002
(the “Recapitalization Agreement”) among GE, GE Investments, Inc., a Nevada
corporation (“GEII,” and together with GE, the “GE Parties”), and Global
Acquisition Company, a Delaware Corporation (“Acquiror”), the Acquiror has
agreed, on the terms and subject to the conditions set forth in the
Recapitalization Agreement, to purchase from GEII on the Closing Date (as
defined in the Recapitalization Agreement) certain shares of Holdings.


     C.     Whereas, as a condition to closing the transactions contemplated under
the Recapitalization Agreement, the parties hereto have agreed to enter into
this Agreement;


     D.     Whereas LICENSOR, an affiliate of GE, has the right to license the
LICENSED MARKS and is willing to permit the use of the LICENSED MARKS by
LICENSEE and PERMITTED SUBLICENSEES (as hereinafter defined) under the terms
and conditions hereinafter set forth.


     NOW THEREFORE, the parties agree as follows:


ARTICLE I

DEFINITIONS


The following terms as used in this Agreement shall have the meaning set forth
in this Article I:


     A.     The term “LICENSED MARKS” shall mean and be limited to the GE monogram
trademark shown in Exhibit A attached hereto.


     B.     The term “PRODUCTS” and “SERVICES” shall mean, respectively, and be
limited to, the products sold and services rendered by LICENSEE and PERMITTED


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SUBLICENSEES in the conduct of their businesses as conducted as of the
Effective Date, as such businesses are described in the Recapitalization
Agreement.


     C.     The term “STANDARDS OF QUALITY” shall mean and be limited to:


     1)     standards of design, material and workmanship and other standards
heretofore observed by LICENSOR and its affiliates in their manufacture and
sale of products and its performance of services identical or similar to those
to which this Agreement relates, and


     2)     additional standards, if any, which LICENSOR or GE may otherwise
specify or approve in writing from time to time; such additional standards
shall supersede the standards referred to in Paragraph C(1) immediately above
to the extent of any conflict therewith.


     D.     The term “LICENSED TERRITORY” shall mean worldwide.


     E.     The term “PERMITTED SUBLICENSEES” shall mean LICENSEE’S subsidiaries
identified in Exhibit B attached hereto, who execute the terms of
acknowledgement, a copy of which is set forth in Exhibit C attached hereto.


ARTICLE II

LICENSE GRANT


     A.     LICENSOR hereby grants to LICENSEE and the PERMITTED SUBLICENSEES, a
non-exclusive, non-transferable, royalty-free limited license to use the
LICENSED MARKS in the LICENSED TERRITORY: (i) only in connection with PRODUCTS
manufactured, distributed, sold or otherwise commercialized, and SERVICES
performed, by LICENSEE and PERMITTED SUBLICENSEES in strict accordance with the
STANDARDS OF QUALITY, and (ii) in the same manner and form as the LICENSED
MARKS are used by the LICENSEE and PERMITTED SUBLICENSEES as of the Effective
Date.


     B.     Any rights not granted to LICENSEE and the PERMITTED SUBLICENSEES in
this Agreement are specifically reserved by and for the LICENSOR or GE.
LICENSEE and all PERMITTED SUBLICENSEES hereby accept this grant of license,
subject to the terms and conditions set forth in this Agreement.


ARTICLE III

EXAMINATION OF PRODUCTS


     A.     LICENSEE shall, and shall cause the PERMITTED SUBLICENSEES to, use the
LICENSED MARKS only in connection with PRODUCTS manufactured, distributed, sold
or otherwise commercialized, and SERVICES performed, by LICENSEE (and/or the
PERMITTED SUBLICENSEES) in strict accordance with all of the STANDARDS OF
QUALITY for such PRODUCTS and SERVICES. LICENSOR shall have the right to
supervise and control the use of the LICENSED MARKS by LICENSEE and the
PERMITTED SUBLICENSEES with respect to the nature and quality of the PRODUCTS
manufactured, distributed, sold or otherwise commercialized, and SERVICES
performed, by LICENSEE and PERMITTED


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SUBLICENSEES for the purpose of protecting and maintaining the goodwill
associated with the LICENSED MARKS and the reputation of LICENSOR or GE.


