Exhibit 10.1


 


AMENDED AND
RESTATED


EMPLOYEE
ADVISOR AGREEMENT


 


THIS EMPLOYEE ADVISOR AGREEMENT,
as amended and restated (the “Agreement”), is
entered into as of May 30, 2008 by and between Investment Technology Group, Inc.,
a Delaware corporation (the “Company”), and
Raymond L. Killian, Jr. (the “Employee”).


 


BACKGROUND


 


WHEREAS, the Company and the
Employee previously entered into an employee advisor agreement on February 27,
2007 (the “Prior Agreement”); and


 


WHEREAS, the parties now wish
to amend the Prior Agreement to provide that payments due to the Employee upon
the Employee’s termination of employment under the Prior 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, in consideration of the mutual promises
hereinafter set forth, and intending to be legally bound hereby, the Company
and the Employee hereby agree as follows:


 


1.                                       Term. 
The term of this Agreement began on April 1, 2007 and shall
continue until March 31, 2009, unless terminated sooner pursuant to Section 9
below (the “Term”).


 


2.                                       Services to be Provided.


 


(a)                                  Advisory Services.  During the Term, the Employee shall perform
for the Company such reasonable transition services (taking into account the
Employee’s other commitments) and other advisory services as shall be
reasonably assigned to the Employee by the Chief Executive Officer and
President of the Company and the Board of Directors of the Company (the “Board”) from time to time. 
The foregoing duties of the Employee shall be referred to for purposes
of this Agreement as the “Advisory Services.”


 


(b)                                 Working Time.  During the Term, the Employee agrees to
devote substantial working time, attention and energies to the Advisory
Services on a schedule mutually acceptable to the Employee and the
Company.  The Employee agrees that he
shall generally be available to perform the Advisory Services and at the Company’s
Boston office when required.  The Employee
shall give the Company advance notice of periods of vacation.  The Company agrees that the Employee will not
be employed on a full-time basis and may provide services to other companies,
including by serving as a member of the boards of directors of other companies;
provided that the Employee shall be required to comply with the restrictive
covenants set forth in Section 4 below.


 


3.                                       Compensation; Benefits.


 


(a)                                  Compensation.  As compensation for the Employee’s
performance of the Advisory Services under this Agreement during the Term, the
Employee shall receive (i) a salary of $100,000 per month payable in
accordance with the Company’s normal payroll practices and 


 

















 


subject to all applicable employment and tax
withholdings, and (ii) on or around April 1, 2009, and, assuming the
satisfactory performance of the Employee’s assigned duties hereunder, in the
reasonable and good faith judgment of the Board, a one time severance payment
of $600,000.  In addition, the Company
shall reimburse the Employee for all reasonable expenses incurred by the
Employee in connection with the performance of the Advisory Services in
accordance with the Company’s expense reimbursement policies for executives.


 


(b)                                 Employee Benefits.  During the Term, the Employee shall continue
to be entitled to participate in and receive any benefit or rights under any
Company employee benefit plans, including, without limitation, employee
insurance, medical, pension, savings or deferred compensation plans.  Upon the completion of the Term, as a retiree
of the Company, the Company shall provide the Employee and his spouse with
medical benefits for the remainder of their lives at coverage levels
substantially similar to those provided to senior executive employees of the
Company from time to time.  Such medical
benefits shall either be provided under the Company’s medical benefit plan or
through Company paid medical insurance obtained by the Company for the benefit
of the Employee and his spouse.


 


(c)                                  Effect of Termination.


 


(i)                                     If,
prior to the expiration of the Term, the Company terminates the Employee’s
employment with the Company for any reason other than Cause (as defined below),
the payments described in Sections 3(a)(i) and (ii) shall continue to
be made as severance and be paid in installments as and when they would
otherwise have been made pursuant to the terms of this Agreement as if the
Employee’s employment with the Company had not been terminated, but the
benefits provided pursuant to Section 3(b) shall cease except for
medical benefits as set forth above in Section 3(b).  Notwithstanding the preceding sentence, if,
at any time during the payment period, the Employee agrees to waive his rights
to the continued payments described in Sections 3(a)(i) and (ii), the
Employee shall have no further obligation to comply with the restrictions set
forth in Sections 4(c) and (d) following his termination.


