Exhibit 10.22


 


BNP PARIBAS BROKERAGE SERVICES, Inc.


Order Routing Services Agreement


 


This Agreement sets forth
the terms and conditions under which BNP Paribas Brokerage Services, Inc.
(“BNPPBS”) will provide order routing services to Archipelago LLC (“ARCA”) and
is made as of this 8th day of February, 2001


 


BNPPBS operates an
electronic system (the “System”) for the purpose of routing securities orders
to markets (as described below) for execution. 
ARCA wishes to make use of the System. 
As an accommodation to ARCA, BNPPBS has agreed to provide it with use of
the System on the terms and conditions set forth below.


 


1.             Provisions of the System


 


                                Subject
to the provisions of this Agreement, BNPPBS will provide ARCA, during the term
of this Agreement, use of the System. 
This Agreement may not be assigned or otherwise transferred in whole or
in part by either party without the consent of the other party, provided
however that ARCA may assign this Agreement in the event of the sale of
substantially all of the business to which the Agreement relates, whether by
way of sale of all or substantially all of the stock or assets, merger or
otherwise.


 


                2.             Payment for the System


 


                ARCA shall pay to BNPPBS a
commission equal to 50% of the gross revenue due to ARCA for each transaction,
less any applicable clearing and settlement charges paid by ARCA and any
specialist or execution fees paid by BNPPBS with respect to such
transactions.  BNPPBS separately shall
submit to ARCA within thirty (30) days’ of the previous month and the cost of
any specialist or execution fees in connection with such transactions.  ARCA shall in turn remit to BNPPBS within
thirty (30) days’ receipt of this billing information.


 


3.             Disclaimer of Liability and
Warranties


 


                ARCA understands and agrees that
neither BNPPBS nor any of its affiliates, employees, officers or agents assumes
any responsibility for it’s the System or for the operation of any equipment,
including but not limited to computer equipment and peripherals, server
equipment, communications equipment and data lines (all such equipment,
collectively, the “Equipment”). 
Specifically, but without limiting any of the foregoing, neither BNPPBS
nor any of its affiliates, employees, officers or agents assumes any
responsibility for the availability, timeliness or accuracy of the System.


 


ARCA
has independently evaluated the System and has concluded that direct access to
the System confers a significant benefit to ARCA.  ACCORDINGLY, ARCA ASSUMES ALL LIABILITIES AND RISKS ASSOCIATED
WITH THE USE OF THE SYSTEM.  Each
routing of an order by ARCA through the System will constitute a renewed
assumption of such liabilities and risks.


 

















 


ARCA,
for itself and all other parties for which it is responsible or authorized to
act, agrees that, other than occasioned by BNPPBS’s gross negligence, willful
misconduct or violation of law or regulation, neither BNPPBS, nor any
affiliate, employee, officer, or agent of any of them, shall be liable for any
loss, damage, cost or expense whatsoever, direct or indirect, regardless of the
cause, which may arise out of or be in any way related to the use of the System
provided pursuant to this Agreement, including but not limited to: (i) any
fault in the delivery or operation of the System or the Equipment, regardless of
the cause of such fault; (ii) the suspension or termination of, or the
inability to use, all or part of the System, or any inaccuracies or omissions
in any information or documentation provided, regardless of the cause of such
suspensions, termination, non-usabilities, inaccuracies or omissions; (iii) any
faults in or failure of the operation of the System; (iv) any failure or delay
suffered or allegedly suffered by ARCA in concluding trades, however caused;
(v) the termination of all or part of this Agreement by BNPPBS as provided in
this Agreement; (vi) any Trading Halt; (vii) any inaccurate marker data, news
information, quotations, or analytical or technical market data; or (viii) any
other cause in connection with the furnishing, performance, maintenance, or use
of, or inability to use, all or any part of the System.  The foregoing shall apply regardless of
whether a claim arises in contract, tort, negligence, strict liability or
otherwise.


 


In
no event will BNPPBS be liable for any incidental, indirect or consequential
damages, including but not limited to loss of use, revenues, profits, or
savings, whether such damages or losses are those of ARCA or of any third
party, even if BNPPBS knew or should have known of the possibility of such
damages or losses, and even if due to BNPPBS’s error or omission.


