exv10w10



 



EXHIBIT 10.10



GXS Holdings, Inc.

Stock Incentive Plan



     SECTION 1. Purpose. The purposes of the GXS Holdings, Inc. Stock
Incentive Plan are to promote the interests of GXS Holdings, Inc., a Delaware
company (together with its successors and assigns, the “Company”) and its
stockholders by (i) attracting and retaining exceptional executive personnel
and other key employees and consultants of the Company and its Affiliates (as
defined below); (ii) motivating employees, consultants and directors by means
of performance related incentives to achieve longer range performance goals;
and (iii) enabling employees, consultants and directors to participate in the
long term growth and financial success of the Company.


     SECTION 2. Definitions. As used in the Plan, the following terms shall
have the meanings set forth below:


     “Affiliate” means any parent corporation or subsidiary corporation of the
Company, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.


     “Award” means any Option or other stock-based award granted hereunder.


     “Award Agreement” means any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.


     “Board” means the Board of Directors of the Company.


     “Cause” means, unless otherwise defined in any Employment Agreement or
Award Agreement:



		
	 	        (i) a Participant’s willful and continued failure substantially to
perform his or her duties (other than as a result of total or partial
incapacity due to physical or mental illness);
	 
	 	        (ii) a Participant’s gross negligence or willful malfeasance in the
performance of his or her duties;
	 
	 	        (iii) a Participant’s commission of an act constituting fraud,
embezzlement, or any other act constituting a felony;
	 
	 	        (iv) a Participant being repeatedly under the influence of illegal
drugs or alcohol while performing his or her duties; or



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	 	        (v) any other act or omission which is materially injurious to the
financial condition or business reputation of the Company or any of its
Affiliates as determined in the reasonable discretion of the Company,
including a Participant’s breach of the provisions of any
non-competition, non-solicitation or confidentiality covenant in favor
of the Company or its Affiliates binding upon such Participant,
including but not limited to covenants set forth in the form of
Proprietary Information and Inventions Agreement attached hereto as
Annex A.



     “Change of Control” means the occurrence of one of the following events:



		
	 	        (i) the consummation of a merger or consolidation of the Company
with or into any other entity pursuant to which the stockholders of the
Company, or applicable, immediately prior to such merger or
consolidation hold less than 50% of the voting power of the surviving
entity;
	 
	 	        (ii) the sale or other disposition of all or substantially all of
the Company’s assets or any approval by the stockholders of the Company
of a plan of complete liquidation of the Company;
	 
	 	        (iii) any acquisition by any person or persons (other than the
direct and indirect stockholders of the Company immediately after the
Effective Date) of the beneficial ownership of 50% or more of the voting
power of the Company’s equity securities in a single transaction or
series of related transactions; provided, however, that an underwritten
public offering of the Company’s securities shall not be considered a
Change in Control; or
	 
	 	        (iv) any change in the composition of the Board over a two-year
period such that the directors at the beginning of the period and new
directors elected during that period and approved by two-thirds of the
incumbent directors cease to constitute at least a majority of the
Board.



provided, however, that a transaction shall not constitute a Change in Control
if its sole purpose is to change the state of the Company’s incorporation or to
create a holding company that will be owned in substantially the same
proportions by the persons who held the Company’s securities immediately before
such transaction.


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


     “Committee” means a committee of one or more members of the Board
designated by the Board to administer the Plan and, following an Initial Public
Offering, shall be composed of not less than the minimum number of persons from
time to time required by Rule 16b-3 and Section 162(m) each of whom, to


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 the extent necessary to comply with Rule 16b-3 and Section 162(m) only, is
a “Non-Employee Director” and an “outside director” within the meaning of Rule
16b-3 and Section 162(m), respectively. Until otherwise determined by the
Board, the full Board shall be the Committee under the Plan.


     “Consultant” means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting or advisory services and who is
compensated for such services.


     “Director” means a member of the Board.


     “Disability” shall mean “permanent and total disability” as defined in
Section 22(e)(3) of the Code.


     “Employee” means an employee of the Company or any of its Affiliates.


     “Employment Agreement” means an employment agreement entered into between
a Participant and the Company or any of its Affiliates.


     “Exchange Act” means the Securities Exchange Act of 1934, as amended.


     “Exercise Price” means the purchase price of the Option as set forth in
the Award Agreement.


     “Fair Market Value” means, with respect to a Share as of any date of
determination, the reported closing price of a share of such class of common
stock on such exchange or market as is the principal trading market for such
class of common stock for the trading day immediately preceding such date of
determination. If such class of common stock is not listed on an exchange or
principal trading market on such date, the fair market value of a Share shall
be determined by the Committee in good faith taking into account as appropriate
recent sales of the Shares, recent valuations of the Shares and such other
factors as the Committee shall in its discretion deem relevant or appropriate.