 


(ii)                                  If
the Employee voluntarily terminates his employment with the Company for any
reason or if the Employee’s employment is terminated by the Company for Cause,
in either case, prior to the expiration of the Term, no further payments shall
be due under the terms of this Agreement; provided that, in each case, the
medical benefits as set forth in Section 3(b) shall continue.  For this purpose, the term “Cause” means (A) gross negligence in the performance of
the Employee’s duties which results in material financial harm to the Company
or its subsidiaries; (B) the Employee’s conviction of, or plea of nolo
contendere to, any felony, or other crime involving the personal enrichment of
the Employee at the expense of the Company or its subsidiaries (unless the
Employee’s action or omission occurred in good faith in the reasonable belief
that such action was not criminal); (C) willful refusal by the Employee to
perform his duties and responsibilities without the same being corrected within
thirty (30) days after being given written notice thereof; or (D) the
material breach by the Employee of any of the covenants contained in Section 4
of this Agreement.  Notwithstanding the
above, “Cause” shall not exist unless the Employee shall have been given
written notice that the Company believes it has “Cause”, the Employee has had
the opportunity to appear before the Board with counsel of his choice to answer
the assertion, and such Board by a two-thirds vote, not including the Employee,
has thereafter voted to terminate the Employee’s service for Cause.


 


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(iii)                               Notwithstanding the
provisions of Sections 3(c)(i) and (ii) above, if at the time of the
Employee’s “separation from service” (as such term is defined in section 409A
of the Code) the Company has securities which are publicly-traded on an
established securities market and the Employee is a “specified employee” (as
such term is defined in section 409A of the Code) and it is necessary to
postpone the commencement of any severance payments otherwise payable pursuant
to this Agreement as a result of such separation from service to prevent any
accelerated or additional tax under section 409A of the Code, then the Company
shall postpone 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 the Employee) that are not otherwise paid within the short-term
deferral exception under section 409A of the Code and are in excess of the
lesser of two (2) times (i) the Employee’s then-annual compensation
or (ii) the limit on compensation then set forth in section 401(a)(17) of
the Code, until the first payroll date that occurs after the date that is six (6) months
following the Employee’s separation from service with the Company.  If any payments are postponed due to such
requirements, such postponed amounts shall be paid in a lump sum to the
Employee, and any installment payments due to the Employee shall recommence, on
the first payroll date that occurs after the date that is six (6) months
following the Employee’s separation from service with the Company.  If the Employee dies during the postponement
period prior to the payment of the postponed amount, the amounts postponed on
account of section 409A of the Code shall be paid to the personal
representative of the Employee’s estate within sixty (60) days after the date of
the Employee’s death.


 


(d)                                 Change in Control.  Upon the occurrence of a Change in Control
during the Term, the Company shall pay to the Employee all of the amounts he
would have otherwise received through the remainder of the Term as set forth in
Sections 3(a)(i) and (ii) had he remained in service throughout that
period.  Payment shall be made in a lump
sum within thirty (30) days following the occurrence of the Change in
Control.  For this purpose, “Change in Control” means and shall be
deemed to have occurred:


 


(i)                                     if
any person (within the meaning of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), other than the
Company or a Related Party, is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of Voting
Securities representing thirty-five percent (35%) or more of the total voting
power of all the then-outstanding Voting Securities; or


 


(ii)                                  if
a majority of the members of the Board is replaced during any twelve month
period by directors whose appointment or election is not endorsed by a majority
of the members of the Board before the date of the appointment or election; or


 


