exv10w21



 



EXHIBIT 10.21


ASSET PURCHASE AGREEMENT



     This ASSET PURCHASE AGREEMENT is dated as of June 3, 2003, by and between
GXS Holdings, Inc., a Delaware corporation (“GXS Holdings”), and Celarix, Inc.,
a Delaware corporation (“Celarix”).


RECITALS:


     A. Celarix owns certain software and other technology and operates a
connectivity and data service using such software and other technology that
provides logistics information to customers, known as the Celarix X4 Logistics
Network as further described in all sales and marketing materials of Celarix
(collectively, the “Business”).


     B. Celarix desires to sell, and GXS Holdings wishes to buy, substantially
all the assets that are used or useful in the business or operations of the
Business, for the price and on the terms and conditions set forth in this
Agreement.


AGREEMENTS:



     In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, GXS Holdings and Celarix, intending to
be legally bound, agree as follows:


ARTICLE 1. DEFINITIONS



     1.1 Certain Definitions. The following terms, as used in this
Agreement, shall have the meanings set forth in this Section:


     “Accounts Receivable” means the rights of Celarix as of the Closing Date
to payment for the sale of goods and services by the Business.


     “Affiliate” means with respect to any Person, any Person that directly or
indirectly controls, is controlled by or is under common control with such
Person.


     “Ancillary Agreements” means the Exchange Agreement, the Transition
Services Agreement, the Employment Agreement and each agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
one or more of the GXS Parties or Celarix in connection with the consummation
of the transactions contemplated by this 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.


     “Assets” means the assets to be sold, transferred, or otherwise conveyed
to GXS Holdings or its designee under this Agreement, as specified in Section
2.1.


 






 


     “Assumed Contracts” means (i) all Contracts listed in Section 3.8(b)
of the Disclosure Schedule that are designated to be assumed by GXS
Holdings or its designee upon the Closing, and (ii) any Contracts entered into
by Celarix between the date of this Agreement and the Closing Date in
accordance with the terms hereof that GXS Holdings or its designee agrees in
writing to assume.


     “Closing” means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.


     “Closing Date” means the date on which the Closing occurs, as determined
pursuant to Section 8.


     “Code” means the Internal Revenue Code of 1986, as amended.


     “Consents” means the consents, permits, or approvals of, or notices to,
Governmental Authorities and other third parties necessary to transfer the
Assets to GXS Holdings or its designee or otherwise to consummate the
transactions contemplated by this Agreement.


     “Contracts” means all contracts, leases, and other agreements (including
leases for personal or real property and employment agreements), written or
oral (including any amendments and other modifications thereto) to which
Celarix is a party or which are binding upon Celarix and which relate to or
affect the Assets or the Business, and (i) which are in effect on the date of
this Agreement or (ii) which are entered into by Celarix between the date of
this Agreement and the Closing Date in accordance with the terms hereof.


     “Damages” shall mean any and all losses, claims, damages, liabilities,
obligations, judgments, equitable relief granted, settlements, awards, demands,
offsets, defenses, counterclaims, actions or proceedings, reasonable
out-of-pocket costs, expenses and attorneys’ fees (including any such
reasonable costs, expenses and attorney’s fees incurred in enforcing any right
of indemnification against any Indemnifying Party or with respect to any
appeal), interest and penalties, if any.


     “Employment Agreement” means the Employment Agreement, dated as of the
Closing Date, by and among GXS and Evan Schumacher, in the form attached as
Exhibit 3 to this Agreement.


     “Exchange Agreement” means the Exchange Agreement, dated as of the Closing
Date, by and among Celarix, Global Acquisition Company, Global Acquisition LLC
and Global Acquisition Holding Company, in the form attached as Exhibit 1 to
this Agreement.


     “ERISA” means the Employee Retirement Income Security Act of 1974, as
amended.


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     “GAAP” means generally accepted accounting principles under current United
States accounting rules and regulations.


     “Governmental Authority” means any government or political subdivision or
regulatory authority, whether federal, state, local or foreign, or any agency,
instrumentality or official of any such government or political subdivision or
regulatory authority, or any federal, state, local or foreign court or
arbitrator.


     “GXS” means Global eXchange Services, Inc., a Delaware corporation and a
subsidiary of GXS Corp.


     “GXS Corp.” means GXS Corporation, a Delaware corporation and a subsidiary
of GXS Holdings.


     “GXS Holdings Common Stock” means the common stock, par value $0.01 per
share of GXS Holdings.


     “GXS Holdings Preferred Stock” means the 13% Series A Preferred Stock.,
par value $0.01 per share, of GXS Holdings.


     “GXS Parties” means GXS, GXS Corp. and GXS Holdings.


     “Intellectual Property” means all rights in intellectual property of any
type owned or licensed by Celarix or used in, useful for, or otherwise
associated with the Business, including but not limited to the following: (i)
patents, patent applications and statutory invention registrations, including
reissues, divisions, continuations, continuations-in-part, extensions and
reexaminations thereof, (ii) trademarks, service marks, trade dress, logos,
domain names, trade names, corporate names and other source identifiers,
whether or not registered, including all common law rights thereto, and
registrations and applications for registration thereof, (iii) copyrights,
whether registered or common law, and registrations and applications for
registration thereof, (iv) Software, (v) trade secrets and confidential,
technical and business information, including inventions, whether patentable or
unpatentable, technology, know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information, (vi) copies
and tangible embodiments of all of the foregoing, in whatever form or medium,
(vii) all rights to sue or recover and retain Damages and costs and attorneys’
fees for past, present and future infringement, dilution, misappropriation, or
other violation of any of the foregoing, together with any additions thereto
between the date of this Agreement and the Closing Date.


     “Key Man Life Insurance Policies” means all life insurance policies with
respect to any employees of Celarix naming Celarix as a beneficiary including
without limitation (i) The


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Midland Life Insurance Co. Policy #Z36681 with respect to Evan Schumacher and
(ii) First Colony Life Insurance Co. Policy #550963 with respect to Mark
Carleo.


     “Licenses” means all licenses, permits, and other authorizations issued by
any Governmental Authority to Celarix in connection with the conduct of the
Business, together with any additions thereto between the date of this
Agreement and the Closing Date.


     “Material Adverse Effect” means any circumstances, change in, or effect
on, the Business or Celarix that, individually or in the aggregate with any
other circumstances, changes, or effect on, the Business or Celarix that: (a)
is, or could be, materially adverse to the business, operations, assets or
liabilities (including without limitation, contingent liabilities), employee
relationships, customer or supplier relationships, prospects, results of
operations or the condition (financial or otherwise) of the Business or (b)
could materially adversely affect the ability of GXS Holdings or its designee
to operate or conduct the Business in the manner in which it is currently
operated or conducted by Celarix.


     “Person” means an individual, corporation, association, partnership, joint
venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.


     “Purchase Price” means the purchase price specified in Section 2.3.


     “Real Property Interests” means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, purchase
options, easements, licenses, rights to access, and rights of way, and all
buildings and other improvements thereon, and other real property interests
which are used or useful in the business or operations of the Business,
together with any additions thereto between the date of this Agreement and the
Closing Date.


     “Required Consents” means (i) any Consent with respect to each agreement,
contract or other instrument binding upon Celarix or any License requiring a
consent as a result of the execution, delivery and performance of this
Agreement, the Ancillary Agreements or the consummation of the transactions
contemplated hereby or thereby and (ii) such other Consents designated as
Required Consents by GXS Holdings as a condition to its obligation to close the
transactions contemplated by this Agreement.


     “Software” means computer software, programs and databases in any form,
including Internet web sites, web site content, member or user lists and
information associated therewith, links, source code, object code, operating
systems and specifications, data, databases, database management code,
utilities, graphical user interfaces, menus, images, icons, forms, methods of
processing, software engines, platforms, and data formats, all versions,
updates, corrections, enhancements, and modifications thereto, and all related
documentation, developer notes, comments and annotations.


     “Tangible Personal Property” means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible


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personal property which is used in, useful for or otherwise associated
with the Business, together with any additions thereto between the date of this
Agreement and the Closing Date.


     “Tax” or “Taxes” means all taxes of any kind, and all customs, levies,
duties, imposts or other assessments, including all net income, capital gains,
gross income, gross receipts, property, franchise, sales, use, excise,
withholding, payroll, employment, social security, worker’s compensation,
unemployment, mortgage, occupation, capital stock, ad valorem, value added,
transfer, documentary stamp, gains, profits, net worth, asset, transaction, and
other taxes, and any interest penalties, or additional to tax with respect
thereto, whether disputed or not, imposed on any Person by any federal, state,
local, or foreign taxing authority under applicable law.


     “Tax Returns” means all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to a Governmental Authority relating to Taxes.


     “Transition Services Agreement” means the agreement regarding services to
be provided by Celarix to GXS and its Affiliates following the Closing,
substantially in the form of Exhibit 2.


     “Working Capital” means (A) the sum of (i) cash of Celarix transferred to
GXS Holdings or its designee at Closing pursuant to Section 2.1 plus (ii)
Accounts Receivable (net of any applicable reserves for uncollectible accounts
calculated in accordance with GAAP) minus (B) the amount of all liabilities for
deferred revenues (whether short-term or long-term) assumed by GXS Holdings or
its designee at Closing.


     1.2 Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have the meanings set forth in the sections
indicated:



	 	 	 	 	 
	 	 	
Term
	 	Section
	 	 	 	 	 
	 	 	
Benefit Arrangement
	 	Section 3.16
	 	 	 	 	 
	 	 	
Celarix
	 	Preamble
	 	 	 	 	 
	 	 	
Celarix Business Revenue
	 	Section 2.5(c)
	 	 	 	 	 
	 	 	
Celarix Software
	 	Section 3.9(j)
	 	 	 	 	 
	 	 	
Celarix Transferee
	 	Section 10.8
	 	 	 	 	 
	 	 	
Claimant
	 	Section 10.4
	 	 	 	 	 
	 	 	
Closing Payment
	 	Section 2.3(c)
	 	 	 	 	 
	 	 	
COBRA
	 	Section 3.16(d)(v)




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Earn-Out Payment
	 	Section 2.3(c)
	 	 	 	 	 
	 	 	
Earn-Out Period
	 	Section 2.5
	 	 	 	 	 
	 	 	
Employee Plan
	 	Section 3.16
	 	 	 	 	 
	 	 	
Escrow
	 	Section 6.10
	 	 	 	 	 
	 	 	
Estimated Closing Payment
	 	Section 2.4(a)
	 	 	 	 	 
	 	 	
Financial Statements
	 	Section 3.10
	 	 	 	 	 
	 	 	
GXS Holdings
	 	Preamble
	 	 	 	 	 
	 	 	
Indemnifying Party
	 	Section 10.4
	 	 	 	 	 
	 	 	
Minimum Working Capital
	 	Section 2.3(a)
	 	 	 	 	 
	 	 	
Objection Notice
	 	Section 2.3(b)
	 	 	 	 	 
	 	 	
Seller Representative
	 	Section 10.8
	 	 	 	 	 
	 	 	
Shares
	 	Section 2.3
	 	 	 	 	 
	 	 	
Transferred Employee
	 	Section 6.5




ARTICLE 2. PURCHASE AND SALE OF ASSETS



     2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Celarix hereby agrees to sell, transfer, and deliver
to GXS Holdings or its designee on the Closing Date, and GXS Holdings agrees to
purchase, or cause its designee to purchase, all of the tangible and intangible
assets used in, useful for or otherwise associated with the Business, together
with any additions thereto between the date of this Agreement and the Closing
Date, but excluding the assets described in Section 2.2, free and clear of any
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for liens for current
Taxes not yet due and payable), including, without limitation, the following:


               (a) All cash on hand as of the Closing and all other cash in any of
Celarix’s bank accounts, less any cash reserved by Celarix in its reasonable
discretion to cover any post-closing liabilities not assumed by GXS Holdings or
its designee hereunder;


               (b) All Tangible Personal Property;


               (c) All Real Property Interests;

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               (d) All Licenses;

               (e) All Assumed Contracts;


               (f) All Accounts Receivable;


               (g) All Intellectual Property and all intangible assets of Celarix used
in, useful for or otherwise associated with the Business that are not
specifically included within the Intellectual Property; all of Celarix’s rights
with respect to telephone numbers, telephone directory listings and
advertisements relating to the Business, and all of the goodwill relating to
the Business;


               (h) All of Celarix’s proprietary information, customer lists, prospect
lists, supplier lists, technical information and data, machinery and equipment
warranties, data bases, computer media, sales and marketing materials used in,
useful for or otherwise associated with the Business;


               (i) All claims, actions, causes of action and other legal rights and
remedies, whether or not known as of the Closing Date, relating to Celarix’s
ownership of the Assets and/or the operation of the Business, but excluding
causes of action and other legal rights and remedies of Celarix (1) against GXS
Holdings with respect to the transactions contemplated by this Agreement; or
(2) relating to Celarix’s right to receive $100,000 from MDI in October 2003;
or (3) relating exclusively to Celarix’s assets described in Section 2.2 or to
Celarix’s liabilities not assumed hereunder;


               (j) All interests in the Key Man Life Insurance Policies to the extent
premiums with respect to such policies have been prepaid by Celarix; and


               (k) All books and records relating to the Business, including executed
copies of the Assumed Contracts.


     2.2 Excluded Assets. The Assets shall exclude the following assets:


               (a) Any insurance policies, bonds, letters of credit, or other similar
items, and any cash surrender value in regard thereto, except with respect to
the Key Man Life Insurance Policies to the extent premiums have been prepaid by
Celarix;


               (b) All rights and obligations of Celarix under, any funds and property
held in trust or any other funding vehicle pursuant to, and sponsorship of, all
Employee Plans, Benefit Arrangements and collective bargaining agreements;


               (c) Any corporate minute books, stock books and related organizational
documents pertaining to Celarix’s corporate organization;


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               (d) All Tax Returns and supporting materials, all original financial
statements and supporting materials; all books and records that Celarix is
required by law to retain;


               (f) Any equity interests in Celarix International, Ltd.;


               (g) The Tangible Personal Property and Software set forth on Section 2.2
of the Disclosure Schedule; provided that, in the event that the GXS Parties
determine that any Tangible Personal Property or Software included on Section
2.2 of the Disclosure Schedule or any Contract that is not an Assumed contract
identified in Section 3.8(b) of the Disclosure Schedule is reasonably required
for the operation of the Business as currently operated by Celarix or as
planned to be operated by GXS within 15 days following the Closing, GXS may
notify Celarix and Celarix shall immediately transfer such Assets to GXS.


