EMPLOYMENT AGREEMENT
Exhibit 10.19
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is dated as of January 1, 2008 and is
by and between GAIN Capital Holdings, Inc., a corporation organized under the laws of
Delaware, including its subsidiaries and affiliates (the “Company”) and Xxxxx Xxxxxxx.
Recitals
WHEREAS, the Company desires to promote and secure for itself the services of Executive, and
the Executive wishes to furnish such services to the Company, pursuant to the terms and subject
to the conditions hereinafter set forth;
WHEREAS, Executive has served as Chief Executive Officer of the Company since June 7,
2007 and prior thereto served in various officer positions at the Company and its subsidiaries;
WHEREAS, the parties wish to amend and restate Executives terms of employment as set forth
in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
obligations set forth herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Employment Term. The Company hereby agrees to employ the Executive directly or
though a subsidiary, and the Executive hereby agrees to enter into such employment, as the Chief
Executive Officer of the Company, through December 31, 2009, unless terminated sooner
pursuant to Section 8 hereof (the “Initial Term”). The Term of this Agreement shall renew for an
additional one-year period after the scheduled expiration of the Initial Term unless the Company
or the Executive, at its or his sole and exclusive option and for any reason whatsoever, provides
written notice to the other party not later than ninety (90) days prior to the scheduled expiration
of the Initial Term that this Agreement shall not be renewed beyond the Initial Term (as used in
this Agreement, “Term” shall apply to the Initial Term and any renewal term).
2. Representations and Warranties. The Executive represents that Executive is entering
into this Agreement voluntarily and that Executive’s employment hereunder and his compliance
with the terms and conditions of this Agreement will not conflict with or result in the breach of
any agreement to which Executive is a party or by which Executive may be bound, or any legal
duty that Executive owes or may owe to another.
3. Duties and Extent of Services.
(a) During the Term, the Executive shall serve as Chief Executive Officer of the
Company and its primary domestic operating subsidiaries, with such duties, responsibilities and
authority as are consistent with such position, subject to the oversight of the Company (the
“Board”), and shall so serve faithfully and to the best of Executive’s ability under the direction
and supervision of the Board. As an executive officer of the Company, the Executive shall be
entitled to all of the benefits and protections to which all officers of the Company are entitled
pursuant to the Company’s Amended and Restated Certificate of Incorporation, which shall
include, but not be limited to, the rights of indemnification set forth in such Amended and
Restated Certificate of Incorporation, and coverage under the Company’s directors’ and officers’
liability insurance as in effect from time to time.
(b) During the Term, the Executive agrees to devote substantially his full time,
attention, and energies to the Company’s business and shall not be engaged in any other business
activity, whether or not such business activity is pursued for gain, profit, or other pecuniary
advantage. Subject, however, to Section 11, 12 and 13 herein, the Executive may serve in
charitable and civic positions and as a director of other companies with the prior consent of the
Board, which consent shall not be unreasonably withheld. The Executive covenants, warrants,
and represents that, subject to the activity he shall devote his full and best efforts to the
fulfillment of his employment obligations, and he shall exercise the highest degree to loyalty and
the highest standards of conduct in the performance of his duties.
4. Compensation.
(a) Base Salary. The Company shall pay the Executive a base salary (the “Base
Salary”) of not less than $650,000 per year, payable in monthly installments. The Base Salary
shall be reviewed by the Board annually and may be increased in the Board’s sole discretion.
The Executive shall not receive any additional compensation from any subsidiary of the
Company following the date hereof.