(iii)                               upon consummation of a
merger, consolidation, recapitalization or reorganization of the Company,
reverse split of any class of Voting Securities, or an acquisition of
securities or assets by the Company other than (A) any such transaction in
which the holders of outstanding Voting Securities immediately prior to the
transaction receive (or retain), with respect to such Voting Securities, voting
securities of the surviving or transferee entity representing more than fifty
percent (50%) of the total voting power outstanding immediately after such
transaction, with the voting power of each such continuing holder relative to
other such continuing holders not substantially altered in the transaction, or (B) any
such transaction which would result in a Related Party beneficially owning more
than fifty percent (50%) of the 


 


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voting securities of the surviving or transferee
entity outstanding immediately after such transaction; or


 


(iv)                              upon
consummation of the sale or disposition by the Company of all or substantially
all of the Company’s assets, other than any such transaction which would result
in a Related Party owning or acquiring more than fifty percent (50%) of the
assets owned by the Company immediately prior to the transaction.


 


For purposes of the foregoing definition, the
following terms shall have the following meanings:  (A) “Voting
Securities or Security” means any securities of the Company which
carry the right to vote generally in the election of directors; (B) “Subsidiary” or “Subsidiaries” means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (a) if a corporation, fifty (50) percent or more
of the total voting power of shares of stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or
combination thereof; or (b) if a partnership, limited liability company,
association or other business entity, fifty (50) percent or more of the
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries
of that Person or a combination thereof. 
For purposes of this definition, a Person or Persons shall be deemed to
have a fifty (50) percent or more ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons are allocated fifty (50) percent or more of partnership, limited
liability company, association or other business entity gains or losses or
control the managing director or member or general partner of such partnership,
limited liability company, association or other business entity; (C) “Related Party” means (a) a Subsidiary
of the Company; (b) an employee or group of employees of the Company or
any Subsidiary of the Company; (c) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any majority-owned
Subsidiary of the Company; or (d) a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportion as their ownership of Voting Securities; and (D) “Person” means an individual, a partnership,
a corporation, a limited liability company, an association, a joint stock
company, an estate, a trust, a joint venture, an unincorporated organization or
a governmental entity or any department, agency or political subdivision
thereof.


 


4.                                       Restrictive Covenants.


 


(a)                                  Nondisclosure and Nonuse of Confidential Information.  The Employee shall not disclose or use at any
time during or after the Term any Confidential Information of which the
Employee is or becomes aware, whether or not such information is developed by
him, except to the extent he reasonably believes that such disclosure or use is
directly related to and appropriate in connection with the Employee’s
performance of duties assigned to the Employee pursuant to this Agreement.  Under all circumstances and at all times, the
Employee shall take all appropriate steps to safeguard Confidential Information
in his possession and to protect it against disclosure, misuse, espionage, loss
and theft.  For purposes of this
Agreement, “Confidential Information”
means information that is not generally known to the public and that was or is
used, developed or obtained by the Company or its Subsidiaries in connection
with their business and which constitutes trade secrets or information which
the Company has made reasonable 


 


4

















 


efforts to protect. 
It shall not include information (a) required to be disclosed by
court or administrative order; (b) lawfully obtainable from other sources
or which is in the public domain through no fault of the Employee; or (c) the
disclosure of which is consented to in writing by the Company.


 


(b)                                 Ownership of Intellectual Property.  In the event that the Employee as part of his
activities on behalf of the Company generates, authors or contributes to any
invention, design, new development, device, product, method of process (whether
or not patentable or reduced to practice or comprising Confidential
Information), any copyrightable work (whether or not comprising Confidential
Information) or any other form of Confidential Information relating directly or
indirectly to the business of the Company as now or hereinafter conducted
(collectively, “Intellectual Property”),
the Employee acknowledges that such Intellectual Property is the sole and
exclusive property of the Company and hereby assigns all right title and
interest in and to such Intellectual Property to the Company.  Any copyrightable work prepared in whole or
in part by the Employee during the Term shall be deemed “a work made for hire”
under Section 201(b) of the Copyright Act of 1976, as amended, and
the Company shall own all of the rights comprised in the copyright
therein.  The Employee shall promptly and
fully disclose all Intellectual Property and shall cooperate with the Company
to protect the Company’s interests in and rights to such Intellectual Property
(including providing reasonable assistance in securing patent protection and
copyright registrations and executing all documents as reasonably requested by
the Company, whether such requests occur prior to or after termination of
Employee’s employment hereunder).


