exv10w17



 




EXHIBIT 10.17



 


HIGHLY CONFIDENTIAL


SERVICES AGREEMENT


dated September 27, 2002


among


GENERAL ELECTRIC COMPANY,


GXS HOLDINGS, INC. f/k/a RMS ELECTRONIC COMMERCE SYSTEMS, INC.


GLOBAL ACQUISITION COMPANY


and


GE CAPITAL FINANCIAL INC.


 






 


TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	 	 	 	 	

	
ARTICLE I

	 
	DEFINITIONS

	 
	
SECTION
1.01. Certain Defined Terms
	 	 	1	 
	 
	
ARTICLE II

	 
	
SERVICES AND TERMS

	 
	SECTION 2.01. Services and Terms
	 	 	6	 
	 
	
ARTICLE III

	 
	
GE POLICIES AND MATERIALS

	 
	SECTION 3.01. Accounting Policies
	 	 	6	 
	SECTION 3.02. Corporate Policies
	 	 	6	 
	SECTION 3.03. Six Sigma Materials
	 	 	7	 
	SECTION 3.04. Limitation on Rights and Obligations with Respect
to the GE Materials
	 	 	7	 
	 
	
ARTICLE IV

	 
	
OTHER ARRANGEMENTS

	 
	SECTION 4.01. Six Sigma Third Party Licenses
	 	 	8	 
	SECTION 4.02. SAMGE
	 	 	8	 
	SECTION 4.03. Software Licenses
	 	 	9	 
	SECTION 4.04. Corporate Purchasing Contracts
	 	 	9	 
	SECTION 4.05. Telecommunications Contracts
	 	 	9	 
	 
	
ARTICLE V

	 
	
ADDITIONAL AGREEMENTS

	 
	SECTION 5.01. Leases
	 	 	10	 
	SECTION 5.02. GE Computer-Based and Other Resources
	 	 	10	 
	SECTION 5.03. Employee Benefits Matters
	 	 	10	 
	SECTION 5.04. CR&D Matters
	 	 	11	 
	SECTION 5.05. Charge Card Administration
	 	 	11	 
	SECTION 5.06. Access
	 	 	11	 



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	 	 	 	 	 	 	Page
	 	 	 	 	 	 	

	 
	ARTICLE VI

	 
	COSTS AND DISBURSEMENTS

	 
	SECTION 6.01. Costs and Disbursements
	 	 	12	 
	 
	ARTICLE VII

	 
	STANDARD FOR SERVICE

	 
	SECTION 7.01. Standard for Service
	 	 	12	 
	 
	ARTICLE VIII

	 
	LIMITED LIABILITY AND INDEMNIFICATION

	 
	SECTION 8.01. Limited Liability of a Provider
	 	 	13	 
	SECTION 8.02. Additional Limitation on Liability
	 	 	13	 
	SECTION 8.03. Indemnification of Each Provider by the
Relevant Recipient
	 	 	13	 
	SECTION 8.04. Indemnification of Each Recipient by the
Relevant Provider
	 	 	13	 
	SECTION 8.05. Indemnification of GE Indemnified Parties
	 	 	14	 
	SECTION 8.06. Indemnification of Acquiror Indemnified Parties
	 	 	14	 
	SECTION 8.07. Indemnification Procedures
	 	 	14	 
	 
	ARTICLE IX

	 
	DISPUTE RESOLUTION

	 
	SECTION 9.01. Dispute Resolution
	 	 	14	 
	 
	ARTICLE X

	 
	TERMINATION

	 
	SECTION 10.01. Termination
	 	 	15	 
	SECTION 10.02. Effect of Termination
	 	 	15	 
	SECTION 10.03. Force Majeure
	 	 	16	 
	 
	ARTICLE XI

	 
	GENERAL PROVISIONS

	 
	SECTION 11.01. No Agency
	 	 	16	 
	SECTION 11.02. Subcontractors
	 	 	16	 
	SECTION 11.03. Further Assurances
	 	 	17	 
	SECTION 11.04. Treatment of Confidential Information
	 	 	17	 



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	 	 	 	 	 	 	Page
	 	 	 	 	 	 	

	SECTION 11.05. Additional Termination Provisions
	 	 	17	 
	SECTION 11.06. Notices
	 	 	17	 
	SECTION 11.07. Severability
	 	 	18	 
	SECTION 11.08. Entire Agreement
	 	 	18	 
	SECTION 11.09. No Third-Party Beneficiaries
	 	 	19	 
	SECTION 11.10. Amendment
	 	 	19	 
	SECTION 11.11. Rules of Construction
	 	 	19	 
	SECTION 11.12. Counterparts
	 	 	19	 
	SECTION 11.13. No Right to Set-Off
	 	 	19	 



iii






 




	 	 
	SCHEDULES	 
	 
	SCHEDULE A

SCHEDULE B

SCHEDULE C
	GE Services

Services provided to GE

Leased/Subleased Facilities and GE Services




 






 



     This Services Agreement, dated as of September 27, 2002 (this
“Agreement”), is made among GENERAL ELECTRIC COMPANY, a New York
corporation (“General Electric”), GLOBAL ACQUISITION COMPANY, a Delaware
corporation (the “Acquiror”) and GXS HOLDINGS, INC. f/k/a RMS ELECTRONIC
COMMERCE SYSTEMS, INC. (“RMS”), a Delaware corporation, GE Capital
Financial Inc., a Utah corporation (“GECF”), and GXS Corporation, a
Delaware corporation (“GXS Corporation”).


RECITALS


     WHEREAS, General Electric, GE Investments, Inc., a Nevada corporation and
a subsidiary of General Electric (“GEII”) and the Acquiror entered into
a Recapitalization Agreement, dated as of June 21, 2002 (the
“Recapitalization Agreement”).


     WHEREAS, it is contemplated by Section 5.13 of the Recapitalization
Agreement that after the date hereof (a) General Electric will continue to
provide or cause to be provided certain administrative and support services and
other assistance to RMS (and/or its Subsidiaries, as appropriate, collectively
hereinafter referred to as the “Company”) and (b) the Company will
continue to provide or cause to be provided certain administrative and support
services and other assistance to General Electric (and/or its Subsidiaries, as
appropriate, collectively hereinafter referred to as “GE”).


     NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto hereby agree as follows:


ARTICLE I



DEFINITIONS



     SECTION
1.01. Certain Defined Terms. (a)  Unless otherwise defined
herein, all capitalized terms used herein shall have the same meaning as in the
Recapitalization Agreement.


     (b)  The following capitalized terms used in this Agreement shall have the
meanings set forth below:



		
	 	     “Acquiror” shall have the meaning set forth in the Preamble.
	 
	 	     “Action” means any claim, action, suit, hearing, arbitration,
inquiry, proceeding or investigation by or before any Governmental
Authority.
	 
	 	     “Additional Agreements” means, collectively, the items set
forth in Article V.
	 