(b) Bonus. The Executive will be eligible for payment of a bonus on an annual
basis (the “Annual Bonus”) and a quarterly basis (the “Quarterly Bonuses”), as determined by
the Company’s Compensation Committee in its sole discretion. The right to the Annual Bonus
shall accrue on December 31st of each year, and Executive must be employed on that date
to be
eligible for the Annual Bonus, except as is expressly provided in Section 9. To the extent
the
Executive is entitled to receive an Annual Bonus and/or a fourth-quarter Quarterly Bonus for any
calendar year, the Annual Bonus and/or such Quarterly Bonus shall be paid to the Executive after
the end of the calendar year to which such Bonuses relate, at the same time as the Company pays
bonuses to other executives generally; provided that in no event shall the Bonuses be paid later
than the 15th day of the third month following the year in which the Bonuses are earned. To the
extent the Executive is entitled to receive a Quarterly Bonus for one or more of the first three
quarters of any calendar year, if any, the Bonuses shall be paid to the Executive, at the same time
as the Company pays bonuses to other executives generally; provided that such payments are
made prior to December 31 of the calendar year in which such Quarterly Bonuses are earned.
5. Benefits. During the Term, tile Executive shall be entitled to participate in any
and all benefit programs and arrangements generally made available by the Company to executive
officers, including, but not limited to, pension plans, contributory and noncontributory welfare
and benefit plans, disability plans and medical, death benefit and life insurance plans for which
the Executive may be eligible during the Term. Furthermore, the Executive shall be permitted
four (4) weeks of paid time off (“PTO”) during each calendar year. Accrued paid leave may be
used for vacation, professional enrichment and education, sickness and disability. Unused leave
shall not accrue from one calendar year to another.
6. Expenses. During the Executive’s employment, the Executive will be reimbursed
for travel, entertainment and other out-of-pocket expenses reasonably incurred by Executive on
behalf of the Company in the performance of Executive’s duties hereunder, so long as (a) such
expenses are consistent with the type and amount of expenses that customarily would be incurred
by similarly situated corporate executives in the United States; and (b) the Executive timely
provides copies of receipts for expenses in accordance with Company policy.
7. Adherence to Company Policy. The Executive acknowledges that he is subject to
insider information policies designed to preclude its employees from violating the federal
securities laws by trading on material, non-public information or passing such information on to
others in breach of any duty owed to the Company or any third party. The Executive shall
promptly execute any agreements generally distributed by the Company or to its employees
requiring such employees to abide by its inside information policies.
8. Termination.
(a) Disability. In accordance with applicable law, the Company may terminate
the Executive’s employment at any time after the Executive becomes Disabled. As used herein,
“Disabled” means the incapacity of the Executive, due to injury, illness, disease, or bodily or
mental infirmity, to engage in the performance of substantially all of the usual duties of
employment with the Company.
(b) Death. The Executive’s employment with the Company will terminate upon
the death of the Executive.
(c) Termination with Cause. The Company may terminate the Executive’s
employment at any time for “Cause” by providing written notice of such termination to the
Executive. As used herein, “Cause” means any of the following, as determined by the Board:
(i) the Executive’s material breach of this Agreement;
(ii) the Executive’s gross negligence (other than as a result of this ability or occurring
after the Executive’s provision of notice in connection with a resignation for Good Reason) or
willful misconduct in carrying out his duties hereunder, resulting in harm to the Company;
(iii) the Executive’s material breach of any of his fiduciary obligations
as an officer of the Company;
(iv) any conviction by a court of law of, or entry of a pleading of guilty
or not contendere by the Executive with respect to, a felony or any other crime for which fraud
or dishonesty is a material element, excluding traffic violations;
(v) the Executive willfully or recklessly engages in conduct which
either is materially or demonstrably injurious to the Company, monetarily or otherwise.
For purposes of determining Cause, no act or omission by the Executive shall be
considered “willful” unless it is done or omitted in bad faith or without reasonable belief that
the
Executive’s action or omission was in the best interests of the Company. Any act or failure to
act based upon: (a) authority given pursuant to a resolution duly adopted by the Board, or (b)
advice of counsel for the Company, shall be conclusively presumed to be done or omitted to be
done by the Executive in good faith and in the best interests of the Company. In addition, as to
subsections (i)-(iii) above, if the action or inaction in question is susceptible of a cure, then
no
finding of Cause shall occur prior to written notice to the Executive setting forth in reasonable
detail the action or inaction at issue, and the Executive’s failure to cure such condition
following
a cure period of no less than sixty (60) days.
