EXHIBIT 10. 4


 


SUPPORT, DEVELOPMENT AND ENHANCEMENT
AGREEMENT


 


 


AGREEMENT, dated as of January 7, 1999 (the “Effective Date”), by
and between ARCHIPELAGO HOLDINGS, L.L.C., a Delaware limited liability company
with its principal offices located at 100 South Wacker Drive, Suite 2060,
Chicago, IL 60606, and TOWNSEND ANALYTICS, LTD., an Illinois corporation with
its principal offices located at 100 South Wacker Drive, Suite 2040, Chicago,
Illinois 60606 (“TAL”).


 


 


WITNESSETH:


 


WHEREAS, Archipelago Holdings, L.L.C., through its Affiliates, will
operate an electronic communications network (“ECN”) as contemplated by the
Limited Liability Company Agreement of Archipelago Holdings, L.L.C.;


 


WHEREAS, TAL has developed certain software for operating an ECN and
has licensed the Software to Archipelago;


 


WHEREAS, TAL is willing to provide certain services for such software,
and if necessary train employees of Archipelago to do so, and Archipelago is
willing to accept such services, pursuant to the terms and subject to the
conditions set forth below;


 


NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, Archipelago Holdings, L.L.C. and TAL hereby agree and
contract with one another as follows:


 


 


ARTICLE I


 


 


DEFINITIONS


 


1.1                                 DEFINITIONS. For the
purpose of this Support Agreement, the following terms shall have the following
meanings:


 


“Affiliate” shall mean with respect to any Person (i) any other Person
that directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such Person, (ii) any other
Person owning or controlling 25% or more of the outstanding voting securities
of or other ownership interests in such Person or (iii) any officer, director,
manager or partner of such Person.


 


“Archipelago” means Archipelago Holdings, L.L.C., a Delaware limited
liability company that is the signatory to this Support Agreement and all
Affiliates of Archipelago Holdings, L.L.C. existing as of the Effective Date or
any entity that shall in the future become an Affiliate of Archipelago
Holdings, L.L.C.


 


“Business Day” means any day other than a Saturday, a Sunday or a day
on which banking institutions in Chicago, Illinois are authorized or obligated
by law, regulation or executive order to be closed.


 

















 


“Development” means any fix, update, upgrade, development, improvement
or modification of the Software, including new versions and new releases,
resulting from a request from Archipelago pursuant to this Support Agreement.


 


“Development Team” means the then-current TAL employees who from time
to time produce Enhancements or Developments and maintain and support the
Software pursuant to the terms herein.


 


“Documentation” means all written or electronically recorded materials
prepared by or on behalf of TAL relating to the Software, including all
Functional Specifications and Technical Specifications.


 


“Enhancements” means fixes, updates, upgrades, developments,
improvements or modifications of the Software, including new versions and new
releases, or any part thereof, developed by TAL or it Affiliates independently
of any request by Archipelago for a Development under this Support Agreement or
otherwise acquired by TAL or its Affiliates during the term of this Support
Agreement.


 


“Functional Specifications” means the operational capabilities of the
Software and the Enhancements thereto.


 


“Governmental Body” means any supranational body or organization,
country or government (federal, state, local or foreign), any governmental or
regulatory body thereof, any political subdivision thereof, any agency,
instrumentality or authority thereof, any self-regulatory organization the
rules and regulations of which are enforceable by law(including any such
securities, futures or commodity exchange), or any court of competent
jurisdiction.


 


“License Agreement” means the license agreement dated as of the
Effective Date between Archipelago and TAL for use of the Software.


 


“Software” shall have the meaning ascribed to it in the License
Agreement.


 


“Source Code” means the form of code for the Software, which is human
readable and which can be translated by a compiler for execution on
Archipelago’s computer.


 


“Support Agreement” means this Support, Development and Enhancement
Agreement.


 


“Technical Specifications” means the technical specifications
developed, licensed or acquired by or on behalf of TAL or its Affiliates for or
in connection with the Software.