               (h) Any interest in and to any refunds of Taxes for periods ending prior
to the Closing Date.


     2.3 Purchase Price. The Purchase Price for the Assets shall consist of a
fixed number of shares of GXS Holdings Common Stock and GXS Holdings Preferred
Stock (collectively, the “Shares”), subject to the terms of the Exchange
Agreement, determined as follows:


               (a) Minimum Working Capital. In the event that Working Capital,
determined as provided in Section 2.3(b) is less than negative eight hundred
fifty thousand (-$850,000) (“Minimum Working Capital”), the Purchase Price
shall be reduced by the amount by which Working Capital is less than Minimum
Working Capital. In the event that Working Capital exceeds Minimum Working
Capital, the Purchase Price shall be increased by the amount by which Working
Capital exceeds Minimum Working Capital.


               (b) Manner of Determining Adjustments. The Closing Payment, taking into
account the adjustments pursuant to Sections 2.3(a), will be determined finally
in accordance with Section 2.4 and the following procedures:


                         (1) Celarix shall prepare and deliver to GXS Holdings not later than
three (3) days before the Closing Date a preliminary settlement statement which
shall set forth Celarix’s good faith estimate of the amount of Working Capital.
The preliminary settlement statement (A) shall contain all information
reasonably necessary to determine the calculation of Working Capital, as
estimated by Celarix and the resulting adjustments to the Estimated Closing
Payment, and such other information as may be reasonably requested by GXS
Holdings, and (B) shall be certified by Celarix to be true and complete as of
the Closing Date.


                         (2) No later than seventy-five (75) days after the Closing Date, GXS
Holdings will deliver, or cause to be delivered, to Celarix a statement setting
forth GXS Holdings’ determination of Working Capital and the resulting
adjustments to the Closing Payment. If Celarix disputes the amount of the
Closing Payment or Working Capital determined by GXS Holdings, it shall deliver
to GXS Holdings within thirty (30) days after its receipt of


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GXS Holdings’ statement a written statement (an “Objection Notice”)
setting forth in reasonable detail the items on GXS Holdings’ statement
disputed and shall describe in reasonable detail the basis for the objection,
as well as the amount in dispute. If Celarix notifies GXS Holdings of its
acceptance of GXS Holdings’ statement, or if Celarix fails to deliver its
statement within the 30-day period specified in the preceding sentence, GXS
Holdings’ determination of the Closing Payment shall be conclusive and binding
on the parties as of the last day of the 30-day period.


                         (3) GXS Holdings and Celarix shall use good faith efforts to resolve any
dispute involving the determination of the Closing Payment or Working Capital.
If the parties are unable to resolve the dispute within fifteen (15) days
following the delivery of an Objection Notice, any unresolved disputed items
shall be promptly referred to Deloitte & Touche LLP (or such other public
accounting firm of national reputation as the parties may mutually agree) to
resolve the dispute. Such accountant’s resolution of the dispute shall be
final and binding on the parties, and a judgment may be entered thereon in any
court of competent jurisdiction. Any fees of this accountant shall be split
equally between the parties.


               (c) Determination of Number of Shares. Subject to the other provisions
of this Section 2.3 and Section 2.4, the number of Shares constituting the
Purchase Price shall be (1) 5,333.33 shares of GXS Holdings Preferred Stock and
133,333 shares of GXS Holdings Common Stock, having an aggregate agreed
valuation of $600,000 and issued at Closing (the “Closing Payment”), with all
such shares to be held under the Escrow described in Section 6.10; and (2) an
uncapped number of Shares payable following the end of the Earn-Out Period as
provided in Section 2.5 (the “Earn-Out Payment”), subject in each case to
adjustment as follows: any adjustment to the Estimated Closing Payment, the
Closing Payment and any Earn-Out Payment shall increase or decrease the
aggregate number of shares of GXS Holdings Preferred Stock and GXS Holdings
Common Stock included in the Closing Payment and the Earn-Out Payment in the
same relative proportions and valuing each share of GXS Holdings Preferred
Stock at $100.00 per share and each share of GXS Holdings Common Stock at $0.50
per share.


     2.4 Payment of Closing Payment. The Closing Payment shall be paid by GXS
Holdings to Celarix as follows:


               (a) Payment of Estimated Closing Payment. At the Closing, subject to the
provisions of Section 6.10, GXS Holdings shall deliver to or for the account of
Celarix certificates representing the number of Shares constituting the Closing
Payment, determined pursuant to Section 2.3 hereof as adjusted by the estimated
adjustments set forth in Celarix’s preliminary settlement statement (the
“Estimated Closing Payment”).


               (b) Payments to Reflect Adjustments.


                         (1) If the Closing Payment as finally determined pursuant to Section
2.3(b) exceeds the Estimated Closing Payment, GXS Holdings shall deliver to or
for the account of Celarix certificates representing the additional Shares
determined in accordance with Section 2.3(b) within five (5) business days
after the date on which the Closing Payment is determined


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pursuant to Section 2.3(b), representing the difference between the
Closing Payment and the Estimated Closing Payment.


                         (2) If the Closing Payment as finally determined pursuant to Section
2.3(b) is less than the Estimated Closing Payment, Celarix shall promptly
deliver, or cause to be delivered, to GXS Holdings the original share
certificates representing the Estimated Closing Payment (or any shares of any
Affiliate of GXS Holdings into which such Share are converted pursuant to the
Exchange Agreement), together with executed stock powers in a form reasonably
acceptable to GXS Holdings and GXS Holdings shall deliver, or cause to be
delivered, within five (5) business days after receipt of such share
certificates, new share certificates representing the Closing Payment, as
finally determined.


     2.5 Earnout Payment. Subject to the following sentence, GXS Holdings
shall pay to or for the account of Celarix additional Shares based upon Celarix
Business Revenue (as defined in Section 2.5(c)) calculated in accordance with
GAAP as applied by the GXS Parties for the period beginning on the Closing Date
and ending on the first anniversary of the Closing Date (the “Earn-Out
Period”). In the event that Evan Schumacher terminates employment (other than
due to death or disability or termination pursuant to Section 10(c)(ii) of the
Employment Agreement) with GXS or is terminated by GXS for “Cause” (as defined
in the Employment Agreement) prior to the six-month anniversary of the Closing
Date, GXS Holdings shall not be obligated to make any Earn-Out Payment.


               (a) Earn-Out Payment. The Earn-Out Payment shall consist of (i) Shares
with a value (as set forth in Section 2.3(c)) equal to one hundred percent
(100%) of the excess of Celarix Business Revenue during the Earnout Period
minus U.S. $2,500,000; provided, however, that in no event shall the value
calculated pursuant to this clause (i) exceed $1,500,000 plus (ii) Shares with
a value (as set forth in Section 2.3(c)) equal to one hundred twenty five
percent (125%) of the excess of Celarix Business Revenue during the Earnout
Period minus U.S. $4,000,000; provided that to the extent the issuance of
Shares with an aggregate value calculated as provided in this Section 2.5(a) in
excess of $20,000,000 would result in a materially adverse tax consequence to
GXS Holdings, GXS Holdings shall have the option to issue cash in lieu of
additional Shares valued in excess of $20,000,000 to Celarix to the extent
necessary to avoid such consequence.


               (b) Revenue Recognition. Revenues will be recognized by the GXS Parties
in accordance with GAAP as consistently applied by the GXS Parties (and the
principals and policies of the GXS Parties in effect for the relevant period).


               (c) Celarix Business Revenue. “Celarix Business Revenue” means revenue of
the GXS Parties from all sources, including existing customers of Celarix as of
the Closing Date (other than any customer contract with the General Electric
Company or any Affiliate thereof, including GE Aircraft Engines) utilizing any
of the Assets in the sole discretion of the GXS Parties operating their related
business in accordance with their reasonable business judgment, during the
Earn-Out Period. “Celarix Business Revenues” shall specifically exclude any
sales


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revenues earned by the GXS Parties in transactions related or unrelated to
those from which Celarix Business Revenues are derived from the GXS Parties’
other assets, including without limitation any sales of the GXS Parties’
EDI*Express Service, Interchange Services, Electronic Commerce Service Center
or professional services (except for specific professional service fees
allocable to the implementation of Celarix’s X4 Logistics Network and Celarix
Visibility software and enhancements thereof).


               (d) Calculation and Payment. Within thirty (30) days following the end of
the Earn-Out Period, GXS Holdings shall provide, or cause to be provided, to
Celarix a statement, in reasonable detail, setting forth the amount of Celarix
Business Revenues. Celarix and GXS Holdings shall in good faith attempt to
agree upon the amount of the Earn-Out Payment within sixty (60) days after the
end of the Earn-Out Period. Celarix and GXS Holdings shall instruct their
respective representatives to, in good faith, use their reasonable best efforts
to resolve any disputed items to their mutual satisfaction. GXS Holdings shall
provide, or cause to be provided, to Celarix or its representatives copies of
such documents and records reasonably requested by Celarix in connection with
its verification of the amount of the Earn-Out Payment. If Celarix and GXS
Holdings are unable to resolve any disputed items within sixty (60) days, then
the remaining disputed items shall be submitted to Deloitte & Touche LLP (or
such other public accounting firm of national reputation as the parties may
mutually agree) for resolution, with the costs thereof paid 50% by Celarix and
50% by GXS Holdings and such accountants shall be instructed to deliver a final
earn-out report to Celarix and GXS Holdings as soon as possible. Within ten
(10) business days after the amount of the Celarix Business Revenues is
finalized in accordance with this Section 2.5(d), subject to the provisions of
Section 6.10, the Earn-Out Payment shall be paid to Celarix.


     2.6. [Intentionally Omitted]


     2.7 Assumption of Liabilities and Obligations. As of the Closing Date,
GXS Holdings or its designee shall assume and undertake to pay, discharge, and
perform all obligations and liabilities of Celarix under the Assumed Contracts
insofar as they relate to obligations and liabilities first arising on and
after the Closing Date, and arise out of events related to GXS Holdings or its
designee’s ownership of the Assets or its operation of the Business on or after
the Closing Date. None of the GXS Parties shall assume any other obligations
or liabilities of Celarix, including (i) any obligations or liabilities under
any Contract not included in the Assumed Contracts, (ii) any obligations or
liabilities under the Assumed Contracts relating to the period prior to the
Closing Date, (iii) any claims or pending litigation or proceedings relating to
the operation of the Business prior to the Closing, (iv) any obligations or
liabilities arising under capitalized leases, credit agreements, note purchase
agreements, indentures or other financing agreements, (v) any obligations or
liabilities arising under agreements entered into other than in the ordinary
course of business, (vi) any obligations or liabilities of Celarix under any
Employee Plan, Benefit Arrangement or collective bargaining agreement, or (vii)
any obligations or liabilities caused by, arising out of, or resulting from any
action or omission of Celarix prior to the Closing, and all such obligations
and liabilities shall remain and be the obligations and liabilities solely of
Celarix.


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ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF CELARIX



     Celarix represents and warrants to GXS Holdings as follows as of the date
hereof and as of the Closing Date:


     3.1 Organization, Standing, and Authority. Celarix is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Delaware and is duly qualified to do business in each jurisdiction where the
conduct of the business or operations of the Business owned or operated by
Celarix requires such qualification (which jurisdictions are set forth in
Section 3.1 of the Disclosure Schedule). Celarix has all requisite power and
authority (i) to own, lease, and use the Assets as now owned, leased, and used,
(ii) to conduct the Business as now conducted, and (iii) to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Celarix hereunder and thereunder. Celarix has delivered to GXS
Holdings true and complete copies of the certificate of incorporation and
bylaws of Celarix as currently in effect.


     3.2 Subsidiaries. Celarix does not have any subsidiary or any other
direct or indirect equity interest (by way of stock ownership, partnership
interest or otherwise) in any Person other than Celarix International, Ltd.
Celarix International, Ltd. is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware. Celarix
International, Ltd. has no issued or outstanding capital stock. Celarix
International, Ltd. does not own any assets used in, useful for or otherwise
associated with the Business including any of the Assets. Celarix is not a
participant in any joint venture or partnership with any other Person with
respect to any part of the Business or any of the Assets.


     3.3 Authorization and Binding Obligation. The execution, delivery and
performance of this Agreement and the Ancillary Agreements to which it is a
party and the consummation of the transactions contemplated hereby and thereby
by Celarix have been, or will be at the Closing Date, duly and validly
authorized by all necessary corporate action on the part of Celarix and no
further action or approval of any director or stockholder of Celarix will be
required after the Closing Date. This Agreement has been, and the Ancillary
Agreements to which it is a party will be, duly and validly executed and
delivered by Celarix and constitutes (or in the case of documents not yet
executed, will be) a legal, valid and binding agreement of Celarix enforceable
against Celarix in accordance with its respective terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws and related court decisions of general applicability relating to
or affecting creditors’ rights generally and by the application of general
principles of equity.


     3.4 Absence of Conflicting Agreements. Subject to obtaining the Consents
listed on Section 3.4 of the Disclosure Schedule, the execution, delivery, and
performance of this Agreement and the documents contemplated hereby (with or
without the giving of notice, the lapse of time, or both): (i) do not require
the consent of any third party; (ii) will not conflict with


12






 


any provision of the certificate of incorporation or bylaws of Celarix;
(iii) will not violate, conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any Governmental Authority which would have a Material
Adverse Effect; (iv) will not result in the breach of any terms of, conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Celarix is a party or by which Celarix may be bound which would have a
Material Adverse Effect; and (v) will not create any claim, liability,
mortgage, lien, pledge, condition, charge, or encumbrance of any nature
whatsoever upon any of the Assets.