(d) Termination Without Cause. The Company, at the direction of the Board,
may terminate the Executive’s employment without Cause at any time upon no less than ninety
(90) days prior written notice, or ninety (90) days’ pay in lieu of notice.
(e) Resignation for Good Reason. The Executive may resign from his
employment with the Company for Good Reason by providing written notice to the Board that
an event constituting Good Reason has occurred and the Executive desires to resign from his
employment with the Company as a result. Such notice must be provided to the Board by the
Executive within sixty (60) days following the initial occurrence of the event constituting Good
Reason. After receipt of such written notice, the Board shall have a period of sixty (60) days to
cure such event; provided, however, the Board, may, at its sole option, determine not to cure
such event and accept the Executive’s resignation effective thirty (30) days following the
Board’s receipt of the Executive’s notice that an event constituting Good Reason has occurred.
If the Board does not cure the event constituting Good Reason within the requisite sixty (60) day
period, the Executive’s employment with the Company shall terminate on account of Good
Reason thirty (30) days following the expiration of the Board’s cure period, unless the Board
determines to terminate the Executive’s employment prior to such date. As used herein, “Good
Reason” means that, without the Executive’s consent, any of the following has occurred:
(i) a material diminution in the Executive’s authority, duties or
responsibilities;
(ii) a material diminution in the Executive’s Base Salary; or
(iii) any action or inaction by the Company that constitutes a material
breach by the Company of its obligations under this Agreement.
(f) Resignation Without Good Reason. The Executive may resign from his
employment with the Company without Good Reason (as that term is defined in Section 8(c))
at
any time upon no less than ninety (90) days prior written notice to the Board. Upon such notice
of resignation, the Company may, at its sole option, accept the Executive’s resignation effective
as of a date prior to the resignation date specified in the notice, and in such event, the earlier
date
will be the effective date of termination of the Executive’s employment for all purposes
hereunder.
9. Compensation Upon Termination.
(a) Disability. Upon termination of employment pursuant to Section 8(a), the
Executive will receive any Base Salary accrued and unpaid as of such date as well as any
accrued but unused PTO and appropriate expense reimbursements. If the Executive becomes
disabled before the end of the fiscal year, the Executive will also receive an Annual Bonus for
such fiscal year on a pro rata basis (1/12th of the Annual Bonus for each month in which he was
employed on the last day of that month), but only to the extent that all prerequisites for
receiving
the Annual Bonus have otherwise been satisfied. Such pro rata bonus will be paid at the time
that the annual bonus is paid to other executives. The Executive shall also be entitled to any
Quarterly Bonus for all quarters ending prior to and including the quarter in which there was an
onset of Disability. The Company shall have no further obligations under this Agreement to the
Executive.
(b) Death. In the event of the Executive’s death, the Executive’s estate will
receive his Base Salary accrued and unpaid as of the date of his death as well as any accrued but
unused PTO and appropriate expense reimbursements. If the Executive dies before the end of
the fiscal year, the Executive’s estate will receive an Annual Bonus for such fiscal year on a pro
rata basis (1/12th of the Annual Bonus for each month in which he was employed on the last day
of that month), but only to the extent that all prerequisites for receiving the Annual Bonus have
otherwise been satisfied. Such pro rata bonus will be paid at the time that the annual bonus is
paid to other executives. The Executive shall also be entitled to any Quarterly Bonus for all
quarters ending prior to and including the quarter in which the Death occurs. The Company shall
have no further obligations under this Agreement to the Executive.