     B.     PRODUCTS and SERVICES, and the methods and processes for manufacturing
PRODUCTS used, by LICENSEE and the PERMITTED SUBLICENSEES, shall meet all
specifications and standards in the STANDARDS OF QUALITY and shall comply with
all federal, state and local laws and regulations and all applicable industry
and safety standards. LICENSEE shall, and shall cause the PERMITTED
SUBLICENSEES to, maintain a documented quality plan and testing and inspection
data for PRODUCTS and SERVICES reasonably acceptable to LICENSOR. LICENSEE and
the PERMITTED SUBLICENSEES shall submit such plan and data to LICENSOR upon its
request. If LICENSOR determines that any such quality plan or data, in its
sole reasonable judgment, is not sufficient to insure that PRODUCTS and
SERVICES will meet the STANDARDS OF QUALITY, LICENSOR shall notify LICENSEE of
such insufficiency and the reasons therefor. If LICENSEE fails to implement,
or to cause the PERMITTED SUBLICENSEES to implement, a quality plan acceptable
to LICENSOR within forty-five (45) days of such notice, then LICENSOR shall
have the right to terminate this Agreement at any time upon notice to LICENSEE.


     C.     For the purpose of protecting and maintaining the goodwill associated
with the LICENSED MARKS and the reputation of LICENSOR or GE, LICENSOR or its
authorized representative shall have the right at any reasonable time or times
during regular business hours on reasonable notice to visit the plants and
facilities of LICENSEE and the PERMITTED SUBLICENSEES where PRODUCTS are
manufactured, assembled, packaged, marketed, promoted, sold or serviced and
SERVICES are rendered. LICENSOR may conduct an inspection and examination of
such plants and facilities, PRODUCTS, the design of PRODUCTS, and the processes
and methods for designing and manufacturing PRODUCTS, and the SERVICES
rendered. LICENSEE agrees to furnish LICENSOR, from time to time as reasonably
requested by LICENSOR, representative samples of all PRODUCTS to which the
LICENSED MARKS are affixed and representative samples showing all other uses of
the LICENSED MARKS by LICENSEE and the PERMITTED SUBLICENSEES. Upon LICENSOR’S
reasonable request, LICENSEE shall permit, and shall cause the PERMITTED
SUBLICENSEES to permit, LICENSOR to promptly examine and audit documents, books
and records pertaining to the design, manufacture, assembly, packaging,
marketing, promoting, sale, servicing, quality, performance and other
characteristics of PRODUCTS and SERVICES as LICENSOR may reasonably require to
verify that PRODUCTS sold and SERVICES rendered by LICENSEE and the PERMITTED
SUBLICENSEES meet the STANDARDS OF QUALITY and that LICENSEE’S and the
PERMITTED SUBLICENSEES use of the LICENSED MARK is in full compliance with
LICENSEE’S obligations under this Agreement. If, at any time, PRODUCTS sold
under the LICENSED MARKS or the design, manufacture, assembly, packaging,
marketing, promotion, sale, servicing, quality or performance of PRODUCTS, and
SERVICES rendered, fail, in the sole opinion of LICENSOR, to conform to the
STANDARDS OF QUALITY or any other requirement of this Agreement, and LICENSOR
notifies LICENSEE of such failure, LICENSEE shall take and/or shall cause the
PERMITTED SUBLICENSEES to take all necessary steps to bring PRODUCTS and
SERVICES into conformance with STANDARDS OF QUALITY and other requirements of
this Agreement. If LICENSEE fails to cure such defects within 15 days of
notice of nonconformity, then LICENSEE and the


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PERMITTED SUBLICENSEES shall promptly cease manufacturing, marketing,
promotion and sale of non-conforming PRODUCTS and rendering SERVICES under the
LICENSED MARKS. Rights granted to LICENSOR under this paragraph to inspect,
examine, request samples, audit, to bring PRODUCTS into conformance, and to
cause LICENSEE to cease activities, with respect to PRODUCTS shall extend to
SERVICES of LICENSEE and the PERMITTED SUBLICENSEES.