     3.5 Governmental Licenses. Section 3.5 of the Disclosure Schedule
correctly describes each License, together with the name of the Governmental
Authority issuing such License. Celarix has delivered to GXS Holdings true and
complete copies of the Licenses (including any amendments and other
modifications thereto). The Licenses have been validly issued, and Celarix is
the authorized legal holder thereof. The Licenses comprise all of the
licenses, permits, and other authorizations required from any Governmental
Authority for the lawful conduct of the Business in the manner and to the full
extent it is now conducted, and none of the Licenses is subject to any
restriction or condition that would limit the full operation of the Business as
now operated. Except as set forth on the Section 3.5 of the Disclosure
Schedule, the Licenses are in full force and effect, the conduct of the
Business is in accordance therewith and, assuming the related Consents have
been obtained prior to the Closing Date, are transferable by Celarix to GXS
Holdings or its designee. None of the Licenses will, assuming the related
Consents have been obtained prior to the Closing Date, be terminated or
impaired or become terminable as a result of the transactions contemplated
hereby. Upon consummation of such transactions, GXS Holdings or its designee
will, assuming the related Consents have been obtained prior to the Closing
Date, have all of the right, title and interest in all the Licenses.


     3.6 Title to and Condition of Real Property Interests. Section 3.6 of
the Disclosure Schedule contains a complete and accurate description of all the
Real Property Interests and Celarix’s interests therein, including street
address, and name of the lessor or sublessor. The Real Property Interests
listed on Section 3.6 of the Disclosure Schedule comprise all real property
interests necessary to conduct the Business as now conducted. All leases
included in the Real Property Interests are in good standing and are valid,
binding and enforceable in accordance with their respective terms, and there
does not exist under any such lease of real property any material default or
any event which with notice or lapse of time or both would constitute a
material default. With respect to each leasehold or subleasehold interest
included in the Real Property Interests being conveyed under this Agreement, so
long as Celarix fulfills its obligations under the lease therefor, Celarix has
enforceable rights to nondisturbance and quiet enjoyment, and no third party
holds any interest in the leased premises with the right to foreclose upon
Celarix’s leasehold or subleasehold interest. Celarix has delivered to GXS
Holdings true and complete copies of all leases pertaining to the Real Property
Interests. Each Real Property Interest (including the improvements thereon)
(i) is in good condition and repair consistent with its


13






 


present use and (ii) is available for immediate use in the conduct of the
Business. Celarix has full legal and practical access to all of the Real
Property Interests.


     3.7 Title to and Condition of Tangible Personal Property. Section 3.7
of the Disclosure Schedule contains a listing of each item of Tangible Personal
Property which has been capitalized in accordance with Celarix’s capitalization
policy which provides for capitalization of amounts in excess of $1,000 or
more. The Tangible Personal Property listed on Section 3.7 of the Disclosure
Schedule comprises all material items of tangible personal property necessary
to conduct the Business as now conducted. Except as described in Section 3.7
of the Disclosure Schedule, Celarix owns and has good title to each item of
Tangible Personal Property, and none of the Tangible Personal Property owned by
Celarix is subject to any security interest, mortgage, pledge, conditional
sales agreement, or other lien or encumbrance, except for liens for current
Taxes not yet due and payable. Each item of Tangible Personal Property is
available for immediate use in the Business. Except as set forth in Section
3.7 of the Disclosure Schedule, the Tangible Personal Property listed in
Section 3.7 of the Disclosure Schedule and included in the Assets, or required
to be listed in Section 3.7 of the Disclosure Schedule and included in the
Assets, is in good operating condition and repair in accordance with normal and
customary industry practices for items of comparable age and use, ordinary wear
and tear excepted.


     3.8 Customers and Contracts.


               (a) Section 3.8(a) of the Disclosure Schedule sets forth a true and
complete list of all licensees of Celarix’s software programs and other
customers of Celarix, indicating the date such licensee acquired a license to
the software program.


               (b) Section 3.8(b) of the Disclosure Schedule is a true and complete list
of all Contracts which are used in the Business as currently conducted.
Celarix has delivered to GXS Holdings true and complete copies of all written
Contracts, true and complete memoranda of all oral Contracts (including any
amendments and other modifications to such Contracts). Other than the
Contracts listed on Section 3.8(b) of the Disclosure Schedule and those
Contracts specifically permitted to be excluded from Section 3.8(b) of the
Disclosure Schedule, Celarix requires no contract, lease, or other agreement to
enable it to carry on its business as now conducted. Each of the Contracts is
in full force and effect, and is valid, binding, and enforceable against
Celarix (and, to Celarix’s knowledge, against other parties) in accordance with
its respective terms. There is not under any Contract any default by Celarix
or, to Celarix’s knowledge, any party thereto or any event that, after notice
or lapse of time or both, could constitute a default. To the knowledge of
Celarix, no party to any Assumed Contract has any intention (i) to terminate
such contract or amend the terms thereof, (ii) to refuse to renew the Contract
upon expiration of its term, or (iii) to renew the Contract upon expiration
only on terms and conditions which are more onerous than those now existing.
Except for the need to obtain the Consents listed in Section 3.4 of the
Disclosure Schedule, Celarix has full legal power and authority to assign its
rights under the Assumed Contracts to GXS Holdings or its designee in
accordance with this Agreement, and such assignment will not affect the
validity, enforceability, or continuation of any of the Assumed Contracts.


14






 


     3.9 Intellectual Property. (a) Section 3.9(a) of the Disclosure Schedule
is a true and complete list of all Intellectual Property (other than
Intellectual Property included in clause (v) of the definition of Intellectual
Property set forth in Section 1.1 above) owned by or licensed to, Celarix,
including without limitation: (i) all patents, registered trademarks,
registered service marks, copyright registrations and applications to obtain or
register any of the foregoing, owned by or for Celarix, and (ii) material
unregistered trademarks and service marks used by Celarix, (iii) any Software
owned by Celarix and (iv) all third party Software programs licensed by Celarix
either for use as part of or in connection with Celarix’s own Software programs
or otherwise for use in, useful for or otherwise associated with Celarix’s
business, with an indication with regard to the items in clauses (i) through
(iv) above as to which of such items are owned by Celarix and which are
licensed to Celarix, specifying as to each, as applicable: (A) the nature of
such Intellectual Property; (B) the registered owner of such Intellectual
Property or licensor of any Software licensed by Celarix; (C) the jurisdictions
by or in which such Intellectual Property Right is registered by Celarix or has
been issued or in which an application for such issuance or registration has
been filed, including the respective registration or application numbers.


               (b) All of the patents, registered trademarks and copyrights set forth in
Section 3.9(a) of the Disclosure Schedule, or required to be listed in Section
3.9(a) of the Disclosure Schedule, have been duly issued and have not been
cancelled, abandoned or otherwise terminated.


               (c) Celarix has not received notice, orally or in writing, that any other
person or entity claims any interest in any Intellectual Property of Celarix,
and to the knowledge of Celarix, no such other Person has, or has made, such a
claim.


               (d) Celarix has taken all commercially reasonable measures to protect the
secrecy and confidentiality of any confidential and proprietary Intellectual
Property and maintain the rights of Celarix in such Intellectual Property.


               (e) Except as set forth in Section 3.9(e) of the Disclosure Schedule,
Celarix is in compliance with the license terms of all Software and other
Intellectual Property licensed from third parties. Except as described in
Section 3.18 of the Disclosure Schedule (Claims and Legal Actions), neither
Celarix nor any Person on behalf of Celarix has sent or otherwise communicated
to any other Person any notice, charge, claim or assertion of, or has any
knowledge of, any present, impending or threatened infringement by any other
Person of any of the Intellectual Property, and to the knowledge of Celarix, no
third party has interfered with, infringed upon, misappropriated or otherwise
come into conflict with any of the Intellectual Property.


               (f) Celarix has not received any communications alleging that Celarix has
violated or, by conducting its business as proposed, would violate any
trademarks, trade names, service marks, service names, copyrights, patents,
patent applications, trade secrets, computer


15






 


programs and program rights and similar intangible property rights of any
other Person, nor is Celarix infringing upon or otherwise acting adversely to
any trademarks, trade names, service marks, service names, copyrights, patents,
patent applications, trade secrets, computer programs and program rights and
similar intangible property rights owned by any other Person, and there is no
claim or action pending or, to the knowledge of Celarix, threatened with
respect thereto.


               (g) Except for licenses to customers of Celarix’s software granted in the
ordinary course of business and identified in Section 3.9(a) of the Disclosure
Schedule or as otherwise disclosed in Section 3.9(g) of the Disclosure
Schedule, Celarix has not licensed any of the listed Intellectual Property to
any other Person, nor does any other Person have any option or other right to
acquire any of the Intellectual Property. Celarix has not granted a license or
other rights with respect to the source code of any of Celarix’s software.


               (h) The Intellectual Property listed on Section 3.9(a) of the Disclosure
Schedule comprise all intangible property interests necessary to conduct the
business and operations of Celarix as now conducted.


               (i) No present or former employee, officer, director, shareholder, agent
or contractor of Celarix has any ownership interest, direct or indirect, in any
Intellectual Property.


               (j) Without limiting the other representations and warranties contained
in this Agreement, Celarix makes the following additional representations and
warranties with respect to the Software and databases identified in Section
3.9(a) of the Disclosure Schedule or required to be identified in Section
3.9(a) of the Disclosure Schedule (“Celarix Software”). Except as disclosed in
Section 3.9(j) of the Disclosure Schedule: (i) Celarix has or will have by
Closing delivered to GXS Holdings complete, current copies of all user and
technical documentation related to the Celarix Software and access to all
source code for Celarix Software to which Celarix has the rights to such source
code; (ii) the Celarix Software performs in all material respects in accordance
with the documentation and other written material used in connection with the
Celarix Software and is free from any material defects in programming and
operation, contains all current revisions of such Celarix Software, and
includes all computer programs, materials, tapes, know-how, object and source
codes related to the Celarix Software; (iii) to the knowledge of Celarix, the
Celarix Software is free of all viruses, worms, trojan horses and other
material known contaminants; (iv) Celarix has obtained all approvals necessary
for exporting the Celarix Software outside the United States and importing the
Celarix Software into any country in which the Celarix Software is now sold or
licensed for use, and all such export and import approvals in the United States
and throughout the world are valid, current, outstanding and in full force and
effect; (v) none of the Celarix Software is licensed pursuant to an “open
source” or “GNU” license, or incorporates or is based on any computer software
that is licensed pursuant to an “open source” or “GNU” license; (vi) no
employee, contractor or agent (directly or through employees or subcontractors
or sub-agents) of Celarix has developed or assisted in the enhancement of any
of the Celarix Software or the development of any program or product based on
any of the Celarix Software or any part thereof without assigning all of such
Person’s rights and interest in the same to Celarix pursuant to an agreement
included in the Contracts; (vii)


16






 


except as provided in the Contracts, Celarix has no obligation to
compensate any Person for the development, enhancement, creation of derivative
works, use, license or exploitation of any of the Celarix Software.


     3.10 Financial Statements. Celarix has furnished GXS Holdings with true
and complete copies of (i) audited financial statements of the Business
containing balance sheets and statements of income and cash flows as at and for
Celarix’s last three fiscal years ended June 30, 2000, 2001 and 2002
respectively, and (ii) an unaudited balance sheet and statement of income and
cash flows of the Business as of and for the ten months ended April 30, 2003
(collectively, the “Financial Statements”). The Financial Statements have been
prepared from the books and records of Celarix, have been prepared in
accordance with GAAP consistently applied and maintained throughout the periods
indicated, accurately reflect the books, records, and accounts of the Business
(which books, records, and accounts are complete and correct), are complete and
correct in all material respects, and present fairly the financial condition of
the Business as at their respective dates and the results of operations for the
periods then ended (subject to normal year-end adjustments and the absence of
notes in the case of any unaudited interim financial statements). None of the
Financial Statements understates the true costs and expenses of conducting the
business or operations of the Business, fails to disclose any material
contingent liabilities, or inflates the revenues of the Business.


     3.11 Receivables. All accounts, notes receivable and other receivables
(other than receivables collected since April 30, 2003) reflected on the
Financial Statements are, and all accounts and notes receivable arising from or
otherwise relating to the Business at the Closing Date will be, valid, genuine
and fully collectible in the aggregate amount thereof, subject to normal and
customary trade discounts, less any reserves for doubtful accounts recorded on
the Financial Statements. All accounts, notes receivable and other receivables
arising out of or relating to the Business at April 30, 2003 have been included
in the Financial Statements, and all accounts, notes receivable and other
receivables arising out of or relating to the Business at the Closing Date will
be included in the Accounts Receiveable, in accordance with GAAP applied on a
consistent basis.


     3.12 Conduct of Business in Ordinary Course. Since June 30, 2002, Celarix
has conducted the Business only in the ordinary course and has not:


               (a) Suffered any event, occurrence, development or state of circumstances
or facts which could be expected to result in a Material Adverse Effect,
including any damage, destruction, or loss affecting any assets used or useful
in the conduct of the Business;


               (b) Made any material change in personnel policies, employee benefits, or
other compensation arrangements affecting the employees of the Business;


               (c) Made any sale, assignment, lease, or other transfer of the Business’
properties other than in the normal and usual course of business with suitable
replacements being obtained therefor;



17










 



             (d)      Canceled any debts owed to or claims held by Celarix with respect to
the Business, except in the normal and usual course of business;


             (e)      Suffered any material write-down of the value of any Assets or any
material write-off as uncollectible of any accounts receivable of the Business;
or


             (f)      Transferred or granted any right under, or entered into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Business;


             (g)      Suffered any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the Business or any Asset;


             (h)      Revalued any of the Assets (whether tangible or intangible) or
changed any of its accounting records or practices or changed its depreciation
or amortization policies or rates


             (i)      Made any capital expenditure, or commitment for a capital
expenditure, for additions or improvements to property, plant and equipment,
except in the ordinary course of business; or


             (j)      Entered into any agreement to do any of the foregoing.