 


“Termination Date” means the date which is the earlier to occur of the
dates for termination set forth in Article IX.


 


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ARTICLE II


 


SUPPORT AND MAINTENANCE


 


2.1                                 SUPPORT. Between the
hours of 7:30 AM and 4:30 PM CST on Business Days, TAL shall provide to
Archipelago maintenance and support services for the Software. TAL will cause
at least one (1) employee to be available to maintain a log of and respond to
inquiries concerning the Software during those hours. TAL will perform all
maintenance and support services, including the correction of problems noted by
Archipelago, on a “best efforts” basis. TAL will attempt to resolve either the
problem or provide a plan for resolution of problems for critical problems, as
reasonably described by Archipelago, within twenty-four (24) hours during a
business week, and for noncritical problems within seven (7) Business Days.


 


2.2                                 ENHANCEMENTS TO THE
SOFTWARE. TAL agrees to provide, or offer to provide, to Archipelago, any and
all Enhancements to the Software prior to the Termination Date. All
Enhancements completed prior to the Termination Date shall be considered
Software under the License Agreement, and Archipelago shall have the rights to
such Software specified in the License Agreement.


 


ARTICLE III


 


DEVELOPMENTS


 


3.1                                 DEVELOPMENTS. Upon
Archipelago’s reasonable request, TAL agrees to use its reasonable best efforts
to create Developments to the Software according to an agreed-upon Development
Schedule. Any Development that is not substantially complete at (x) in the case
this Support Agreement is terminated other than pursuant to Section 9.4(a),
the Termination Date or (y) in the case this Support Agreement is terminated
pursuant to Section 9.4(g), the date for termination provided in TAL’s
notice to Archipelago pursuant to Section 9.4(a), shall be delivered to
Archipelago in its work-in-progress form on or promptly following the
Termination Date. Any such incomplete Development delivered to Archipelago in
its work-in-progress form shall be the property of TAL in accordance with
Section 4.1 unless Archipelago and TAL shall have otherwise agreed with
respect to such Development.


 


3.2                                 Development Schedule.
Following receipt of a request for an Development, TAL shall promptly provide
Archipelago with a Development Schedule. If Archipelago approves of the
Development Schedule, TAL shall use its reasonable best efforts to develop the
Development pursuant to the Development Schedule.


 


3.3                                 Acceptance of
Developments and Enhancements. Unless Archipelago notifies TAL in writing
within sixty (60) days of its receipt of any Development or Enhancement that
there are deficiencies in, or that further work is required with respect to,
such Development or Enhancement, such Development or Enhancement shall be
deemed to have been accepted by Archipelago and shall be installed without
liability to either party. If Archipelago accepts such Development or
Enhancement, it shall upgrade its installation of Software within a reasonable
period of time.


 


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ARTICLE IV


 


OWNERSHIP


 


4.1                                 SOFTWARE DEVELOPED BY
PARTIES. Any modification or enhancement of, or derivative work relating to,
the Software developed by Archipelago or any third party consultants hired by
Archipelago, will be the property of Archipelago. Any Enhancements developed or
acquired by TAL will be property of TAL and shall be considered Software under
the License Agreement, and Archipelago shall have the rights to such Software
specified in the License Agreement. Unless otherwise agreed to at the time of a
request for a Development or thereafter, any Development (including incomplete
Developments delivered to Archipelago pursuant to Section 3.2) shall be
the property of TAL and shall be considered Software under the License
Agreement, and Archipelago shall have rights to such Software as specified in
the License Agreement.