ARTICLE IV

USE OF LICENSED MARKS


     A.     Under the license granted in Article II, LICENSEE and the PERMITTED
SUBLICENSEES are authorized to use the LICENSED MARKS only in connection with
PRODUCTS and SERVICES, including use in packaging, labeling, general publicity,
advertising, instruction books and other literature relating to PRODUCTS and
SERVICES.


     B.     LICENSEE shall comply and shall cause the PERMITTED LICENSEES to comply
with rules and practices set forth from time to time by LICENSOR with respect
to the appearance and manner of use of the LICENSED MARKS including such rules
and practices set forth in GE’s manual entitled GE Identity Program Manual. In
using the LICENSED MARKS, LICENSEE shall indicate and shall cause the PERMITTED
LICENSEES to indicate that the LICENSED MARKS are registered trademarks of GE.
Any form of use of the LICENSED MARKS not specifically provided for by such
rules shall be adopted by LICENSEE only upon prior approval in writing by
LICENSOR.


     C.     LICENSEE shall comply and shall cause the PERMITTED SUBLICENSEES to
comply with all applicable laws and regulations, including those pertaining to
the proper use and designation of trademarks in the LICENSED TERRITORY and
pertaining to the manufacture, distribution, promotion and sale of PRODUCTS and
the offering, rendering and promotion of SERVICES in the LICENSED TERRITORY.


     D.     LICENSEE shall immediately cease, and shall cause the PERMITTED
LICENSEES to immediately cease use of the LICENSED MARKS upon notice from
LICENSOR under circumstances where, in the sole opinion of LICENSOR, such use
of the LICENSED MARKS might result in an adverse claim against either LICENSOR,
GE, LICENSEE, and/or the PERMITTED SUBLICENSEES by a third party. LICENSEE
agrees to comply fully and to cause the PERMITTED SUBLICENSEES to comply fully
with all guidelines adopted from time to time by LICENSOR or GE for the purpose
of distinguishing its trademarks and preventing confusion of itself with any
other entity.


     E.     If, in the sole discretion of LICENSOR, it is required or advisable for
the purpose of making this Agreement enforceable, or for the purpose of
maintaining, enhancing, or protecting LICENSOR’s or GE’s rights in the LICENSED
MARKS, to record this Agreement or to enter LICENSEE (and/or the PERMITTED
SUBLICENSEE) as a registered or authorized user of the LICENSED MARKS, LICENSOR
will attend (at LICENSEE’s expense) to such recording or entry. LICENSEE will
execute and deliver, or cause the PERMITTED


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SUBLICENSEE to execute and deliver, to LICENSOR such additional instruments or
documentation as LICENSOR may reasonably request, including without limitation
execution and delivery of substitute or short-form license agreements, with
terms consistent with this Agreement, for recordation or registration in
specified countries in the event that this Agreement shall be deemed to be
unsuitable for recordation or entry in such countries. The terms and
conditions of this Agreement (and not the terms and conditions of such
substitute or short-form license agreements entered into for recording or entry
purposes) shall be binding between the parties throughout the world and shall
govern and control any controversy that should arise with respect to each
party’s rights and obligations hereunder; provided, however, that if specific
terms and conditions of any such substitute or short-form agreement differ from
the comparable terms and conditions of this Agreement and enforcement of the
comparable terms and conditions of this Agreement pursuant to this provision
either would be improper under the laws of the applicable country or would
adversely affect LICENSOR or GE’s rights in and to the LICENSED MARKS in such
country, then the specific terms and conditions of the substitute or short-form
agreement shall be controlling in such country.


     F.     LICENSEE shall supply, or shall cause the PERMITTED SUBLICENSEES to
supply, LICENSOR with such information concerning sales and the like of
PRODUCTS and SERVICES as LICENSOR may reasonably request to aid LICENSOR in the
acquisition, maintenance, and renewal of registrations of the LICENSED MARKS,
to record this Agreement, to enter LICENSEE and/or the PERMITTED SUBLICENSEES
as a registered or authorized user of the LICENSED MARKS, or for any purpose
reasonably related to LICENSOR’S maintenance and protection of the LICENSED
MARKS. LICENSEE shall fully cooperate, and shall cause all the PERMITTED
SUBLICENSEES to fully cooperate, with LICENSOR in the execution, filing, and
prosecution of any trademark or copyright applications relating to LICENSED
MARKS that LICENSOR may desire to file and for that purpose LICENSEE shall
supply, or shall cause the PERMITTED SUBLICENSEES to supply, to LICENSOR such
samples, containers, labels and other similar materials as may be required by
LICENSOR.