     “Incentive Stock Option” means a right to purchase Shares from the Company
that is granted under Section 6 of the Plan and that is intended to meet the
requirements of Section 422 of the Code or any successor provision thereto.


     “Initial Public Offering” shall mean the closing of the first underwritten
public offering of Shares with proceeds of at least $75,000,000.


     “Initial Transferability Date” shall mean the earlier to occur of (i) the
Initial Public Offering or (ii) the Reporting Date.


     “Non-Qualified Stock Option” means a right to purchase Shares from the
Company that is granted under Section 6 of the Plan and that is not intended to
be an Incentive Stock Option.


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     “Option” means an Incentive Stock Option or a Non-Qualified Stock Option.


     “Participant” means a Person granted an Award under the Plan (and to the
extent applicable, any heirs or legal representatives thereof).


     “Permitted Transferees” shall mean, with respect to each Participant, (i)
those persons who acquire Shares pursuant to such Participant’s will or the
laws of descent and distribution or as a result of other donative transfers to
“family members” as defined in, and under the circumstances permitted under,
Rule 701 and (ii) the Company.


     “Person” means any individual, corporation, limited liability company,
partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.


     “Plan” means this GXS Holdings, Inc. Stock Incentive Plan.


     “Reporting Date” means the date on which the Company becomes a reporting
company under the Exchange Act with respect to any class of its equity
securities.


     “Rule 16b-3” means Rule 16b-3 as promulgated and interpreted by the SEC
under the Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.


     “Rule 701” means Rule 701 as promulgated under the Securities Act.


     “SEC” means the Securities and Exchange Commission or any successor
thereto.


     “Section 162(m)” means Section 162(m) of the Code, or any successor
section thereto, as in effect from time to time.


     “Securities Act” means the Securities Act of 1933, as amended.


     “Shares” means shares of common stock of the Company or such other
securities as may be designated by the Committee from time to time.


     “Substitute Awards” means Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired
by the Company or with which the Company combines.


     SECTION 3.
Administration.


     (a)  Authority of Committee. The Plan shall be administered by the
Committee. Subject to the terms of the Plan, applicable law and contractual
restrictions affecting the Company, and in addition to other express powers and


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 authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority to: (i) designate Participants; (ii) determine
the type or types of Awards to be granted to a Participant and the exercise
price or purchase price, if applicable; (iii) determine the number of Shares to
be covered by, or with respect to which payments, rights, or other matters are
to be calculated in connection with, Awards; (iv) determine the terms and
conditions (including the vesting schedule, if any) of any Award and Award
Agreement; (v) determine whether, to what extent, and under what circumstances
Awards may be settled or exercised in cash, Shares, other securities, other
Awards or other property, or canceled, forfeited, or suspended and the method
or methods by which Awards may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent, and under what circumstances
cash, Shares, other securities, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or at
the election of the holder thereof or of the Committee; (vii) interpret and
administer the Plan and any instrument or agreement relating to, or Award made
under, the Plan; (viii) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (ix) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan.


     (b)  Committee Discretion Binding. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and other
decisions under or with respect to the Plan or any Award shall be within the
sole discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all Persons, including the Company, any of its
Affiliates, any Participant, any holder or beneficiary of any Award, any
shareholder and any Employee.


     SECTION 4. Shares Available for Awards.


     (a)  Shares Available. Subject to adjustment as provided in this Section,
the number of Shares with respect to which Awards may be granted under the Plan
shall be 13,636,364. Such Shares may consist, in whole or in part, of
authorized and unissued shares or treasury shares. If, after the effective
date of the Plan, any Shares covered by an Award granted under the Plan
(including any Substitute Award) or to which such an Award relates are
forfeited, or if such an Award is settled for cash or otherwise terminates or
is canceled without the delivery of Shares, then the Shares covered by such
Award, or to which such Award relates, shall again become Shares with respect
to which Awards may be granted. In addition, Shares tendered in satisfaction
or partial satisfaction of the exercise price of any Award or any tax
withholding obligations will again become Shares with respect to which Awards
may be granted.


