-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KCwm076ZdfOIWbTQeP+dfOFDSo1ZfoeuERWXmEf21Y7KAGjkz2q54LOYUZ/u7KsY KsX4+wF+DdCwnDR89zURQA== 0000891836-05-000474.txt : 20051201 0000891836-05-000474.hdr.sgml : 20051201 20051201151508 ACCESSION NUMBER: 0000891836-05-000474 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20051201 DATE AS OF CHANGE: 20051201 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERCONTINENTALEXCHANGE INC CENTRAL INDEX KEY: 0001174746 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81171 FILM NUMBER: 051237529 BUSINESS ADDRESS: STREET 1: 2100 RIVEREDGE PARKWAY STREET 2: SUITE 500 CITY: ATLANTA STATE: GA ZIP: 30328 BUSINESS PHONE: 7708574700 MAIL ADDRESS: STREET 1: 2100 RIVEREDGE PARKWAY STREET 2: SUITE 500 CITY: ATLANTA STATE: GA ZIP: 30328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D 1 sc0243.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 IntercontinentalExchange, Inc. ------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share ------------------------------------------------------- (Title of Class of Securities) 45865V100 (CUSIP Number) Ben I. Adler, Esq. The Goldman Sachs Group, Inc. 85 Broad Street New York, NY 10004 (212) 902-1000 ------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 21, 2005 ------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [_]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. Page 1 of 11 Pages - --------------------- --------------------- CUSIP NO. 45865V100 PAGE 2 OF 11 PAGES - --------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) The Goldman Sachs Group, Inc. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (SEE INSTRUCTIONS) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [X] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 1,100,000 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 0 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,100,000 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,100,000 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.0 - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) HC-CO - -------------------------------------------------------------------------------- Page 2 of 11 Pages ITEM 1. SECURITY AND ISSUER. This Statement on Schedule 13D relates to the common stock, par value $0.01 per share (the "Common Stock"), of IntercontinentalExchange, Inc., a Delaware corporation (the "Company"). The address of the principal executive offices of the Company is 2100 RiverEdge Parkway, Suite 500, Atlanta, GA 30328. ITEM 2. IDENTITY AND BACKGROUND. This Schedule 13D is being filed by The Goldman Sachs Group, Inc. ("GS Group" or the "Reporting Person") with respect to the Common Stock of the Company. GS Group may be deemed to beneficially own from time to time shares of Common Stock acquired in ordinary course trading activities by Goldman, Sachs & Co. ("Goldman Sachs"), a direct and indirect wholly-owned subsidiary of GS Group. The business address of GS Group is 85 Broad Street, New York, New York 10004. GS Group is a Delaware corporation and holding company that (directly or indirectly through subsidiaries or affiliated companies or both) is a leading investment banking organization. The name, business address, present principal occupation or employment and citizenship of each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference. During the past five years, neither the Reporting Person, nor, to the knowledge of the Reporting Person, any of the persons listed in Schedule I hereto (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth on Schedule II hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or findings and violations in respect of such laws. This Item 2 is qualified in its entirety by reference to Schedule I and Schedule II which are attached hereto and incorporated into this Item by reference. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On November 21, 2005, immediately prior to the closing date of the Company's initial public offering (the "IPO"), GS Group acquired from the Company an aggregate of 1,100,000 shares of Common Stock pursuant to a plan of recapitalization (the "Plan") approved by the Company's board of directors, which (i) created the Common Stock as a new class of stock, (ii) effected a 1-for-4 reverse stock split of the Company's outstanding shares of Class A common stock, Series 1 ("A1 Shares") and Class A common stock, Series 2 ("A2 Shares" and, together with the A1 Shares, the "Class A Shares"), and (iii) granted the holders of the Class A Shares a right to convert their Class A Shares on a one-for-one basis into shares of Common Stock at the holders' option. As part of the Plan, (i) the A2 Shares convertible into shares of Common Stock proposed to be sold in the IPO were automatically converted into an equal number of shares of Common Stock immediately prior to the closing of the IPO, (ii) the A1 Shares (other than A1 Shares held by holders of A2 Shares) may be