	 	     “Additional Limitation on Liability” shall have the meaning
set forth in Section 8.02.
	 
	 	     “Affiliate” means, with respect to any specified Person, any
other Person that, at the time of determination, directly or indirectly
through one or more intermediaries, Controls, is Controlled by or is
under common Control with such specified Person;



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	 	provided, however, that for the purposes of the Recapitalization Agreement,
the GE Parties shall not be deemed Affiliates of the Acquiror nor, after
the Closing, of the Company or its Subsidiaries.




		
	 	     “After Tax Basis” means that, without delaying payment to the
Indemnified Party of any Losses, (i) in determining the amount of the
payment necessary to indemnify the Indemnified Party against Losses, the
amount of such Losses shall, to the extent that such Indemnified Party
has previously realized any reduction in income or franchise Tax as a
result of sustaining such Losses, be determined net of a reduction in Tax
calculated as 35% of the Losses associated with such Tax reduction, (ii)
to the extent that, after payment of Losses to an Indemnified Party, such
Indemnified Party thereafter realizes any reduction in income or
franchise Tax as a result of having sustained such Losses which have not
been treated under clause (i) as having reduced Tax, such Indemnified
Party shall repay to the Indemnifying Party within ten Business Days of
such realization an amount calculated as 35% of the Losses associated
with such Tax reduction, (iii) to the extent that, as a result of any
indemnification payment, such Indemnified Party would realize any
increase in income or franchise Tax, the amount of such indemnification
payment shall be increased by the amount necessary to satisfy any income
or franchise Tax liabilities incurred by the Indemnified Party as a
result of its receipt of such indemnification payment (as so increased),
calculated as 35% thereof, and (iv) to the extent that any such reduction
or increase in Tax is reversed, payments under this definition shall be
recalculated and refunds made within ten Business Days.
	 
	 	     “Agreement” shall have the meaning set forth in the Preamble.
	 
	 	     “Alliance Issuers Guarantee Obligations” means the
obligations of GECF pursuant to agreements with alliance issuers of GECF
to guarantee the obligations of the Company with respect to corporate
card program agreements and purchasing card program agreements (or the
equivalent thereof) with non-U.S. financial institutions for employees of
the Company.
	 
	 	     “Ancillary Agreements” means this Agreement, the GE Monogram
License Agreement, the Intellectual Property Agreement and License, the
Employee Lease Agreement, the Transitional Employee Services Agreement
and the Tax Matters Agreement, and each agreement, document, instrument
or certificate contemplated by the Recapitalization Agreement to be
executed by the GE Parties, RMS, GEIS or the Acquiror in connection with
the consummation of the transactions contemplated by the Recapitalization
Agreement, in each case only as applicable to the relevant party or
parties to such Ancillary Agreement, as indicated by the context in which
such term is used.
	 
	 	     “Business Day” means any day that is not a Saturday, a Sunday
or other day on which commercial banks in the The City of New York, New
York are required or authorized by Law to be closed.
	 
	 	     “Closing” shall have the meaning set forth in Section 2.02 of
the Recapitalization Agreement.



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	 	     “Company” shall have the meaning set forth in the Preamble.
	 
	 	     “Confidential Information” shall have the meaning set forth
in Section 10.02.
	 
	 	     “Control” means, as to any Person, the power to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise. The terms “Controlled by,” “under common Control with” and
“Controlling” shall have correlative meanings.
	 
	 	     “Costs and Disbursements” shall have the meaning set forth in
Section 6.01.
	 
	 	     “Dispute” shall have the meaning set forth in Section 9.01.
	 
	 	     “Force Majeure” means an event beyond the control of such
party (or any Person acting on its behalf), which by its nature could not
have been foreseen by such party (or such Person), or, if it could have
been foreseen, was unavoidable, and includes, without limitation, acts of
God, storms, floods, riots, fires, sabotage, civil commotion or civil
unrest, interference by civil or military authorities, acts of war
(declared or undeclared) or armed hostilities or other national or
international calamity or one or more acts of terrorism or failure of
energy sources.
	 
	 	     “GE” shall have the meaning set forth in the Preamble.
	 
	 	     “GE Accounting Policies” means GE’s accounting policies and
related documentation in written or electronic form, which are
clarifications of U.S. GAAP, pursuant to which GE keeps its books and
records and prepares consolidated financial statements.
	 
	 	     “GE Indemnified Party” shall have the meaning set forth in
Section 10.02(a) of the Recapitalization Agreement.
	 
	 	     “GE International” shall have the meaning set forth in
Section 4.02.
	 
	 	     “GE Materials” means, collectively, those items set forth in
Article III.
	 
	 	     “GE Policies and Materials” shall have the meaning set forth
in Sections 3.01 through 3.04.
	 
	 	     “GE Services” shall have the meaning set forth in Section
2.01.
	 
	 	     “GEII” shall have the meaning set forth in the Recitals.
	 
	 	     “General Electric” shall have the meaning set forth in the
Preamble.
	 
	 	     “General Provisions” means, collectively, those items set
forth in Article XI.
	 
	 	     “Governmental Authority” means any United States federal,
state or local or any supra-national or non-U.S. government, political
subdivision, governmental, regulatory



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	 	or administrative authority,
instrumentality, agency, body or commission, self-regulatory organization
or any court, tribunal, or judicial or arbitral body.
	 
	 	     “Guarantee Parties” shall have the meaning as described in
Section 5.05.
	 
	 	     “Indemnification” shall have the meaning set forth in
Sections 8.03 through 8.07.
	 
	 	     “Intellectual Property” means: (i) patents, patent
applications and statutory invention registrations, including reissues,
divisions, continuations, continuations-in-part, extensions and
reexaminations thereof, all rights therein provided by international
treaties or conventions, (ii) copyrights, whether or not registered, and
registrations and applications for registration thereof, and all rights
therein provided by international treaties or conventions, and (iii)
confidential and proprietary information, including trade secrets and
know-how. As used in the Recapitalization Agreement, the term
“Intellectual Property” expressly excludes Trademarks.
	 
	 	     “Law” means any U.S. federal, state, local or non-U.S.
statute, law, ordinance, regulation, rule, code, common law, order or
other requirement or rule of law.
	 
	 	     “Limited Liability” shall have the meaning as described in
Sections 8.01 and 8.02.
	 
	 	     “Limited Liability of a Provider” shall have the meaning as
described in Section 8.01.
	 
	 	     “Losses” means all losses, damages, costs, expenses,
liabilities, obligations and claims of any kind (including any Action
brought by any Governmental Authority or Person and including reasonable
attorneys’ fees).
	 
	 	     “Management Contract” shall have the meaning set forth in
Section 4.02.
	 
	 	     “Other Arrangements” means, collectively, those items set
forth in Article IV.
	 
	 	     “Other Costs” shall have the meaning set forth in Section
6.01(a).
	 