     (b)  Adjustments. In the event that the number of issued Shares is
increased or decreased as a result of a stock dividend, stock split, reverse
stock split, combination or reclassification of Shares, or any other increase
or decrease


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 in the number of issued Shares effected without receipt of consideration
by the Company (provided that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of
consideration”), then the Committee shall equitably adjust any or all of (i)
the number of Shares of the Company (or number and kind of other securities or
property) with respect to which Awards may thereafter be granted, (ii) the
number of Shares or other securities of the Company (or number and kind of
other securities or property) subject to outstanding Awards, and (iii) the
grant or exercise price with respect to any Award.


     (c)  Substitute Awards. Any Shares underlying Substitute Awards shall not
be counted against the Shares authorized for issuance under the Plan and shall
increase the number Shares available for issuance hereunder.


     SECTION 5. Eligibility.


     (a)  General. Any Employee, Consultant or Director shall be eligible to be
selected by the Committee to receive an Award under the Plan.


     (b)  Incentive Stock Options. Only Employees shall be eligible for the
grant of Incentive Stock Options.


     (c)  Substitute Awards. Holders of options and other types of awards
granted by a company acquired by the Company or with which the Company combines
are eligible for grants of Substitute Awards hereunder.


     (d)  Consultants. Prior to the Reporting Date, a Consultant shall not be
eligible for the grant of an Award if, at the time of grant, the offer or the
sale of the Company’s securities to such Consultant is not exempt under Rule
701 because of the nature of the services that the Consultant is providing to
the Company, or as otherwise provided by Rule 701.


     SECTION 6. Stock Options.


     (a)  Grants. The Committee is authorized to grant Options to Participants
with the terms and conditions set forth in this Section 6 and with such
additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine.


     (b)  Type of Option. The Committee shall have the authority to grant
Incentive Stock Options, Non-Qualified Stock Options, or both. In the case of
Incentive Stock Options, the terms and conditions of such grants shall be
subject to and comply with the provisions of Section 422 of the Code, as from
time to time amended, or any successor provision thereto, and any regulations
implementing such statute.


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     (c)  Exercise Price. The Committee in its sole discretion shall establish
the Exercise Price at the time each Option is granted.


     (d)  Exercise. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Committee may, in its sole discretion,
specify in the applicable Award Agreement or thereafter. The Committee may
impose such conditions with respect to the exercise of Options, including
without limitation, any relating to the application of Federal or state
securities laws, as it may deem necessary or advisable.


     (e)  Payment. No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the exercise price, is received by the Company.
Such payment may be made: (i) in cash; (ii) if approved by the Committee, in
Shares (the value of such Shares shall be their Fair Market Value on the date
of exercise) owned by the Participant for the period required to avoid a charge
to the Company’s earnings (which is generally six months); (iii) if approved by
the Committee, by a combination of cash and Shares; (iv) if approved by the
Committee following an Initial Public Offering, in accordance with a cashless
exercise program; or (v) in such other manner as permitted by the Committee at
the time of grant or thereafter.


     SECTION 7. Other Stock-based Awards.


     (a)  Other Stock-based Awards. The Committee is hereby authorized to grant
to Participants such other Awards (including, without limitation, grants of
restricted stock, restricted stock units, rights to purchase stock, warrants,
and rights to dividends and dividend equivalents) that are denominated or
payable in, valued in whole or in part by reference to, or otherwise based on
or related to, Shares (including, without limitation, securities convertible
into Shares) as are deemed by the Committee to be consistent with the purposes
of the Plan. Subject to the terms of the Plan, the Committee shall determine
the terms and conditions of such Awards. Shares or other securities delivered
pursuant to a purchase right granted under this Section shall be purchased for
such consideration, which may be paid by such method or methods and in such
form or forms, including, without limitation, cash, Shares, other securities,
other Awards, or other property, or any combination thereof, as the Committee
shall determine, the value of which consideration, as established by the
Committee, shall not be less than the Fair Market Value of such Shares or other
securities as of the date such purchase right is granted.


     SECTION 8. Effect of Termination of Employment or Service.


     (a)  Termination of Employment or Service. Except as the Committee may
otherwise provide at the time the Award is granted or thereafter, or as
required to comply with applicable law, if the Participant’s employment or
service with the Company and its Affiliates is terminated for any reason (other
than death, Disability or retirement at age 62 or older or by the Company for
Cause), then (i)


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 to the extent not yet vested as of the date of termination, an Award shall
immediately be forfeited, and (ii) to the extent vested as of the date of
termination, an Award may be retained and, if applicable, exercised until the
earlier of (A) the date three months (or such longer or shorter period, if any,
specified in the applicable Award Agreement or Employment Agreement) after such
termination of employment or service or (B) the date such Award would have
expired had it not been for the termination of employment or service, after
which time, in either case, such Award shall expire.