(c) Termination Without Cause, Resignation With Good Reason or Non-Renewal
of Contract. If the Company terminates the Executive’s employment without Cause pursuant to
Section 8(d), or if the Executive resigns for Good Reason pursuant to Section 8(e), or if
the
Company declines to renew the Executive’s contract pursuant to Section 1 and the
Executive’s
employment with the Company terminates on the last day of such term, the Company will pay
the Executive his Base Salary accrued and unpaid as of the date of termination of employment as
well as any accrued but unused PTO and appropriate expense reimbursements. In addition,
subject to the Executive’s execution and nonrevocation of the general release of claims described
in Section 9(e) below and compliance with the requirements of Section 22 below, the
Company
will also pay and/or provide to the Executive (i) severance in an amount equal to eighteen (18)
months of the Executive’s monthly Base Salary (the “Severance Amount”), minus applicable
deductions and withholdings, which shall be paid to the Executive in accordance with the
Company’s normal payroll practices in equal installments over the eighteen (18) month period
following Executive’s last day of employment and which shall commence as soon as
administratively practicable following the expiration of the revocation period for the general
release, but not later than sixty (60) days following the date of Executive’s last day of
employment with the Company; (ii) in accordance with Section 4(b), the Executive will
receive
any accrued and unpaid Annual Bonus and Quarterly Bonus, minus applicable deductions and
withholdings, for which he is eligible; (iii) notwithstanding the eligibility requirement that the
Executive must be employed by the Company as of the date on which the Annual Bonus or
Quarterly Bonus is paid, if the Executive’s employment is terminated before such date in
accordance with Section 8(d) or 8(e), he will be eligible to receive a Quarterly
Bonus and Annual
Bonus on a pro rata basis (1112th of the Annual Bonus for each month in which he was employed
on the last day of that month, and the Quarterly Bonus for all quarters ending prior to and
including the quarter in which the termination occurs), minus applicable deductions and
withholdings, but only to the extent that all prerequisites for receiving the Annual Bonus and
Quarterly Bonus have otherwise been satisfied, with such pro rata bonus being paid at the time
that the Annual Bonus or Quarterly Bonus, as applicable, is paid to other executives; (iv)
notwithstanding any provision to the contrary in any applicable grant agreement or the
Company’s 2006 Equity Compensation Plan (or a successor plan), all shares subject to Company
equity grants (including without limitation stock options, stock units and stock awards) held by
the Executive at the time of his termination date that would have vested within the twenty-four
(24) month period following the Executive’s termination date if the vesting schedule for such
grants were based on a monthly vesting schedule, as opposed to the vesting schedule set forth in
his grant agreement, shall become vested on the Executive’s termination date; and (v) the
Company will provide continued health benefits to the Executive at the same premium rates
charged to other then current employees of the Company for the eighteen (18) month period
following his termination of employment, unless the Executive is otherwise covered by health
insurance provided by a future employer. The Company has no further obligation under this
Agreement to the Executive upon his termination without Cause, resignation for Good Reason,
or the Company’s decision not to renew the contract. The obligations of the Company set forth
in this Section 9(c) will be suspended and no longer enforceable if the Executive
materially
breaches the terms and conditions of Sections 9(e), 7, 10, 11, 12, 13, 14 or 15, which
material
breach is not cured (if capable of cure) within ten (10) days written notice of such breach.
(d) Termination With Cause or Resignation Without Good Reason. If the
Company terminates the Executive’s employment with Cause pursuant to Section 8(c), if the
Executive resigns without Good Reason pursuant to Section 8(f), if the Executive resigns
following his notice of nonrenewal of this Agreement or if the Executive is entitled to the
severance benefits pursuant to Section 9(c) and either does not execute or revokes the
general
release of claims required pursuant to Section 9(e), the Company will pay the Executive his
Base
Salary accrued and unpaid as of the date of termination of employment as well as any accrued
but unused PTO and appropriate expense reimbursements. The Company shall have no further
obligations under this Agreement to the Executive.
(e) Release of Claims. As a condition for the payments of the Severance Amount
and pro-rata Quarterly and Annual Bonuses provided in Section 9(c), the Executive must
execute
a general release of all claims (including claims under local, state and federal laws, but
excluding
claims for payment due under Section 9(c) that the Executive has or may have against the
Company or any related individuals or entities. The release shall be in a form reasonably
acceptable to the Company, and shall include confidentiality, cooperation, and non-disparagement
provisions, as well as other terms requested by the Company that are typical of an
executive severance agreement. The Severance Amount, pro-rata Quarterly and Annual
Bonuses, acceleration of vesting and continued health benefits provided for in Section 9(c)
are
conditioned upon and will not be paid (or be provided) until the execution of the release and the
expiration of any revocation period.