 


4.                                       Representations,
Warranties and Covenants


 


The
Parties warrant that:


 


(a)           Neither party will
permit none other than authorized persons to operate the System or enter orders
in the System, as applicable, and confirms that all such persons shall be
properly supervised;


 


(b)           Both parties will
use the System only for executing trades for approved accounts and, in the
ordinary course of his business, will not use or permit the use of the System
for any illegal or improper purpose, and will use the System solely in
accordance with the terms of this Agreement; and


 


(c)           With out the prior
written approval of BNPPBS, ARCA will not use the System or permit the System
to be used for executing orders which would constitute “Program trading” as
that term is defined by rules of the New York Stock Exchange and the National
Association of Securities Dealers Regulation.


 


5.                                       Indemnification


 


ARCA
will defend and indemnify BNPPBS and its affiliates, employees, officers and
agents from, and hold them harmless against, any claim, damage, loss, cost or
liability; (i) based on or related to any claim of damage, loss, cost or
liability by ARCA, any customer of ARCA


 


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directly from the use by
ARCA, or any customer of ARCA, of the System, or (ii) suffered by BNPPBS as a
direct result of any regulatory actions, suits, causes of action, claims,
counterclaims, fines, judgments or the defense of any such or similar
proceedings directly from use of the System by ARCA, any inaccuracy in any
representation or warranty, or any breach of a covenant made by ARCA in this
Agreement, or any wrongdoing, act or omission of ARCA; provided, however, that
ARCA shall not defend or indemnify BNPPBS or its affiliates, employees,
officers or agents for any special, incidental or consequential damages arising
out of ARCA’s use of the System.


 


ARCA
understands that it must monitor the System at all times for execution reports
and immediately report to the BNPPBS any failure to receive execution reports
that appear to be due ARCA.


 


BNPPBS
will defend and indemnify ARCA and its affiliates, employees, officers and
agents from, and hold them harmless against, any claim, damage, loss, cost or
liability: (i) based on or related to any claim of damage, loss, cost or
liability by ARCA or any third party claim against ARCA directly from BNPPBS
providing the System in a negligent actions, suits, causes of action, claims,
counterclaims, fines, judgments or the defense of any such or similar
proceedings directly from the provision of the System by BNPPBS, any
inaccuracy in any representation or warranty, or any breach of a covenant made
by BNPPBS in this Agreement, or any wrongdoing, act or omission of BNPPBS;
provided, however, that BNPPBS shall not defend or indemnify ARCA or its
affiliates, employees, officers or agents for any special, incidental or
consequential damages arising out of BNPPBS’s provision of the System.


 


6.                                       Apparent
Authority


 


                                ARCA is solely responsible for the
use of the System by RCA, its employees, its agents and any individual with
apparent authority to use the System (collectively referred to as “Authorized
Agents”).  Any order entered shall be
deemed to be entered by an Authorized Agent so long as the access is gained
through use of ARCA’s logon and password and/or BNPPBS reasonably believes that
the order entered is genuine.  Any
claims, liabilities, damages, losses or fines assessed as a result of any order
entered by an Authorized Agent, regardless of whether entered by mistake, shall
be borne by ARCA.


 


7.                                       Short and Long
Sell Orders


 


                                With respect to
the rules promulgated by the Securities and exchange Commission under Section
10(a) of the Securities Exchange Act of 1934, ARCA hereby undertakes and agrees
to properly designate all sell orders for securities as either “long” or
“short” and in the case of short orders the parties agree that such “short”
designation obligates ARCA to borrow the stock without further representation
or confirmation that the stock is available to borrow.


 


8.                                       Governing Law


 


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                                This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without regard to such jurisdiction’s conflicts of law principles.


 


9.                                       Arbitration


 


                                (a)           Any controversy between BNPPBS and
ARCA arising out of or relating to this agreement shall be resolved through
arbitration to be held before the New York Stock Exchange, the American Stock
Exchange, or the National Association of Securities Dealers, Inc. in accordance
with the rules then pertaining. 
Arbitration must be commenced by service upon either party hereto of a
written demand or a written notice of intention to arbitrate.  The arbitration award shall be final and
judgment upon the award may be entered in any court having jurisdiction.


 


                                (b)           The parties expressly agree that any
trade secrets or proprietary or confidential information of either party shall
be disclosed during arbitration only upon the issuance of appropriate
protective orders limiting the disclosure or discoverability of such
information outside of the arbitration of this Agreement.


