Exhibit 10.42
SECONDMENT AGREEMENT
AGREEMENT,
effective as of April 1, 2005 by and among Global eXchange
Services, Inc., a Delaware corporation (“GXS”),
and G International, Inc., a Delaware corporation (
“GInternational” ). Each of GXS and G
International are sometimes hereinafter referred to as a
“Party” and collectively as the
“Parties”.
W I T N E S S E T H:
WHEREAS,
G International has purchased certain assets and operations
constituting the Electronic Data Interchange and Business Exchange
Services Business of International Business Machines Corporation, a
New York corporation (the “Former IBM Business”
);
WHEREAS,
the parent company of GXS has signed an agreement to acquire the
parent company of G International
WHEREAS,
in anticipation of the closing of such acquisition, GXS has hired
the former employees of the Former IBM Business in the United
States (“Seconded Employees” as defined below) and GI
desires to purchase from GXS and GXS is willing to sell to GI the
services of the Seconded Employees, on such terms and conditions as
specified herein; and
WHEREAS,
in consideration of the compensation to be provided by GI to GXS
and the indemnifications to be provided hereunder, GXS agrees to
continue as the employer of and the provider of compensation to,
the Seconded Employees for such period, on the terms and conditions
set forth in this Agreement;
NOW
THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
Definitions
“Business Day” means any day other than a
Saturday, a Sunday or a day on which banks in New York City are
authorized or obligated by law or executive order to
close.
“Direct Payroll Costs” shall mean, with respect
to any Seconded Employee, the gross amount of all salaries and
wages, employee benefit program costs and other compensation with
respect to such Seconded Employee and all applicable fees, taxes,
and other amounts owed to third parties as a result of the
employment of such Seconded Employee, including federal, state and
local income tax withholding, contributions pursuant to the Federal
Insurance Contribution Act and Federal Unemployment Tax Act,
workers’ compensation, unemployment insurance, other
withholding or other payments required by federal, state or local
law or regulations, and all payments to applicable pension and
welfare plans and other employee fringe benefit outlays, including
but not limited to, direct premiums to Plans and claims for
self-funded plans on an individual level or, if required by the
design of the relevant Plan, such benefit costs as GXS reasonably
calculates,
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.
“Indirect Payroll Costs” shall mean with respect
to any Seconded Employee, all reasonable costs, other than Direct
Payroll Costs but including reasonable costs incurred or accrued
under Section 2.02 hereof, associated with the compensation of
or benefits provided to such Seconded Employee, including allocable
general administrative and overhead costs arising in connection
with the employment and compensation of such Seconded Employee, as
reasonably determined by GXS using its usual methods of cost
accounting.
“Out-of-Pocket Expenses” means, with respect to
any Seconded Employee, any actual out-of-pocket expenses that are
incurred by such Seconded Employee or by a GXS Entity in the course
of such Seconded Employee’s performance of his or her duties
and paid or reimbursed by such GXS Entity, as reasonably determined
by GXS using its usual methods of cost accounting.
“Payroll Costs” means Direct Payroll Costs,
Indirect Payroll Costs, Out-of-Pocket Expenses and any other fees
and expenses reasonably allocable to the services provided by the
Seconded Employees to the G International Entities. For any
Seconded Employee, the Payroll Costs may consist of a portion of
Direct Payroll Costs, Indirect Payroll Costs and Out-of-Pocket
Expenses associated with such Seconded Employee as reasonably
determined by GXS in good faith to reflect an equitable sharing of
the costs associated with such Seconded Employee based on the facts
and circumstances, including, without limitation, the time spent by
the Seconded Employee on matters relating to the business of the G
International Entities.
“Payroll Period” shall mean a period of one
calendar month.
“Person” means an individual, a corporation, a
partnership, a limited liability company, an association, a trust
or other entity or organization.
2
“Plans” means all employee benefit plans, as
defined in Section 3(3) of ERISA, and all other plans,
policies, and arrangements which a GXS Entity maintains on behalf
of or makes available to the Seconded Employees on the date hereof
or makes available thereafter to the Seconded Employees.
“Seconded Employee” means any the employees of
GXS listed on Exhibit A to this agreement.
ARTICLE 2
Agreement To Provide
Services of Seconded Employee
Section 2.01.
Seconded Employee Services. Upon the terms and subject to
the conditions contained herein, GXS shall furnish to G
International the services of the Seconded Employees.
(a) Seconded
Employees shall remain employees of GXS and shall remain on the
payroll of GXS, but will perform services for G International. G
International shall direct and control the Seconded Employees in
the manner and method of performing services for G International;
provided that the G International Entities shall not direct
any Seconded Employee to act or omit to act where such act or
omission would violate applicable law or sound and prudent industry
practices
(b) GXS shall
continue to pay the compensation, withhold and pay taxes and make
other deductions and, to the extent permitted by the Plans and by
applicable law, provide the benefits to which the Seconded
Employees are entitled pursuant to the Plans, in each case, in a
timely manner. GXS shall determine in its sole discretion the
compensation and benefits that are provided to each Seconded
Employee, provided that it shall notify G International in writing
in advance of any change in such compensation or benefits that
would increase materially the Payroll Costs associated with any
Seconded Employee.
Section 2.02.
Additional Services. GXS shall use commercially reasonable
efforts to supply, whether directly or by contract with other
parties, personnel, payroll and human resource services related to
the provision of services by the Seconded Employees to G
International.
Section 2.03.
Records. GXS shall maintain books and records relating to
the Seconded Employees in a manner consistent with normal practice
of GXS.
Section 2.04.
Limitation on GXS’s Obligations. Notwithstanding
anything herein to the contrary, no provision of this Agreement
shall obligate GXS to provide the services of Seconded Employee
pursuant to Section 2.01 or other service