 


ARTICLE V


 


PAYMENT FOR SUPPORT, MAINTENANCE AND
DEVELOPMENT


 


5.1                                 TERMS OF PAYMENT. In
consideration of the services to be provided to Archipelago by TAL pursuant to
this Support Agreement, Archipelago will pay to TAL a fee of $83,333 for each
month during the term of this Support Agreement, with the first payment being
made on the date of this Support Agreement and each subsequent payment being
made on or before the tenth (10th) day of each subsequent month (a “Payment
Date”). In the event of any early termination of this Support Agreement by
mutual agreement of the parties or pursuant to Article IX hereof on a date
that is not the last day of a month, TAL shall return to Archipelago a pro rata
portion of the fee paid with respect to the final month of this Support
Agreement, based on the number of days during such month in which this Support
Agreement remains in effect and the actual number of days in such month.


 


5.2                                 REVIEW OF TERMS. Six
(6) months from the Effective Date , and thereafter upon sixty (60) days notice
from either party, representatives of both TAL and Archipelago shall meet to
review the terms of this Support Agreement. Specifically, the parties shall
discuss whether the fee paid hereunder is reasonable, or whether the basis for
the fee should be restructured to reflect ECN transactions and whether TAL’s
response to Archipelago’s Development requests have been adequate. Upon mutual
agreement the parties may amend the Support Agreement. In the event that the
parties are unable to mutually agree upon any such terms, either party may
terminate this Support Agreement pursuant to the terms of Section 9.3 or
9.4, as appropriate.


 


ARTICLE VI


 


TRAINING


 


6.1                                 INSTALLATION AND
OPERATION OF SOFTWARE. As reasonably requested by Archipelago from time to
time, TAL shall train persons designated by Archipelago in the installation and
operation of the Software. Training shall occur at TAL’s principal office
location, or at any other location reasonably requested by Archipelago.
Archipelago shall reimburse TAL for reasonable out-of-pocket expenses for
travel required for such training.


 


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6.2                                 USE OF SOURCE CODE.
TAL shall, if requested by Archipelago, provide personnel from the Development
Team, or other TAL employees assigned to assist the Development Team, to train
persons designated by Archipelago in the use of the Source Code, provided that
any such training in the use of the Source Code shall not exceed four (4)
months in length unless mutually agreed by Archipelago and TAL. Training shall
occur at TAL’s principal office location, or at any other location reasonably
requested by Archipelago. If training is at any other location, Archipelago
shall reimburse TAL for reasonable out-of-pocket expenses for travel and living
required for such training. The training period shall begin as soon as
reasonably possible after request by Archipelago and shall last as long as
reasonably requested by Archipelago and for so long as this Support Agreement
is in effect and Archipelago continues to pay the fees required under this
Support Agreement.


 


ARTICLE VII


 


TAL PERSONNEL


 


7.1                                 DEVELOPMENT
TEAM.


 


(a)                                  TAL shall
periodically identify certain employees as part of the Development Team and
shall cause these employees to dedicate substantial efforts to provide the
services described in Sections 2.2 and 3.1 above, and to the training described
in Article VI above, if necessary. TAL shall use its reasonable best
efforts to ensure that the Development Team and any other TAL employees
assigned to assist the Development Team has the knowledge and skills necessary
to perform services required herein. Furthermore, TAL shall cause Stuart
Townsend, President of Townsend Analytics, for so long as he continues to be
employed by TAL or an Affiliate of TAL, to supervise the Development Team. This
Section 7.1 does not restrict TAL’s ability to assign other employees who
are not members of the Development Team to assist in the services provided
pursuant to this Support Agreement.


 


(b)                                 TAL shall use its
reasonable best efforts to ensure the continuity and professional quality of
its employees that are assigned to perform services under this Support
Agreement. In the event TAL reassigns any of its employees assigned to perform
such services under this Support Agreement, TAL will use its reasonable best
efforts to provide a suitable replacement. TAL shall give Archipelago prompt
notice of such reassignment.