     (b)  Death, Disability or Retirement. Except as the Committee may
otherwise provide at the time the Award is granted or thereafter, or as
required to comply with applicable law, if the Participant’s employment or
service with the Company and its Affiliates is terminated by reason of death,
Disability or retirement at age 62 or older, then (i) to the extent not yet
vested as of the date of termination, an Award shall immediately be forfeited,
and (ii) to the extent vested as of the date of termination, the Award may be
retained and, if applicable, exercised by the Participant or his successor (if
employment or service is terminated by death) until the earlier of (A) the date
one year after such termination of employment or service or (B) the date such
Award would have expired had it not been for the termination of such employment
or service, after which time, in either case, such Award shall expire.


     (c)  Cause. Except as the Committee may otherwise provide at the time the
Award is granted or thereafter, or as required to comply with applicable law,
if the Participant’s employment or service with the Company and its Affiliates
is terminated by the Company or an Affiliate for Cause, all Awards shall be
forfeited and shall expire immediately on the date of termination.


     (d)  Repurchase Rights Prior to an Initial Public Offering. Unless
otherwise determined in an Employment Agreement or Award Agreement, the Company
shall have the following rights to repurchase a Participant’s Shares (the
“Repurchase Right”) upon termination of Participant’s employment or service:



		
	 	        (i) If the Participant’s employment with the Company and its
Affiliates shall be terminated by the Company or any of its Affiliates
for Cause, all Shares previously acquired hereunder and held by
Participant for the period required to avoid a charge to the Company’s
earnings (which is generally six months) shall be subject to a right of
repurchase by the Company from the Participant or his or her Permitted
Transferee at a price per Share equal to the lesser of (A) the Exercise
Price or (B) Fair Market Value as of the date of the notice given
pursuant to clause (iii) below.
	 
	 	        (ii) If the Participant’s employment with the Company and its
Affiliates shall be terminated by Participant for any reason or by the
Company or any of its Affiliates for any reason other than Cause, or as
a result of death, Disability or retirement at age 62 or older, all
Shares



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	 	previously acquired hereunder and held by Participant for the
period required to avoid a charge to the Company’s earnings (which is
generally six months) shall be subject to a right of repurchase by the
Company from the Participant or his or her Permitted Transferee at a
price per Share equal to Fair Market Value as of the date of the notice
given pursuant to clause (iii) below.
	 
	 	        (iii) If the Company elects to exercise its Repurchase Right under
this Section 8(d), the Company shall deliver written notice to the
Participant or his or her permitted transferee, as applicable, setting
forth the number of Shares proposed to be purchased and the then Fair
Market Value. Upon the consummation of any such purchase, Participant
shall deliver certificates, as applicable, or other documents
satisfactory to the Company in its sole discretion evidencing such
Shares duly endorsed, or accompanied by written instruments of transfer,
free and clear of any encumbrances against delivery of payment for such
Shares. If the Board determines that the Company is unable to
repurchase all or some portion of the Shares for cash without breaching
the terms of any debt instruments or other agreement to which the
Company or any of its subsidiaries is a party, or the Board determines
in good faith that such repurchase would otherwise have a material
adverse effect on the financial condition of the Company, the Company
will pay in cash the maximum amount permitted under such debt
instruments, or that would not result in such a material adverse effect,
and deliver to the Participant a promissory note for the balance,
payable as soon as (and in the maximum amounts that) the terms of such
debt instruments or other agreements will permit or that will not have
such a material adverse effect and bearing interest at the highest rate
charged from time to time under the Company’s senior credit facility.
	 
	 	        (iv) The Repurchase Right shall lapse and be of no further force
and effect upon the earlier to occur of (x) an Initial Public Offering
and (y) 12 months after termination of Participant’s employment.



     SECTION 9. Amendment and Termination.


     (a)  Amendment or Termination of the Plan. The Board may amend, alter,
suspend, discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement, for which or with
which the Board deems it necessary or desirable to qualify or comply.
Notwithstanding anything to the contrary herein, the Committee may amend the
Plan in such manner as may be necessary so as to have the Plan conform with
local rules and regulations in any jurisdiction outside the United States. Any
such amendment, alteration, suspension, discontinuance, or termination that
would adversely affect the rights of a Participant or any holder or beneficiary
of any


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 Award theretofore granted shall not to that extent be effective with
respect to such Award without the consent of the affected Participant, holder
or beneficiary.


     (b)  Amendment or Termination of Awards. Subject to the terms of the Plan
and applicable law, the Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate, any
Award theretofore granted, prospectively or retroactively; provided that any
such waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would adversely affect the rights of a Participant or any
holder or beneficiary of any Award theretofore granted shall not to that extent
be effective without the consent of the affected Participant, holder or
beneficiary.