 


(c)                                  Noncompetition.  The Employee hereby acknowledges that during
his employment by the Company, the Employee has and shall become familiar with
trade secrets and other Confidential Information concerning the Company, its
Subsidiaries and their respective predecessors, and that the Employee’s
services have been and shall be of special, unique and extraordinary value to
the Company.  In addition, the Employee
hereby agrees that at any time during the Term, and, except as provided in Section 3,
for a period of one year after the date the Term terminates (the “Noncompetition Period”), the Employee shall
not, directly or indirectly, own, manage, control, participate in, consult
with, render services for, or in any manner engage in, any business competing
with the businesses of the Company or its Subsidiaries as such businesses exist
or are in process or are being demonstrably planned as of the date of termination
, within any geographical area in which, as of the date of termination, the
Company or its Subsidiaries engage or demonstrably plan to engage in such
businesses.  It shall not be considered a
violation of this Section 4(c) for the Employee to be a passive owner
of not more than 2% of the outstanding stock of any class of a corporation
which is publicly traded, so long as the Employee has no active participation
in the business of such corporation.


 


(d)                                 Nonsolicitation.  The Employee hereby agrees that (i) during
the Term and, except as provided in Section 3, for a period of one (1) year
after the date of termination (the “Nonsolicitation
Period”) the Employee shall not, directly or indirectly through
another entity, induce or attempt to induce any employee of the Company or its
Subsidiaries to leave the employ of the Company or its Subsidiaries, or in any
way interfere with the relationship between the Company or its Subsidiaries and
any employee thereof or otherwise employ or receive the services of an individual
who was an employee of the Company or its Subsidiaries at any time during such
Nonsolicitation Period, except any such individual whose employment has been 


 


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terminated by the Company and (ii) during the
Nonsolicitation Period, the Employee shall not induce or attempt to induce any
customer, supplier, client, broker, licensee or other business relation of the
Company or its Subsidiaries to cease doing business with the Company or its
Subsidiaries.


 


(e)                                  Enforcement.  If, at the enforcement of Sections 4(a) through
(d), a court holds that the duration or scope restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration or scope reasonable under such circumstances shall be
substituted for the stated duration or scope and that the court shall be
permitted to revise the restrictions contained in this Section 4 to cover
the maximum duration and scope permitted by law.


 


5.                                       Return of Company Property.  Promptly upon the expiration or sooner
termination of the Term, and earlier if requested by the Company at any time,
the Employee shall promptly deliver to the Company all copies and embodiments,
in whatever form or medium, of all Confidential Information or Intellectual
Property in the Employee’s possession or within his control (including written
records, notes, photographs, manuals, notebooks, documentation, program
listings, flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information or Intellectual Property)
irrespective of the location or form of such material and, if requested by the
Company, shall provide the Company with written confirmation that to the best
of his knowledge all such materials have been delivered to the Company.  This provision shall not prevent the Employee
from retaining his personal property, including his personal information
contained on any electronic device.


 


6.                                       Equitable Relief.  The Employee acknowledges that (a) the
covenants contained herein are reasonable, (b) the Employee’s services are
unique, and (c) a breach or threatened breach by him of any of his
covenants and agreements with the Company contained in Sections 4(a) though
(d) could cause irreparable harm to the Company for which it would have no
adequate remedy at law.  Accordingly, and
in addition to any remedies which the Company may have at law, in the event of
an actual or threatened breach by the Employee of his covenants and agreements
contained in Sections 4(a) though (d), the Company shall have the absolute
right to apply to any court of competent jurisdiction for such injunctive or
other equitable relief as such court may deem necessary or appropriate in the
circumstances.