 


7.2                                 ASSIGNMENT. TAL will
cause all employees and consultants of TAL who assist TAL in performing its
obligations under this Support Agreement to execute assignment agreements in
form and substance reasonably satisfactory to Archipelago which acknowledges
that TAL has and/or the employee assigns all right, title and interest in and
to software developed by such employees or consultants to TAL where
appropriate. TAL shall also cause all employees and consultants who assist TAL
in the performance of its obligations under this Support Agreement to execute a
confidentiality agreement, in form and substance reasonably acceptable to
Archipelago.


 


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7.3                                 NON-SOLICITATION.


 


(a)                                  Archipelago shall
not, without TAL’s express written permission, hire prior to the Termination
Date and for a period of one year after the Termination Date, either as
employees or consultants, any person who is then a TAL employee or TAL
consultant or hire any person who was a TAL employee or TAL consultant during
one (1) year immediately preceding the date of such proposed hire.


 


(b)                                 In the event of (i)
the sale, transfer, lease, assignment or other disposition by TAL, to or in
favor of a Person who is not an Affiliate of TAL’s, of all or more than a de
minimis portion of TAL’s businesses or assets relating to TAL’s performance
hereunder or the sale of common equity or other equity in TAL that would result
in Stuart and/or MarrGwen Townsend not holding a controlling position in TAL,
or (ii) TAL’s termination of this Support Agreement pursuant to
Section 9.4, the restrictions of Section 7.3(a) shall not apply.


 


ARTICLE VIII


 


ITEMS PROVIDED BY ARCHIPELAGO


 


8.1                                 ARCHIPELAGO’S
RESPONSIBILITIES. Archipelago shall arrange for and situate at TAL’s principal
office or at such locale as Archipelago reasonably designates, such materials,
including data feeds, order feeds, and other equipment and services, which TAL
and Archipelago mutually agree are necessary for the purposes of developing and
maintaining the Software (“Materials”). Archipelago shall be responsible for
payment of exchange fees and other fees related to the data feeds and any
services required to utilize the Software. With respect to other materials that
are not otherwise provided by Archipelago pursuant to this Section 8.1 and
which are necessary for TAL to fulfill its obligations under this Support
Agreement, TAL acknowledges and agrees that it shall be responsible for
acquiring all such materials.


 


8.2                                 RETURN OF MATERIALS.
Upon the termination of this Support Agreement and pursuant to Archipelago’s
specific written request, TAL will promptly return to Archipelago any Materials
which are located at TAL’s offices. Archipelago shall bear the reasonable
expenses of TAL for of removing and returning any Materials from TAL.


 


ARTICLE IX


 


TERM OF AGREEMENT; TERMINATION


 


9.1                                 TERM OF AGREEMENT. The
term of this Support Agreement will commence on the Effective Date and shall
remain in effect for five (5) years. The Support Agreement shall renew
automatically for successive five (5) year periods, unless terminated earlier
by a party in accordance with this Article IX.


 


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9.2                                 TERMINATION BY EITHER
PARTY. Either party (in such capacity, the “Terminating Party”; the other party
being referred to as the “Other Party”) may terminate this Support Agreement:


 


(a)                                  if the Other Party
shall commit a material breach of this Support Agreement and the resulting
breach shall not have been remedied within fifteen (15) days after notice
thereof to the Other Party from the Terminating Party (which fifteen (15) day
period shall be extended to thirty (30) days if and to the extent that such
breach cannot reasonably be remedied during such fifteen (15) day period, and
the Other Party demonstrates to the Terminating Party that it is diligently
pursuing the remedy of such breach throughout such thirty (30) day period).


 


(b)                                 (x) if the Other Party
shall generally fail to pay its debts in the ordinary course of its business,
or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors or any proceeding shall
be instituted by or against the Other Party seeking to adjudicate it a bankrupt
or insolvent, or seeking reorganization under any law relating to bankruptcy
and in the case of any proceeding instituted against the Other Party, such
proceeding shall not be stayed or dismissed within thirty (30) days from the
date of institution thereof or (y) the Other Party shall take any action to
authorize any of the actions set forth in clause (x).