     3.13      Sufficiency of and Title to the Assets. Except for the
Excluded Assets, the Assets constitute, and on the Closing Date will
constitute, all of the assets or property used or held for use in the Business.


     3.14      No Undisclosed Liabilities. There are no liabilities of the
Business of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability, other than: (i) liabilities disclosed or provided for in
the Financial Statements; and (ii) liabilities incurred in the ordinary course
of business consistent with past practice since June 30, 2002, which in the
aggregate are not material to the Business, taken as a whole.


     3.15      Insurance. Celarix has furnished to GXS
Holdings a list of, and true and complete copies of, all insurance policies and
fidelity bonds covering the Assets, the Business and its employees. Section
3.15 of the Disclosure Schedule is a true and complete list of all
insurance policies of Celarix that insure any part of the Assets or the
Business. All insurance policies listed on Section 3.15 of the Disclosure
Schedule are in full force and effect, are adequate in amount with respect
to, and for the full value (subject to customary deductibles) of, the Assets,
and insure the Assets and the business of the Business against all customary
and foreseeable risks. There is no claim by Celarix pending under any of such
policies or bonds as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds. During the past


18






 




three years, no insurance policy of Celarix on the Assets or the Business
has been canceled by the insurer and no application of Celarix for insurance
has been rejected by any insurer.


     3.16      Personnel.


             (a)      Employees and Compensation. Section 3.16(a) of the
Disclosure Schedule contains a true and complete list of all employees and
all Persons retained as independent contractors of Celarix, the starting dates
of such employees and contractors and a description of all compensation
arrangements affecting them as of the date of this Agreement. Except as set
forth on Section 3.16(a) of the Disclosure Schedule, all employees of Celarix
have executed Celarix’s standard Non-Disclosure, Developments, Non-Competition,
and Non-Solicitation Agreement. All contractors of Celarix are bound by a
confidentiality agreement and assignment of intellectual property rights
substantially similar to such form of agreement.


             (b)      Options. Section 3.16(b) of the Disclosure Schedule
contains a true and complete list of all options grants currently outstanding
with respect to Celarix capital stock under any stock option plan of Celarix,
including the name of the Person to whom such grant was made and an indication
of the number of options subject to such grants that are vested and unvested.
All other option grants made by Celarix have been terminated in accordance with
the terms of the applicable option plan without liability to Celarix or the GXS
Parties.


             (c)      Labor Relations. Celarix is not a party to or subject to any
collective bargaining agreements. Except as set forth on Section 3.16(c) of
the Disclosure Schedule, Celarix is not a party to any written or oral
contract of employment with any employee, other than oral employment agreements
terminable at will without penalty. No labor union or other collective
bargaining unit represents or claims to represent any of the employees of
Celarix. There is no labor dispute, grievance, controversy, strike or request
for union representation pending or threatened against Celarix relating to or
materially affecting the business or operations of Celarix and, to the
knowledge of Celarix, there has been no occurrence of any events which would
give rise to any material labor dispute, controversy, strike or request for
representation.


             (d)      Employee Benefits and ERISA  (i) Schedule 3.16(d) lists each
“employee benefit plan”, as such term is defined in Section 3(3) of ERISA,
which (i) is subject to any provision of ERISA, (ii) is maintained,
administered or contributed to by Celarix or any of its Affiliates and (iii)
covers any employee of the Business (hereinafter referred to collectively as
the “Employee Plans”). With respect to each Employee Plan, Celarix has
provided a true and complete copy of such plan document, the most recently
filed Form 5500 and an accurate summary description of such plan. Celarix has
provided GXS Holdings with, or has caused to be provided to GXS Holdings,
complete age, salary, service and related data as of the most recent
practicable date, but in any event no later than May 29, 2003, for employees of
the Business.


                     (ii)      No Employee Plan is a a multiemployer plan within the meaning of
Section 3(37) of ERISA.and no Employee Plan is subject to Title IV of ERISA.
Neither Celarix


19






 




nor any of Celarix’s Affiliates has incurred any liability under Title IV
of ERISA arising in connection with the termination of any plan covered or
previously covered by Title IV of ERISA that could become, after the Closing
Date, an obligation of the GXS Parties or any of their Affiliates.


                     (iii)      Each Employee Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and has been so qualified during the period
from its adoption to date, and each trust forming a part thereof is exempt from
Tax pursuant to Section 501(a) of the Code. Celarix has furnished to the GXS
Holdings copies of the most recent Internal Revenue Service determination
letters with respect to each such Plan. Each Employee Plan has been maintained
in compliance with its terms and with the requirements prescribed by any and
all statutes, orders, rules and regulations, including but not limited to ERISA
and the Code, which are applicable to such Plan.


                     (iv)      Section 3.16(d) of the Disclosure Schedule includes a list of
each employment, severance or other similar contract, arrangement or policy
(written or oral) and each plan or arrangement (written or oral) providing for
insurance coverage (including any self-insured arrangements), workers’
compensation, disability benefits, any applicable state unemployment insurance
coverage, supplemental unemployment benefits, vacation benefits, retirement
benefits or for deferred compensation, profit-sharing, bonuses, stock options,
stock appreciation or other forms of incentive compensation or post-retirement
insurance, compensation or benefits which (i) is not an Employee Plan, (ii) is
entered into, maintained or contributed to, as the case may be, by Celarix or
any of its Affiliates and (iii) covers any U.S. employee of the Business. Such
contracts, plans and arrangements as are described above, copies or
descriptions of all of which have been made available or furnished previously
to GXS Holdings are hereinafter referred to collectively as the “Benefit
Arrangements.” Each Benefit Arrangement has been maintained in substantial
compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations which are applicable to such Benefit
Arrangement.


                     (v)      None of the Employee Plans or the Benefit Arrangements provides health
or life insurance coverage for former employees, except as required by Part 6
of Subtitle B of Title I of ERISA and Section 4980B of the Code (“COBRA”).


                     (vi)      Except as disclosed in writing to GXS Holdings prior to the date
hereof, there has been no amendment to, written interpretation of or
announcement (whether written or not written) by Celarix or any of its
Affiliates relating to, or change in employee participation or coverage under,
any Employee Plan or Benefit Arrangement which would increase materially the
expense of maintaining such Employee Plan or Benefit Arrangement above the
level of the expense incurred in respect thereof for the most recent fiscal
year.


                     (vii)      The Assets are not now subject to any lien imposed under Code
Section 412(n) by reason of the failure of Celarix or its Affiliates to make
timely installments or other payments required by Code Section 412.


20






 


                     (viii)      Celarix and Celarix’s Affiliates have complied with the health care
continuation requirements of COBRA.


                     (ix)      The consummation of the transactions contemplated by this Agreement
(alone or in connection with any subsequent event, including a termination of
employment) will not (A) accelerate the vesting or payment of any economic
benefit provided or made available to Celarix’s employees by Celarix or (B)
increase the amount of any economic benefit provided or made available to
Celarix’s employees by Celarix.


             (e)      Celarix is in compliance with all applicable policies and agreements
relating to wages, hours, employment, employment practices, and terms and
conditions of employment in respect of the Business. Celarix has withheld and
paid to (or is holding for payment not yet due) the appropriate Governmental
Authority all amounts required by law or agreement to be withheld from the
wages or salaries of its respective employees of the Business. Celarix has
paid in full to all its respective employees of the Business all wages,
salaries, bonuses, benefits, commissions, and other compensation due to them or
otherwise arising under any law, plan, policy, practice, program or agreement.
Except as set forth on Section 3.16(e) of the Disclosure Schedule,
Celarix has not closed any facility, effected any employee layoffs, or
implemented any early retirement, group termination, separation, or window
program in respect of the Business with the past three years, or planned or
announced any such action or program for the future. Celarix is in compliance
with its respective obligations under and/or pursuant to all federal, state and
local employment laws.


     3.17      Taxes. Celarix has filed, or caused to be filed, all Tax Returns
which are required to be filed in connection with its
ownership interest in and operation of the Celarix Business owned by Celarix.
Except as set forth in Section 3.17 of the Disclosure Schedule, Celarix
has paid, or made provisions for the payment of, (i) all Taxes due for the
periods covered by such Tax Returns, except such accrued and unpaid Taxes for
which appropriate accruals are reflected in the Financial Statements and (ii)
all Tax deficiencies (including interest and penalties) assessed as a result of
any examination of Tax Returns of Celarix by federal, state or local Tax
authorities (a “Tax Authority”). Celarix is not delinquent in the payment of
and there are no claims pending for the payment of, any Tax of any nature
whatsoever that could impose transferee liability upon any of the GXS Parties
or their Affiliates. Celarix has established, in accordance with GAAP applied
on a basis consistent with that of preceding periods, adequate reserves for the
payment of, and will timely pay all Tax liabilities, assessments, interest and
penalties which arise from or with respect to the Assets or the operation of
the Business and are incurred in or attributable to the Tax period ending on
the Closing Date, the non-payment of which would result in a lien on any Asset,
would otherwise adversely affect the Business or would result in any of the GXS
Parties or their Affiliates becoming liable therefor. Celarix has withheld and
paid all Taxes required to have been withheld and paid in connection with any
amount owing to any employee, independent contractor, creditor, stockholder, or
other third party, and all Forms W-2 and 1099 required with respect thereto
have been properly completed and timely filed. None of the liabilities assumed
by GXS Holdings or its designees is an


21






 




obligation to make any future payment that will not be fully deductible under
Section 280G of the Code.


     3.18      Claims and Legal Actions.
Except as disclosed on Section 3.18 of the Disclosure Schedule, there
is no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or other legal, administrative, or Tax proceeding, nor any order,
decree or judgment, in progress or pending or, to the knowledge of Celarix,
threatened, against Celarix with respect to its ownership or operation of the
Business or otherwise relating to the Assets or the business or operations of
the Business or which seeks to enjoin or prohibit, or otherwise questions the
validity of, any action taken or to be taken pursuant to or in connection with
this Agreement, nor does Celarix know or have reason to be aware of any basis
for the same. Except as set forth in Section 3.18 of the Disclosure
Schedule, neither Celarix nor any of the Assets is subject to any judgment,
writ, order, injunction, award or decree by any Governmental Authority,
including any administrative agency.


     3.19      Environmental Matters.


                     (a)      No notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed and no investigation or review is pending, or to Celarix’s
knowledge, threatened by any governmental or other entity (i) with respect to
any alleged violation by Celarix of any environmental law, ordinance, rule,
regulation or order of any governmental entity in connection with the conduct
of the Business, (ii) with respect to any alleged failure by Celarix to have
any environmental permit, certificate, license, approval, registration or
authorization required in connection with the conduct of the Business or (iii)
with respect to any generation, treatment, storage, recycling, transportation
or disposal or release, as defined in 42 U.S.C. Section 9601(22) (“Release”) of
any toxic, caustic or otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, whether or not regulated under
Federal, state or local environmental statutes, ordinances, rules, regulations
or orders (“Hazardous Substance”) generated by the Business or the Purchased
Assets.


                     (b)      In connection with the operation of the Business, (i) Celarix has not
handled any Hazardous Substance, other than as a generator, on any property now
or previously owned or leased by Celarix; (ii) no polychlorinated biphenyls or
urea formaldehyde is or has been present at any property now or previously
owned or leased by Celarix; (iii) to the knowledge of Celarix, asbestos is or
has been present at any property now or previously owned or leased by Celarix;
(iv) to the knowledge of Celarix, there are no underground storage tanks for
Hazardous Substances, active or abandoned, at any property now or previously
owned or leased by Celarix; (v) to the knowledge of Celarix, no Hazardous
Substance has been Released at, on or under any property now or previously
owned or leased by Celarix and (vi) to the knowledge of Celarix, no Hazardous
Substance has been released or is present, in a reportable or threshold
planning quantity, where such a quantity has been established by statute,
ordinance, rule, regulation or order, at, on or under any property now or
previously owned by Celarix.


22






 


                     (c)      In connection with the operation of the Business, Celarix has not
transported or arranged for the transportation (directly or indirectly) of any
Hazardous Substance to any location which is listed or proposed for listing
under the Comprehensive Environmental Responses, Compensation and Liability Act
of 1980, as amended (“CERCLA”), or on any similar state list or which is the
subject of Federal, state or local enforcement actions or other investigations
which may lead to claims against the GXS Parties for clean-up costs, remedial
work, damages to natural resources or for personal injury claims, including,
but not limited to, claims under CERCLA.


                     (d)      No oral or written notification of a Release of a Hazardous Substance
has been filed by or on behalf of Celarix with respect to the Business and, to
the knowledge of Celarix, no property now or previously owned or leased by
Celarix with respect to the Business is listed or, to Celarix’s knowledge,
proposed for listing, on the National Priorities List promulgated pursuant to
CERCLA or on any similar state list of sites requiring investigation or
clean-up.


                     (e)      There are no environmental Liens on any of the Purchased Assets, and
no government actions have been taken or are in process which could subject any
of such Purchased Assets to such Liens. Celarix would not be required to place
any notice or restriction relating to the presence of Hazardous Substances at
any property used in connection with the operation of the Business in any deed
to such property.


                     (f)      There have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or which are in the possession of
Celarix in relation to any property or facility now or previously owned or
leased by Celarix in connection with the operation of the Business which have
not been delivered to GXS Holdings prior to the date hereof.


     3.20      Compliance with Laws.
Celarix has complied with all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Business and to Celarix’s knowledge is not under investigation
with respect to or has not been threatened to be charged with or given notice
of any violation of, any law, rule, ordinance or regulation, or judgment, order
or decree entered by Governmental Authority applicable to the Assets or the
conduct of the Business. Neither the ownership or use of the properties of the
Business nor the conduct of the business or operations of the Business
conflicts with the rights of any other person or entity.