	 	     “Person” means any natural person, general or limited
partnership, corporation, limited liability company, limited liability
partnership, firm, association or organization or other legal entity.
	 
	 	     “Policy Guide” shall have the meaning set forth in Section
3.02(a).
	 
	 	     “Program Agreements” shall have the meaning set forth in
Section 5.5.
	 
	 	     “Program Agreements Obligations” shall have the meaning set
forth in Section 5.5.
	 
	 	     “Provider” means the party providing a Service under this
Agreement. In the case of any Undertaking, Provider shall mean GE.
	 
	 	     “Provider Indemnified Party” shall have the meaning set forth
in Section 8.01.



4






 








		
	 	     “Recapitalization Agreement” shall have the meaning set forth
in the Recitals.
	 
	 	     “Recipient” means the party to whom a Service under this
Agreement is being provided. In the case of any Undertaking, Recipient
shall mean the Company.
	 
	 	     “Recipient Indemnified Party” shall have the meaning set
forth in Section 8.04.
	 
	 	     “Representative” of a Person means the directors, officers,
employees, advisors, agents, stockholders, consultants, accountants,
financing sources, investment bankers or other representatives of such
Person.
	 
	 	     “RMS” shall have the meaning set forth in the Preamble.
	 
	 	     “SAMGE” shall have the meaning set forth in Section 4.02.
	 
	 	     “Service Charges” shall have the meaning set forth in Section
6.01(a).
	 
	 	     “Service Termination Date” with respect to a particular
Service shall have the meaning associated with such Service as specified
in Schedule A or B hereto, as the case may be.
	 
	 	     “Services” shall have the meaning set forth in Section 2.01.
	 
	 	     “Six Sigma Materials” shall have the meaning set forth in
Section 3.03.
	 
	 	     “Six Sigma Provider” shall have the meaning set forth in
Section 4.01(a).
	 
	 	     “Software Licenses” shall have the meaning as described in
Section 4.03.
	 
	 	     “Subsidiary” of any Person means any corporation, general or
limited partnership, joint venture, limited liability company, limited
liability partnership or other Person that is a legal entity, trust or
estate of which (or in which) (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the board of
directors (or a majority of another body performing similar functions) of
such corporation or other Person (irrespective of whether at the time
capital stock of any other class or classes of such corporation or other
Person shall or might have voting power upon the occurrence of any
contingency), (b) more than 50% of the interest in the capital or profits
of such partnership, joint venture or limited liability company or (c)
more than 50% of the beneficial interest in such trust or estate, is at
the time of determination directly or indirectly owned or Controlled by
such Person.
	 
	 	     “Termination” shall have the meaning as set forth in Article
X.
	 
	 	     “Transaction Agreements” means the Recapitalization Agreement
and each of the Ancillary Agreements.
	 
	 	     “Undertakings” means, collectively, GE’s obligations with
respect to the GE Materials and Other Arrangements.



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ARTICLE II




SERVICES AND TERMS



     SECTION 2.01. Services and Terms. During the period commencing on
the date hereof and ending on the relevant Service Termination Date (as
specified in Schedule A or B hereto, as the case may be), subject to the
provisions set forth in Article X, GE shall provide or cause to be provided to
the Company the services listed in Schedule A (the “GE Services”) and,
at the request of GE, the Company shall provide or cause to be provided to GE
the services listed in Schedule B hereto (collectively with the GE Services,
the “Services”); provided, however, that services provided
in China, Philippines and India shall terminate on the expiration of its term
as defined in Schedule A, unless prohibited by applicable Law.


ARTICLE III



GE POLICIES AND MATERIALS



     SECTION 3.01. Accounting Policies. For a period of up to two (2)
years from the date hereof, GE shall permit the Company to use the GE
Accounting Policies for the Company’s internal accounting and reporting
purposes; it being understood and agreed that GE makes no representation or
warranty as to the suitability of the GE Accounting Policies for use by the
Company. During such period, GE shall provide the Company with only those
revisions to the GE Accounting Policies that are issued in final form to GE’s
constituent businesses, which revisions shall be provided to the Company as
soon as reasonably practicable after such revisions are issued by GE but in no
event later than the time such Accounting Policies are issued to GE’s
constituent businesses. Promptly following the expiration of such two (2) year
period, the Company shall return to GE or destroy (with such destruction
certified in writing to GE) the GE Accounting Policies and shall cease using
all such Policies and all related documentation.


     SECTION 3.02. Corporate Policies. (a)  GE shall permit the Company to
adopt the policies summarized in the compliance guide entitled Integrity:
the Spirit and Letter of Our Commitment and the procedures and guidelines
related thereto published in their entirety on the website integrity.ge.com
(the “Policy Guide”) as the Company’s own policies, procedures and
guidelines. The Company may create materials based on the Policy Guide for
distribution to the Company’s employees and others. It is understood and
agreed that GE makes no representation or warranty as to the suitability of the
Policy Guide for use by the Company.


     (b)  Notwithstanding the foregoing, (i) the text of any materials related
to or based upon the Policy Guide created by or on behalf of the Company may
not contain any references to GE, GE publications, GE personnel (including
senior management) or GE management structures, (ii) the title of the Policy
Guide may not be used in any materials created by or on behalf of the Company
and (iii) any such materials created by or on behalf of the Company may not be
confusingly similar, in part or in whole, to the Policy Guide, as applicable,
in appearance, form and/or style (it being understood that such materials may
have the content otherwise permitted by this provision).


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     SECTION 3.03. Six Sigma Materials. GE, subject to any existing
legal or contractual restrictions, agrees not to assert any claim that GE may
now or in the future have against the Company arising solely out of the
Company’s internal use of software, documentation and other materials owned by
GE relating to the Six Sigma program in use by the Company prior to the date
hereof (the “Six Sigma Materials”) by its employees or by those certain
contractors who are granted access to the Six Sigma Materials only if such
contractors are legally bound by reasonably stringent confidentiality
agreements with respect to the Six Sigma Materials. Notwithstanding the
foregoing, GE’s agreement not to assert claims against the Company shall not
extend to any claim that GE may have at any time against the Company arising
out of or in connection with (a) any breach of any obligation to maintain the
confidentiality of the Six Sigma Materials, (b) use of GE’s name in connection
with the Six Sigma Materials, (c) any use, other than the Company’s internal
use, of the Six Sigma Materials, including use of the Six Sigma Materials by
the Company’s customers or suppliers or (d) any claim arising out of
circumstances or facts relating to a claim or proceeding against GE by or on
behalf of a Six Sigma Provider or any Affiliate thereof. Acquiror and the
Company acknowledge and agree that the Six Sigma Materials and other materials
owned by others and relating to the Six Sigma program are confidential and
proprietary information. Further, Acquiror and the Company agree to take all
actions necessary or advisable to ensure that the Six Sigma Materials and such
other materials are not disclosed to any Person who is not a controlled
Affiliate of Acquiror or the Company. In addition, as long as the Company
remains a supplier to GE or its Subsidiaries, the Company shall have the right
to use the Six Sigma Materials and any other materials relating to Six Sigma
owned or used by GE to the same extent as GE permits its key customers or
suppliers to use such materials.



