exv10w34



 





Exhibit 10.34




SEPARATION AGREEMENT




     SEPARATION AGREEMENT (this “Agreement”) dated as of July 15, 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 John Soenksen (“Executive”), to be
effective as of the Effective Date.



     WHEREAS, the Company, GXS and Executive entered into the
Employment Agreement dated as of August 4, 2003 (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 August 31, 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 Employee Innovation and Proprietary
Information Agreement dated August 4, 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. Within two weeks after the Effective
Date, the Company shall pay to Executive a lump sum in cash equal
to $375,000, which represents the sum of (i) $50,000 representing a
pro rata
portion (through the Separation Date) of his minimum guaranteed
bonus as defined in the Employment Agreement (which is $75,000 for
calendar year 2004) and (ii) the sum of (A) Executive’s current base salary
(which is $250,000 on an annualized basis) and (B) his minimum guaranteed
bonus (which is $75,000).




     (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 90 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.




     (e) Until August 31, 2005 or Executive obtains other full-time
employment, whichever occurs first, Executive may continue to
participate in those Company medical and dental benefit plans in
which he was enrolled as of June 30, 2004 provided that Executive promptly
pays all (i) contribution rates applicable for an employee with
Executive’s current base salary and for the type of coverage in which Executive
was enrolled as of June 30, 2004, and (ii) required co-payments.




     (f) Company shall provide Executive with executive
outplacement services through the firm of Dinte Resources, Inc. to
assist Executive in obtaining other employment.



     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



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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. Confidentiality;
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 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, directors, 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 be intended to
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 to continue to protect all secret or
confidential information of the Company or its affiliates obtained by Executive as a
result of his position or involvement with the Company and its affiliates. In
recognition of such fact, Executive agrees not to disclose any of such secret or
confidential information to any person or other entity for any reason or purpose
whatsoever and not to make use of any such 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



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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:




     (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.



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     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.



     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 letter 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 Hunter

	 



	 	 	 	 	 
	 	GXS HOLDINGS, INC.

 	 
	 	By:  	/s/ Bruce Hunter

	 
	 	 	 	 



	 	 	 	 	 
	 	EXECUTIVE:

 	 
	 	/s/ John Soenksen

	 
	 	John Soenksen 	 
	 	 	 




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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

	08/04/2003
	 	 	700,000	 	 	 	105,000	 	 	 	174,895	 








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