EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.10
This Executive Employment Agreement
(“Agreement”), effective as of
November 17, 2007, is made and entered into
by and between GXS, Inc., a Delaware corporation (“GXS”), and Xxxxxx Xxxxxx
(“Employee”).
Recitals
GXS desires to employ the Employee, and
the Employee desires to work for GXS, upon the terms and conditions stated
herein.
NOW, THEREFORE, in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
Agreements
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Section
1.
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Employment
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GXS hereby employs the Employee as
Chief Executive Officer to perform such duties as may be assigned from time to
time by GXS’s Board of Directors or designated committee of the
Board. The parties agree that the Employee’s title and position may
change without altering or nullifying the other terms of this Agreement. As well as serving as the Chief
Executive Officer, you be a member of the GXS Holdings, Inc. Board of
Directors.
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Section
2.
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Term of
Employment
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The Employee’s employment is not for a
definite term. The Employee may end the employment relationship at
any time for any reason (or no reason), upon thirty (30) days written
notice. GXS may end the employment relationship at any time for any
reason (or no reason) with or without notice.
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Section
3.
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Compensation/Benefits
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(A) Base
Salary. The Employee shall initially receive a base salary at
the annual rate of $450,000, payable in installments less required legal
deductions, in accordance with GXS’s policy and practice governing salary
payments to employees generally, as it may be amended from time to time by GXS
(“Base Salary”). GXS may adjust the salary from time to time; such
adjustment shall not be deemed to alter or nullify any other term of this
Agreement.
(B) Bonus. Employee
shall be eligible to participate in the GXS Management Bonus
Plan. The Employee’s target annual bonus, which is $300,000 less
required legal deductions, may be adjusted from time to time; such adjustment
shall not be deemed to alter or nullify any other term of this
Agreement. Eligibility, participation and bonus awards shall be
governed by that Plan as it may be amended by GXS from time to
time. A copy of the current GXS Management Bonus Plan is
attached.
GXS agrees that the total annual
potential combined cash compensation (that is, Base Salary and target Bonus
amount) for which Employee shall be eligible shall not be reduced during the
term of employment, notwithstanding adjustments that may be made to Base Salary
and target Bonus amounts in any given year.
(C) Options. The
Compensation Committee of the Board of Directors has approved for you to receive
3,100,900 options with an
exercise price of $.50 per share. The grant of these options and
terms and conditions of the options are governed by and subject to the
provisions of the GXS Holdings, Inc. Stock Incentive Plan and Option
Agreement(s), as they may be amended by GXS from time to time. A copy
of the current GXS Holdings, Inc. Stock Incentive Plan and Option Agreement(s)
are attached.
(D) Benefits. The
Employee shall be entitled to participate in the group health, life, vacation,
sick and disability plans offered to GXS employees generally, in accordance with
the terms of said plans, as they may be modified in GXS’s discretion from time
to time.
(E) Vacation. The
Employee shall be entitled to four weeks paid vacation per year to be governed
by the terms of GXS’s vacation plan or policy, as it may be amended from time to
time. The Employee shall be entitled to four weeks per year until
such time as the Employee qualifies for more than four weeks under the GXS plan
or policy, in accordance with the plan or policy in effect at the time, based on
years of continuous service and other relevant factors under the plan or
policy.
(F) Management
Incentive Award. Employee shall be eligible to participate in
the GXS Management Incentive Award Program. Eligibility,
participation and bonus awards shall be governed by that plan as it may be
amended by GXS from time to time. A copy of the Management Incentive
Award Highlights is attached.
(G) Moving
Expenses. The
Employee is eligible to receive reimbursement for actual and reasonable costs
associated with the sale of Employee's home, to include normal and customary
closing costs, new home closing costs, movement and storage of household
goods. Furthermore, for a period of up to six (6)
months from Employee's
start date, GXS will pay, or reimburse Employee for, reasonable and actual
travel and living expenses for two house-hunting trips for Employee and
Employee's spouse and for Employee's weekly travel between Employee's current
home in Plano, Texas and the Company’s headquarters in
Gaithersburg, Maryland. The Employee must submit
appropriate documentation in a timely fashion as requested by the GXS in order
to receive reimbursement or payment on behalf of the Employee. All
costs paid or reimbursed by the Company pursuant to this paragraph that are
required to be included in your taxable income shall be grossed up to cover the
income taxes associated with such payment or reimbursement.