ARTICLE V

OWNERSHIP AND VALIDITY OF LICENSED MARKS


     A.     LICENSEE admits the validity, and GE’s ownership, of the LICENSED MARKS
and agrees that any and all rights that might be acquired by the use of the
LICENSED MARKS by LICENSEE and/or the PERMITTED SUBLICENSEES shall inure to the
sole benefit of GE. If LICENSEE and/or the PERMITTED SUBLICENSEES obtain
rights in the LICENSED MARKS, LICENSEE shall transfer, or shall cause the
PERMITTED SUBLICENSEES to transfer, those rights to LICENSOR or GE upon request
by the LICENSOR. LICENSEE admits and agrees that, as between the parties,
LICENSEE and the PERMITTED SUBLICENSEES have been extended only a mere
permissive right to use LICENSED MARKS as provided in this Agreement which is
not coupled with any ownership interest.


     B.     LICENSEE further agrees not to use or register, nor permit the
PERMITTED SUBLICENSEES to use or register, in any country any trademarks or
internet domain names resembling or confusingly similar to, or consisting in
whole or in part of, the LICENSED


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MARKS, without the express written consent of LICENSOR. Whenever the attention
of LICENSEE is called by LICENSOR to any such confusion or risk of confusion,
LICENSEE agrees to take appropriate steps, and/or cause its PERMITTED
SUBLICENSEES, to take appropriate steps to immediately remedy or avoid such
confusion or risk of confusion


     C.     LICENSEE shall give, and shall cause the PERMITTED SUBLICENSEES to
give, LICENSOR notice of any known or presumed infringements of the LICENSED
MARKS, and LICENSEE shall render, and shall cause the PERMITTED SUBLICENSEES to
render, LICENSOR full cooperation for the protection of the LICENSED MARKS.
LICENSOR shall retain all rights to bring all actions and proceedings in
connection with infringement or misuse of the LICENSED MARKS at its sole
discretion. If LICENSOR decides to enforce the LICENSED MARKS against an
infringer, all costs incurred and recoveries made shall be for the account of
LICENSOR.


     D.     LICENSEE will not, directly or indirectly, or through the PERMITTED
SUBLICENSEES, at any time during the term of this Agreement (as defined in
Paragraph A of Article VI.), and any time thereafter, do or cause to be done
any act or thing disputing, attacking, impairing, diluting, or in any way
tending to impair or dilute LICENSOR or GE’s right, title or interest in or to
the LICENSED MARKS or the validity of the license granted herein.


     E.     LICENSEE has no right, and shall not represent that it has the right to
bind or obligate LICENSOR in any way, and shall cause the PERMITTED
SUBLICENSEES to not represent that they have the right to bind or obligate
LICENSOR in anyway.


ARTICLE VI

TERMINATION


     A.     Unless terminated pursuant to any provision of this Article VI., this
Agreement shall have a term of two (2) year from the Effective Date.


     B.     This Agreement shall terminate as to a particular country with notice
on a date established by either LICENSOR or LICENSEE if a controlling
substitute or short-form agreement is required in such country pursuant to
Paragraph IV.E. hereof and such controlling replacement agreement contains
provisions unacceptable to the party giving notice hereunder.


     C.     In the event LICENSEE does not or the PERMITTED SUBLICENSEE do not
comply with any provisions of this Agreement and LICENSOR elects to give
LICENSEE, written notice of such non-compliance, LICENSEE shall have twenty
(20) days from the receipt of such notice to remedy the breach, or cause the
PERMITTED SUBLICENSEES to remedy the breach. If the breach is not remedied
within said twenty (20) days, LICENSOR shall have the right to terminate this
Agreement at any time thereafter by giving LICENSEE notice of such termination.


     D.     The following provisions of this Agreement shall survive any
termination or expiration of this Agreement: Paragraph V.A., Paragraph V.B.,
and Paragraphs VII A., C., D., E., and F.


