Exhibit 10.10.2
AMENDMENT TO
CHANGE
IN CONTROL AGREEMENT
This AMENDMENT is made
and entered into as of
, 2007,
by and between Investment Technology Group, Inc. (the
“Company”) and
(the “Executive”).
WHEREAS, the Company
and the Executive previously entered into that certain Change in
Control Agreement, dated as of
(the “CIC Agreement”); and
WHEREAS, the parties
now wish to amend the CIC Agreement to provide that payments due to
the Executive under the CIC Agreement upon the Executive’s
termination of employment in connection with a Change in Control
(as defined in the CIC Agreement) will be compliant with the
applicable requirements of section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and the
regulations promulgated thereunder.
NOW, THEREFORE, the
parties mutually acknowledge and agree that, effective as of the
date hereof, the CIC Agreement is hereby amended as
follows:
1.
The definition of “Good Reason” in Section 2 is
hereby deleted and replaced in its entirety with the following:
“ Good
Reason ” means, without the Executive’s express
written consent, the occurrence after a Change in Control of the
Company of any one or more of the following:
(i)
a material reduction of the Executive’s primary functional
authorities, duties, or responsibilities as an executive and/or
officer of the Company from those in effect immediately prior to
the Change in Control or the assignment of duties to the Executive
inconsistent with those of an executive of the Company, other than
an insubstantial and inadvertent reduction or assignment that is
remedied by the Company promptly after receipt of notice thereof
given by the Executive; provided , however , that any
reduction in authorities, duties or responsibilities resulting
merely from the acquisition of the Company and its existence as a
subsidiary or division of another entity shall not be sufficient to
constitute Good Reason;
(ii)
the Company’s requiring the Executive to be based at a
location in excess of thirty five (35) miles from the location of
the Executive’s principal job location or office immediately
prior to the Change in Control;
(iii)
a material reduction by the Company of the Executive’s base
salary in effect on the date hereof, or as the same shall be
increased from time to time, unless such reduction applies on
substantially the same percentage basis to all employees of the
Company generally;
(iv)
a material reduction in the Executive’s participation in any
of the Company’s annual incentive compensation plans in which
the Executive participates prior to the Change in Control, unless
such failure applies to all plan participants generally;
(v)
the failure of the Company to obtain the assumption of the
obligations contained in this Agreement by any successor as
contemplated in Section 9(c) hereof; and
(vi)
a material breach of this Agreement by the Company.
provided , however , that for
any of the foregoing to constitute Good Reason, the Executive must
provide written notification of his intention to resign within 30
days after the Executive knows or has reason to know of the
occurrence of any such event, and the Company shall have 30
business days from the date of receipt of such notice to effect a
cure of the condition constituting Good Reason, and, upon cure
thereof by the Company, such event shall no longer constitute Good
Reason. A termination of employment by the Executive within a
Protection Period shall be for Good Reason if one of the
occurrences specified above shall have occurred, notwithstanding
that the Executive may have other reasons for terminating
employment, including employment by another employer which the
Executive desires to accept.
For purposes of this
Agreement, it shall be a material breach of this Agreement by the
Company if the Company decreases the Executive’s Target
Annual Compensation by more than ten percent (10%).
2.
Section 3 is hereby deleted and replaced in its entirety with
the following:
3.
Benefits Upon Termination Within Protection Period .
If, within a Protection Period, the Executive’s employment by
the Company shall be terminated (a) by the Company not for
Cause and not due to the Executive’s death or Disability, or
(b) by the Executive for Good Reason, the Executive shall be
entitled to the benefits provided for below:
(i)
the Company shall pay to the Executive, through the date of the
Executive’s termination of employment, base salary at the
rate then in effect, together with base salary in lieu of vacation
accrued to the date on which his employment terminates, in
accordance with the standard payroll practices of the Company;
(ii)
the Company shall pay to the Executive an amount in cash equal to
the Executive’s target annual bonus for the year that
includes the date of the Executive’s termination of
employment, pro rated for the number of full and partial months
during the bonus year prior to such termination of employment, and
such payment shall be made in a lump sum within 10 business days
after the date of such termination of employment;
(iii)
the Company shall pay to the Executive an amount in cash equal to
times
the sum of (A) the Executive’s annual base salary in
effect immediately prior to the date of the Executive’s
termination of employment or the date of the Change in Control
(whichever is higher), and (B) the average of the
Executive’s annual bonuses for the three years immediately
preceding the Executive’s termination of employment (or such
shorter period during which the Executive has been employed by the
Company and eligible to
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