10. Confidentiality; Return of Company Property.
(a) The Executive acknowledges that, by reason of Executive’s employment by
the Company, Executive will have access to confidential information of the Company, including,
without limitation, information and knowledge pertaining to products, inventions, discoveries,
improvements, innovations, designs, ideas, trade secrets, proprietary information, business
strategies, packaging, advertising, marketing, distribution and sales methods, sales and profit
figures, employees, customers and clients, and relationships between the Company and its
business partners, including dealers, traders, distributors, sales representatives, wholesalers,
customers, clients, suppliers and others who have business dealings with them (“Confidential
Information”). The Executive acknowledges that such Confidential Information is a valuable
and unique asset of the Company and covenants that, both during and after the Term, Executive
will not disclose any Confidential Information to any person or entity, except as Executive’s
duties as an employee of the Company may require, without the prior written authorization of the
Board. The obligation of confidentiality imposed by this Section 10 shall not apply to
Confidential Information that otherwise becomes generally known to the public through no act of
the Executive in breach of this Agreement or any other party in violation of an existing
confidentiality agreement with the Company, or which is required to be disclosed by court order
or applicable law.
(b) All records, designs, patents, business plans, financial statements, manuals,
memoranda, lists, research and development plans and products, and other property delivered to
or compiled by the Executive by or on behalf of the Company or its vendors or customers that
pertain to the business of the Company shall be and remain the property of the Company, and be
subject at all times to its discretion and control. Likewise, all correspondence, reports, records,
charts, advertising materials and other similar data pertaining to the business, activities or
future
plans of the Company (and all copies thereof) that are collected by the Executive shall be
delivered promptly to the Company without request by it upon termination of the Executive’s
employment.
11. Non-Competition. While the Executive is employed at the Company and for a period
of eighteen (18) months after the termination of his employment with the Company for any
reason (the “Non-Compete Term”), the Executive will not, directly or indirectly, own, maintain,
finance, operate, engage in, assist, be employed by, contract with, license, or have any interest
in,
or association with a business or enterprise engaged in or planning to be engaged in, the Internet
retail trading of foreign exchange, or any business engaged in by the Company, or approved for
the Company or its affiliates to be engaged in by the Board of Directors of the Company, during
his employment with the Company.
12. Solicitation of Clients. During the periods in which the provisions of Section
11 shall
be in effect, the Executive, directly or indirectly, including through any other person or entity,
shall not seek business from any Client on behalf of any enterprise or business other than the
Company, refer business generated from any Client to any enterprise or business other than the
Company, or receive commissions based on sales or otherwise relating to the business from lily
Client, enterprise or business other than the Company. For purposes of this Agreement, the term
“Client” means any person, firm, corporation, limited liability company, partnership, association
or other entity (i) to which the Company sold or provided services during the 12-month period
prior to the time at which any determination is required to be made as to whether any such
person, firm, corporation, partnership, association or other entity is a Client, or (ii) who or
which
has been approached by an employee of the Company for the purpose of soliciting business for
the Company and which business was reasonably expected to generate revenue in excess of
$100,000 per annum.
13. Solicitation of Employees. During the periods in which the provisions of
Section 11
shall be in effect, the Executive, directly or indirectly, shall not contact or solicit any
employee
of the Company for the purpose of hiring them or causing them to terminate their employment
relationship with the Company.