     SECTION 3.04. Limitation on Rights and Obligations with Respect to the
GE Materials. (a)  Other than as provided above, GE shall have no obligation
(i) to notify the Company of any changes or proposed changes to any of the GE
Materials, (ii) to include the Company in any consideration of proposed changes
to any of the GE Materials, (iii) to provide draft changes of any of the GE
Materials to the Company for review and comment or (iv) to provide the Company
with any updated materials relating to any of the GE Materials. Acquiror and
the Company acknowledge and agree that, except as expressly set forth above, GE
reserves all rights in, to and under, including all Intellectual Property
rights with respect to, the GE Materials and no rights with respect to
ownership or use, except as otherwise expressly provided herein, shall vest in
Acquiror, the Company or any of their respective Affiliates. Further Acquiror
and the Company agree to take all actions necessary or advisable to ensure that
the GE Materials are not used for any purpose other than the purposes set forth
above. Acquiror and the Company will allow GE reasonable access to personnel
and information as reasonably necessary to determine the Company’s compliance
with the provisions set forth above. Notwithstanding any other provision
contained herein, in the event GE determines that the Company has not complied
in all material respects with some or all of its material obligations with
respect to any or all of the GE Materials, GE shall provide written notice to
the Company setting forth in detail the basis for such material non-compliance.
Should the Company fail to perform such material obligation within fifteen
(15) days of receipt of said written notice, GE may terminate the Company’s
rights with respect to such GE Materials without further notice to the Company
and, in such case, GE shall be entitled to require such GE Materials to be
returned to GE or destroyed (with such destruction certified in writing to GE)
promptly after such termination.


7






 


     (b)  In the event the Company or Acquiror on behalf of the Company
determines to cease to avail itself of any of the GE Materials referred to in
this Article III or upon expiration of any period during which the Company is
permitted to use any of the GE Materials, GE and Acquiror will cooperate in
good faith to take appropriate actions to effectuate such decision or
expiration and protect GE’s rights and interests in the GE Materials.


ARTICLE IV



OTHER ARRANGEMENTS



     SECTION 4.01. Six Sigma Third Party Licenses. (a)  If and to the extent
requested by Acquiror or the Company, GE shall use commercially reasonable
efforts to assist the Company in its efforts to obtain non-exclusive licenses
(or other appropriate rights) to use, duplicate and distribute, as necessary,
materials, concepts, software and methodology necessary for the Company to
continue the Six Sigma program in use by the Company prior to the date hereof
from the Six Sigma Academy, Maurice L. Berryman, Minitab, Inc., Decisioneering,
Inc., PROMODEL Corporation and any other Person with whom GE has a license
relating to such Six Sigma program (each, a “Six Sigma Provider”);
provided, however, that GE shall not be required to pay any fees
or other payments or incur any obligations to enable the Company to obtain any
such license or rights; and provided, further, that GE shall not
be required to seek broader rights or more favorable terms for Acquiror or the
Company than those applicable to GE prior to the date hereof or as may be
applicable to GE from time to time thereafter. The parties acknowledge and
agree that there can be no assurance that GE’s efforts will be successful or
that the Company will be able to obtain such licenses or rights on acceptable
terms or at all.


     (b)  Except as provided in the last sentence of Section 3.03, if and to the
extent that on or prior to the date hereof the Company has not obtained
licenses (or other appropriate rights) from Six Sigma Providers to use,
duplicate and distribute, as necessary, materials, concepts, software and
methodology for the Company to continue the Six Sigma program in use by the
Company prior to the date hereof, the Company shall cease using any and all
materials and software owned by the party or parties with whom the Company has
been unable to obtain such licenses or other rights and return to GE on the
date hereof all such materials and software.


     SECTION 4.02. SAMGE. From and after the date hereof, subject to
the other provisions of this paragraph, and for so long as GE continues to hold
an interest in Saudi American General Electric Company (“SAMGE”), the
Company shall continue to share in the income or loss of SAMGE derived from the
sale by SAMGE of the Company’s products and services in the same manner and to
the same extent as the Company shared in such income or loss prior to the date
hereof. In connection with such arrangements, GE agrees to cause GE
International, Inc. (“GE International”) to promptly pay to the Company
any net after-tax amounts received by GE International pursuant to an
Information Services Management Contract between GE International and SAMGE
dated February 16, 1982 (the “Management Contract”) and the Company
agrees to promptly reimburse GE International for any net after-tax amounts
paid by GE International to SAMGE pursuant to the third paragraph of Article
VII of the Management Contract. Acquiror and the Company agree to cause the
entity currently named GEIS International, Inc. or another appropriate entity
to, within six months of the date hereof,


8






 


either assume GE International’s
obligations under the Management Contract or, alternatively, enter into a new
information services management contract with SAMGE in substitution for the
Management Contract and, in any event, to obtain a complete release of GE
International with respect to its obligations under the Management Contract
within six months from the date hereof.


     SECTION 4.03. Software Licenses. If and to the extent requested by
Acquiror or the Company, GE shall use commercially reasonable efforts to assist
the Company in its efforts to obtain non-exclusive licenses (or other
appropriate rights) to use, duplicate and distribute, as necessary in the
conduct of its business, certain computer software used by the Company and its
Subsidiaries in the conduct of their businesses on or prior to the date hereof
and which GE was not obligated to license or assign to the Company pursuant to
Sections 5.11 or 5.12 of the Recapitalization Agreement, respectively
(collectively “Software Licenses”); provided, however,
that GE shall not be required to pay any fees or other payments or incur any
obligations to enable the Company to obtain any such license or rights; and
provided, further, that GE shall not be required to seek broader
rights or more favorable terms for Acquiror or the Company than those
applicable to GE prior to the date hereof or as may be applicable to GE from
time to time thereafter. The parties will negotiate in good faith certain
price adjustments and credits with respect to material Software Licenses not
obtained by GE to the extent costs associated with the continued use,
duplication or distribution exceeds the aggregate amount of $500,000 per annum
over the current expenses paid by the Company and its Subsidiaries per annum.


     SECTION 4.04. Corporate Purchasing Contracts. If and to the extent
requested by Acquiror or the Company, GE shall use commercially reasonable
efforts to assist the Company in its efforts to obtain purchasing contracts (or
other appropriate rights) with certain vendors with whom GE currently has
corporate purchasing contracts to enable the Company to continue to purchase
goods and services that the Company currently purchases under GE’s corporate
purchasing contracts; provided, however, that GE shall not be
required to pay any fees or other payments or incur any obligations to enable
the Company to obtain any such contracts or rights; and provided,
further, that GE shall not be required to seek broader rights or more
favorable terms for Acquiror or the Company than those applicable to GE prior
to the date hereof or as may be applicable to GE from time to time thereafter.
The parties acknowledge and agree that there can be no assurance that GE’s
efforts will be successful or that the Company will be able to obtain such
contracts or rights on acceptable terms or at all.