 


7.                                       Indemnification.


 


(a)                                  General Indemnification.  The Company agrees that if the Employee is
made a party, or is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or investigative (each, a “Proceeding”), by reason of the fact that he
is or was a director, officer or employee of the Company or is or was serving
at the request of the Company as a director, officer, member, employee,
consultant or agent of another corporation, partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Employee’s alleged action in
an official capacity while serving as a director, officer, member, employee,
consultant or agent, the Employee shall be indemnified and held harmless by the
Company to the fullest extent permitted or authorized by applicable law and the
Company’s certificate of incorporation or bylaws, against all cost, expense,
liability and loss (including, without limitation, attorney’s fees, 


 


6

















 


judgments, damages, settlements, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Employee in connection therewith (collectively, the
“Expenses”), and such
indemnification shall continue as to the Employee even if he has ceased to be a
director, member, employee, consultant or agent of the Company or other entity
and shall inure to the benefit of the Employee’s heirs, estate, executors and
administrators.


 


(b)                                 Advances of Expenses.  Expenses to be incurred by the Employee in
connection with any Proceeding shall be paid by the Company in advance within
thirty (30) days after receipt of written request by the Employee specifying
the Expenses for which the Employee seeks an advancement but not later than December 31
of the calendar year following the calendar year in which the expenses are
actually incurred; provided that the Employee has delivered to the Company a
written, signed undertaking to reimburse the Company for Expenses if it is
finally determined by a court of competent jurisdiction that the Employee is
not entitled under this Agreement to indemnification with respect to such
Expenses.


 


(c)                                  Notice of Claim.  The Employee shall give to the Company notice
of any claim made against the Employee for which indemnification shall or could
be sought under this Agreement, but the Employee’s failure to give such notice
shall not relieve the Company of any liability the Company may have to the
Employee except to the extent that the Company is prejudiced thereby.  In addition, the Employee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within the Employee’s power and at such time and places as are
convenient for the Employee.


 


(d)                                 Defense of Claim.  With respect to any Proceeding as to which
the Employee notifies the Company of the commencement thereof:


 


(i)                                     the
Company shall be entitled to participate therein at its own expense; and


 


(ii)                                  except
as otherwise provided below, to the extent that it may wish, the Company shall
be entitled to assume the defense thereof, with counsel reasonably satisfactory
to the Employee.  The Employee also shall
have the right to employ the Employee’s own counsel in such action, suit or
proceeding if the Employee reasonably concludes that failure to do so would
involve a conflict of interest between the Company and the Employee, and under
such circumstances the fees and expenses of such counsel shall be at the
expense of the Company, subject to the provisions herein; and


 


(iii)                               the Company shall not be
liable to indemnify the Employee under this Agreement for any amounts paid in
settlement of any action or claim effected without its written consent.  The Company shall not settle any action or
claim in any manner that would not include a full and unconditional release of
the Employee without the Employee’s prior written consent.  Neither the Company nor the Employee shall
unreasonably withhold or delay their consent to any proposed settlement.


 


8.                                       Termination.  Notwithstanding the provisions of Section 3,
the Company may terminate the Term (a) for any reason upon 60 days’ prior
written notice to the Employee, and (b) immediately upon written notice to
the Employee, in the event of termination for Cause.  The 


 


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Employee may terminate the term of this Agreement for
any reason upon 60 days’ prior written notice to the Company.  In the event of any termination of the Term,
the Company shall be responsible for any unreimbursed expenses and continued
payments as described in Section 3. 
Within five days after any termination of the term of this Agreement,
the Employee shall deliver to the Company all work product resulting from the
performance of the Advisory Services.