     SECTION 10. Corporate Transactions.


     (a)  Corporate Transactions. Any provision of this Plan or any Award
Agreement to the contrary notwithstanding, in the event of a Change of Control,
the Committee, in its sole discretion, may cause any outstanding Award to be
(i) continued by the Company, (ii) assumed by the successor company (or its
parent or any of its subsidiaries) or (iii) canceled in consideration of a cash
payment or alternative Award made to the holder of such canceled Award equal in
value to the Fair Market Value of such canceled Award less the exercise price,
if applicable. Any Award not continued or assumed by the Company or its
successor, as applicable, pursuant to the foregoing shall terminate on such
Change of Control.


     (b)  Dissolution or Liquidation. In the event of a dissolution or
liquidation of the Company, then all outstanding Awards shall terminate
immediately prior to such event.


     SECTION 11. General Provisions.


     (a)  Dividend Equivalents. In the sole and complete discretion of the
Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis.


     (b)  Nontransferability of Awards. Except to the extent otherwise provided
in an Award Agreement, no Award shall be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant, except
by will or the laws of descent and distribution.


     (c)  Transfer Restrictions on Shares. Shares issued hereunder may not be
sold, given, transferred, assigned, or otherwise hypothecated by the holder
thereof prior to the Initial Transferability Date, except to such holder’s
Permitted Transferees. Any attempted transfer in violation of this Section
11(c) will be void ab initio. Shares held by Permitted Transferees who receive
such Shares in accordance with this Section 11(c) shall be subject to the
restrictions herein as if


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 such Permitted Transferee were the original holder of the Shares
transferred to the Permitted Transferee.


     (d)  No Rights to Awards. No Employee, Participant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with respect
to each recipient.


     (e)  Share Certificates. Certificates issued in respect of Shares shall,
unless the Committee otherwise determines, be registered in the name of the
Participant or its permitted transferees and shall be deposited by such
Participant or permitted transferee, together with a stock power endorsed in
blank, with the Company. When the Participant ceases to be bound by any
transfer restrictions set forth herein or in the applicable Award Agreement,
the Company shall deliver such certificates to the Participant upon request.
Such stock certificate shall carry such appropriate legends, and such written
instructions shall be given to the Company transfer agent, as may be deemed
necessary or advisable by counsel to the Company in order to comply with the
requirements of the Securities Act of 1933, any state securities laws or any
other applicable laws. All certificates for Shares or other securities of the
Company or any of its Affiliates delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations and other requirements of the Securities and Exchange Commission or
any stock exchange upon which such Shares or other securities are then listed
and any applicable laws or rules or regulations, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.


     (f)  Withholding. A Participant may be required to pay to the Company or
any of its Affiliates, and the Company or any Affiliate shall have the right
and is hereby authorized to withhold from any Award, from any payment due or
transfer made under any Award or under the Plan or from any compensation or
other amount owing to a Participant, the amount (in cash, Shares, other
securities, other Awards or other property) of any applicable withholding taxes
in respect of an Award, its exercise, or any payment or transfer under an Award
or under the Plan and to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such
taxes. The Committee may provide for additional cash payments to holders of
Awards to defray or offset any tax arising from any such grant, lapse, vesting,
or exercise of any Award.


     (g)  Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement which shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto.


     (h)  No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or


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 continuing in effect other compensation arrangements, which may, but need
not, provide for the grant of options, restricted stock, Shares and other types
of Awards provided for hereunder (subject to shareholder approval if such
approval is required), and such arrangements that may be either generally
applicable or applicable only in specific cases.


     (i)  No Right to Employment. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ or service of
the Company or any Affiliate and shall not lessen or effect the right of the
Company or its Affiliates to terminate the employment or service of a
Participant.


     (j)  Rights as a Stockholder. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a stockholder with respect to any Shares to be issued under the Plan
until he or she has become the holder of such Shares.


     (k)  Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan and any Award Agreement shall be
determined in accordance with the laws of the State of Maryland.


     (l)  Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as
to any Person or Award, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award, such provision shall be stricken
as to such jurisdiction, Person or Award and the remainder of the Plan and any
such Award shall remain in full force and effect.


     (m)  Other Laws. The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant in connection therewith shall
be promptly refunded to the relevant Participant, holder or beneficiary.
Without limiting the generality of the foregoing, no Award granted hereunder
shall be construed as an offer to sell securities of the Company, and no such
offer shall be outstanding, unless and until the Committee in its sole
discretion has determined that any such offer, if made, would be in compliance
with all applicable requirements of the U.S. federal securities laws and any
other laws to which such offer, if made, would be subject.