     SECTION 4.05. Telecommunications Contracts. If and to the extent
requested by Acquiror or the Company, GE shall use commercially reasonable
efforts to continue to make available to the Company’s customers the services
currently being provided to the Company under the telecommunications services
agreements between GE and various telecommunication network providers. On or
before the first anniversary of the date hereof, Acquiror and the Company agree
to enter into contracts with one or more providers of telecommunications
services to replace the services provided to the Company under GE’s
telecommunications services agreements. Upon the earlier to occur of (a) the
date on which the Company enters into such substitute contract or (b) the first
anniversary of the date hereof, GE’s obligations under this Section 4.05 shall
cease. Notwithstanding the foregoing, the parties acknowledge and agree that
there can be no assurance that GE’s efforts will be successful or that the
Company’s customers will continue to have access to such telecommunications
services.


9






 


ARTICLE V



ADDITIONAL AGREEMENTS



     SECTION 5.01. Leases. (a)  Subject to obtaining any necessary third
party consents, which GE shall have used commercially reasonable efforts to
obtain on or before the date hereof, GE will continue to lease or sublease to
the Company, and the Company shall continue to lease or sublease from GE, the
facilities listed on Schedule C hereto for the shorter of twelve (12) months
from the date hereof or the duration of the Company’s lease or sublease and on
such other terms as are set forth in the applicable lease or sublease, or, in
the absence of a lease, sublease or particular terms, on terms consistent with
other similar leases on Schedule C. In the event that the Company desires to
vacate a facility listed in Schedule C prior to the shorter of twelve months
from the date hereof or the duration of the Company’s lease or sublease for
such facility, the Company shall provide to GE a notice of its intention to
vacate at least ninety (90) days prior to vacating the facility.


     (b)  Subject to obtaining any necessary third party consents, which the
Company shall have used commercially reasonable efforts to obtain on or before
the date hereof, the Company will continue to lease or sublease to GE, and GE
shall continue to lease or sublease from the Company, the facilities listed on
Schedule C (ii) hereto for the shorter of twelve (12) months from the date
hereof or the duration of GE’s lease or sublease and on such other terms as are
set forth in the applicable lease or sublease or, in the absence of a lease,
sublease or particular terms, on terms consistent with other similar leases on
Schedule C. In the event that GE desires to vacate a facility listed in
Schedule C prior to the shorter of twelve (12) months from the date hereof or
the duration of GE’s lease or sublease for such facility, GE will provide to
the Company a notice of its intention to vacate at least ninety (90) days prior
to vacating the facility.


     SECTION 5.02. GE Computer-Based and Other Resources. As of the
date hereof, except as otherwise provided in the Transaction Agreements and
this Agreement, the Company and its Subsidiaries shall cease to use and shall
have no further access to the GE Intranet and other GE owned or licensed
computer software, hardware or technology and shall have no access to computer
based resources (including e-mail and access to GE computer networks and
databases) which require a password or are available on a secured access basis.
In addition, as of the date hereof, except as provided in the Transaction
Agreements, this Agreement and the Ancillary Agreements, the Company and its
Subsidiaries shall cease using (and shall cause their employees to cease using)
credit cards and other business services made available by GE or its Affiliates
to the Company, its Subsidiaries or its employees prior to the date hereof.
Acquiror and the Company agree to use their best efforts to fully implement
this provision promptly.


     SECTION 5.03. Employee Benefits Matters. GE shall cooperate with
Acquiror and the Company to facilitate the transfer to the Company’s or
Acquiror’s systems of employee administration matters, including providing
relevant data and information about employees’ compensation, benefits, service
history and similar matters to the extent GE has, and the Company does not
have, such data and information. If a need is identified to provide certain
transition services or if foreign employees (and related matters) cannot be
fully transferred to Acquiror on the date hereof, GE and Acquiror agree to
negotiate in good faith appropriate


10






 


transition service arrangements. Notwithstanding the foregoing, to the extent GE has retained obligations with
respect to employee benefit plans and arrangements under the Recapitalization
Agreement, GE shall continue to administer such plans and arrangements.


     SECTION 5.04. CR&D Matters. If, following the date hereof, the
Company or Acquiror on behalf of the Company desires to enter into arrangements
with GE’s Corporate Research and Development Facility to continue current
research and development services and/or to provide continued research and
development services and related consultation to the Company, other than any
research and development activities currently ongoing which are the subject of
an existing agreement or arrangement between the Company and GE which shall
continue after the date hereof in accordance with the terms of the relevant
agreement or arrangement, GE and Acquiror shall use commercially reasonable
efforts to negotiate in good faith an appropriate arms-length contract for such
services.


     SECTION 5.05. Charge Card Administration. (a)  On the terms and subject
to the conditions set forth in the Corporate Card Program Agreement dated April
1, 1993 and the Purchasing Card Program Agreement dated September 10, 2000
(together with Corporate Card Program Agreement, the “Program
Agreements”), GECF agrees to provide transition services related to
Corporate Card administration, Purchasing Card administration and Travel &
Living Expense Reporting as specified in Schedule A of this Agreement. On or
prior to the date hereof, the Company, GXS Corporation, GXS Holdings, Inc. and
the Acquiror (collectively, the “Guarantee Parties”) shall cause the
obligations of GE under the Program Agreements with respect to the Company to
be assigned to the Company and thereafter, the Company agrees to assume and
agrees to pay, perform and discharge when due all liabilities and obligations
of GE under the Program Agreements (the “Program Agreements
Obligations”), including, but not limited to, making all payments when due
as owed and as required of GE under the Program Agreements, and GE shall not
retain nor have any responsibility for the Program Agreements Obligations;
provided, however, that in the event that the Company fails to
pay, perform and discharge when due the Program Agreements Obligations, the
Guarantee Parties, jointly and severally, shall pay, perform and discharge when
due the Program Agreements Obligations.


     (b)  On or prior to the date hereof, the Guarantee Parties shall cause the
Alliance Issuers Guarantee Obligations to be assigned to the Company and
thereafter, the Company agrees to assume and agrees to pay, perform and
discharge when due Alliance Issuers Guarantee Obligations, and neither GE nor
GECF shall retain or have any responsibility for the Alliance Issuers Guarantee
Obligations; provided, however, that in the event that the
Company fails to pay, perform and discharge when due the Alliance Issuers
Guarantee Obligations, the Guarantee Parties, jointly and severally, shall pay,
perform and discharge when due the Alliance Issuers Guarantee Obligations.


     SECTION
5.06. Access. (a)  Acquiror and the Company will allow GE
reasonable access to the facilities necessary for the performance of the
Services listed on Schedule A and will provide necessary systems interface for
GE to fulfill its obligations under this Agreement.