In the event the Employee voluntary
terminates employment with GXS within 12 months of Employee's start date, the
Employee will be required to reimburse GXS for any expenses paid or reimbursed
pursuant to the preceding paragraph and, in addition, hereby authorizes GXS to
withhold such amounts as may be necessary to reimburse GXS from the Employee's
Base Salary, Bonus, Management Incentive Award, expense reimbursements,
etc.
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Section
4. Expenses
GXS shall reimburse the Employee for
all reasonable and necessary business expenses incurred by the Employee in the
performance of the Employee’s duties hereunder, in accordance with GXS policies
and procedures, as they may be amended from time to time, and subject to
submission of proper documentation of each expense. Payment for
reimbursement of expenses shall be made no later than March 15 of the year
following the year in which the expense was incurred.
Section
5. Compliance with Other
Agreements, Obligations and Applicable Law
The Employee represents and warrants
that the Employee’s performance hereunder shall not conflict with any other
agreements to which the Employee was or is a party. The Employee
understands that GXS has no intention of interfering with any continuing
obligation regarding trade secrets and confidential information that the
Employee may have with any prior employer or other entity and GXS expects that
the Employee will be able to perform the responsibilities of the position with
GXS without violating any confidentiality obligation owed to any other party,
and the Employee hereby acknowledges and agrees not to violate any
confidentiality obligation. The Employee agrees not to
enter into any agreement, either written or oral, which may conflict with this
Agreement. The Employee further represents and warrants that in
performing duties hereunder, the Employee shall comply with all applicable laws
and regulations and that the Employee immediately will report to GXS’s Chief
Executive Officer all illegal conduct or conduct that violates the GXS Code of
Conduct by GXS or its employees or agents of which the Employee is
aware.
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Section
6.
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Protection of
GXS
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(A) Exclusive
Services. During the term of employment, the Employee agrees
to devote Employee’s full and best efforts and abilities to GXS on a full-time
basis. In performing duties hereunder, the Employee will at all times
act in a professional, competent and loyal manner, and will comply with all
policies and procedures of GXS as they may be amended from time to
time.
(B) Confidential
Information. The Employee agrees to sign and be bound by the
terms and conditions of the “Employee Innovation and Proprietary Information
Agreement”, a copy of which is attached.
(C) Non-Competition
and Non-Solicitation. Employee acknowledges that during the
course of employment with GXS, Employee will acquire detailed knowledge of GXS’s
business and will have access to proprietary, confidential business information
of GXS, such that Employee’s subsequent use of such information and/or
employment with a competitor of GXS could cause serious and irreparable
competitive harm to GXS. Therefore, in consideration of Employee’s
employment with GXS, and as a condition of that employment, Employee agrees for
a period of twelve (12) months immediately following the termination of
Employee’s employment with GXS (regardless of the reason for the termination)
the Employee will not, without the prior written consent of GXS’s Vice President
of Human Resources;
(i)
directly or indirectly, either as owner, principal, officer, agent, director,
employee, consultant, or independent contractor, within any geographic region in
which GXS conducts business, provide services to Sterling Commerce, Inovis, or
EasyLink Services in connection with any business or other enterprise relating
to software tools, solutions, or services used to conduct electronic
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commerce
among companies, in a manner which may compete against any products or services
offered or sold by GXS.
(ii) divert or otherwise
take away any customer of GXS with which Employee had contact during the twelve
(12) months prior to the termination of your employment with GXS, or call upon
any such customer to solicit business relating to software tools, solutions, or
services used to conduct electronic commerce among companies.
(iii) directly
or indirectly solicit, induce, or encourage any person who is an employee of GXS
to terminate his/her relationship with GXS, or directly or indirectly hire or
cause to be hired any person who is an employee of GXS..
(D) Specific
Performance. The Employee agrees that in the event of
Employee’s breach of any of the provisions of this Section, the remedies
available at law to GXS would be inadequate and in lieu thereof or in addition
thereto GXS shall be entitled to appropriate equitable remedies, including
specific performance, reasonable attorneys’ fees, and injunctive
relief. In the event that a court of competent jurisdiction shall
declare any provision or restriction contained in this Section 6 to be
unenforceable, the provisions of this Section shall remain in full force and
effect to the extent not so declared to be unenforceable, and the court shall be
empowered to modify said unenforceable provision(s) as needed to make such
provision(s) enforceable to the maximum extent permitted by law.