 


9.3                                 TERMINATION BY
ARCHIPELAGO. Archipelago may terminate this Support Agreement for any reason
upon ninety (90) days’ prior written notice to TAL.


 


9.4                                 TERMINATION BY TAL.


 


(a)                                  TAL may terminate
this Support Agreement for any reason upon ninety (90) days’ prior written
notice to Archipelago, which notice shall not be effective prior to
July 7, 1999, subject to clause (b) of this Section 9.4..


 


(b)                                 In the event of
termination pursuant to Section 9.4(a), Archipelago may request that TAL
train Archipelago personnel in the use of the Source Code in accordance with
the provisions of Article VI. The training period shall commence as soon
as practicable after the date of the notice of termination and shall continue
until four (4) months thereafter. This Support Agreement shall terminate
effective as of the end of such four (4) month period. During any such
training, TAL will continue to support and maintain the Software pursuant to
Article II. The parties hereto agree that money damages or any other
remedy at law would not by itself be sufficient or adequate remedy for any
breach or violation of, or a default under, this Section 9.4(b) by TAL and
that in addition to all other remedies available to Archipelago, Archipelago
shall be entitled to seek an injunction restraining such breach, violation or
default or threatened breach, violation or default and to any other equitable
relief, including, without limitation, specific performance,


 


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and TAL shall not contest such relief on the basis that there is an
adequate remedy at law for any such breach, violation or default, or such
threatened breach, violation or default.


 


ARTICLE X


 


CONFIDENTIALITY


 


10.1                           DISCLOSURE
OF CONFIDENTIAL INFORMATION.


 


(a)                                  The parties
acknowledge that each party (in such capacity, a “Disclosing Party”) has
disclosed or will disclose certain Confidential Information to the other and
its Affiliates (in such capacity, a “Receiving Party”). For purposes hereof,
and subject to the provisions of Section 10.2, the term “Confidential
Information” means (i) the Software and Documentation, (ii) any information
relating to the Disclosing Party or its Affiliates and designated in writing as
confidential, proprietary or marked with words of like import, (iii) any information
relating to the Disclosing Party or its Affiliates that is orally conveyed, if
the Disclosing Party provides specific written notice that such oral
communication shall be deemed Confidential Information and delivers such
writing to the Receiving Party within ten (10) days of the oral conveyance and
(iv) any information that the Receiving Party should know in its reasonable
business judgment is the Confidential Information of the Disclosing Party.


 


(b)                                 The Receiving Party
acknowledges the confidential and proprietary nature of the Confidential
Information and agrees not to reveal or disclose any Confidential Information
for any purpose (except as permitted by the second immediately succeeding
sentence) to any other Person who is not an employee, manager, consultant,
member or Affiliate of the Receiving Party, or to use any Confidential
Information for any purpose other than as contemplated hereby, in each case,
without the prior written consent of the Disclosing Party. The Receiving Party
agrees to maintain adequate security procedures and take reasonable precautions
(no less rigorous than the Receiving Party takes with respect to its own
comparable Confidential Information, but, in no event, less than due diligence
and care) to prevent misuse, unauthorized or inadvertent disclosure or loss of
the Confidential Information of the Disclosing Party. In the event that a
Receiving Party wishes to disclose Confidential Information to one of its
professional advisors, consultants, agents or business partners it may do so
only if such third party agrees to abide by the terms of this Article X.


 


10.2                           EXCLUSIONS. Notwithstanding
anything contained herein to the contrary, Confidential Information shall not
include information which:


 


(a)                                  at or prior to the
time of disclosure by the Disclosing Party was known to the Receiving Party
other than by reason of unlawful appropriation by the Receiving Party.