     (b)  GE will allow the Acquiror and the Company reasonable access to the
facilities necessary for the performance of the Services listed on Schedule B
and will provide


11






 


necessary systems interface for the Acquiror and the Company
to fulfill its obligations under this Agreement.


ARTICLE VI



COSTS AND DISBURSEMENTS



     SECTION
6.01. Costs and Disbursements. (a)  Except as set forth in
Section 5.05, Schedules A and B hereto set forth with respect to each Service
to be provided a description of the charges (the “Service Charges”) for
such Service or the basis for the determination thereof. Further, in
connection with performance of the Services and in connection with the
Undertakings and the Other Arrangements, the Provider may incur certain
transition costs and other incidental costs and expenses (including overhead
and temporary loss of use of its employees or resources) (the “Other
Costs”), which shall, without duplication, either be paid directly by the
Recipient or reimbursed to the Provider by the Recipient.


     (b)  The Provider shall deliver an invoice to the Recipient on a monthly
basis (or at such other frequency as is consistent with the basis on which the
Service Charges are determined and, if applicable, charged to Affiliates of the
Provider) in arrears for the Service Charges, any Other Costs and any other
amounts due to the Provider under this Agreement. The Recipient shall pay the
amount of such invoice by wire transfer to the Provider within 30 days of the
date of such invoice in accordance with Section 2.10 of the Recapitalization
Agreement, provided that, to the extent consistent with past practice
with respect to Services rendered outside the United States, payments may be
made in local currency provided, however, in the event the
Services have historically (prior to Closing) been billed and settled under the
Internal Billing System (“IBS”) methodology, the same methodology shall
be used after the Closing for the term as specified in Schedule A. The net
settlement under the IBS billing system shall be sent by the last Thursday of
the same GE fiscal month; provided, however, that the foreign
Affiliates of GE will continue to settle IBS weekly as has been done prior to
Closing. If the Recipient fails to pay such amount by such date, the Recipient
shall be obligated to pay to the Provider, in addition to the amount due,
interest on such amount at the Interest Rate from the date the payment was due
through the date of payment, all in accordance with Section 2.10 of the
Recapitalization Agreement. As soon as practicable after receipt of any
reasonable written request by the Recipient, the Provider shall provide the
Recipient with data and documentation supporting the calculation of any amount
due to the Provider under this Agreement for the purpose of verifying the
accuracy of such calculation.


ARTICLE VII



STANDARD FOR SERVICE



     SECTION 7.01. Standard for Service. Except as otherwise provided
in this Agreement, and provided that the Provider is not restricted by
an existing contract with a third party or by Law, the Provider agrees to
perform the Services in accordance with applicable Laws and agrees further that
the nature, quality and standard of care applicable to delivery of the


12






 


Services shall be no less than those applicable to those Services that the Provider
provided to the Recipient immediately prior to the date hereof (the
“Standard for Services”). The parties agree to negotiate in good faith
service levels for any service provided by Provider to Recipient under this
Agreement that has not been provided immediately prior to the date hereof.


ARTICLE VIII



LIMITED LIABILITY AND INDEMNIFICATION



     SECTION 8.01. Limited Liability of a Provider. Notwithstanding the
Standard for Services (described above) pursuant to which each Provider will
perform, or cause to be performed, each Service, no Provider or its Affiliates
or Representatives (each, a “Provider Indemnified Party”) shall have any
liability in contract, tort or otherwise to the Recipient or its Affiliates or
Representatives for or in connection with any Services (or, in the case of GE
Services or the Undertakings, to the Company or their respective Affiliates or
Representatives) rendered or to be rendered by any Provider Indemnified Party
pursuant to this Agreement, the transactions contemplated by this Agreement or
any Provider Indemnified Party’s actions or inactions in connection with any
such Services, Undertakings or transactions, except for Losses that have
resulted directly from such Provider Indemnified Party’s negligence or breach
of its obligations in connection with any such Services, transactions, actions
or inactions.


     SECTION 8.02. Additional Limitation on Liability. Notwithstanding
any other provision contained in this Agreement, in no event shall GE, the
Company or their respective Affiliates or Representatives be liable for any
special, indirect, punitive, incidental or consequential losses, damages or
expenses, including without limitation, loss of profits.


     SECTION 8.03. Indemnification of Each Provider by the Relevant
Recipient. Each Recipient shall indemnify and hold harmless each relevant
Provider Indemnified Party from and against any Losses, and reimburse each
relevant Provider Indemnified Party for all reasonable expenses as they are
incurred, whether or not in connection with pending litigation and whether or
not any Provider Indemnified Party is a party, arising out of the negligence of
such Recipient or failure of such Recipient to materially perform any of its
obligations hereunder or in connection with any of the Services rendered or to
be rendered by a Provider, its Affiliates or their respective Representatives
or on behalf of such Recipient pursuant to this Agreement, the transactions
contemplated by this Agreement, including the Undertakings, or such Recipient’s
actions or inactions in connection with any such Services, Undertakings or
transactions; provided, however, that such Recipient shall not be
responsible for any Losses of such Provider Indemnified Party that have
resulted from such Provider Indemnified Party’s gross negligence or willful
misconduct in connection with any of the transactions, actions or inactions
referred to above.


     SECTION 8.04. Indemnification of Each Recipient by the Relevant
Provider. Each Provider shall indemnify and hold harmless each relevant
Recipient and its Affiliates and Representatives (each, a “Recipient
Indemnified Party”) from and against any Losses, and reimburse each
Recipient Indemnified Party for all reasonable expenses as they are incurred,
whether or not in connection with pending litigation and whether or not any
Recipient


13






 


Indemnified Party is a party, arising out of the negligence of such
Provider or failure of such Provider to materially perform any of its
obligations hereunder or in connection with any of the Services rendered or to
be rendered by or on behalf of such Provider pursuant to this Agreement, the
transactions contemplated by this Agreement, including the Undertakings, or
such Provider’s actions or inactions in connection with any such Services,
Undertakings or transactions; provided that such Provider shall not be
responsible for any Losses of such Recipient Indemnified Party that have
resulted from such Recipient Indemnified Party’s gross negligence or willful
misconduct in connection with any of the transactions, actions or inactions
referred to above.


     SECTION 8.05. Indemnification of GE Indemnified Parties.
Notwithstanding any other indemnification provision contained herein, subject
to Section 8.02 and without duplication, Acquiror and the Company shall
indemnify and hold harmless each GE Indemnified Party on an After-Tax Basis
from and against any Losses, and reimburse each GE Indemnified Party for all
reasonable expenses as they are incurred, whether or not in connection with
pending litigation and whether or not any GE Indemnified Party is a party,
arising out of or in connection with any breach by Acquiror, the Company, or
their respective Representatives or Affiliates of any of their representations,
warranties, covenants or agreements referred to in Articles II, III, IV or V of
this Agreement.