     (n)  No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any
other Person. To the extent that any Person acquires a right to receive
payments from


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 the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.


     (o)  No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash or other securities or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any
rights thereto shall be canceled, terminated, or otherwise eliminated.


     (p)  Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not
be deemed in any way material or relevant to the construction or interpretation
of the Plan or any provision thereof.


     (q)  Proprietary Information and Inventions Agreement. A Participant
shall, as a condition precedent to the exercise or settlement of an Award, have
executed and be in compliance with a Proprietary Information and Inventions
Agreement substantially in the form attached hereto as Annex A.


     (r)  Awards Granted to California Residents. Awards granted under the Plan
to persons resident in California or another state shall comply with applicable
law.


     (s)  Modification of Award Terms for non-U.S. Employees. The Committee
shall have the discretion and authority to grant Awards with such modified
terms as the Committee deems necessary or appropriate in order to comply with
the laws of the country in which the Employee resides or is employed, and may
establish a subplan under this Plan for such purposes.


     SECTION 12. Term of the Plan.


     (a)  Effective Date. The Plan shall be effective as of the date of its
adoption by the Board, subject to approval by the shareholders of the Company.
Awards may be granted hereunder prior to such shareholder approval subject in
all cases, however, to such approval.


     (b)  Expiration Date. No Award shall be granted under the Plan more than
ten years after the date of adoption of the Plan by the Board. Unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
granted hereunder may, and the authority of the Board or the Committee to
amend, alter, adjust, suspend, discontinue, or terminate any such Award or to
waive any conditions or rights under any such Award shall, continue after the
authority for grant of new Awards hereunder has been exhausted.


13






 


Annex A



GXS Holdings, Inc.



Proprietary Information and Inventions Agreement



     In consideration of my employment or continued employment by Global
Exchange Services, Inc., a Delaware corporation (including its affiliates,
successors or assigns, the “Company”), the Company granting me access to its
confidential and proprietary information, the compensation now and hereafter
paid to me including but not limited to equity compensation and other good and
valuable consideration receipt of which is acknowledged, the undersigned hereby
enters into this Proprietary Information and Inventions Agreement (the
“Agreement”) as follows:


     1.  Recognition of Company Rights; Nondisclosure.


     (a)  At all times during the term of my employment and thereafter, I will
hold in strictest confidence and will not disclose to any individual,
partnership, corporation, limited liability company, trust or other entity
(each, a “Person”), use or publish any of the Company’s Proprietary Information
(as defined below), except as may be required in connection with my work for
the Company, without prior written authorization of the Company.


     I hereby assign to the Company any rights I may have or acquire in such
Proprietary Information and recognize that all Proprietary Information is and
shall be the sole property of the Company and that the Company shall be the
sole owner of all patent rights, copyrights, trade secret rights and all other
rights (collectively, “Proprietary Rights”) throughout the world in connection
therewith.


     The term “Proprietary Information” shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Company. By way of
illustration but not limitation, “Proprietary Information” includes (i)
inventions, trade secrets, ideas, processes, formulas, data, programs, other
works of authorship, know how, improvements, discoveries, developments, designs
and techniques (collectively, “Inventions”); (ii) information regarding plans
for research, development, new products and services, marketing and selling,
business plans, budgets and unpublished financial statements, licenses, prices
and costs, suppliers and customers; and (iii) information regarding the skills
and compensation of other employees of the Company.


     (b)  At all times during the term of my employment and thereafter, I will
not use for any purpose the Residuals resulting from access to or work with any
Proprietary Information. “Residuals” means any information in non-tangible
form which may be retained by me (including but not limited to ideas, concepts,
know-how and techniques contained in any Proprietary Information).


     2.  Third Party Information. I understand, in addition, that the Company
has and may from time to time in the future receive from third parties
confidential or proprietary information (“Third Party Information”) subject to
a duty on the Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During and after
the term of my employment, I will hold Third Party Information in the strictest
confidence and will not disclose (to anyone other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by the Company in writing.


     3.  Assignment of Inventions. (a) I hereby assign to the Company (or its
designee) all my right, title and interest in and to any and all Inventions
(and all Proprietary Rights with respect thereto) related to the Company
business or created through the use of the Company facilities, resources or
information, whether or not patentable or registrable under copyright or
similar statutes, made or conceived or reduced to practice or learned by me,
either alone or jointly with others, during the period of my employment with
the Company, whether or not during regular working hours. I agree to waive any
and all “moral rights” that I may have in such Inventions and do assign all
“moral rights” to the Company.