Section
7. Termination
(A) Automatic
Termination. This Agreement shall terminate automatically upon
the death of the Employee or the Employee’s inability to perform the essential
functions of Employee’s job, with or without a reasonable
accommodation. In the event of a termination under this Section,
Employee’s right to the Base Salary and benefits shall cease as of the effective
date of the termination, unless otherwise required by law.
(B) For
“Cause”.
(1) If
GXS terminates Employee for “Cause,” the Employee shall receive only (i) the
Base Salary earned and unpaid as of the date of termination and (ii) that
portion, if any, of the Bonus, which under the terms of the Management Bonus
Plan, has been earned at the completion of a specified period for measuring and
payment of the Bonus under the Management Bonus Plan but which has not yet been
paid. Employee’s entitlement to benefits shall cease upon termination
unless otherwise required by law.
(2) “Cause”
shall include, but not be limited to, (i) willful or unreasonable neglect of job
duties; (ii) the active participation of Employee in fraudulent conduct; (iii)
the conviction (or a plea of no contest or similar plea or the entry of an order
or judgment that requires a determination of guilt) of Employee of a felony or
for any crime involving moral turpitude or dishonesty; (iv) any act of
embezzlement or material misappropriation; (v) dishonesty; (vi) insubordination;
(vii) intentional or grossly negligent unauthorized disclosure of GXS or a GXS
client confidential or proprietary information; (viii) willful or unreasonable
engagement in conduct injurious to GXS; (ix) gross negligence; (x) failure to
satisfactorily meet any of the contingencies in the Employee’s offer letter;
(xi) any material breach of this Agreement; and (xii) the Employee’s violation
of any of GXS’s material policies or procedures, including without limitation
equal employment opportunity and anti-
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harassment
policies. Upon an event constituting “Cause,” GXS shall deliver to
the Employee written notice of such conduct and the Employee shall immediately
be terminated.
(C) Without
“Cause”. If GXS terminates Employee without “Cause,” the
Employee shall be entitled to payment of Base Salary earned and unpaid as of the
date of termination, and an amount equal to a pro-rata portion (based on the
bonus plan year) of the Employee’s most recent bonus paid (i.e., for the prior
bonus plan year) under the Management Bonus Plan less any payment made under the
current year plan. In addition, the Employee shall be entitled to the
following severance payments and benefits (“Severance”): (i) an
amount equal to twelve (12) months of the Employee’s most recent Base Salary;
(ii) an amount equal to 100% of the Employee’s most recent bonus paid under the
Management Bonus Plan; and (iii) should the Employee elect COBRA continuation
coverage under GXS’s health plan, payment by GXS for a period of twelve (12)
consecutive months following termination of the same amount paid by GXS towards
the premium expense during Employee’s employment. Employee’s right to
all other benefits provided for hereunder shall cease as of the effective date
of the termination, unless otherwise required by law. Payment of the
amounts described in (i) and (ii) above shall be made in approximately equal
installments bi-weekly following the date of
termination. Notwithstanding anything in this paragraph or elsewhere
in this Agreement, the Employee shall not be entitled to and shall not receive
any Severance payments and benefits unless the Employee executes (and, as
appropriate, does not revoke) a Separation Agreement (which shall include a
General Release of claims) acceptable to GXS and in substantially the same form
as the Separation Agreement attached hereto. Payment of Severance
under this paragraph shall be the exclusive severance benefits available to the
Employee, and shall be in lieu of any other severance or layoff benefit, or
similar benefit, offered by GXS to its employees, and the Employee hereby waives
the right to receive any severance or layoff benefit under any other plan,
policy or practice.
(D) Resignation
for Good
Cause If the Employee resigns employment with “Good Cause,”
the Employee shall be entitled to payment of Base Salary earned and unpaid as of
the date of termination, and an amount equal to a pro-rata portion (based on the
bonus plan year) of the Employee’s most recent bonus paid (i.e., for the prior
bonus plan year) under the Management Bonus Plan less any payment made under the
current year plan. In addition, the Employee shall be entitled to
receive the Severance as set forth in the preceding subparagraph 7(C) in the
same manner as set forth in that subparagraph. Notwithstanding
anything in this paragraph or elsewhere in this Agreement, the Employee shall
not be entitled to and shall not receive any Severance payments and benefits
unless the Employee executes (and, as appropriate, does not revoke) a Separation
Agreement (which shall include a General Release of claims) acceptable to GXS
and in substantially the same form as the Separation Agreement attached
hereto. Payment of Severance under this paragraph shall be the
exclusive severance benefits available to the Employee, and shall be in lieu of
any other severance or layoff benefit, or similar benefit, offered by GXS to its
employees, and the Employee hereby waives the right to receive any severance or
layoff benefit under any other plan, policy or practice. “Good Cause”
means (i) a material diminution in the combined Base Salary and Bonus target;
(ii) a material diminution in authority, duties or responsibilities; (iii) a
material diminution in the budget over which the Employee retains authority;
(iv) a material change in the geographic location at which the Employee is
regularly required to provide services; (v) a material breach of this Agreement
by GXS; (vi) a Change of Control Event.
