Exhibit 10.28


 


AMENDMENT
NO. 1 TO

EMPLOYMENT AGREEMENT


 


This AMENDMENT NO. 1
(this “Amendment”) to that certain Employment Agreement, dated as of August 20,
2008 (the “Agreement”), by and between GFI Group Inc., a Delaware
corporation (the “Company”), and Ronald
Levi (“Executive”), is made on December 31, 2008 (the “Amendment
Effective Date”).


 


WHEREAS, the Company and
Executive desire to amend the Agreement according to Section 10(a) thereof
so that it complies with Code § 409A; and


 


WHEREAS, the Company and Executive have each approved
this Amendment and the changes to the Agreement that it will effect.


 


NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned agree as follows:


 


Section 1.                                            Amendments.  The Agreement shall be amended as follows:


 


A.           Section 5(a) shall
be amended by adding at the end of the last sentence thereof the phrase “and
Executive shall continue to make himself available on a full-time basis to
perform any requested employment duties during such time”.


 


B.             Section 5(b) shall
be amended by (1) inserting in the second sentence thereof, immediately
following the phrase “three (3) months after the date of such termination”,
the phrase “but in any event no later than the earlier of (i) the tenth
(10th) anniversary of the original date the option was granted and (ii) the
latest date upon which such option could have expired by its original terms
under any circumstances”, and (2) adding at the end of the last sentence
thereof the following:


 


, and any revocation
period with respect to such release shall have expired, in each case within
sixty (60) days of the date of termination, and such payments shall, subject to Section 11 hereof,
be made upon the sixtieth (60th) day following Executive’s termination of
employment, provided that to the extent
any such payments do not constitute “deferred compensation” for purposes of
Code Section 409A, such payments shall be made after the release is
executed and no longer subject to revocation.


 


C.             Section 5(d) shall
be amended by (1) inserting in the last sentence thereof, immediately
following the word “executes”, the phrase “and does not revoke”, and (2) adding
at the end of the last sentence thereof the following:


 


, and any revocation
period with respect to such release shall have expired, in each case within
sixty (60) days of the date of termination, and such payments shall, subject to Section 11 hereof,
be made upon the sixtieth (60th) day 


 

















 


following Executive’s
termination of employment, provided
that to the extent any such payments do not constitute “deferred compensation”
for purposes of Code Section 409A, such payments shall be made after the
release is executed and no longer subject to revocation.


 


D.            Section 3(e) shall
be amended by deleting from the last sentence thereof the phrase “twelve month
period of the Term” and adding at the end of the last sentence thereof, as
amended, the phrase “calendar year.”


 


E.              Section 5(f) shall
be deleted in its entirety.


 


F.              The following shall
be added as Section 11 of the Agreement:


 


11.                               Section 409A
Compliance


 


(a)                                  A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this Agreement, references to a “termination,”
“termination of employment” or like terms shall mean “separation from service.”


 


(b)                                 Notwithstanding
any other payment schedule provided herein to the contrary, if Executive is
deemed on the date of termination to be a “specified employee” within the
meaning of that term under Code Section 409A(a)(2)(B), then each of the
following shall apply:


 


(i)                                     With
regard to any payment that is considered deferred compensation under Code Section 409A
payable on account of a “separation from service,” such payment shall be made
on the date which is the earlier of (A) the expiration of the six
(6)-month period measured from the date of such “separation from service” of
Executive, and (B) the date of Executive’s death (the “Delay Period”)
to the extent required under Code Section 409A.  Upon the expiration of the Delay Period, all
payments delayed pursuant to this Section (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid to Executive in a lump sum, and all remaining
payments due under this Agreement shall be paid or provided in accordance with
the normal payment dates specified for them herein; and


 


(ii)                                  To
the extent that any benefit to be provided during the Delay Period are
considered deferred compensation under Code Section 409A provided on
account of a “separation from service,” and such benefits are not otherwise
exempt from Code Section 409A, Executive shall pay the cost of such
benefits during the Delay Period, and the Company shall reimburse Executive, to
the extent that such costs would 


 


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otherwise have been paid
by the Company or to the extent that such benefits would otherwise have been
provided by the Company at no cost to Executive, the Company’s share of the cost
of such benefits upon expiration of the Delay Period, and any remaining
benefits shall be reimbursed or provided by the Company in accordance with the
procedures specified herein.


 


(c)                                  All
expenses or other reimbursements under this Agreement shall be made on or prior
to the last day of the taxable year following the taxable year in which such
expenses were incurred by Executive (provided that if any such reimbursements
constitute taxable income to Executive, such reimbursements shall be paid no
later than March 15th of the calendar year following the calendar year in
which the expenses to be reimbursed were incurred), and no such reimbursement
or expenses eligible for reimbursement in any taxable year shall in any way
affect the expenses eligible for reimbursement in any other taxable year.


 


(d)                                 For
purposes of Code Section 409A, Executive’s right to receive any
installment payment pursuant to this Agreement shall be treated as a right to
receive a series of separate and distinct payments.


 


(e)                                  Whenever
a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within thirty (30) days
following the date of termination”), the actual date of payment within the
specified period shall be within the sole discretion of the Company.


 


(f)                              Notwithstanding
any other provision of this Agreement to the contrary, in no event shall any
payment under this Agreement that constitutes “deferred compensation” for
purposes of Code Section 409A be subject to offset, counterclaim, or
recoupment by any other payment pursuant to this Agreement or otherwise unless
otherwise permitted by Code Section 409A or pursuant to any written
agreement providing for the forfeiture of compensation upon the occurrence of
certain events.


 


Section 2.                                            Effect
of Amendment.  Except as set forth in
Section 1 of this Amendment, the provisions of the Agreement shall not be
amended or altered by this Amendment and shall continue in full force and
effect.


 


Section 3.                                            Miscellaneous.  This Amendment shall be governed by the
internal laws of the State of New York. 
This Amendment may be executed in one or more counterparts, each of
which when executed and delivered shall be deemed to be an original and all counterparts
taken together shall constitute one and the same instrument.  This Amendment and the Agreement (as amended
hereby) constitute the entire understanding of the parties hereto with respect
to the subject matter hereof, and any and all prior agreements and
understandings between the parties regarding the subject matter hereof, whether
written or oral, except for the Agreement (as amended hereby), are superceded
by this Amendment.  Any provision of this
Amendment which is invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability without
invalidating or rending unenforceable the remaining provisions 


 


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hereof, and any
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


IN WITNESS WHEREOF, this
Amendment has been duly executed and delivered by the undersigned parties on
the Amendment Effective Date.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  GFI GROUP INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Ronald Levi

  



 


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