     3.21      Transactions with Affiliates. Except as disclosed in Section 3.21 of the Disclosure
Schedule, Celarix is not now, and during the past three years has not been,
a party, directly or indirectly, to any contract, lease, arrangement or
transaction, whether for the purchase, lease or sale of property, for the
rendition of services or otherwise, with any Affiliate of Celarix. As used in
this paragraph, “Affiliate” has the meaning set forth in Rule 12b-2 promulgated
under the Securities and Exchange Act of 1934.


23






 


     3.22      Investment Purpose. Celarix acknowledges that the Shares
being acquired by it hereunder are not being registered under the Securities
Act of 1933, as Amended (the “Securities Act”) based on an exemption from
registration under Section 4(2) of the Securities Act, in that the delivery of
the Shares constituting the Purchase Price does not involve any public
offering. To the knowledge of Celarix, all of the holders of Series D
Preferred Stock of Celarix who would receive an interest in Shares upon the
dissolution and liquidation of Celarix are “accredited investors” within the
meaning of Regulation D under the Securities Act of 1933, as amended. Celarix
has sufficient knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of investing in, and is able and
prepared to bear the economic risk of investing in and holding, the Shares
being acquired as part of the Purchase Price hereunder. Celarix is acquiring
the Shares solely for the purpose of investment and not with a view to, or for
offer or sale in connection with, any distribution thereof in any transaction
which would be in violation of the securities laws of the United States of
America or any state thereof.


     3.23      Full Disclosure. No
representation or warranty made by Celarix in this Agreement or in any
certificate, document, or other instrument furnished or to be furnished by
Celarix pursuant hereto contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact required to
make any statement made herein or therein not misleading. The financial
projections relating to the Business delivered to GXS Holdings constitute
Celarix’s best estimate of the information purported to be shown herein, and
Celarix is not aware of any fact or information that would lead it to believe
that such projections are incorrect or misleading in any material respect.


ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE GXS PARTIES



     GXS Holdings represents and warrants to Celarix as follows:


     4.1      Organization, Standing, and Authority. GXS Holdings is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
Such Person has all requisite power and authority to execute and deliver this
Agreement and the documents contemplated hereby, and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with
by such Person hereunder and thereunder.


     4.2      Authorization and Binding Obligation. The execution, delivery and performance of this
Agreement and all documents contemplated hereby to which it is a party and the
consummation of the transactions contemplated hereby and thereby by such
Person, including, without limitation, the issuance of the Shares to Celarix,
have been duly and validly authorized by all necessary corporate action on the
part of such Person and no further action or approval of any director or
shareholder of such Person is required. This Agreement has been, and the
documents contemplated hereby to which it is a party will be, duly and validly
executed and delivered by such Person and constitutes (or in the case of
documents not yet executed, will be) a legal, valid and binding agreement of
such Person enforceable against such Person in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and related court decisions
of general


24






 




applicability relating to or affecting creditors’ rights generally and by
the application of general principles of equity. The Shares, when issued in
accordance with the provisions of this Agreement, will be duly and validly
issued, fully paid and nonassessable and shall have the rights, privileges,
preferences and restrictions set forth in Exhibit 4 attached hereto.


     4.3      Absence of Conflicting Agreements. Subject to obtaining the Consents, the execution, delivery,
and performance by such Person of this Agreement and the documents contemplated
hereby, including, without limitation, the issuance of the Shares to Celarix
(with or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with the
certificate of incorporation or bylaws of such Person; (iii) will not conflict
with, result in a breach of, or constitute a default under, any law, judgment,
order, injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality; or (iv) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default under,
or accelerate or permit the acceleration of any performance required by the
terms of, any agreement, instrument, license, or permit to which such Person is
a party or by which such Person may be bound, such that GXS Holdings or its
designee could not acquire or operate the Assets.


ARTICLE 5. CERTAIN COVENANTS PRIOR TO CLOSING



     Between the date of this Agreement and the Closing Date, Celarix shall
comply with the covenants in this Article 5:


     5.1      Conduct of Business Prior to the Closing.


                     (a)      Ordinary Course. Celarix shall operate the Business in the
ordinary course of business in accordance with past practices (except where
such conduct would conflict with the following covenants or with Celarix’s
other obligations under this Agreement). Celarix will use its best efforts to
preserve the current relationships of Celarix with its customers, suppliers and
other Persons with which it has significant business relationships.


                     (b)      Compensation. Celarix shall not (i)
increase the compensation, bonuses, or other benefits payable or to be payable
to any person employed in connection with the conduct of the business or
operations of the Business, except in accordance with past practices or (ii)
amend the Employee Plans or the Benefit Arrangements unless required by
applicable law.


                     (c)      Contracts. Celarix will not, without GXS
Holdings’ prior approval, enter into any contract or commitment relating to the
Business or the Assets, or amend or terminate any Contract (or waive any
material right thereunder), or incur any obligation (including obligations
relating to the borrowing of money or the guaranteeing of indebtedness) that
will be binding on the GXS Parties after Closing. Prior to the Closing Date,
Celarix shall deliver to GXS Holdings a list of all Contracts entered into
between the date of this Agreement and the Closing Date, together with copies
of such Contracts.


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                     (d)      Disposition of Assets.
Celarix shall not sell, assign, lease, or otherwise transfer or dispose of any
of the Assets, except, in the ordinary course of business and consistent with
past practice, where no longer used or useful in the business or operations of
the Business or in connection with the acquisition of replacement property of
equivalent kind and value.


                     (e)      Encumbrances. Celarix shall not
create, assume or permit to exist any claim, liability, mortgage, lien, pledge,
condition, charge, or encumbrance of any nature whatsoever upon the Assets,
except for (i) liens disclosed on Section 3.6 and 3.7 of the Disclosure
Schedule, and (ii) liens for current Taxes not yet due and payable, and
(iii) mechanics’ liens and other similar liens, all of which liens in (i) and
(iii) shall be removed prior to the Closing Date.


                     (f)      Rights. Celarix shall not waive any right
relating to the Business or any of the Assets.


                     (g)      Source Code Licenses. Celarix shall not permit Celarix to make
any sale or license of the source code of any software program owned by
Celarix.


                     (h)      No Inconsistent Action.
Celarix shall not take any action that is inconsistent with its obligations
under this Agreement or that could hinder or delay the consummation of the
transactions contemplated by this Agreement.


     5.2      Access to Information.
Celarix shall give GXS Holdings and its counsel, accountants, engineers, and
other authorized representatives reasonable access to the Assets and to all
other properties, equipment, books, records, Contracts, and documents relating
to the Business for the purpose of audit and inspection, and will furnish or
cause to be furnished to GXS Holdings or its authorized representatives all
information with respect to the affairs and business of the Business that GXS
Holdings may reasonably request (including any financial reports and operations
reports produced with respect to the affairs and business of the Business).


     5.3      Maintenance of Assets.
Celarix shall maintain all of the Assets in good condition (ordinary wear and
tear excepted), and use, operate, and maintain all of the Assets in a
reasonable manner, consistent with past practice. Celarix shall maintain
inventories of spare parts and expendable supplies at levels consistent with
past practices. If any loss, damage, impairment, confiscation, or condemnation
of or to any of the Assets occurs, Celarix shall repair, replace, or restore
the Assets to their prior condition as represented in this Agreement as soon
thereafter as possible, and Celarix shall use the proceeds of any claim under
any insurance policy solely to repair, replace, or restore any of the Assets
that are lost, damaged, impaired, or destroyed.


     5.4      Insurance. Celarix shall maintain the
existing insurance policies on the Business and the Assets.


     5.5      Consents. Celarix shall obtain the
Consents, without any change in the terms or conditions of any Contract or
License that could be less advantageous to the Business than those pertaining
under the Contract or License as in effect on the date of this Agreement.
Celarix shall


26






 




promptly advise GXS Holdings of any difficulties experienced in obtaining
any of the Consents and of any conditions proposed, considered, or requested
for any of the Consents.


     5.6      Books and Records. Celarix shall
maintain its books and records relating to the Business in accordance with past
practices.


     5.7      Notification. Celarix shall promptly
notify GXS Holdings of:


                         (i)      any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;


                         (ii)      any notice or other communication from any Governmental Authority in
connection with the transactions contemplated by this Agreement;


                         (iii)      any actions, suits, claims, investigations or proceedings commenced
or, to the best of its knowledge threatened against, relating to or involving
or otherwise affecting Celarix or the Business that, if pending on the date of
this Agreement, would have been required to have been disclosed pursuant to
Section 3.18 (Claims and Legal Actions) or that relate to the consummation of
the transactions contemplated by this Agreement;


                         (iv)      any developments with respect to the business or operations of the
Business which could have a Material Adverse Effect, and of any material change
in any of the information contained in Celarix’s representations and warranties
contained in Section 3 of this Agreement.


     5.8      Compliance with Laws. Celarix
shall comply with all laws, rules, and regulations applicable or relating to
the ownership and operation of the Business.


     5.9      Update Information. Prior to the Closing Date, Celarix shall
notify GXS Holdings by delivering a certificate listing any changes or
supplements to the representations and warranties made in this Agreement that
are needed, to their knowledge, to make such information materially correct and
complete as of the Closing Date, provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties (or remedies with respect thereto) or the conditions
to the obligations of the parties under this Agreement.


ARTICLE 6. SPECIAL COVENANTS AND AGREEMENTS



     6.1      Risk of Loss. (a) The risk of any
loss, damage or impairment, confiscation or condemnation of any of the Assets
from any cause whatsoever shall be borne by Celarix at all times prior to the
completion of the Closing. In the event of any loss, damage or impairment,
confiscation or condemnation of any of the Assets prior to the completion of
the Closing, Celarix shall notify GXS Holdings of same in writing immediately,
specifying with particularity the loss,


27






 




damage or impairment, confiscation or condemnation incurred, the cause
thereof, if known or reasonably ascertainable, and the insurance coverage.
Celarix shall apply the proceeds of any insurance policy, judgment or award
with respect thereto and take such other commercially reasonable actions as are
necessary to repair, replace or restore such Assets to their prior condition as
soon as possible after such loss, damages or impairment, confiscation or
condemnation.


                     (b)      In the event of any damage or destruction of a material portion of the
Assets described in (a) above, if such Assets have not been restored or
replaced, GXS Holdings may terminate this Agreement by written notice to
Celarix. Alternatively, GXS Holdings may, at its option, proceed with the
Closing and complete the restoration and replacement of such damaged Assets
after the Closing Date. If GXS Holdings proceeds with the Closing, Celarix
shall reimburse GXS Holdings for the aggregate for costs of all such
restorations and replacements of such damaged Assets including, without
limitation, delivering or assigning to GXS Holdings or its designee all
insurance or other proceeds received in connection with such damage or
destruction of the Assets to the extent such proceeds are received by or
payable to Celarix and have not theretofore been used in or committed to the
restoration or replacement of the Assets.


     6.2        Confidentiality. Except as
necessary for the consummation of the transaction contemplated by this
Agreement or to provide information to financial or tax advisors (including
without limitation regarding the tax treatment and tax structure of the
transaction), including any required notification to their existing lenders,
and except as and to the extent required by law (including without limitation
federal or state securities laws and the regulations of the securities
markets), each party will use its commercially reasonable efforts to keep
confidential any information obtained from the other party in connection with
the transactions contemplated by this Agreement using the same standard of care
that it uses to protect its own information of a similar nature but in any case
not less than a reasonable degree of care. However, the receiving party will
not be required to keep confidential any information which is or shall become
publicly available without fault on the part of the receiving party; is already
in the receiving party’s possession prior to receipt from the disclosing party;
is independently developed by the receiving party; is disclosed by the
disclosing party to third parties without similar restrictions; or is
rightfully obtained by the receiving party from third parties without
restriction. In the event that the transactions contemplated hereunder are not
consummated or this Agreement is terminated for any reason, each party will
return to the other party or destroy all documents and materials obtained by
such party from the other party in connection with the transactions
contemplated by this Agreement. Notwithstanding anything herein to the
contrary, any party (and any employee, representative, or other agent of any
party) may disclose to any tax preparer and any Tax Authority, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure


     6.3      Press Releases. Except that the GXS Parties shall be
permitted to issue press releases on or after the Closing Date regarding the
consummation of the transactions contemplated by this


28






 




Agreement (which press releases shall be submitted to Celarix for approval
prior to release, which approval shall not be unreasonably withheld or
delayed), neither party shall issue any press release or make public
announcement relating to the transactions contemplated hereunder without the
prior consent of the other party hereto, except that either party may make any
disclosure required to be made by it under applicable law (including without
limitation federal or state securities laws and the regulations of the
securities markets) if it determines in good faith that it is appropriate to do
so and gives notice to the other party hereto. The GXS Parties and Celarix
shall jointly prepare and determine the timing of, any other press release, or
other announcement to the public or the news media relating to the transactions
contemplated hereunder.


     6.4      Cooperation; Further Assurances.9 Cooperation. (a)
GXS Holdings and Celarix shall cooperate with each other and their respective
counsel and accountants in connection with any actions required to be taken as
part of their respective obligations under this Agreement, and GXS Holdings and
Celarix shall execute, or cause their Affiliates to execute, such other
documents as may be necessary and desirable to the implementation and
consummation of this Agreement, and otherwise use their commercially reasonable
best efforts to consummate the transaction contemplated hereby, to vest in GXS
Holdings or its designee good and marketable title to the Assets and to fulfill
their obligations under this Agreement. Notwithstanding the foregoing, the GXS
Parties shall have no obligation (i) to expend funds to obtain any of the
Consents or (ii) to agree to any adverse change in any License or Assumed
Contract to obtain a Consent required with respect thereto.


                     (b)      From and after the Closing, Celarix shall timely execute all
documents or instruments, and take all other actions which either do not
require Celarix to expend funds or are performed at GXS Holdings’ cost , as
reasonably requested by GXS Holdings to transfer the owned Intellectual
Property and Licenses to GXS Holdings or its designee. For the domain names
included in the owned Intellectual Property, Celarix shall assist the GXS
Parties in any manner deemed reasonably necessary by the GXS Parties,
including, but not limited to, cooperation with Network Solutions, Inc., or any
other domain name registrar, to effectuate a transfer of ownership of such
domain names.