A “Change
of Control Event” occurs when both a Change of Control Transaction and a Failure
to Offer Comparable Employment occur, as defined below:
(1) "Change
of Control Transaction" means the occurrence of one of the following
events:
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(i)
the consummation of a merger or consolidation of the Company
(defined for purposes of this Subsection to include GXS, Inc. and any "Person"
in "Control" (as defined below) of GXS, Inc.) 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.
(2) "Failure
to Offer Comparable Employment" means that within twelve months of the Change of
Control Transaction the Employee is involuntarily terminated Without Cause, or
is not permitted to continue in a position comparable to the position held
before the transaction or occurrence described above. For a position
deemed not to be comparable, one or more of the following must occur: (i) a
material diminution in the combined Base Salary and Bonus target; (ii) a
material diminution in authority, duties or responsibilities; (iii) a material
diminution in the budget over which the Employee retains authority; (iv) a
material change in the geographic location at which the Employee is regularly
required to provide services.
“Control” shall mean
ownership, directly or indirectly, of more than fifty percent (50%) of the total
combined voting power of all outstanding voting securities of a
Person.
“Person” shall mean
and refer to any individual, corporation, partnership, limited liability
company, association, trust or other entity or organization.
(E) Resignation. If
the Employee resigns employment for any reason other than “Good Cause,” the
Employee shall receive only (i) the Base Salary earned and unpaid as of the date
of termination and (ii) that portion, if any, of the Bonus, which under the
terms of the Management Bonus Plan, has been earned at the completion of a
specified period for measuring and payment of the Bonus under the Management
Bonus Plan but which has not yet been paid. Employee’s right to all
other benefits provided for hereunder shall cease as of the date of the
termination, unless otherwise required by law. Upon receipt of notice
of the Employee’s resignation, or at any time during the notice period given by
the Employee, GXS may, at its option, relieve Employee of any or all of
Employee’s duties, or may terminate Employee, and Employee shall be entitled
only to payment of compensation earned and unpaid as of the date of
termination.
(F) Duties
Following Termination. Upon termination of employment and/or
this Agreement, the Employee shall cooperate with GXS, as reasonably requested
by GXS, to effect a transition of Employee’s responsibilities and to ensure that
GXS is aware of all matters being handled by Employee. Employee shall
also, upon reasonable notice, furnish such information and proper
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assistance
to GXS as may be reasonably required by GXS in connection with any litigation in
which it is or may become a party.
(G) Compliance
with Section 409A To the extent that
Section 409A of the Internal Revenue Code (“Code”) applies to any payment or
election required under this Agreement, such payment or election shall be made
in conformance with the provisions of Section 409A of the
Code. Certain provisions of this Agreement are intended to constitute
a separation pay arrangement that does not provide for the deferral of
compensation subject to Section 409A of the Code and, if any such provision is
subject to more than one interpretation or construction, such ambiguity shall be
resolved in favor of that interpretation or construction which is consistent
with such provisions not being subject to the provisions of Section
409A. The remaining provisions of this Agreement are intended to
comply with the provisions of Section 409A of the Code (to the extent
applicable) and, to the extent that Section 409A applies to any provision of
this Agreement and such provision is subject to more than one interpretation or
construction, such ambiguity shall be resolved in favor of that interpretation
or construction which is consistent with the provision complying with the
applicable provisions of Section 409A of the Code (including, but not limited to
the requirement that any payment made on account of the Employee’s separation
from service (within the meaning of Section 409A(a)(2)(A)(i) of the Code and the
regulations issued thereunder) (“Separation from Service”), shall not, if such
Employee is a Specified Employee (within the meaning of Section 409A(a)(2)(B)(i)
of the Code and the regulations issued thereunder), be made earlier than the
first business day of the seventh month following the Employee’s Separation from
Service, or if earlier the date of death of the Employee). Any
payment that is delayed in accordance with the foregoing sentence shall be made
on the first business day following the expiration of such six (6) month
period.