     SECTION 8.06. Indemnification of Acquiror Indemnified Parties.
Notwithstanding any other indemnification provision contained herein, subject
to Section 8.02 and without duplication, GE shall indemnify and hold harmless
each Acquiror Indemnified Party on an After-Tax Basis from and against any
Losses, and reimburse each Acquiror Indemnified Party for all reasonable
expenses as they are incurred, whether or not in connection with pending
litigation and whether or not any Acquiror Indemnified Party is a party,
arising out of or in connection with any breach by GE, or its Representatives
or Affiliates of any of their representations, warranties, covenants or
agreements contained in Articles II, III, IV or V of this Agreement.


     SECTION 8.07. Indemnification Procedures. The matters set forth in
Sections 10.03 and 10.04 of the Recapitalization Agreement shall be deemed
incorporated into and a part of this Agreement.


ARTICLE IX



DISPUTE RESOLUTION



     SECTION 9.01. Dispute Resolution. In the event of any dispute,
controversy or claim arising out of or relating to the transactions
contemplated by this Agreement, or the validity, interpretation, breach or
termination of any provision of this Agreement, or calculation or allocation of
the costs of any Service, including claims seeking redress or asserting rights
under any Law (each, a “Dispute”), GE and Acquiror shall negotiate in
good faith in an attempt to resolve such Dispute amicably between themselves at
the operational level. If such Dispute has not been resolved to the mutual
satisfaction of GE and Acquiror within 20 Business Days (or such longer period
as the parties may agree), then at the request of either party the matter shall
be submitted to the Chief Financial Officers of GE and Acquiror for their
consideration. In the


14






 


event that such Chief Financial Officers are unable to
resolve such Dispute within an additional 20 Business Day period (or such
longer period as the parties may agree), such Dispute will be resolved in
accordance with the judicial process referred to in Section 11.11 of the
Recapitalization Agreement.


ARTICLE X



TERMINATION



     SECTION 10.01. Termination. (a)  (i) A Recipient may from time to time
terminate this Agreement with respect to one or more Services or Undertakings,
in whole but not in part, upon giving at least 90 days prior written notice to
the Provider, and (ii) a Provider may terminate this Agreement with respect to
one or more Services or Undertakings, in whole but not in part, at any time
upon prior written notice to the Recipient if the Recipient has failed to
perform any of its material obligations under this Agreement relating to such
Service or Undertaking, and such failure shall have continued without cure for
a period of 30 days after receipt by the Recipient of a notice of such failure
from the Provider.


     (b)  With respect to the Program Agreements described in Section 5.05, in
addition to GECF’s right to terminate its services to the Company under this
Agreement for any reason as currently provided in the Program Agreements, GECF
shall have the right to terminate corporate charge Cards, purchasing Cards and
Accounts (as such terms are defined in the respective Program Agreements) and
any other services under the Program Agreements if, in the first instance, the
Company, and in the second instance, the Guarantee Parties fail to pay, perform
and discharge when due the Program Agreements Obligations.


     (c)  Each party agrees that prior to exercising its rights under clause
(a)(i) of Section 10.01, it will use reasonable efforts to consult for a
reasonable period of time with the other party in advance of such termination
and its implementation.


     SECTION 10.02. Effect of Termination. Upon termination of any
Service or Undertaking pursuant to this Agreement, the relevant Provider will
have no further obligation to provide the terminated Service or Undertaking,
and the relevant Recipient will have no obligation to pay any future Service
Charges or Other Costs relating to any such Service or Undertaking, and upon
termination of this Agreement in accordance with its terms, no Provider will
have any further obligation to provide any Service or Undertaking, and no
Recipient will have any obligation to pay any Service Charges or Other Costs
relating to any Service or Undertaking or make any other payments under this
Agreement; provided, however, that notwithstanding any such
termination the relevant Recipient shall remain obligated to the relevant
Provider for Service Charges, Other Costs and any other fees, costs and
expenses owed and payable in respect of Services and/or Undertakings provided
prior to the effective date of termination. In connection with termination of
any Service or Undertaking, the provisions of this Agreement not relating
solely to such terminated Service or Undertaking shall survive any such
termination, and in connection with a termination of this Agreement, the
Limited Liability, Indemnification and General Provisions and all
confidentiality obligations shall continue to survive indefinitely.
Notwithstanding the aforementioned, the obligations of a party as described


15






 


in Section 11.04 and its Affiliates with respect to Confidential Information
disclosed to such party or its Affiliates in connection with this Agreement
shall cease, and such party and its Affiliates shall have no further
obligations relating thereto, with respect to any such Confidential Information
to the extent the recipient can demonstrate, by clear and convincing evidence,
that such Confidential Information: (a) was generally known to the public at
the time of disclosure or becomes generally known through no wrongful act on
the part of the recipient; (b) is in the recipient’s possession at the time of
disclosure otherwise than as a result of recipient’s breach of any legal
obligation; (c) becomes known to the recipient through disclosure by sources
other than the disclosing party having the legal right to disclose such
Confidential Information; (d) is independently developed by the recipient
without reference to or reliance upon the Confidential Information; or (e) is
required to be disclosed by the recipient to comply with applicable laws or
governmental regulations, provided that the recipient provides prior written
notice of such disclosure to the disclosing party and takes reasonable and
lawful actions to avoid and/or minimize the extent of such disclosure. As used
herein “Confidential Information” means all materials, trade secrets or other
technical information, including, without limitation, proprietary information
and materials (whether or not patentable) regarding a party’ s technology,
products, business information or objectives, which is designated as
confidential in writing by the disclosing party, whether by letter or by the
use of an appropriate stamp or legend, prior to or at the time any such
material, trade secret or other information is disclosed by the disclosing
party to the other party. For purposes of this definition, the contents of
this Agreement, the terms and conditions, including pricing, under which GE
obtains third party products and/or services shall be deemed Confidential
Information.


     SECTION 10.03. Force Majeure. No party hereto (or any Person
acting on its behalf) shall have any liability or responsibility for failure to
fulfill any obligation (other than a payment obligation) under this Agreement
so long as and to the extent to which the fulfillment of such obligation is
prevented, frustrated, hindered or delayed as a consequence of circumstances of
Force Majeure; provided always that such party (or such Person) shall
have exercised reasonable due diligence to minimize the effect of Force Majeure
on its obligations.


ARTICLE XI



GENERAL PROVISIONS



     SECTION 11.01. No Agency. Nothing in this Agreement shall be
deemed in any way or for any purpose to constitute any party an agent of
another unaffiliated party in the conduct of such other party’s business.


     SECTION 11.02. Subcontractors. Any Provider may hire or engage one
or more subcontractors to perform any or all of its obligations under this
Agreement; provided that, subject to Sections 8.01 and 8.02 above, such
Provider shall in all cases remain primarily responsible for all obligations
undertaken by it in this Agreement with respect to the scope of the Services,
the Standard for Services and the content of the Services provided to the
relevant Recipient.