14. Inventions, Ideas, Processes, and Designs. All inventions, ideas, processes,
programs,
software, and designs (including all improvements) conceived or made by the Executive during
his employment with the Company (whether or not actually conceived during regular business
hours) and related to the business of the Company, or the business approved by the Board of
Directors to be engaged in by the Company, shall be disclosed in writing promptly to the
Company and shall be the sole and exclusive property of the Company. An invention, idea,
process, program, software, or design (including an improvement) shall be deemed related to the
actual or approved business of the Company if (x) it was made with the Company’s equipment,
supplies, facilities, or Confidential Information, (y) results from work performed by the
Executive for the Company, or (z) pertains to the current business or demonstrably anticipated
research or development work of the Company, The Executive shall cooperate with the
Company and its attorneys in the preparation of patent and copyright applications for such
developments and, upon request, shall promptly assign all such inventions, ideas, processes, and
designs to the Company. The decision to file for patent or copyright protection or to maintain
such development as a trade secret shall be in the sole discretion of the Company, and the
Executive shall be bound by such decision.
15. Specific Performance. The Executive acknowledges that the services to be rendered
by the Executive are of a special, unique and extraordinary character and, in connection with
such services, the Executive will have access to Confidential Information vital to the Company’s
business, By reason of this, the Executive consents and agrees that if the Executive violates any
of the provisions of Section 11, 12, 13, and 14 hereof, the Company would sustain
irreparable
injury and that monetary damages would not provide adequate remedy to the Company. The
Executive hereby agrees that the Company shall be entitled to have Section 11, 12, 13, or
14
hereof specifically enforced (including, without limitation, by injunctions and restraining orders)
by any court in the State of New Jersey having equity jurisdiction and agrees to be subject to the
jurisdiction of said court. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or threatened breach,
including the recovery of damages from the Executive.
16. Executive’s Option To Purchase GCAM. Executive hereby agrees and acknowledges
that the Xxxxxxx Purchase Option (as defined in that certain Letter Agreement between Xxxxx
Xxxxxxx and GAIN Capital Holdings, Inc., dated as of January 1, 2007) is hereby terminated in
its entirety and all rights of Executive in connection with the Xxxxxxx Purchase Option are of no
further force and effect.
17. Company’s Call Option. The Company hereby agrees and acknowledges that that
Call Option (as defined in that certain Restricted Stock Unit Agreement, dated as of January1,
2007, by the Company to Xxxxx Xxxxxxx (the “RSU Agreement"» of the Company under the
RSU Agreement is hereby terminated, and from and after the date hereof, all 48,820 restricted
stock units granted to Xxxxx Xxxxxxx pursuant to the RSU Agreement shall no longer be subject
to such Call Option.
18. Complete Agreement. This Agreement embodies the entire agreement of the parties
with respect to the Executive’s employment, compensation, benefits and related items and
supersede any other prior oral or written agreements, arrangements or understandings between
the Executive and the Company. This Agreement may not be changed or terminated orally but
only by an agreement in writing signed by the parties hereto.
19. Waiver. The waiver by either party of a breach of any provision of this Agreement
by the other party shall not operate or be construed as a waiver of any subsequent breach by such
party.
20. Governing Law; Assignability.
(a) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New Jersey without reference to the choice of law provisions thereof.
(b) The Executive may not, without the Company’s prior written consent,
delegate, assign, transfer, convey, pledge, encumber or otherwise dispose of this Agreement or
any interest herein. Any such attempt shall be null and void and without effect. The Company
and the Executive agree that this Agreement and all of the Company’s rights and obligations
hereunder may be assigned or transferred by the Company and shall be assumed by and be
binding upon any successor to the Company.
21. Severability. If any provision of this Agreement or any part thereof, including,
without limitation, Sections 11. 12, 13, or 14, as applied to either party or to any
circumstances
shall be adjudged by a court of competent jurisdiction to be void or unenforceable, the same shall
in no way affect any other provision of this Agreement or remaining parts thereof, which shall be
given full effect without regard to the invalid or unenforceable part thereof, or the validity or
enforceability of this Agreement.
22. Notices. All notices to the Company or the Executive, permitted or required
hereunder, shall be in writing and shall be delivered personally, by telecopier or by courier
service providing for next-day delivery or sent by registered or certified mail, return receipt
requested, to the following addresses:
If to the Company:
GAIN Capital Holding, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 000000
Attention: Chairman of the Board
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 000000
Attention: Chairman of the Board
If to the Executive, to the address set forth on the first page hereof.