                     (c)      Celarix hereby constitutes and appoints, effective as of the Closing
Date, GXS Holdings or its designee and their successors and assigns as the true
and lawful attorney of Celarix with full power of substitution in the name of
Celarix or in the name of GXS Holdings or its designee, but for the benefit of
GXS Holdings or its designee (i) to collect for the account of GXS Holdings or
its designee any items of Assets and (ii) to institute and prosecute all
proceedings which GXS Holdings may in its sole discretion deem proper in order
to assert or enforce any right, title or interest in, to or under the Assets,
and to defend or compromise any and all actions, suits or proceedings in
respect of the Assets. GXS Holdings or its designee shall be entitled to
retain for its own account any amounts collected pursuant to the foregoing
powers, including any amounts payable as interest in respect thereof.


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     6.5.      Employees and Offers of Employment. (a) On the Closing
Date, the GXS Parties shall have the right to offer employment to any or all
employees of the Business; provided, that the GXS Parties may terminate at any
time after the Closing Date the employment of any employee who accepts such
offer. Unless otherwise mutually agreed between the GXS Parties and such
employees, all personnel hired by the GXS Parties will be employed on an “at
will” basis for compensation reasonably consistent with their current levels
and, subject to the GXS Parties past practice, with recognition of their
original date of hire with Celarix Any such offers shall be at such other
salary or wage and benefit levels and on such other terms and conditions as the
GXS Parties shall in their sole discretion deem appropriate. The employees who
accept and commence employment with the GXS Parties are hereinafter
collectively referred to as the “Transferred Employees.” The GXS Parties shall
not assume any responsibility, liability or obligation with respect to any
Transferred Employee for events that occurred prior to the Closing Date.
Celarix will not take, and will cause each of its subsidiaries not to take, any
action which would impede, hinder, interfere or otherwise compete with the GXS
Parties’ effort to hire any Transferred Employees and, prior to the Closing
Date, the GXS Parties shall have reasonable access to such employees for
purposes of effectuating the provisions of this Section 6.5.


                     (b)      Celarix shall use its best efforts to assist the GXS Parties in
securing an employment agreement from each of the individuals listed on
Section 6.5(b) of the Disclosure Schedule.


     6.6      Celarix Employee Benefit Plans. (a) Celarix shall retain all
obligations and liabilities under the Employee Plans and Benefit Arrangements
in respect of each employee or former employee (including any beneficiary
thereof) and Celarix shall retain all liabilities and obligations in respect of
benefits accrued as of the Closing Date by Transferred Employees under the
Employee Plans and Benefit Arrangements, and neither the GXS Parties nor any of
their Affiliates shall have any liability with respect thereto. Except as
expressly set forth herein, no assets or liabilities of any Employee Plan or
Benefit Arrangement shall be transferred to the GXS Parties or any of their
Affiliates or to any plan of the GXS Parties or any of their Affiliates. In
addition, none of the GXS Parties will be responsible for any severance or
redundancy obligations for any person that is not offered employment by the GXS
Parties or that does not accept an offer of employment from the GXS Parties.
Any severance obligations triggered as a result of the transaction contemplated
by this Agreement shall be the sole responsibility of, and shall be paid by,
Celarix. Celarix agrees that any severance claims made by any employees of the
Business, including Transferred Employees, arising out of the transaction
contemplated by this Agreement will not be assumed by the GXS Parties.


                     (b) With respect to the Transferred Employees (including any beneficiary
or dependent thereof), Celarix shall retain (i) all liabilities and obligations
arising under any group life, accident, medical, dental or disability plan or
similar arrangement (whether or not insured) to the extent that such liability
or obligation relates to contributions or premiums accrued (whether or not
payable), or to claims incurred (whether or not reported), on or prior to the
Closing Date, (ii) all liabilities and obligations arising under any worker’s
compensation arrangement to the extent such liability or obligation relates to
the period on or prior to the



30










 





Closing Date, including liability for any retroactive workman’s
compensation premiums attributable to such period and (iii) all other
liabilities and obligations arising under the Employee Plans and the Benefit
Arrangements. Celarix shall be responsible for the payment of all compensation
and commissions payable to each Transferred Employee on or prior to the Closing
Date (whether such payment is due on or after the Closing Date). With respect
to Transferred Employees, Celarix shall cause all liabilities and obligations
with respect to wages, payroll taxes, salaries, commissions, vacation and sick
pay, severance, and any other employee related expenses or benefits (whether
pursuant to an Employee Plan, Benefit Arrangement or otherwise) to be
discharged on or before the Closing Date.


             (c) With respect to any Transferred Employee (including any beneficiary or
dependent thereof) who enters a hospital or is on short-term disability under
any Benefit Arrangement on or prior to the Closing Date and continues in a
hospital or on short-term disability after the Closing Date, Celarix shall be
responsible for claims and expenses incurred both before and after the Closing
Date in connection with such Person, to the extent that such claims and
expenses are covered by an Employee Plan or Benefit Arrangement, until such
time, (if any) that, in the case of a Transferred Employee, such Person begins
full-time employment with the GXS Parties or one of its Affiliates and, in the
case of any beneficiary or dependent of a Transferred Employee, such Person’s
hospitalization has terminated. With respect to any Benefit Arrangements
covering medical expenses and other costs relating to pregnancies and maternity
leave for Transferred Employees, Celarix shall be responsible for all claims
(whether or not reported) and expenses incurred during the period prior to and
ending on the Closing Date, and the GXS Parties or one of their Affiliates
shall be responsible for such benefit arrangements covering such pregnancies
and maternity leave for the period subsequent to the Closing Date.


     6.7. No Third Party Beneficiaries. No provision of this Agreement,
including without limitation any provision of Sections 6.5 or 6.6 shall create
any third party beneficiary or other rights in any employee or former employee
(including any beneficiary or dependent thereof) of Celarix or of any of its
subsidiaries in respect of continued employment (or resumed employment) with
either the GXS Parties or the Business or any of their Affiliates and no
provision of this Article 6 shall create any such rights in any such Persons in
respect of any benefits that may be provided, directly or indirectly, under any
Employee Plan or Benefit Arrangement or any plan or arrangement which may be
established by the GXS Parties or any of their Affiliates. No provision of
this Agreement shall constitute a limitation on rights to amend, modify or
terminate after the Closing Date any such plans or arrangements of the GXS
Parties or any of their Affiliates.


     6.8. Celarix Trademarks; Tradenames. After the Closing, Celarix grants
to each of the GXS Parties and their Affiliates and distributors the right to
use the names “CELARIX” and “CELARIX, INC.”) (each a “Celarix Tradename”) in
connection with the promotion, advertising and sale of services in connection
with the Business and the Assets. In addition, the GXS Parties shall have the
right to sell existing inventory and to use existing packaging, labeling,
containers, supplies, advertising materials, technical data sheets and any
similar materials bearing the


31






 


Celarix Tradename, all of which shall be transferred to GXS Holdings or
its designee as part of the Assets.


     6.9 Certain Tax
Matters. (a) All real property taxes, personal property
taxes and similar ad valorem obligations levied with respect to the Assets for
a taxable period which includes (but does not end on) the Closing Date
(collectively, the “Apportioned Obligations”) shall be apportioned between
Celarix and GXS Holdings or its designee as of the Closing Date based on the
number of days of such taxable period included in the Tax period ending on the
Closing Date and the number of days of such taxable period beginning on the
Closing Date. Celarix shall be liable for the proportionate amount of such
Taxes that is attributable to the Tax period ending on the Closing Date, and
GXS Holdings or its designee shall be liable for the proportionate amount of
such Taxes that is attributable to the Tax period beginning on the Closing
Date. Concurrently with the provision of the statement of Working Capital
delivered pursuant to Section 2.3(b), Celarix shall present a statement to GXS
Holdings setting forth the amount of reimbursement to which GXS Holdings or its
designee or Celarix is entitled under this Section together with such
supporting evidence as is reasonably necessary to calculate the proration
amount. Such amount shall be applied to further adjust the Purchase Price
pursuant to the provisions of Section 2.3(b). Thereafter, Celarix shall notify
GXS Holdings upon receipt of any bill for real or personal property taxes
relating to the Assets, part or all of which are attributable to the Tax period
beginning on the Closing Date, and shall promptly deliver such bill to GXS
Holdings, which shall pay the same to the appropriate Taxing authority,
provided that if such bill covers any portion of the Tax period ending on the
Closing Date Celarix shall also remit prior to the due date of assessment to
GXS Holdings or its designee payment for the proportionate amount of such bill
that is attributable to the pre-Closing Tax period. In the event that either
Celarix or GXS Holdings shall thereafter make a payment for which it is
entitled to reimbursement under this Section, the other party shall make such
reimbursement promptly but in no event later than 30 days after the
presentation of a statement setting forth the amount of reimbursement to which
the presenting party is entitled along with such supporting evidence as is
reasonably necessary to calculate the amount of reimbursement. Any payment
required under this Section shall be made in cash and, if not made within 10
days of delivery of the statement shall bear interest at the rate per annum
determined, from time to time, under the provisions of Section 6621(a) (2) of
the Code for each day until paid.


             (b) Any loss, liability, obligation, or cost suffered by Celarix or GXS
Holdings as the result of the failure of Celarix or GXS Holdings to comply with
the provisions of any bulk sales law applicable to the transfer of the Assets
as contemplated by this Agreement shall be borne by Celarix. Any transfer,
documentary, sales, use or other Taxes assessed upon or with respect to the
transfer of the Assets to GXS Holdings or its designee and any recording or
filing fees with respect thereto shall be the responsibility of Celarix.


     6.10 Escrow. The Closing Payment, as finally determined in accordance
with Section 2.3, and the Earn-Out Payment, as finally determined in accordance
with Section 2.5, shall be held in escrow by GXS Holdings (the “Escrow”) until
the earlier of (i) the date on which Celarix


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has satisfied each of the conditions to Closing identified in Sections 7.1(j)
or (p), notwithstanding the waiver of such conditions to Closing by GXS
Holdings, has obtained the Consent of each software vendor identified on
Section 3.4 of the Disclosure Schedule and the date GXS has received a Tax
Certificate, and (ii) two years from the Closing Date. In the event the GXS
Parties or any of their representatives, agents or Affiliates suffers any
Damages as a result of the failure of Celarix to satisfy any of the Closing
conditions identified in Sections 7.1(j) or (p) or to obtain the Consent of any
software vendor identified on Section 3.4 of the Disclosure
Schedule or if GXS
is required to pay any amounts with respect to Taxes in connection with
obtaining the Tax Certificate as described in Section 6.14, GXS Holdings shall
be permitted to deduct from the Escrow the amount of Shares with value equal to
the amount of such Damages in accordance with Section 2.3(c). In connection
with the Escrow, each of the parties hereto hereby appoints Global Acquisition
LLC or any officer thereof, as the escrow agent in connection with the Escrow.
Prior to release of the Shares from the Escrow, nothing contained in this
Agreement shall be construed to confer upon Celarix any of the rights of a
stockholder of the GXS Holdings (except the right to receive any dividends or
distributions that may be declared and paid with respect to the Shares prior to
release from the Escrow) or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings,
until the release of the Shares from the Escrow in accordance with the
provisions hereof. The parties hereby designate Global Acquisition LLC, a
Delaware limited liability company, or its designee, to vote the Shares on any
matter submitted to shareholders of GXS Holdings prior to the release of the
Shares from the Escrow.


     6.11 Financial Statements. Celarix shall grant to the GXS Parties the
consent to use and publish any of the Financial Statements, including any
audited Financial Statements provided to Celarix by PricewaterhouseCoopers LLP
(subject to the consent by PricewaterhouseCoopers LLP), in connection with any
filing by the GXS Parties with the Securities and Exchange Commission or any
federal or state regulatory agency, as determined to be required by the GXS
Parties’ legal advisors in connection with the closing of the transaction
contemplated by this Agreement. Celarix shall use its best efforts to obtain
such consent of PricewaterhouseCoopers LLP.


     6.12 Access to Books and Records. Celarix shall provide the GXS Parties
access and the right to copy for a period of three years from the Closing Date
any books and records relating to the Assets but not included in the Assets.
GXS Holdings shall provide, or cause to be provided, to Celarix access and the
right to copy for a period of three years from the Closing Date any books and
records relating to the Assets that are included in the Assets.


     6.13 Allocation of Purchase Price. Holdings will provide to Celarix
copies of IRS Form 8594 and any required exhibits thereto (the “Asset
Acquisition Statement”) with GXS Holdings’s proposed allocation of the Purchase
Price (together with any assumed liabilities). Within 7 days after the receipt
of such Asset Acquisition Statement, Celarix will propose to GXS Holdings any
changes to such Asset Acquisition Statement (and in the event no such changes
are proposed in writing to GXS Holdings within such time period, Celarix will
be deemed to have


33






 


agreed to, and accepted, the Asset Acquisition Statement). GXS Holdings
and Celarix will endeavor in good faith to resolve any differences with respect
to the Asset Acquisition Statement within 7 days after GXS Holdings’s receipt
of written notice of objection from Celarix. GXS Holdings and Celarix agree to
file their federal income tax returns consistently with the Asset Allocation
Statements. Any Earn-Out Payment or other change in the amount of
consideration received by Celarix that occurs after March 1, 2004, shall be
allocated in accordance with Section 1060 of the Code and Treas. Reg. sec.
1.1060-1. GXS Holdings and Celarix agree to file or amend their federal income
tax returns to reflect such changes in accordance with Section 1060 of the Code
and Treas. Reg. sec. 1.1060-1.


     6.14 Tax Certificate. Within ten (10) business days following the
Closing Date, GXS Holdings shall make a written request to Tax Authorities in
Massachusetts as described in Chapter 62C, Section 44 of the General Laws of
Massachusetts for a certificate (a “Tax Certificate”) showing that the tax
amounts referenced in such section of the General Laws of Massachusetts, as
applicable, have been paid by Celarix as of the Closing Date. Celarix shall
provide reasonable assistance and information to GXS Holdings in connection
with such request by GXS Holdings and the provision by GXS Holdings of any
additional information requested by Massachusetts Tax Authorities in connection
therewith.