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ARTICLE VII

MISCELLANEOUS PROVISIONS


     A.     LICENSEE shall fully indemnify and hold harmless and LICENSOR and GE
against any and all claims, losses, damages, expenses or liability asserted
against or suffered by LICENSOR and GE and arising out of or relating to this
Agreement or the manufacture, sale, offering for sale, promotion or other
disposition of PRODUCTS, or performance, rendering, offering to perform or
render, or the promotion of SERVICES, by LICENSEE under the LICENSED MARKS,
whether or not such PRODUCTS or SERVICES conform to the required STANDARDS OF
QUALITY and whether or not LICENSOR has specifically approved the manufacture
or sale of PRODUCTS or performance of SERVICES.


     B.     This Agreement or any rights hereunder may not be assigned or otherwise
transferred or extended by LICENSEE to any party, including, without
limitation, subsidiaries and affiliates of LICENSEE without the prior written
consent of LICENSOR, and any attempted assignment, transfer or extension
without such consent shall be null and void. LICENSOR, in its sole discretion,
may assign this Agreement, and any of its rights under this Agreement, and may
delegate any of its duties under this Agreement to any affiliate of LICENSOR,
including, without limitation, GE, at any time.


     C.     Any notices or requests with reference to this Agreement shall be in
writing and shall be directed by one party to the other at its respective
address as follows:


     LICENSOR:



	 
	Monogram Licensing, Inc.
	c/o General Electric Company
	Attention: Ronald E. Myrick
	3135 Easton Turnpike
	Fairfield, CT 06431




     with a copy to:



	 
	Shearman & Sterling
	599 Lexington Avenue
	New York, New York 10022
	Attention: John A. Marzulli, Jr.
	Facsimile: (212) 848-7179




     LICENSEE:



	 
	[Global Acquisition Company]
	c/o Francisco Partners, L.P.
	2882 Sand Hill Road, Suite 280
	Menlo Park, CA 94025




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	Attention: Gerald R. Morgan
	Facsimile: (650) 233-2999




     with a copy to:



	 
	Jones, Day, Reavis & Pogue
	2882 Sand Hill Road, Suite 240
	Menlo Park, CA 94025
	Attention: S.M. McAvoy
	Facsimile: (650) 739-3900




     and



	 
	GXS Corporation
	100 Edison Park Drive
	Gaithersburg, MD 20878
	Attention: Vice President & General Counsel
	Facsimile: (301) 340-4251




Any party may change its address to which notices or requests shall be directed
by notice to the other party, but until such change of address has been
received, any notices or requests sent to the above addresses shall be
effective upon transmittal and shall be considered as having been received.


     D.     This instrument contains the entire agreement between the parties
hereto regarding the use of the LICENSED MARKS, and this Agreement supersedes
and cancels all previous, understandings or agreements in regard to the subject
matter hereof. This Agreement may not be released or modified in any manner,
orally or otherwise, except by an instrument in writing signed by duly
authorized representatives of the parties hereto.


     E.     This Agreement shall be governed by the laws of the State of New York.
New York State or Federal Courts shall have exclusive jurisdiction and venue
over any action or proceeding related to this Agreement.


     F.     Failure by LICENSOR at any time to enforce or require strict compliance
with any provision of this Agreement shall not affect or impair that provision
in any way or the rights of LICENSOR to avail itself of the remedies it may
have in respect of any subsequent breach of that or any other provision.


     G.     If any covenant or other provision of this Agreement is invalid,
illegal or incapable of being enforced, by reason of any rule of law,
administrative order, judicial decision, or public policy, then all other
conditions and provisions of this Agreement, nevertheless, remain in full force
and effect, and no covenant or provision shall be deemed dependent upon any
other covenant or provision unless so expressed herein.


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     IN WITNESS WHEREOF, LICENSOR and LICENSEE have caused this instrument to
be executed in duplicate by their duly authorized representatives as of the
date first written above.



	 
	MONOGRAM LICENSING, INC
	 
	By: /s/ Robert G.
Copping       
	 
	Title: Treasurer                          
	 
	GXS CORPORATION
	 
	By: /s/ Jean-Jacques Charhon 
	 
	Title: Senior Vice President      




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