December 1, 2010 David Sakhai 32 Old Slip New York, NY 10005 Dear Mr. Sakhai:
Exhibit 10.9
December 1, 2010
Xxxxx Xxxxxx
00 Xxx Xxxx
Xxx Xxxx, XX 00000
00 Xxx Xxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxxx:
In consideration of your valuable service to FXCM Inc. and its subsidiaries (collectively, the
“Company Group”), FXCM Holdings, LLC (the “Company”) desires to offer you
protection against the termination of your employment with the Company Group on the terms and
conditions set forth in this letter agreement (the “Letter Agreement”).
Accordingly, subject to your continued employment with the Company Group, you and the Company
hereby agree as follows:
1. Rights on Termination of Employment.
(a) If your employment is terminated (x) by any entity that is a member of the Company Group
without Cause (as defined below) (other than due to death or disability) or (y) by you for Good
Reason (as defined below), in each case, subject to (A) your execution, delivery and non-revocation
of a general release of claims against the Company and its affiliates in a form reasonably
acceptable to the Company (the “Release”) within forty-five (45) days following the
termination date and (B) your compliance with the restrictive covenants set forth in that certain
Confidentiality and Restrictive Covenant Agreement, dated January 17, 2008, by and between the
Company and you (the “Restrictive Covenant Agreement”) (clauses (A) and (B), collectively,
the “Conditions”), you shall be entitled to receive an aggregate amount (such aggregate
amount, the “Severance Payment”) equal to two (2) times your base salary as in effect on
the termination date, which amount shall be payable by the Company in equal monthly installments
over a twenty-four (24) month period commencing on the Payment Commencement Date (as defined below)
(assuming you have not revoked the Release prior to such date). The Company will commence paying
the Severance Payment on the 60th day following your termination of employment (such
date, the “Payment Commencement Date”) (with payments in arrears from the termination
date).
(b) In addition to the Severance Payment and subject to the Conditions, if your employment is
terminated (x) by any entity that is a member of the Company Group without Cause (other than due to
death or disability) or (y) by you for Good Reason, in each case, (1) you and your spouse and
eligible dependents, to the extent applicable (to the extent covered immediately prior to such
termination) will continue to be eligible to participate in the Company Group’s medical plan(s) for
which you were eligible immediately prior to the termination date for an eighteen (18) month period
following the termination date (such period, the “Continuation Coverage Period”) and (2)
following the Continuation Coverage Period, for a period of six (6) months immediately thereafter,
you will be entitled to receive, on the first business day of each
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month, an amount equal to the premium subsidy the Company Group would have otherwise paid on
your behalf for medical coverage if you had been actively employed during such six (6) month
period. The COBRA health care continuation coverage period under Section 4980B of the Code, or any
replacement or successor provision of United States tax law, will run concurrently with the
Continuation Coverage Period.
(c) In the event of a breach of the restrictive covenants set forth in the Restrictive
Covenant Agreement, (x) as provided for above, the Company will be immediately relieved of its
obligation to provide the payments and benefits set forth in clauses (a) and (b) above and (y) you
will be required to promptly pay the Company a lump sum amount equal to the sum of all payments
previously made to you hereunder. Your forfeiture of the payments and benefits hereunder will not
be deemed to be a waiver of any right or any other remedy that the Company Group may have at law or
in equity, or pursuant to this Letter Agreement or the Restrictive Covenant Agreement, to enforce
the provisions of this Letter Agreement or the Restrictive Covenant Agreement.
(d) For purposes of this Letter Agreement, “Cause” shall exist if any entity that is a member
of the Company Group determines that any one or more of the following events has occurred while
employed by the Company Group: (i) your engagement in misconduct which is materially injurious to
the Company or any of its subsidiaries, (ii) your continued failure to substantially perform your
duties to any entity that is a member of the Company Group, (iii) your repeated dishonesty in the
performance of your duties to any entity that is a member of the Company Group, (iv) your
commission of an act or acts constituting any (x) fraud against, or misappropriation or
embezzlement from the Company or any of its affiliates, (y) crime involving moral turpitude, or (z)
offense that could result in a jail sentence of at least 30 days, (v) your engagement in conduct or
activities that materially violate any applicable governmental or quasi-governmental regulation
involving securities, (vi) the violation by you of a written company policy regarding employment,
including substance abuse, sexual harassment or discrimination, or the Company’s xxxxxxx xxxxxxx
policy, or (vii) the material breach by you of any of the provisions of any agreement between you,
on the one hand, and any entity that is a member of the Company Group, on the other hand. The
determination of the existence of Cause shall be made by the applicable entity that is a member of
the Company Group in good faith, which determination shall be conclusive for purposes of this
Letter Agreement.
(e) For purposes of this Letter Agreement, “Good Reason” shall mean, without your consent, a
change by the applicable entity that is a member of the Company Group in your duties and
responsibilities which is materially inconsistent with your position at the applicable entity that
is a member of the Company Group, or a material reduction in your annual base salary (excluding any
reduction in your salary that is part of a plan to reduce salaries of comparably situated employees
of any entity that is a member of the Company Group generally); provided that, notwithstanding
anything to the contrary in the foregoing, you shall only have “Good Reason” to terminate
employment following the applicable entity’s failure to remedy the act which is alleged to
constitute “Good Reason” within fifteen (15) business days following such entity’s
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receipt of written notice from you specifying such act, so long as such notice is provided
within thirty (30) business days after such event has first occurred.