 


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(b)                                 at or after the time
of disclosure by the Disclosing Party becomes generally available to the public
through no act or omission on the Receiving Party’s part;


 


(c)                                  is developed by the
Receiving Party independent of any Confidential Information it receives from
the Disclosing Party;


 


(d)                                 is received by the
Receiving Party from a third party not known by the Receiving Party not to be
free to make such disclosure without breach of any legal obligation; or


 


(e)                                  is required to be
disclosed pursuant to any statute, regulation, order, subpoena or document
discovery request, provided that prior written notice of such disclosure is
furnished to the Disclosing Party as soon as practicable in order to afford the
Disclosing Party an opportunity to seek a protective order (it being agreed
that if the Disclosing Party is unable to obtain or does not seek a protective
order and the Receiving Party is legally compelled to disclose such
information, disclosure of such information may be made without liability).


 


10.3                           NOTIFICATION OF PROHIBITED
USE OR DISCLOSURE. The Receiving Party shall notify the Disclosing Party
promptly upon discovery of any prohibited use or disclosure of the Confidential
Information, or any other breach of this Article by the Receiving Party,
and shall fully cooperate with the Disclosing Party to help the Disclosing Party,
to the extent practicable, regain possession of the Confidential Information
and prevent the further prohibited use or disclosure of the Confidential
Information.


 


10.4                           THIS SUPPORT AGREEMENT. The
terms of this Support Agreement shall be deemed to be Confidential Information
of both parties but may be disclosed by Archipelago to its permitted
sublicensees and prospective sublicensees who agree to be bound by the
confidentiality provisions of the Support Agreement.


 


ARTICLE XI


 


LIMITATION OF LIABILITY


 


11.1                           LIMITATION OF LIABILITY.
Each party understands, acknowledges and agrees that neither party or any of
its Affiliate, nor any partner, member, officer, director, manager, employee or
agent of either party (collectively, the “TAL Persons” or the “Archipelago
Persons,” as the case may be) shall have any liability arising out of or
related to the provision of software, technology or Services pursuant to this
Support Agreement, Archipelago’s use of the software, technology or Services
provided under this Support Agreement or the results achieved by Archipelago’s
use of such software, technology or Services, nor shall any TAL Person or
Archipelago Person have any liability for any loss of profit, loss of business
or other damage whatsoever arising or directly or indirectly from the provision
of software, technology or Services pursuant to this Support agreement or the
performance or non-performance by TAL or Archipelago (as the case may be) of
its duties under this Support Agreement, or resulting directly or indirectly
from any failure of or inadequacy or error made by TAL or


 


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Archipelago (as the case may be), except to the extent caused by or
resulting from the gross negligence, willful misconduct or unlawful acts of the
other party or its members, managers, officers, employees or agents and to the
extent provided for in Section 9.4(b). In no event shall TAL have
liability to Archipelago for any loss or damage whatsoever resulting from any
action taken by TAL at the express direction of any manager, member, director,
officer, employee or agent of the Company (it being understood that any such
manager, member, director or officer, employee or agent that is also a TAL
Person or a manager of Archipelago designated by Virago Enterprises, L.L.C.,
TAL or TAL Persons shall not be deemed to be providing any direction as a
manager, member, director, officer, employee or agent of Archipelago).
Archipelago agrees that TAL’s liability for damages, if any, shall not in any
event exceed the charges paid to TAL by the Company under this Support
Agreement. No action, regardless of form, arising out of any software,
technology or Services provided, or any transaction under, this Support
Agreement may be brought by either party more than one year after the party
bringing such action has knowledge or should reasonably have had knowledge of
the occurrence or omission that would give rise to the cause of such action.


 


Notwithstanding any other provision of this Support Agreement, in no
event shall either party or any of its Affiliates, or any TAL Person or
Archipelago Person, be liable for any special, incidental, indirect,
consequential or punitive damages of any kind, whether in tort (including
negligence), contract or otherwise, whether or not that party or any of its
Affiliates, or any TAL Person or any Archipelago Person, shall have been
advised of or otherwise might have anticipated the possibility of such damages,
and each party agrees not to seek such damages.