Section
8. Dispute
Resolution
Employee agrees that, as a condition of
employment, Employee shall sign the “Agreement to Resolve Employment Claims
under the GXS Employee Dispute Resolution Program,” a copy of which is attached,
and Employee agrees to be bound by all the terms and conditions of that
agreement and the Dispute Resolution Program. Notwithstanding any
term of the Dispute Resolution Program to the contrary, the Employee agrees that
the substantive law of Maryland (and the federal judicial circuit with
jurisdiction over Maryland) shall apply to all claims under the Dispute
Resolution Program.
Section
9. Code of
Conduct
The Employee agrees to be bound by the
GXS Code of Conduct and policies included within the enclosed Compliance
Guide. The Employee must complete and sign the acknowledgement form
acknowledging the Employee’s personal commitment to comply with the code and
related policies. The completion of the acknowledgement form is a
condition of employment.
Section
10. Miscellaneous
(A) Non-Waiver. GXS’s
failure at any time to require the performance by the Employee of any of the
terms hereof shall in no way affect GXS’s right thereafter to enforce the same,
nor shall the waiver by GXS of the breach of any term hereof be taken or held to
be a waiver of any succeeding breach.
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(B) Severability. In
the event that any provision of this Agreement conflicts with the law under
which this Agreement is to be construed, or if any such provision is held
invalid or unenforceable by a court of competent jurisdiction or an arbitrator,
such provision shall be deleted from this Agreement and the Agreement shall be
construed to give full effect to the remaining provisions thereof.
(C) Governing
Law. This Agreement shall be interpreted, construed and
governed according to the laws of the state of Maryland, without regard to the
principle of conflicts of laws thereof.
(D) Headings
and Captions. The paragraph headings and captions contained in
this Agreement are for convenience only and shall not be construed to define,
limit or affect the scope or meaning of the provisions hereof.
(E) Entire
Agreement. This Agreement (including the exhibits attached
hereto) contains and represents the entire agreement of the parties and
supersedes all prior agreements, representations or understandings, oral or
written, express or implied with respect to the subject matter
hereof. Neither this Agreement, nor any term of Employee’s employment
with GXS, may be modified or amended in any way unless in a writing signed by
both the Employee and GXS’s Chief Executive Officer or Board
Designee. No representation, promise or inducement has been made by
either party hereto that is not embodied in this Agreement, and neither party
shall be bound or liable for any alleged representation, promise or inducement
not specifically set forth herein.
(F) Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. The Employee shall not
have any right to assign, delegate or transfer any duty or obligation to be
performed by him hereunder to any third party, nor to assign or transfer the
right, if any, to receive payments hereunder.
(G) Repayment
of Amounts Owed to GXS. The Employee agrees that in the event
the Employee voluntarily terminates employment or is terminated for Cause within
twelve (12) months of the start date, the Employee will reimburse GXS for any
moving expenses paid or reimbursed as described in subparagraph
3(G). The Employee also agrees that in the event of any termination,
the Employee will reimburse GXS for any outstanding monies owed to GXS that have
not been repaid or the amount representing the approximate value of any Company
Property that remains unreturned to the Company by the time employment is
terminated. The Employee further authorizes GXS, to the extent permitted by law,
to deduct and offset any payments, including but not limited to payments for
wages, bonuses, expenses, or vacation pay, otherwise
owed to the Employee upon termination of employment.
(H) Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
properly given if delivered personally or sent by certified or registered mail,
postage prepaid, return receipt requested, or sent by telegram, telex, telecopy
or similar form of telecommunication, and shall be deemed to have been given
when received. Any such notice or communication shall be
addressed: (a) if to GXS, to GXS, Inc., 000 Xxxxxx Xxxx Xxxxx,
Xxxxxxxxxxxx, XX 00000 Attention Office of the Chief Executive Officer; or (b)
if to the Employee, to his home address 0000 Xxxxxx Xxxxx Xxxxx, Xxxxx, Xxxxx
00000; or to such other address as the parties shall have furnished to
one another in writing.
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IN WITNESS WHEREOF, the parties hereto
have duly executed this Agreement, to be effective as of the day and year first
above written.
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Employee:
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GXS,
Inc.:
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| /s/ Xxxxxx Xxxxxx |
By:
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/s/ Xxxx Xxxxxxxxxx | |||
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Xxxx Xxxxxxxxxx
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Date:
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11/22/09 |
Date:
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11/26/09 | ||
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