exv10w33



 





Exhibit 10.33




SEPARATION AGREEMENT




     SEPARATION AGREEMENT (this “Agreement”) dated as of May 21, 2004 by and
among Global eXchange Services, Inc., a Delaware corporation (together with its
successors, the “Company”), GXS Holdings, Inc., a Delaware corporation
(together with its successors, “GXS”), and James Macioce (“Executive”), to be
effective as of the Effective Date.



     WHEREAS, the Company, GXS and Executive entered into the Employment
Agreement dated as of September 30, 2002 (the “Employment Agreement”);



     NOW THEREFORE, in consideration of the mutual covenants and agreements of
the parties set forth in this Agreement, the parties hereto agree as follows:



     1. Separation. Effective as of July 1, 2004 (the “Separation Date”),
Executive’s employment with the Company will be terminated, together with
all other positions which he holds with the Company, GXS, and their
subsidiaries and affiliates.



     2. Separation
Payments and Benefits. Subject to Executive’s
execution of the release set forth in Section 3 hereof and his compliance
with the provisions of this Agreement and the Proprietary Information and
Inventions Agreement dated January 13, 2003 (the “Proprietary Agreement”) between
Executive and the Company, Executive shall receive the following benefits
and payments, reduced by any required withholding of taxes, in satisfaction of
the Company’s obligations to Executive under the Employment Agreement or
otherwise:




     (a) Accrued Compensation. The Company has paid or shall
pay Executive any accrued but unpaid compensation through the
Separation Date as required by applicable law.




     (b) Severance Payments. As soon as practicable after the
Effective Date but in no event later than July 7, 2004, the Company
shall pay to Executive a lump sum in cash equal to $393,750 which
represents the sum of (i) $56,250 representing a pro rata portion (through the
Separation Date) of the most recent Annual Bonus (as defined in the
Employment Agreement) paid to Executive (which was $112,500 for
calendar year 2003) and (ii) the sum of (A) Executive’s current
base salary (which is $225,000 on an annualized basis) and (B) the most recent
Annual Bonus paid to Executive (which was $112,500 for calendar
year 2003).




 









 









     (c) Equity. As of the Effective Date, the portion of any option
to purchase shares of stock of GXS (the “Options”) held by
Executive as of the Separation Date that would have become vested and
exercisable within the 12-month period following the Separation Date shall
immediately become vested and exercisable, as set forth on Schedule
I. The Options (and any stock acquired on exercise thereof) shall
remain subject to the terms of the GXS Stock Incentive Plan and the
applicable option agreement (together, the “Option
Agreement”), including but
not limited to any rights of repurchase by GXS. Any vested Options not
exercised in the time period set forth in the Option Agreement
shall terminate.




     (d) For a period of 60 days after the Separation Date, Company
shall make available to Executive continued use of Executive’s
current voicemail and email addresses on Company’s systems; all costs of
such usage by Executive shall be reimbursed by Executive to Company upon
Company’s request.



     3. Release. Executive agrees to and does fully and completely release,
discharge and waive any and all claims, complaints, causes of action or
demands
of whatever kind which Executive has or may have, whether known or
unknown,
against the Company. GXS, their subsidiaries, stockholders, affiliates,
predecessors and successors and all their officers, directors, and
employees by
reason of any event, matter, cause or thing which has occurred prior to
the
Effective Date in Executive’s capacity as an employee or securityholder of
the
Company or its affiliates or otherwise (“Claims”). Executive understands
and
accepts that this Agreement specifically covers, but is not limited to,
any and all
Claims which Executive has or may have against the Company, GXS and their
affiliates relating in any way to his employment arrangements or to
compensation,
or to any other terms, conditions or circumstances of his former
employment with
the Company and its affiliates, and to the termination of such employment,
whether for severance or based on statutory or common law claims for
employment discrimination (including under the Age Discrimination in
Employment Act), wrongful discharge, breach of contract or any other
theory,
whether legal or equitable. Executive acknowledges that this Release shall
extend
to unknown, as well as known claims, and hereby waives the application of
any
provision of law that purports to limit the scope of a general release.
Notwithstanding the foregoing, Executive does not waive any rights which
he
may be entitled to seek to enforce this Agreement or to seek
indemnification with
respect to liability incurred by Executive as an officer or director of
the Company
or its affiliates. Executive agrees the obligations set forth in Section 2
of this
Agreement are the only outstanding obligations of the Company and its
affiliates
to Executive.



     4. Confidentially; No Disparagement, (a) Executive agrees not to
make negative statements or representations, or otherwise communicate
negatively, directly or indirectly, in writing, orally, or otherwise,
or take any




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action which may, directly or indirectly, disparage or be damaging
to the Company, its subsidiaries, affiliates, successors or their officers,
directors, employees, business or reputation. Executive agrees not to
participate in the publication of any information concerning the facts
underlying the termination of his employment and this Agreement, other than
in cooperation with GXS and the Company.



     (b) Each of the Company and GXS agrees that it shall not, and
shall not authorize any of its officers, agents, employees or other
representatives to, make negative statements or representations, or
otherwise communicate negatively, directly or indirectly, in writing,
orally or otherwise, which may, directly or indirectly, in any way
disparage or be damaging to Executive.