     (b)  I acknowledge that all original works of authorship which are made by
me (solely or jointly with others) within the scope of my employment and which
are protectable by copyright are “works made for hire,” as that term is defined
in the United States Copyright Act (17 U.S.C., Section 101). Inventions
assigned to or as directed by the Company by this paragraph 3 are hereinafter
referred to as “Company Inventions.”


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     4.  Enforcement of Proprietary Rights. I will assist the Company in every
proper way to obtain and from time to time enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. To
that end I will execute, verify and deliver such documents and perform such
other acts (including appearing as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In addition,
I will execute, verify and deliver assignments of such Proprietary Rights to
the Company or its designee. My obligation to assist the Company with respect
to Proprietary Rights relating to such Company Inventions shall continue beyond
the termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time spent at the Company’s
request on such assistance.


     In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as my agent
and attorney in fact, to act for and in my behalf to execute, verify and file
any such documents and to do all other lawfully permitted acts to further the
purposes of the preceding paragraph thereon with the same legal force and
effect as if executed by me. I hereby waive and quit claim to the Company any
and all claims, of any nature whatsoever, which I now or may hereafter have for
infringement of any Proprietary Rights assigned hereunder to the Company.


     5.  Obligation to Keep Company Informed. During the period of my
employment, I will promptly disclose to the Company fully and in writing and
will hold in trust for the sole right and benefit of the Company any and all
Inventions. In addition, after termination of my employment for any reason, I
will disclose all patent applications filed by me within six (6) months after
termination of employment.


     6.  Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit A attached hereto a complete list of all Inventions
that I have, alone or jointly with others, conceived, developed or reduced to
practice or caused to be conceived, developed or reduced to practice prior to
commencement of my employment with the Company, that I consider to be my
property or the property of third parties and that I wish to have excluded from
the scope of this Agreement. If disclosure of any such Invention on Exhibit
A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Inventions in Exhibit A but am to
inform the Company that not all Inventions have been listed for that reason.


     7.  No Improper Use of Materials. During my employment by the Company I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any Person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any Person to whom I have an obligation of confidentiality unless
consented to in writing by that former employer or Person.


     8.  No Conflicting Obligation. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any agreement either written
or oral in conflict herewith.


     9.  Other Activities; Conflicts of Interest. During the term of my
employment with the Company, I will not engage in any business activity that
competes with that of the Company, nor shall I engage in any other activities
that conflict with my obligations to the Company.


     10.  Non-Solicitation. Unless otherwise provided in an agreement between
the Company and me, at all times during my employment with the Company and for
12 months following the termination of my employment for any reason, I will
not, directly or indirectly:


     (a)  induce or attempt to induce any employee of the Company or any
subsidiary of the Company to be employed or perform services elsewhere;


     (b)  solicit or attempt to solicit the trade of any individual or entity
which, at the time of such solicitation, is a customer of the Company or which
the Company is undertaking reasonable steps to procure as a customer at the
time of or immediately preceding termination of employment.


     11.  Non-Disparagement. At all times during the term of my employment
with the Company and thereafter, I will not knowingly make any statement,
written or oral, or take any other action relating to the Company or its
officers, directors or stockholders


A-2






 




 that would disparage or otherwise harm the Company, its business or its
reputation or the those of any of its officers or directors.


     12.  Return of Company Documents.


     (a)  When I leave the employ of the Company, I will deliver to the Company
all drawings, notes, memoranda, specifications, devices, formulas, and
documents, together with all copies thereof, and any other material containing
or disclosing any Company Inventions, Third Party Information or Proprietary
Information of the Company. I further agree that any property situated on the
Company premises and owned by the Company, including disks and other storage
media, filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice.


     (b)  When I leave the employ of the Company, I will cooperate with the
Company by executing the Company’s termination statements for personnel. For
the avoidance of doubt, all of the agreements to which I agree in this
Agreement, without regard to whether they are reiterated in the termination
statement or whether I execute and deliver the termination statement at the
time of the termination of my employment, are and will be binding upon me upon
my execution of this Agreement.


     13.  Notification to New Employer. In the event that my employment with
the Company terminates, I hereby grant consent to notification by the Company
to my new employer about my rights and obligations under this Agreement.


     14.  Notices. Any notices under this Agreement shall be given at the
address specified below or at such other address as the party shall specify in
writing. Such notice shall be deemed given upon personal delivery to the
appropriate address or if sent by certified or registered mail, three days
after the date of mailing.