(f) You acknowledge and agree that the payments and benefits described in this Letter
Agreement will be the only such payments and benefits you are to receive as a result of your
termination of employment and you agree you are not entitled to any additional payments, rights or
benefits not otherwise described in this Letter Agreement (other than any payments, rights or
benefits under the Amended and Restated Limited Liability Company Agreement of the Company, as it
may be further amended from time to time). You hereby acknowledge and agree that you are not
eligible to be a participant in any severance or retention plan of any entity that is a member of
the Company Group.
2. Severability; Applicable Law.
(a) The provisions of this Letter Agreement shall be deemed severable, and the invalidity or
unenforceability of any provision hereof shall not affect the validity or enforceability of the
other provisions hereof.
(b) This Letter Agreement and any dispute hereunder shall be construed, interpreted and
governed in accordance with the laws of the State of New York without reference to rules relating
to conflicts of law.
3. Entire Agreement; Amendment.
(a) This Letter Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all other prior written or oral agreements concerning
such subject matter (including, for the avoidance of doubt, Section 9 of the Restrictive Covenant
Agreement), except that Sections 1 - 8 of the Restrictive Covenant Agreement and any provisions
related thereto shall continue to apply and are hereby made a part of this Letter Agreement by
reference.
(b) This Letter Agreement may only be amended or modified by a written agreement executed by
you and the Company (or any of its respective successors).
4. Compliance with IRC Section 409A. This Letter Agreement is intended to comply with
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and will be
interpreted accordingly. References under this Letter Agreement to your termination of employment
shall be deemed to refer to the date upon which you have experienced a “separation from service”
within the meaning of Section 409A of the Code. Notwithstanding anything herein to the contrary,
(i) if at the time of your separation from service with all entities that are members of the
Company Group you are a “specified employee” as defined in Section 409A of the Code (and any
related regulations or other pronouncements thereunder) and the deferral of the commencement of any
payments or benefits otherwise payable hereunder or payable under any other compensatory
arrangement between you and any member of the Company Group as a result of such separation from
service is necessary in order to prevent any accelerated or
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additional tax under Section 409A of the Code, then the Company will defer the commencement of the
payment of any such payments or benefits hereunder (without any reduction in such payments or
benefits ultimately paid or provided to you) until the date that is six months following your
separation from service (or the earliest date as is permitted under Section 409A of the Code), at
which point all payments deferred pursuant to this Section 4 shall be paid to you in a lump sum and
(ii) if any other payments of money or other benefits due to you hereunder could cause the
application of an accelerated or additional tax under Section 409A of the Code, such payments or
other benefits shall be deferred if deferral will make such payment or other benefits compliant
under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured,
to the extent possible, in a manner that does not cause such an accelerated or additional tax. To
the extent any reimbursements or in-kind benefits due to you under this Agreement constitute
“deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits
shall be paid to you in a manner consistent with Treasury Regulation Section 1.409A-3(i)(1)(iv).
For purposes of Section 409A of the Code, each payment made under this Letter Agreement shall be
designated as a “separate payment” within the meaning of Section 409A of the Code.
5. No Set Off; Mitigation. You shall not be required to mitigate damages with respect
to the termination of your employment with the Company Group under this Letter Agreement by seeking
other service or otherwise, and, unless expressly provided for herein, there shall be no offset
against amounts due to you under this Letter Agreement on account of subsequent service.
6. Assignment. This Letter Agreement and all of your rights and obligations hereunder
shall not be assignable or delegable by you. Any purported assignment or delegation by you in
violation of the foregoing shall be null and void ab initio and of no force and effect. No rights
or obligations of the Company under this Letter Agreement may be assigned or transferred by the
Company without your prior written consent, except that such rights or obligations may be assigned
or transferred pursuant to a merger, consolidation or other similar transaction in which the
Company is not the continuing entity or a sale, liquidation or other disposition of all or
substantially all of the assets of the Company provided that the assignee or transferee is the
successor to all or substantially all of the assets of the Company. Upon any such assignment or
transfer, the rights and obligations of the Company hereunder shall become the rights and
obligations of such assignee or transferee.
7. Counterparts. This Letter Agreement may be executed in counterparts and by fax or
pdf.
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If the foregoing terms and conditions are acceptable and agreed to by you, please sign on the
line provided below to signify such acceptance and agreement and return the executed copy to the
undersigned.
| FXCM HOLDINGS, LLC | ||||||||
| By: | /s/ Xxxxxx Xxxxx | |||||||
| Name: Xxxxxx Xxxxx | ||||||||
| Title: Chief Financial Officer | ||||||||
Accepted and Agreed |
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/s/ Xxxxx Xxxxxx |
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[Signature Page — Severance Protection Agreement]