16






 


     SECTION 11.03. Further Assurances. (a)  Acquiror shall take any and all
necessary actions to cause and enable the Company to comply with all of the
provisions of this Agreement, and Acquiror agrees to be jointly and severally
liable for any payment or reimbursement required to be made by the Company
pursuant to this Agreement, including, without limitation, pursuant to Articles
VI and VIII.



     (b)  If any party hereto identifies a need for additional or other
transition services to be provided by or on behalf of GE or the Company,
whether prior to or within three months after the date hereof, the parties
hereto agree to negotiate in good faith to provide such requested services. To
the extent practicable, such additional or other services shall be provided on
terms substantially similar to those applicable to Services of similar types
and otherwise on terms consistent with those contained in this Agreement.


     SECTION 11.04. Treatment of Confidential Information. Each party
hereto shall maintain the Confidential Information of each of the other parties
disclosed in connection with this Agreement in confidence, and shall not
disclose, divulge or otherwise communicate such Confidential Information to
others, or use it for any purpose, except pursuant to, and in order to carry
out, the terms and objectives of this Agreement, and hereby agrees to exercise
every reasonable precaution to prevent and restrain the unauthorized disclosure
of such Confidential Information by any of its directors, officers, employees,
consultants, subcontractors, sublicensees or agents.


     SECTION 11.05. Additional Termination Provisions. GE’s obligations
and the rights of Acquiror and the Company under this Agreement shall terminate
at such time as the Company is no longer a direct or indirect Subsidiary of (or
if merged or liquidated, the assets of which are no longer owned and controlled
directly or indirectly by) Acquiror (or with respect to any Subsidiary of the
Company, at such time as such Subsidiary is no longer a direct or indirect
Subsidiary of the Company or Acquiror) or in the event of a change in control
of Acquiror.


     SECTION 11.06. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by overnight courier service, by facsimile with
receipt confirmed (followed by delivery of an original via overnight courier
service) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 11.05):

	 	 	 	 	 
	 	(a)	 	if to GE:
	 
	 	 	 	General Electric Company

3135 Easton Turnpike, W3A24

Fairfield, CT 06431
	 	 	 	
Attention:	
Vice President and Senior

Counsel for Transactions

	 	 	 	
Facsimile:	(203) 373-3008



17






 





	 	 	 	 	 
	 	 	 	with a copy to:

 

Shearman & Sterling

599 Lexington Avenue

New York, NY 10022

	 	 	 	
Attention:

Facsimile:	John A. Marzulli, Jr.

(212) 848-7179
	 
	 	 	 	
if to the Acquiror or the Company:

 

Global Acquisition Company

c/o Francisco Partners, L.P.

2882 Sand Hill Road, Suite 280

Menlo Park, CA 94025
	 	 	 	
Attention:

Facsimile:	
Gerald R. Morgan

(650) 233-2999

	 
	 	 	 	
with a copy to:

 

Jones, Day, Reavis & Pogue

2882 Sand Hill Road, Suite 240

Menlo Park, CA 94025

	 	 	 	
Attention:

Facsimile:	
S.M. McAvoy

(650) 739-3900
	 
	 	 	 	
and

 

GXS Corporation

100 Edison Park Drive

Gaithersburg, MD 20878
	 	 	 	
Attention:	Vice President

and General Counsel
	 	 	 	
Facsimile:	301-340-4251




     SECTION 11.07. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced under any Law
or as a matter of public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties to this Agreement shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the greatest extent possible.


     SECTION 11.08. Entire Agreement. Except as otherwise expressly
provided in this Agreement, this Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement and
supersedes all prior agreements and


18






 


undertakings, both written and oral,
between or on behalf of the parties hereto with respect to the subject matter
of this Agreement.


     SECTION 11.09. No Third-Party Beneficiaries. Except as provided in
Article VIII with respect to GE Indemnified Parties and Acquiror Indemnified
Parties, this Agreement is for the sole benefit of the parties to this
Agreement and their permitted successors and assigns and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person or entity any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.


     SECTION 11.10. Amendment. No provision of this Agreement may be
amended or modified except by a written instrument signed by all the parties to
such agreement.


     SECTION 11.11. Rules of Construction. Interpretation of this
Agreement shall be governed by the following rules of construction: (a) words
in the singular shall be held to include the plural and vice versa and words of
one gender shall be held to include the other gender as the context requires,
(b) references to the terms Article, Section, paragraph, Exhibit and Schedule
are references to the Articles, Sections, paragraphs, Exhibits and Schedules to
this Agreement unless otherwise specified, (c) the word “including” and words
of similar import when used in the Transaction Agreements shall mean
“including, without limitation,” unless otherwise specified, (d) the word “or”
shall not be exclusive, (e) provisions shall apply, when appropriate, to
successive events and transactions, (f) the headings contained in the
Transaction Agreements are for reference purposes only and shall not affect in
any way the meaning or interpretation of the Transaction Agreements and (g) the
Transaction Agreements shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.


     SECTION 11.12. Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties to each such agreement in
separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be as effective as delivery of a manually executed
counterpart of any such Agreement.


     SECTION 11.13. No Right to Set-Off. The Recipient shall pay the full
amount of costs and disbursements including Other Costs incurred under this
Agreement, and shall not set-off, counterclaim, or otherwise withhold any other
amount owed to the Provider on account of any obligation owed by the Provider
to the Recipient.


19






 


     IN WITNESS WHEREOF, GE, RMS and the Acquiror have caused this Agreement to
be executed on the date first written above by their respective duly authorized
officers.



	 	GENERAL ELECTRIC COMPANY




	 	By: /s/ Ronald J. Herman



Name: Ronald J. Herman

Title:   General Manager – Global

            Mergers & Acquisitions







	 	GXS HOLDINGS, INC. f/k/a RMS ELECTRONIC

COMMERCE SYSTEMS, INC.




	 	By: /s/ Bruce E. Hunter



Name: Bruce E. Hunter

Title:   Senior Vice President &

            General Counsel






	 	GLOBAL ACQUISITION COMPANY




	 	By: /s/ Brian J. Ruder



Name: Brian J. Ruder

Title:   President & Treasurer





     IN WITNESS WHEREOF, for purposes of Sections 5.05, 6.01 and 10.01 only,
GECF and GXS Corporation have caused this Agreement to be executed on the date
first written above by their respective duly authorized officers.



	 	GE CAPITAL FINANCIAL INC.




	 	By: /s/ Bizent P. Wallace



Name: Bizent P. Wallace

Title:   EVP, CFO





20






 



	 	GXS CORPORATION




	 	By: /s/ Jean-Jacques Charhon



Name: Jean-Jacques Charhon

Title:   Senior Vice President & Chief

            Financial Officer






21