     5. Covenants. (a) Executive acknowledges and agrees
that he will
continue to be bound by the Proprietary Agreement. Without limiting the
foregoing, Executive agrees that all Proprietary Information (as defined in the
Proprietary Agreement) obtained by Executive as a result of his position or
involvement with the Company and its affiliates shall be considered
confidential.
In recognition of such fact, Executive agrees not to disclose any of such
Proprietary Information to any person or other entity for any reason or purpose
whatsoever and not to make use of any Proprietary Information for his own
purposes or for the benefit of any person or other entity. Executive agrees to
deliver to the Company all memoranda, notes, devices documents, and other
data,
together with all copies thereof, and any other material relating to the
business of the Company and its affiliates.



     (b) For a period of 12 months after the Separation Date, Executive
shall not, on his account, or as an employee, consultant, independent
contractor,
partner, owner, officer, director or stockholder, engage in, be
connected with,
have any interest in, or aid or assist anyone else to engage in, be
connected with,
or have any interest in, any firm or person which directly competes
with a line or
lines of business which the Company, GXS or any of their subsidiaries
was
engaged in or sought to be engaged in during the Employment Term;
provided
that Executive may (i) purchase securities in any corporation whose
securities are
listed or traded on a national securities exchange or in an
over-the-counter
securities market if such purchases do not result in Executive
beneficially owning,
directly or indirectly, at any time 5% or more of the equity
securities of any such
corporation and (ii) be an employee, independent contractor or
officer of any such
firm or person provided Executive has no direct or indirect duties or
responsibilities with respect to any activities of such firm or
person which are
competitive with any line or lines of business of the Company, GXS or
any of
their subsidiaries.



     (c) For
a period of 12 months after the Separation Date, Executive
shall not, directly or indirectly:



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     (i) induce or attempt to induce any employee of the Company,
GXS or their subsidiaries be employed or perform services elsewhere;




     (ii) 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, GXS or any of their subsidiaries or which the
Company, GXS or any of their subsidiaries is undertaking reasonable
steps to procure as a customer at the time of or immediately preceding
termination of employment; provided, however, that this limitation shall
only apply to any product or service which is in competition with a
product or service of the Company, GXS or any of their subsidiaries.



     (d) In connection with the termination of Executive’s employment
hereunder, Executive shall cooperate with the Company and its affiliates to
ensure an orderly transition, in such a manner and at such times as the Company
shall reasonably request.



     6. Remedies. (a) Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Section 5 would be inadequate and, in recognition of this
fact,
Executive agrees that, in the event of a breach or threatened breach, in
addition to
any remedies at law, the Company, without posting any bond, shall be
entitled to
obtain equitable relief in the form of specific performance, temporary
restraining
order, temporary or permanent injunction or any other equitable remedy
which
may then be available.



     (b) It is expressly understood and agreed that although Executive
and the Company consider the restrictions contained in Section 5 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that any restriction contained in this Agreement is an
unenforceable restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply to the maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein.



     7. Entire Agreement; Amendment. This Agreement, together with the
Proprietary Agreement and the Option Agreement, contains the entire
understanding of the parties with respect to the termination of
Executive’s
employment and supercedes any other agreements or plans with the Company,
GXS and their affiliates pursuant to which Executive may have rights
(including
the Employment Agreement), except that the terms of the Proprietary
Agreement
and Option Agreement shall continue in full force and effect. It may not
be
altered, modified or amended except by a written agreement signed by both
parties hereto.



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     8. Effectiveness. Executive has been advised, and understands, that
(i) Executive has 21 days to consider this Agreement (which shall be
considered
waived should Executive execute this Agreement prior to the lapse of such
21 days), (ii) Executive can revoke this Agreement during a period of 7 days
following its execution, and (iii) this Agreement will become effective
and enforceable upon the expiration of the revocation period (the “Effective
Date”).



     9. No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a
waiver of
such party’s rights or deprive such party of the right thereafter to
insist upon strict
adherence to that term or any other term of this Agreement.



     10. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect,
the validity, legality or enforceability of the remaining provisions of
this
Agreement shall not be affected thereby.



     11. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs,
representatives,
successors and assigns. This Agreement shall not be assignable by
Executive and
shall be assignable by the Company only to an affiliate or successor of
the
Company.



     12. Acknowledgment. Executive acknowledges that Executive has
carefully read this Agreement, fully understands and accepts all of its
provisions
and signs it voluntarily of Executive’s own free will. Executive further
acknowledges that he has been provided a full opportunity to review and
reflect
on the terms of this Agreement and to seek the advice of legal counsel of
his
choice.



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     13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland.


	 	 	 	 	 
	 	GLOBAL EXCHANGE SERVICES, INC.

 	 
	 	By:  	/s/ Bruce E. Hunter
 	 



	 	 	 	 	 
	 	GXS HOLDINGS, INC.

 	 
	 	By:  	/s/ Bruce E. Hunter
 	 



	 	 	 	 	 
	 	EXECUTIVE:

 	 
	 	/s/ James Macioce
 	 
	 	James Macioce 	 
	 	 	 
	 






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Schedule I




Accelerated Vesting of Options




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of Shares	 	 
	Date of	 	Shares Subject	 	Vested as of	 	Number of Shares
	Option Grant
	 	to Option
	 	Separation Date
	 	to be Accelerated

	11/18/02
	 	 	568,182	 	 	 	149,149	 	 	 	110,086	 








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