 


In any threatened, pending or completed action, suit or proceeding, TAL
and each TAL Person shall be fully protected and indemnified and held harmless
by Archipelago, and Archipelago and each Archipelago Person shall be fully
protected and indemnified and held harmless by TAL, against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
proceedings, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, reasonable attorneys’ fees, costs of investigation,
fines, judgments and amounts paid in settlement, actually incurred by TAL or a
TAL Person, or any Archipelago or an Archipelago Person (as the case may be),
in connection with such action, suit or proceeding) arising out of or related
to the provision of the software, technology or Services provided for under
this Support Agreement, Archipelago’s use of the software, technology or
Services provided under this Support Agreement, or the results achieved by
Archipelago’s use of such software, technology or Services or with respect to
any action or omission taken or suffered in good faith, to the extent such
liabilities and losses result from the gross negligence, willful misconduct or
unlawful acts of TAL or a TAL Person or of Archipelago or any Archipelago
Person (as the case may be). The provisions of this Section 11.1 shall not
apply with respect to any claims under the License Agreement, the License and
Distribution Agreement, dated as of the Effective Date, between Archipelago and
TAL, or the Townsend Analytics Assistance Agreement, dated as of the Effective
Date, between Archipelago and TAL.


 


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ARTICLE XII


 


MISCELLANEOUS


 


12.1                           TAXES. TAL will be
responsible for paying, as and when due, any income taxes required to be paid
in connection with the amounts payable to it under Section 5.1 and 9.4 and
for any employer withholding taxes of TAL employees and TAL consultants.


 


12.2                           FEES. Archipelago shall be
responsible for paying any and all fees and taxes, including, without
limitation, any sales and use taxes, related to the use of the Software which
may be charged or applied by the SEC, the NASD, or other regulatory and/or
Governmental Bodies.


 


12.3                           WAIVER OF COMPLIANCE. Any
failure of either party to comply with any obligation hereunder may be
expressly waived in writing by the other party, but such waiver or failure to
insist upon strict compliance with such obligation shall not operate as a
waiver of, or estoppel with respect to, any subsequent failure.


 


12.4                           NOTICES. Any notice or other
communication required or permitted hereunder shall be in writing, and shall
have been sufficiently given if hand delivered, signature required, if sent by
certified or registered mail, return receipt required, if sent by overnight
delivery service, signature required, or if sent by telecopy and promptly
confirmed by dispatching the hard copy by another permitted method of giving
notice. Notice given by hand delivery, certified or registered mail or
overnight delivery service shall be effective upon receipt of signature, and
notice first given by telecopy shall be effective upon telephonic confirmation
of receipt of the appropriate number of pages and dispatch of the hard copy.
Notices or other communications shall be delivered or telecopied to the address
or telecopy number set forth below (or to such other address or telecopy number
as a party by notice to the other may provide):


 


If to Archipelago, to:


 


Archipelago Holdings, L.L.C.


100 South Wacker Drive, Suite 2060


Chicago, IL 60606


Fax:


Voice number for confirmation: 312-960-1314


Attention:  Chief Executive
Officer


 


If to TAL, to:


 


Townsend Analytics; Ltd.


100 South Wacker Drive


Suite 2040


Chicago, Illinois 60606


Attention: President


 


12.5                           Consent to Jurisdiction.
Each party consents specifically to the


 


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non-exclusive jurisdiction of the federal courts of the United States
sitting in the Northern District of Illinois and the courts of the State of
Illinois sitting in the County of Cook (and any court to which an appeal
therefrom may be taken) for purposes of all legal proceedings arising out of or
relating to this Support Agreement or the transactions contemplated hereby, and
each party irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Each party
irrevocably waives its right to a trial by jury and consents that service of
process may be effected by mail in accordance with the notice provisions
contained in this Section 12.5.


 


12.6                           CAPTIONS. The
Article and Section captions in this Support Agreement are inserted
for convenience of reference only, do not constitute part of this Support
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.