     15.  General Provisions.


     (a)  Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF MARYLAND.


     (b)  Arbitration. Except as provided in paragraph (c) below, I agree that
any dispute or controversy arising out of or relating to any interpretation,
construction, performance or breach of this Agreement, shall be settled by
arbitration to be held in a location in Maryland, in accordance with the rules
of the American Arbitration Association then in effect. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator’s decision in any court
having jurisdiction.


     (c)  Equitable Remedies. I agree that it would be impossible or inadequate
to measure and calculate the Company’s damages from any breach of the covenants
set forth in Sections 1 through 11. Accordingly, I agree that if I breach or
threaten to breach any of such covenants, the Company will have available, in
addition to any other right or remedy available, the right to obtain an
injunction from any court of competent jurisdiction restraining such breach or
threatened breach and to specific performance of any such provision of this
Agreement. I further agree that no bond or other security will be required in
obtaining such equitable relief, and I hereby consent to the issuance of such
injunction and to the ordering of specific performance. I hereby acknowledge
that any breach of any of such covenants shall entitle the Company to cease (i)
the payment to me of any amounts otherwise required to be paid and (ii) the
vesting of any equity interest that I may have in the Company.


     (d)  Amendment. No modification of or amendment to this Agreement, nor any
waiver of any rights under this Agreement, will be effective unless in writing
signed by both me and an officer of the Company. Any subsequent change or
changes in my duties, salary or compensation will not affect the validity or
scope of this Agreement. As used in this Agreement, the period of my employment
includes any time during which I may be retained by the Company as a
consultant.


     (e)  Severability.



		
	 	        (i) I agree and acknowledge that each agreement set forth herein
constitutes a separate agreement independently supported by good and
adequate consideration and shall survive and be severable from the other
provisions of this Agreement. The existence of any claim or cause of action
by me against the Company, whether based on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of this
Agreement.
	 
	 	        (ii) The Company and I intend all provisions of this Agreement to be
enforced to the fullest extent permitted by law. Accordingly, should a court
of competent jurisdiction determine that the scope of any provision is too
broad to be enforced as written, the Company and I intend that the court
should reform the provisions to apply as to such maximum time and territory
and to such maximum extent as



A-3






 





		
	 	such court may judicially determine or indicate to be enforceable. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, and not subject to reformation,
such provision shall be fully severable; and the remaining provisions of
this Agreement shall remain in full force and effect.



     (f)  Successors and Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors and its assigns.


     (g)  Survival. This Agreement shall survive the termination of my
employment and the assignment of this Agreement by the Company.


     (h)  Employment. I agree and understand that my employment with the
Company is “at will”, which means either I or the Company may terminate the
employment relationship at any time, for any reason, with or without prior
notice and with or without cause. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the Company
right to terminate my employment at any time, with or without cause.


     (i)  Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.


     This Agreement shall be effective as of the first day of my employment
with the Company, namely as of: Date of Hire


     I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY
PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.


     I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.



	 	 	 
	Dated: ______	 	
________________________

Signature of Employee

Print Name:
	 	 	
Address:



ACCEPTED AND AGREED TO:


GLOBAL EXCHANGE SERVICES, INC.


By:____________________

Name: Harvey F. Seegers

Title: President and Chief Executive Officer


A-4






 


EXHIBIT A



Global Exchange Services, Inc.

100 Edison Park Drive

Gaithersburg, MD 20878


Ladies and Gentlemen:


     1.     The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by Global Exchange Services,
Inc. (the “Company”) that have been made or conceived or first reduced to
practice by me alone or jointly with others prior to my employment by the
Company that I desire to remove from the operation of the Proprietary
Information and Inventions Agreement (the “Agreement”) between the Company and
me.



	 	 	 
	     ______	 	
No inventions or improvements.
	 	 	 
	     ______	 	
See below (attach additional sheets if necessary):
	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________




     ______      Due to confidentiality obligations to a previous employer, I cannot
disclose certain inventions that otherwise would be listed.


     ______      Additional sheets attached.


     2.     I propose to bring to my employment the following devices, materials
and documents of a former employer or other Person to whom I have an obligation
of confidentiality that are not generally available to the public, which
materials and documents may be used in my employment pursuant to the express
written authorization of my former employer or such other Person (a copy of
which is attached hereto):



	 	 	 
	     ______	 	
No materials or documents.
	 	 	 
	     ______	 	
See below (attach additional sheets if necessary):
	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	 	 	
____________________________________________________________

	 	 	 
	     ______	 	
Additional sheets attached.




	 	 	 
	Dated: ______	 	
______________________________

Signature of Employee