ARTICLE 7. CONDITIONS TO OBLIGATIONS OF

GXS HOLDINGS AND CELARIX AT CLOSING



     7.1 Conditions to Obligations of GXS Holdings. Subject to the provisions
of Section 8.1, all obligations of GXS Holdings at the Closing are subject at
GXS Holdings’ option to the fulfillment prior to or at the Closing Date of each
of the following conditions:


             (a) Representations and Warranties. All representations and warranties
of Celarix contained in this Agreement which are qualified by any “materiality”
qualification shall be true and correct in all respects as of the Closing Date
as though made on and as of the Closing Date (except to the extent such
representations and warranties speak as of an earlier date, in which case they
shall be true and correct in all respects as of such earlier date), and the
representations and warranties of Celarix set forth in this Agreement that are
not so qualified shall be true and correct in all material respects on and as
of the Closing Date as though made on and as of the Closing Date (except to the
extent such representations and warranties speak as of an earlier date, in
which case they shall be true and correct in all material respects as of such
earlier date).


             (b) Covenants and Conditions. Celarix shall have performed and complied
in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or
on the Closing Date.


             (c) Consents. Celarix shall have received all Required Consents, in each
case in form and substance reasonably satisfactory to GXS Holdings, and no such
consent, authorization or approval shall have been revoked.


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             (d) No Governmental Proceedings. No court, arbitrator or governmental
body, agency or official shall have issued any order, and there shall not be
any statute, rule or regulation, restraining or prohibiting the consummation of
the Closing or the effective operation by GXS Holdings or its designee of the
Assets after the Closing Date, and no proceeding challenging this Agreement or
the transactions contemplated hereby or seeking to prohibit, alter, prevent or
materially delay the Closing shall have been instituted by any Person before
any court, arbitrator or governmental body, agency or official and be pending.


             (e) Employees Accepting Employment. At least 20 employees of Celarix,
including each of the individuals identified on Section 6.5(b) of the
Disclosure Schedule, shall have accepted offers of employment with the GXS
Parties.


             (f) Minimum Working Capital. Deferred revenues associated with all
customer contracts assumed by GXS Holdings or its designee as part of the
Assumed Contracts shall not exceed $1,450,000, in the aggregate.


             (g) Options. Celarix shall have sent notice in a form reasonably
acceptable to GXS Holdings to all grantees of options under Celarix’s 1998
Stock Option Plan and 1999 Stock Option Plan holding outstanding options,
indicating that all unvested option grants under such plans have been vested
and providing an opportunity for such grantees to exercise such options prior
to the closing.


             (h) [Intentionally omitted].


             (i) Schumacher Employment Agreement. Evan Schumacher shall have entered
into the Employment Agreement.


             (j) Software License Compliance. Celarix shall have provided GXS Holdings
with evidence reasonably satisfactory to GXS Holdings that Celarix had settled
or been released from any liability to each of the software vendors identified
on Section 3.9(e) of the Dislcosure Schedule with respect to any prior use by
Celarix of such vendors software beyond the permitted scope of licenses granted
to Celarix.


             (k) Nextlinx Release. Celarix shall have provided to GXS Holdings a copy
of a release by Nextlinx, Inc. of all unfulfilled minimum payment obligations
under the Amended and Restated NextLinx Reseller Agreement, dated December 29,
2000, by and between Celarix and Nextlinx, Inc.


             (l) Digex
Termination. Celarix shall have obtained the agreement of Digex
Incorporated under the United States Web Hosting Agreement, effective September
1, 2002, as amended, between Digex, Incorporated and Celarix permitting Celarix
or a permitted successor thereunder to terminate such agreement after five (5)
calendar months following the Closing Date, on such terms as reasonably
acceptable to GXS Holdings.


35






 


             (m) Source Code Escrow. Celarix shall have established source code escrow
arrangements on terms consistent with its contractual obligations with each of
LG Sourcing, Inc. (Lowe’s), Manugistics and Shopko Stores, Inc. and otherwise
reasonably acceptable to GXS Holdings


             (n) Lease Obligations. Celarix shall have satisfied all remaining
equipment lease obligations (including payoff of the FMV buyout provision of
the Master Lease Agreement with Comdisco) with respect to any software or
equipment included in the Assets.


             (o) [Intentionally omitted].


             (p) IP Rights Waivers. Celarix shall have provided evidence that each
employee and consultant performing software development work for Celarix has
assigned or waived any rights in any developed works created while under the
employment of Celarix.


             (q) Deliveries. Celarix shall have made or stand willing to make all the
deliveries to GXS Holdings set forth in Section 8.2.


             (r) Adverse Change. Between the date of this Agreement and the Closing
Date, there shall have been no event or circumstance affecting the Assets or
the Business, which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.


     7.2 Conditions to Obligations of Celarix. All obligations of Celarix at
the Closing are subject at Celarix’s option to the fulfillment prior to or at
the Closing Date of each of the following conditions:


             (a) Representations and Warranties. All representations and warranties
of GXS Holdings contained in this Agreement which are qualified by any
“materiality” qualification shall be true and correct in all respects as of the
Closing Date as though made on and as of the Closing Date (except to the extent
such representations and warranties speak as of an earlier date, in which case
they shall be true and correct in all respects as of such earlier date), and
the representations and warranties of GXS Holdings set forth in this Agreement
that are not so qualified shall be true and correct in all material respects on
and as of the Closing Date as though made on and as of the Closing Date (except
to the extent such representations and warranties speak as of an earlier date,
in which case they shall be true and correct in all material respects as of
such earlier date).


             (b) Covenants and Conditions. GXS Holdings shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date.


             (c) Deliveries. GXS Holdings shall have made or stand willing to make
all the deliveries set forth in Section 8.3.


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ARTICLE 8. CLOSING AND CLOSING DELIVERIES



     8.1 Closing.


             (a) Closing Date. Subject to the satisfaction or, to the extent
permissible by law, waiver (by the party for whose benefit the closing
condition is imposed) on the date scheduled for Closing, of the closing
conditions described in Article 7, the parties hereto shall consummate the
transactions contemplated hereby at the Closing of this Agreement, which shall
take place at 10:00 a.m., Washington, D.C. time, on a date chosen by GXS
Holdings which date shall not be later than five (5) business days following
the satisfaction or waiver of all of the closing conditions described in
Article 8 or on such other date as may be set by mutual agreement of
GXS Holdings and Celarix; provided, however, that GXS Holdings agrees,
notwithstanding the provisions of Section 7.1, that GXS Holdings will not delay
the Closing in the event that Celarix has not fulfilled the conditions to
Closing set forth in Sections 7.1(j) or (p) following the fulfillment or waiver
by GXS Holdings and Celarix of the other conditions described in Article 7.


             (b) Closing
Place. The Closing shall be held at the offices of GXS
Holdings, 100 Edison Park Drive, Gaithersburg, Maryland 20878 or any other
place that is agreed upon by GXS Holdings and Celarix.


     8.2 Deliveries by Celarix. Prior to or on the Closing Date, Celarix
shall deliver to GXS Holdings the following, in form and substance reasonably
satisfactory to GXS Holdings and its counsel:


             (a) Transfer Documents. Duly executed warranty bills of sale, deeds,
motor vehicle titles, assignments, and other transfer documents which shall be
sufficient to vest good and marketable title to the Assets in the name of GXS
Holdings or its designee, free and clear of all mortgages, liens, restrictions,
encumbrances, claims, and obligations except for liens for current Taxes not
yet due and payable;


             (b) Consents. A copy of any instrument evidencing receipt of any
Consents received by Celarix on or prior to the Closing;


             (c) Officer’s Certificate. A certificate, dated as of the Closing Date,
executed on behalf of Celarix by its President, certifying (1) that the
representations and warranties of Celarix contained in this Agreement are true
and complete in all material respects as of the Closing Date as though made on
and as of that date; and (2) that Celarix has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;


             (d) Tax, Lien, and Judgment Searches. Results of a search for Tax, lien,
and judgment filings in the Secretary of State’s records of the Commonwealth of
Massachusetts and


37






 


in the records of Middlesex County, Massachusetts, such searches having
been made no earlier than May 15, 2003;


             (e) [Intentionally omitted].


             (f) Licenses, Contracts, Business Records, Etc. Copies of all Licenses,
Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records (including a copy
of all backup financial data currently hosted by Surebridge, Inc. in a
mutually-agreed format) used by Celarix in connection with its operations;


             (g) Exchange
Agreement. A counterpart of the Exchange Agreement, duly
executed on behalf of Celarix.


             (h) Transition
Services Agreement. A counterpart of the Transition
Services Agreement, duly executed on behalf of Celarix.


             (i) Other
Documents. Such other documents as GXS Holdings may reasonably
request relating to the existence of Celarix and the authority of Celarix for
this Agreement, all in form and substance reasonably satisfactory to GXS
Holdings.


     8.3 Deliveries by
GXS. Prior to or on the Closing Date, GXS Holdings
shall deliver, or cause to be delivered, to Celarix the following, in form and
substance reasonably satisfactory to Celarix and its counsel:


             (a) Closing Payment. Certificate(s) representing the Estimated Closing
Payment as provided in Section 2.4(a);


             (b) Assumption Agreements. Appropriate assumption agreements pursuant to
which GXS Holdings or its designee shall assume and undertake to perform
Celarix’s obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date;


             (c) Officer’s Certificates. A certificate, dated as of the Closing Date,
executed on behalf of GXS Holdings by a senior officer thereof, certifying (1)
that the representations and warranties of GXS Holdings contained in this
Agreement are true and complete in all material respects as of the Closing Date
as though made on and as of that date, and (2) that GXS Holdings has in all
material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;


             (d) Exchange Agreement. A counterpart of the Exchange Agreement, duly
executed on behalf of the GXS Parties party thereto.


             (e) Transition Services Agreement. A counterpart of the Transition
Services Agreement, duly executed on behalf of GXS.


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ARTICLE 9. TERMINATION



     9.1 Termination by
Celarix. This Agreement may be terminated by Celarix
and the purchase and sale of the Business abandoned, if Celarix is not then in
material default, upon written notice to GXS Holdings, upon the occurrence of
any of the following:


             (a) Conditions. GXS Holdings shall have breached or failed to perform in
any material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, and such breach or failure to perform
(i) is not cured within 30 days after written notice thereof or (ii) is
incapable of being cured by GXS Holdings, as the case may be.


             (b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any nonappealable final judgment, decree, or
order that would prevent or make unlawful the Closing.


             (c) Upset Date. If the Closing shall not have occurred on or before June
30, 2003.


     9.2 Termination by
GXS Holdings. This Agreement may be terminated by GXS
Holdings and the purchase and sale of the Business abandoned, if GXS Holdings
is not then in material default, upon written notice to Celarix, upon the
occurrence of any of the following:


             (a) Conditions. Celarix shall have breached or failed to perform in any
material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, and such breach or failure to perform
(i) is not cured within 30 days after written notice thereof or (ii) is
incapable of being cured by Celarix, as the case may be.


             (b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any nonappealable final judgment, decree, or
order that would prevent or make unlawful the Closing.


             (c) Upset Date. If the Closing shall not have occurred on or before June
30, 2003.


     9.3 Rights on Termination. If this Agreement is terminated pursuant to
Section 9.1 or Section 9.2 and neither party is in material breach of any
provision of this Agreement, the parties hereto shall not have any further
liability to each other with respect to the purchase and sale of the Assets.
If this Agreement is terminated due to the material breach of any provision of
this Agreement, then the non-breaching party shall have all rights and remedies
available at law or equity.


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ARTICLE 10. SURVIVAL OF REPRESENTATIONS AND

WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES



     10.1 Representations and Warranties. All representations and warranties
contained in this Agreement or any certificate or other writing delivered
pursuant hereto or in connection herewith shall be deemed continuing
representations and warranties and shall survive the Closing for a period of
two (2) years provided that (a) the representations and warranties contained in
Sections 3.16 and 3.17 shall survive until expiration of the applicable
statutory period of limitations (giving effect to any waiver, mitigation or
extension thereof), if later and (b) the representations and warranties in
Sections 3.1, 3.3, 3.6 and 3.7 shall survive indefinitely. Any and all
covenants and agreements contained in this Agreement shall survive
indefinitely. Notwithstanding the preceding sentence, any covenant, agreement,
representation or warranty in respect of which indemnity may be sought under
Sections 10.2 or 10.3 shall survive the time at which it would otherwise
terminate pursuant to the preceding sentence, if notice of the inaccuracy or
breach thereof giving rise to such right to indemnity shall have been given to
the party against whom such indemnity may be sought prior to such time. Any
knowledge of the GXS Parties and any investigations by or on behalf of any
party hereto shall not constitute a waiver as to enforcement of any
representation, warranty, or covenant contained in this Agreement or in any
certificate delivered hereto. No notice or information delivered by Celarix
shall affect the GXS Parties’ right to rely on any representation or warranty
made by Celarix or relieve Celarix of any obligations under this Agreement as
the result of a breach of any of its representations and warranties. For
purposes of this Article 10, an untrue representation or breach of a
representation or warranty contained in this Agreement or any certificate,
document, or instrument delivered under this Agreement shall be deemed to exist
either if such representation or warranty is actually inaccurate or breached or
if such representation or warranty would have been breached or been inaccurate
if such representation or warranty had not contained any limitation or
qualification as to materiality, Material Adverse Effect or knowledge, it being
the intention of the parties hereto that the Claimant shall be indemnified and
held harmless from and against any and all loss, liability, obligation, or cost
suffered or incurred by any of them resulting from, arising out of, based upon
or relating to the failure of any such representation, warranty, or other
agreement, instrument or document to be true, correct and complete in any
respect, determined in each case without regard to any qualification as to
materiality, Material Adverse Effect or knowledge set forth with respect
thereto.