 


12.7                           COMPLETE AGREEMENT;
AMENDMENTS. This Support Agreement (including the Exhibits and Schedules)
contains, and is intended as, a complete statement of the arrangements between
the parties with respect to its subject matter and supersedes all prior
agreements between the parties with respect to those matters. This Support
Agreement may not be amended, supplemented or modified except by written
agreement executed by both parties.


 


12.8                           SEVERABILITY. If any term or
clause of this Support Agreement is held to be illegal, invalid or
unenforceable, the validity or enforceability of the remainder of this Support
Agreement shall not be affected thereby. If any Governmental Body construes any
term or clause of this Support Agreement to be unreasonable because of the
duration of such term or clause, such Governmental Body shall have the power to
reduce the duration of such term or clauses and to enforce such term or clause
as so reduced.


 


12.9                           COUNTERPARTS. This Support
Agreement may be executed in any number of counterparts, each such counterpart
shall be an original instrument, and all such counterparts shall together
constitute the same agreement.


 


12.10                     SURVIVAL. The following Sections
shall survive termination of this Support Agreement: 4.1, 7.3 (according to its
terms), 8.2, 9.4 (according to its terms), 10.1, 10.2, 11.1, 12.1, 12.2, 12.5,
12.10, 12.11, and 12.12.


 


12.11                     GOVERNING LAW. This Support
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois without giving effect to the principles of conflicts of laws
thereof.


 


12.12                     BINDING EFFECT: NO THIRD-PARTY
BENEFICIARIES; ASSIGNMENT. This Support Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Support Agreement shall create or be deemed
to create any rights in any Person other than TAL or members of Archipelago.
Except as provided elsewhere in this Agreement, no party may assign any of its
rights or delegate any of its duties under this Support Agreement without the
prior written consent of the other (not to be unreasonably withheld or


 


12

















 


delayed).


 


12.13                     RELATIONSHIP OF THE PARTIES. There
is no joint venture, partnership, agency or fiduciary relationship existing
between the parties and the parties do not intend to create any such
relationship by this Support Agreement. This Section 12.13 shall survive
the termination of this Support Agreement for any reason.


 


12.14                     NO BROKERS OR FINDERS. Archipelago
and TAL respectively represent and warrant to the other that it has not
employed or utilized the services of any broker or finder in connection with
this Support Agreement or the transactions contemplated hereby.


 


12.15                     FORCE MAJEURE. Neither TAL nor any
of its Affiliates, or Archipelago shall be liable or deemed to be in default
under any provision of this Support Agreement for any delay or failure to
perform under this Support Agreement (except for obligations to make payments
hereunder) resulting directly or indirectly from any cause beyond the reasonable
control of TAL, any Affiliates of TAL, or Archipelago (as the case may be),
including, without limitation, Acts of God, war, fire, electrical failure,
explosion, earthquake, flood, elements, governmental order or regulation, acts
of public enemy, labor disputes, strikes, lockouts, supply shortages, equipment
failures, malfunctions of software provided by third parties and other failures
or delays or failures caused by third parties (including third party providers
of services used in connection with the performance of this Support Agreement.)


 


13

















 


 


IN WITNESS WHEREOF, the parties have executed this Support Agreement as
of the date first above written.


 


ARCHIPELAGO HOLDINGS, L.L.C.


 


 


	
  BY:

  	
  /S/ GERALD D. PUTNAM

  	
   

  
	
  PRINT NAME:  GERALD D. PUTNAM

  
	
  PRINT
  TITLE:         CHIEF EXECUTIVE
  OFFICER

  
	
   

  	
   

  
	
   

  	
   

  
	
  TOWNSEND ANALYTICS LTD.

  
	
   

  
	
   

  
	
  BY:

  	
  /S/ STUART TOWNSEND

  	
   

  
	
  PRINT NAME:   STUART TOWNSEND

  
	
  PRINT
  TITLE:          PRESIDENT