 


10.                                 Term and
Termination


 


                                (a)           Either party shall have the right to
terminate this Agreement with or without cause upon at least thirty (30) days’
written notice to the other party.


 


                                (b)           Notwithstanding the foregoing, either
party may terminate this Agreement immediately if:


 


(i)                                     the other party
breaches any terms of or obligations under this Agreement; or


 


(ii)                                  Any of the
following occurs:


 


(a)           the other party becomes
insolvent or unable generally to pay its debts as they become due;


 


(b)          The other party makes an
assignment for the benefit of creditors or applies business or assets, or both;


 


(c)           A trustee, custodian, or
receiver is appointed for the other party or all or part of their assets, and
they fails to obtain a discharge of such appointments within thirty (30) days
after the institution of the proceedings;


 


(d)          Proceedings in the nature of
bankruptcy, reorganization, arrangement, or any proceedings for liquidation or
dissolution of the other party are commenced, whether voluntary or involuntary.


 


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13.           Independence of
Parties


 


                Nothing in this
Agreement shall be construed to create a joint venture, agency or partnership
between ARCA and BNPPBS.


 


14.           Benefit of
Agreement; Assignment


 


                This Agreement
shall be binding on the parties hereto and shall inure to the benefit of, and
be binding upon, the successors and assigns of the parties hereto.


 


15.           Entire Agreement


 


                This Agreement
constitutes the entire agreement between the parties with respect to the
System, and supersedes all prior and contemporaneous agreements,
understandings, and commitments between BNPPBS and ARCA with respect to the
subject matter hereof.  Except as
otherwise provided in this Agreement, no modification, waiver or amendment of
any of the provisions of this Agreement, by course of dealing or otherwise,
will be effective unless approved in writing by the parties hereto.  The failure of BNPPBS or ARCA at any time to
enforce any of the provision of this Agreement will no way be construed as a
waiver of such provisions and will not affect the right of BNPPBS or ARCA
thereafter to enforce each and every provision hereof in accordance with its
terms, and any waiver of any provision of this agreement shall be effective
only if given in writing by the applicable party.


 


16.           Severability


 


                If any one or more
of the provisions of this Agreement is held to be unenforceable or void, such
provision will be limited and construed so as to make it enforceable or, if
such limitation or construction is not possible or would be inconsistent with
the parties’ manifest intentions, such provisions will be deemed stricken from
this Agreement.  In any event, all other
provisions of this Agreement will remain in full force and effect.


 


17.           Notices


 


                All notices sent
to the other party pursuant to this Agreement that are required to be in
writing shall be delivered by hand, by certified or registered mail, or by
overnight courier, to the address of BNPPBS or ARCA set forth at the end of
this Agreement, or to such other person or address as BNPPBS or ARCA shall give
notice pursuant to this Section.  All
notices shall be deemed received on the date of delivery if hand delivered, on
the date scheduled for delivery if sent by courier, or on the date of receipt
appearing on the return receipt if mailed.


 


18.           Captions


 


                The captions and
other headings contained in this Agreement are the reference only and shall not
affect the meaning or interpretation of this Agreement.


 


19.           Counterparts


 


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                This Agreement may
be executed in one or more counterparts, all of which taken together shall
constitute one instrument.


 


20.           Authorization


 


                Each party to this
Agreement represents and warrants to the other that it has full power and
authority to enter into this agreement, and that this Agreement has been
validly authorized, executed, and delivered.


 


ARCA
acknowledges that it has read, it understands, and it agrees to be bound by the
terms and conditions of this Agreement.


 


	
  BNP Paribas Brokerage
  Services, Inc.

  	
  Archipelago, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ THOMAS J. MAHONEY

  	
  By:

  	
  /s/ MIKE CORMACK

  
	
  Name:

  	
  Thomas J. Mahoney

  	
  Name:

  	
  Mike Cormack

  
	
  Title:

  	
  President

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notice:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Archipelago, LLC

  	
   

  
	
  BNP Paribas Brokerage
  Services, Inc.

  	
  100 South Wacker Drive,
  Suite 2000

  
	
  555 Croton Road, 3rd
  Floor

  	
  Chicago, IL 60606

  
	
  King of Prussia, PA 19406

  	
   

  	
   

  	
   

  
	
  Attn:

  	
  Fred Hoevenaar

  	
  Phone #: 888-514-7284

  	
   

  	
   

  
	
   

  	
  Compliance Department

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
								



 


 


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