     10.2 Indemnification by Celarix. Celarix hereby agrees to indemnify and
hold the GXS Parties and their respective Affiliates harmless against and with
respect to, and shall reimburse the GXS Parties and their respective Affiliates
for:


             (a) Any Damages resulting from any untrue representation, breach of
warranty, or nonfulfillment of any covenant by Celarix contained in this
Agreement or in any certificate, document, or instrument delivered to GXS
Holdings under this Agreement.


40






 


             (b) Any Damages relating to any obligations of Celarix not assumed by GXS
Holdings or its designee pursuant to this Agreement, including any liabilities
arising at any time under any Contract not included in the Assumed Contracts.


             (c) Any Damages resulting from the failure of the parties to comply with
the provisions of any bulk sales law applicable to the transfer of the Assets.


             (d) Any Damages resulting from the operation or ownership of the Business
prior to the Closing, including any liabilities arising under the Licenses or
the Assumed Contracts which relate to events occurring prior the Closing Date.


             (e) Any Damages relating to fees or commissions payable to any finder,
broker, advisor, or similar person retained by or on behalf of Celarix in
connection with the transactions contemplated by this Agreement.


             (f) Any Damages arising out of or in any way relating to the employment
of any of the employees of the Business (or the termination thereof) on or
prior to the Closing Date, including without limitation any Damages arising
from the pending age discrimination claim filed by Gerald R. Swanson alleging
discrimination in connection with his April 2002 termination with the
Massachusetts Commission Against Discrimination and the Equal Employment
Opportunity Commission.


             (g) Any Damages, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.


     10.3 Indemnification by GXS Holdings. GXS Holdings hereby agrees to
indemnify and hold Celarix and its Affiliates harmless against and with respect
to, and shall reimburse Celarix and its Affiliates for:


             (a) Any Damages resulting from any untrue representation, breach of
warranty, or nonfulfillment of any covenant by GXS Holdings contained in this
Agreement or in any certificate, document, or instrument delivered to Celarix
under this Agreement.


             (b) Any Damages relating to obligations of Celarix assumed by GXS
Holdings or its designee pursuant to this Agreement.


             (c) Any Damages resulting from the operation or ownership of the Business
on and after the Closing.


             (d) Any Damages relating to fees or commissions payable to any finder,
broker, advisor, or similar person retained by or on behalf of GXS Holdings in
connection with the transactions contemplated by this Agreement.


41






 


             (e) Any Damages, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.


     10.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:


             (a) The party claiming indemnification (the “Claimant”) shall promptly
give notice to the party from which indemnification is claimed (the
“Indemnifying Party”) of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim.
If the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five (5)
business days after written notice of such action, suit, or proceeding was
given to Claimant.


             (b) With respect to claims solely between the parties, following receipt
of notice from the Claimant of a claim, the Indemnifying Party shall have
thirty (30) days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation,
the Claimant agrees to make available to the Indemnifying Party and/or its
authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnifying Party agree at or
prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately deliver to the Claimant certificates representing the
full amount of the claim, calculated in accordance with Section 2.3(c) (as
subsequently converted or adjusted into other shares pursuant to the terms of
the Exchange Agreement). If the Claimant and the Indemnifying Party do not
agree within the thirty-day period (or any mutually agreed upon extension
thereof), the Claimant may seek appropriate remedy at law or equity or under
the arbitration provisions of this Agreement, as applicable.


             (c) With respect to any claim by a third party as to which the Claimant
is entitled to indemnification under this Agreement, the Indemnifying Party
shall have the right at its own expense, to participate in or assume control of
the defense of such claim, and the Claimant shall cooperate fully with the
Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses
incurred by the Claimant as the result of a request by the Indemnifying Party.
If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.


             (d) If a claim, whether between the parties or by a third party, requires
immediate action, the parties will make commercially reasonable best efforts to
reach a decision with respect thereto as expeditiously as possible.


             (e) In the event any claim for indemnification hereunder requires the
payment or reimbursement for any Damages as provided under Section 10.2 or
10.3, such payment or


42






 


reimbursement shall be made promptly by the indemnifying
party in cash. In the event that GXS Holdings is entitled to payment or
reimbursement for Damages and Celarix has assigned, sold, distributed or
otherwise transferred all or any portion of the Shares representing the
Purchase Price (or any other consideration into which such Shares are
converted), whether or not a Seller Representative has been appointed pursuant
to Section 10.7, GXS Holdings will be entitled to, at
its sole option: (i) deduct from the Escrow the amount of such payment or
reimbursement; (ii) deduct the amount of such payment or reimbursement from any
amount due to Celarix pursuant to Section 2.5 of this Agreement; and/or (iii)
if a Seller Representative has been appointed, require the Seller
Representative to withhold such amount from funds received on behalf of the
Celarix Transferees prior to the distribution of such funds to the Celarix
Transferees. Any such deduction with respect to any Shares shall be valued in
accordance with Section 2.4(c).


             (f) The indemnifications rights provided in Sections 10.2 and 10.3 shall
extend to the parent entities (direct or indirect), shareholders, directors,
officers, employees, and representatives of any Claimant although for the
purpose of the procedures set forth in this Section 10.4, any indemnification
claims by such parties shall be made by and through the Claimant.


     10.5 [Intentionally Omitted].


     10.6 Attorneys’ Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.


     10.7 Successors of Celarix; Seller Representative. In the event that
Celarix intends to assign, sell, distribute or otherwise transfer all or any
portion of the Shares representing the Purchase Price (or any other
consideration into which such Shares are converted pursuant to the terms of the
Exchange Agreement or otherwise), as a condition to any such assignment, sale,
distribution or other transfer, each such assignee, purchaser or other
transferee shall be required to execute and deliver to GXS Holdings or its
designee an instrument pursuant to which such Person (a “Celarix Transferee”)
irrevocably constitutes and appoints Izhar Armony as the true and lawful agent
and attorney-in fact (the “Seller Representative”) of such Celarix Transferee
with full powers of substitution to act in the name, place and stead of such
Celarix Transferee with respect to the performance on behalf of such Celarix
Transferee under terms and provisions of this Agreement and any instruments or
agreements delivered in connection herewith, as the same may be from time to
time amended, and to do or refrain from doing all such further acts and things,
and to execute all such documents, as the Celarix Transferee Representative
shall deem necessary or appropriate in connection with any of the transactions
contemplated under this Agreement and any instruments or agreements delivered
in connection herewith. The provisions of this Section 10.7 and the
appointment of the Seller Representative shall expire on the third anniversary
of the Closing Date.


The powers of the Seller Representative shall include, without limitation, the
power:


43






 


             (a) to execute and deliver all ancillary agreements, certificates and
documents which the Seller Representative deems necessary or appropriate in
connection with the consummation of the transactions contemplated by this
Agreement;


             (b) to receive and receipt for all payments made by the GXS Parties to the
Celarix Transferees under this Agreement;


             (c) to act for the Celarix Transferees with respect to all indemnification
matters referred to in this Agreement, including the right to settle,
compromise, litigate or arbitrate any such claim on behalf of the Celarix
Transferees;


             (d) to terminate, amend or waive any provision of this Agreement or any
agreements executed in connection herewith; provided that any such action, if
material to the rights and obligations of the Celarix Transferees in the
reasonable judgment of the Seller Representative, shall be taken in the same
manner with respect to all Celarix Transferees, unless otherwise agreed by each
Celarix Transferee who is subject to any disparate treatment of a potentially
adverse nature;


             (e) to employ and obtain the advice of legal counsel, accountants and
other professional advisors as the Seller Representative, in its sole
discretion, deems necessary or advisable in the performance of its duties as
the Seller Representative and to rely on their advice and counsel;


             (f) to incur expenses, including fees of attorneys and accountants,
pursuant to this Agreement, and any other fees and expenses allocable or in any
way relating to such transactions or any indemnification claim or adjustment to
the Purchase Price, to withhold from funds received on behalf of the Celarix
Transferees prior to their distribution to the Celarix Transferees any amount
which the Seller Representative deems necessary for payment of or as a reserve
against such expenses, and to pay such fees and expenses; and


             (g) to do or refrain from doing any further act or deed on behalf of the
Celarix Transferees which the Seller Representative deems necessary or
appropriate in its sole discretion relating to the subject matter of this
Agreement as fully and completely as any of the Celarix Transferees could do if
personally present and acting.


The appointment of the Seller Representative shall be deemed coupled with an
interest and shall be irrevocable, and any other person may conclusively and
absolutely rely, without inquiry, upon any action of the Seller Representative
as the act of the Celarix Transferees in all matters referred to in this
Agreement and any other agreements executed by Celarix in connection herewith.
The Seller Representative shall act for the Celarix Transferees on all of the
matters set forth in this Agreement and any other agreements executed by
Celarix in connection herewith in the manner the Seller Representative believes
to be in the best interest of the Celarix Transferees.


44






 


Each of the Celarix Transferees shall expressly acknowledge and agree that the
Seller Representative is authorized to act on behalf of such Celarix Transferee
notwithstanding any dispute or disagreement among the Celarix Transferees, and
that any person shall be entitled to rely on any and all action taken by the
Seller Representative under this Agreement and any other agreements executed by
Celarix in connection herewith without liability to, or obligation to
inquire of, any of the Celarix Transferees. If the Seller Representative
resigns or ceases to function in such capacity for any reason whatsoever, then
the successor Seller Representative shall be the person which the remaining
Celarix Transferees appoint; provided, however, that if for any reason no
successor has been appointed within thirty (30) days, any Celarix Transferee
shall have the right to petition a court of competent jurisdiction for
appointment of a successor Seller Representative.


ARTICLE 11. MISCELLANEOUS



     11.1 Commissions. Celarix and GXS Holdings each represent and warrant to
the other that, except for the payment of certain advisory fees to Robert
Goldwasser by Celarix, no broker, finder or other person is entitled to any
brokerage fees, commissions or finder’s fees in connection with the
transactions contemplated hereby by reason of any action taken by the party
making such representation. Each party hereto agrees to indemnify and hold
harmless the other party hereto from and against any and all claims, losses,
liabilities and expenses (including reasonable attorney’s fees) arising out of
a claim by any person or entity based on any such arrangement or agreement made
or alleged to have been made by the first-named party hereto or any person or
entity acting on its behalf, including without limitation payment of any
advisory or other fees owed by Celarix to Ralph Goldwasser.


     11.2 Fees and Expenses. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents, and
representatives, and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.


     11.3 Arbitration. Except as otherwise provided to the contrary below or
in Section 2.3(b), any dispute arising out of or related to this Agreement that
Celarix and GXS Holdings are unable to resolve by themselves shall be settled
by arbitration in Washington, D.C., by one arbitrator. Celarix and GXS
Holdings shall mutually agree upon one disinterested arbitrator. If the
parties are unable to agree on the arbitrator within thirty (30) days, the
American Arbitration Association shall designate the arbitrator. The person
selected as arbitrator need not be a professional arbitrator, and persons such
as lawyers, accountants, brokers and bankers shall be acceptable. Before
undertaking to resolve the dispute, the arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to
make a just award according to the best of his or her understanding. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on Celarix
and GXS Holdings. The costs and expenses of the arbitration proceeding shall
be assessed between


45






 


Celarix and GXS Holdings in a manner to be decided by a
majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or suit in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by Celarix
or GXS Holdings against the other except
(i) an action to compel arbitration pursuant to this Section, (ii) an
action to enforce the award of the arbitration panel rendered in accordance
with this Section, or (iii) a suit for specific performance pursuant to Section
10.5 (Specific Performance).


     11.4 Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service, U.S.
mail, facsimile or electronic mail, (c) deemed to have been given on the date
of actual receipt, and (d) addressed as follows:


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	If to Celarix:	 	
Celarix, Inc.

60 Aberdeen Ave.

Cambridge, MA 02138

Attention: Evan Schumacher

Fax: (617) 864-0742
	 
	With a copy to (which shall
not constitute notice):	 	
Hale and Dorr LLP

60 State Street

Boston, MA 02109

Attention: Peter B. Tarr, Esq.

Fax: (617) 526-5000
	 
	If to GXS Holdings:	 	
GXS Holdings, Inc.

100 Edison Park Drive/51A3

Gaithersburg, MD 20878

Attention: Chief Financial Officer

Fax: 301/340-4351
	 
	With a copy to (which shall not
constitute notice):	 	
Attention: General Counsel

Fax: 301/340-4251



or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.4.


     11.5 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto, except
that GXS Holdings may assign its rights and obligations under this Agreement
without Celarix’s consent to one or more of its Affiliates or any of GXS
Holdings’ or such Affiliates’ lenders. In the event of any such assignment by
GXS Holdings, the obligations of such assignee under this Agreement shall be
guaranteed by GXS Holdings. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.


     11.6 Further Assurances. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation
and consummation of this Agreement, including, in the case of Celarix, any
additional bills of sale, deeds, or other transfer documents that, in the
reasonable opinion of GXS Holdings, may be necessary to ensure, complete, and
evidence the full and effective transfer of the Assets to GXS Holdings or its
designee pursuant to this Agreement.


     11.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF).









 



     11.8 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.


     11.9 Gender and Number. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.


     11.10 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between GXS Holdings and Celarix with respect to the subject matter hereof.
This Agreement supersedes all prior negotiations between the parties and cannot
be amended, supplemented, or changed except by an agreement in writing that
makes specific reference to this Agreement and which is signed by the party
against which enforcement of any such amendment, supplement, or modification is
sought.


     11.11 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.11.


     11.12 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.







 


     IN WITNESS WHEREOF, this Agreement has been executed by Celarix and GXS
Holdings as of the date first written above.


	 	 	 	 
	CELARIX, INC.
	 
	By:	 	/s/ Evan Schumacher

	 	
	 
	 	 	Evan Schumacher

President and Chief Executive Officer	 
	 
	GXS HOLDINGS, INC.
	 
	By:	 	/s/ Jeffrey McCroskey

	 	
	 
	 	 	
Jeffrey McCroskey

Senior Vice President