Either party may change the address to which notices shall be sent by sending written notice of
such change of address to the other party. Any such notice shall be deemed given, if delivered
personally, upon receipt; if telecopied, when telecopied; if sent by courier service providing for
next-day delivery, the next business day following deposit with such courier service; and if sent
by certified or registered mail, three days after deposit (postage prepaid) with the U.S. mail
service.
23. Section 409A.
(a) This Agreement shall be interpreted to avoid any penalty sanctions under
section 409A of the Internal Revenue Code of 1986, as amended (“section 409A”). If any
payment or benefit cannot be provided or made at the time specified herein without incurring
sanctions under section 409 A, then such benefit or payment shall be provided in full at the
earliest time thereafter when such sanctions will not be imposed. For purposes of section 409A,
each payment under this Agreement shall be treated as a separate payment and the right to a
series of installment payments under this Agreement shall be treated as a right to a series of
separate payments. In no event may the Executive, directly or indirectly, designate the calendar
year of payment.
(b) To the maximum extent permitted under section 409A, the cash severance
payments payable under this Agreement are intended to comply with the ‘short-term deferral
exception’ under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply
with the ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however,
any amount payable to the Executive during the six-month period following the Executive’s
termination date that does not qualify within either of the foregoing exceptions and is deemed as
deferred compensation subject to the requirements of section 409A, then such amount shall
hereinafter be referred to as the ‘Excess Amount.’ If the Executive is a “key employee” of a
publicly traded corporation under section 409 A at the time of his separation from service and if
payment of the Excess Amount under this Agreement is required to be delayed for a period of six
(6) months after separation from service pursuant to section 409A, payment of such amount shall
be delayed as required by section 409A, and the accumulated postponed amount shall be paid in
a lump sum payment within ten (10) days after the end of the six (6) month period. If the
Executive dies during the postponement period prior to the payment of postponed amount, the
amounts withheld on account of section 409 A shall be paid to the personal representative of the
Executive’s estate within sixty (60) days after the date of the Executive’s death. A “key
employee” shall mean an employee who, at any time during the 12-month period ending on the
identification date, is a “specified employee” under section 409A, as determined by the Board, in
its sole discretion. The determination of key employees, including the number and identity of
persons considered key employees and the identification date, shall be made by the Board in
accordance with the provisions of Sections 416(i) and 409A and the regulations issued
thereunder.
(c) To the extent the Executive is, at the time of his termination of employment
under this Agreement, participating in one or more deferred compensation arrangements subject
to section 409A, the payments and benefits provided under those arrangements shall continue to
be governed by, and to become due and payable in accordance with, the specific terms and
conditions of those arrangements, and nothing in this Agreement shall be deemed to modify or
alter those terms and conditions.
(d) All reimbursements provided under this Agreement shall be made or provided
in accordance with the requirements of section 409A, including, where applicable, the
requirement that (i) any reimbursement is for expenses incuned during the Executive’s lifetime
(or during a shorter period of time specified in this Agreement), (ii) the amount of expenses
eligible for reimbursement during a calendar year may not affect the expenses eligible for
reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be
made on or before the last day of the calendar year following the year in which the expense is
incurred, and (iv) the right to reimbursement is not subject to liquidation or exchange for another
benefit.
24. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which taken together shall constitute one and the
same instrument.
25. Separation. All covenants that, by their terms, naturally would survive the
termination or expiration of this Agreement, including but not limited to Sections 11, 12, 13,
and
14 hereof, shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Employment Agreement as
of the date first above written.
| GAIN CAPITAL HOLDINGS, INC. | |||||||
By: |
/s/ Xxxx X. Xxxxxx | ||||||
| Name: Xxxx Xxxxxx | |||||||
| Title: Chairman of the Board | |||||||
/s/ Xxxxx Xxxxxxx |
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