 


9.                                       No Conflicting Agreements; Non-Exclusive Engagement.  The Employee represents that the Employee is
not a party to any existing agreement which would prevent the Employee from
entering into and performing this Agreement. 
The Employee shall not enter into any other agreement that is in
conflict with the Employee’s obligations under this Agreement.


 


10.                                 Entire Agreement, Amendment and Assignment.  Except as otherwise provided in a separate writing
between the Employee and the Company, this Agreement is the sole agreement
between the Employee and the Company with respect to the Advisory Services to
be performed hereunder and it supersedes all prior agreements and
understandings with respect thereto, whether oral or written, including, but
not limited to, the Employment Agreement. 
No modification to any provision of this Agreement shall be binding
unless in writing and signed by both the Employee and the Company.  No waiver of any rights under this Agreement
shall be effective unless in writing signed by the party to be charged.  All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, executors, administrators, legal representatives,
successors and assigns of the parties hereto, except that the duties and
responsibilities of the Employee hereunder are of a personal nature and shall
not be assignable or delegable in whole or in part by the Employee.


 


11.                                 Governing Law.  This Agreement shall be governed by and
interpreted in accordance with laws of the State of Delaware without giving
effect to any conflict of laws provisions.


 


12.                                 Notices.  All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, two (2) business days after the date when
sent to the recipient by reputable express courier service (charges prepaid) or
four (4) business days after the date when mailed to the recipient by
certified or registered mail, return receipt requested and postage
prepaid.  Such notices, demands and other
communications shall be sent to the Employee and to the Company at the
addresses set forth below,


 


	
  If to the Employee:

  	
  To the last
  address delivered to the Company by the Employee in the manner set forth
  herein.

  
	
   

  	
   

  
	
  If to the Company:

  	
  Investment Technology Group, Inc.

  
	
   

  	
  380 Madison Avenue

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn:
  General Counsel

  



 


or to such other address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party.


 


13.                                 Counterparts.  This Agreement shall become binding when any
one or more counterparts hereof, individually or taken together, shall bear the
signatures of the Employee and 


 


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the Company. 
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, but all of which together shall constitute but one and the
same instrument.


 


14.                                 Severability.  If any provision of this Agreement or
application thereof to anyone or under any circumstances is adjudicated to be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable
provision or application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.


 


15.                                 Survival.  Sections 5 through 14 shall survive and
continue in full force in accordance with their terms notwithstanding any
termination of the Term, and the Agreement shall otherwise remain in full force
to the extent necessary to enforce any rights and obligations arising hereunder
during the Term.


 


16.                                 Application of Section 409A.


 


(a)                                  This
Agreement is intended to comply with the applicable provisions of section 409A
of the Code and shall be interpreted to avoid any penalty sanctions under
section 409A of the Code.  If any payment
or benefit cannot be provided or made at the time specified herein without
incurring sanctions under section 409A of the Code, 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 of the Code, all payments to be made upon a
termination of employment under this Agreement may only be made upon a “separation
from service” under section 409A of the Code, each payment made 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
shall the Employee, directly or indirectly, designate the calendar year of
payment.


 


(b)                                 All
reimbursements and in kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of section 409A of the Code,
including, where applicable, the requirement that (i) any reimbursement is
for expenses incurred during the Employee’s lifetime (or during a shorter
period of time specified in this Agreement), (ii) the amount of expenses
eligible for reimbursement, or in kind benefits provided, during a calendar
year may not affect the expenses eligible for reimbursement, or in kind
benefits to be provided, 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 or in kind benefits is not subject to liquidation or
exchange for another benefit.


 


[SIGNATURE
PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the
undersigned, intending to be legally bound, have duly executed this Agreement
as of the date first above written.


 


	
   

  	
  INVESTMENT
  TECHNOLOGY GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Robert C. Gasser

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  May 30,
  2008

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Raymond L.
  Killian, Jr.

  



 


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