converted at any time at the option of the holder, subject to such terms and conditions as may be adopted by the Company's board of directors, following the date that is 90 days after the closing date of the IPO and (iii) the remaining A2 Shares may be converted at any time at the option of the holder, subject to such terms and conditions as may be adopted by the Company's board of directors, following the date that is 180 days after the closing date of the IPO. Pursuant to the Plan and after giving effect to the reverse stock split, 1,100,000 Class A2 Shares held by GS Group were converted into 1,100,000 shares of Common Stock and then sold in the IPO pursuant to an underwriting agreement (the "Underwriting Agreement"), dated November 15, 2005, at the initial public offering price per share of $26.00 (less the underwriting discount and commission of $1.69 per share). GS Group received the Class A2 Shares underlying the 1,100,000 shares of Common Stock in exchange for a proportionate share of its rights and interest in IntercontinentalExchange, LLC, a Delaware limited liability company and the predecessor to the Company. Page 3 of 11 Pages The foregoing discussion is qualified in its entirety by reference to the Underwriting Agreement, which is included as an exhibit to this Statement and is incorporated into this Item 3 by reference. ITEM 4. PURPOSE OF THE TRANSACTION. Prior to the IPO, GS Group directly owned 7,494,479 A2 Shares and Goldman Sachs International ("GSI"), a wholly-owned subsidiary of GS Group, directly owned 34,180 A1 Shares. As described in Item 3. above, immediately prior to the closing of the IPO and pursuant to the Plan, GS Group converted 1,100,000 A2 Shares into 1,100,000 shares of Common Stock, which were then sold in the IPO. As of the date of this Statement, neither the Reporting Person, nor, to the knowledge and belief of the Reporting Person, any of the persons listed on Schedule I hereto, has any present plan or proposals which would relate to or would result in any transaction event or action enumerated in paragraphs (a) though (j) of Item 4 of Schedule 13D, other than the following: 1. As part of the Plan, GS Group may acquire up to an additional 6,394,479 shares of Common Stock upon the conversion of an equal number of A2 Shares held by GS Group on the date that is 180 days following November 21, 2005, subject to such terms and conditions for conversion as may be adopted by the Company's board of directors. 2. As part of the Plan, GSI may acquire 34,180 shares of Common Stock upon the conversion of an equal number of A1 Shares held by GSI on the date that is 180 days following November 21, 2005, subject to such terms and conditions for conversion as may be adopted by the Company's board of directors. GS Group expects to evaluate on an ongoing basis the Company's financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions and other factors. Accordingly, GS Group reserves the right to change its plans and intentions at any time, as it deems appropriate. In particular, GS Group (and its affiliates) may purchase additional shares of Common Stock or other securities of the Company or may sell or transfer shares of Common Stock beneficially owned by it from time to time in public or private transactions and/or may enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of its positions in the shares of Common Stock or other securities and/or may distribute in kind to its affiliates shares of Common Stock or other securities. Any such transactions may be effected at any time or from time to time. To the knowledge of GS Group, each of the persons listed on Schedules I hereto may make similar evaluations from time to time or on an ongoing basis and reserves the same rights. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) Based on the information provided to GS Group by the Company, there were 18,400,000 shares of Common Stock outstanding as of the close of business on November 21, 2005, the closing date of the IPO. The percentages of Common Stock reported in Row (13) on the cover page to this Schedule 13D and described below reflect the sale of an additional 2,400,000 shares of Common Stock on November 21, 2005 as a result of the underwriters' exercise of an option to purchase additional shares pursuant to Section 2 of the Underwriting Agreement (described in Item 6 below). On November 21, 2005, GS Group acquired 1,100,000 shares of Common Stock from the Company, representing approximately 6.0% of the outstanding Common Stock, through the exercise of an optional conversion right with respect to 1,100,000 A2 Shares held by GS Group. GS Group subsequently sold all 1,100,000 shares of Common Stock in the IPO. GS Group does not currently beneficially own any shares of Common Stock. As of November 21, 2005, GS Group beneficially owned directly 6,394,479 A2 Shares, which as described in Item 3 above may not be converted into an equal number of shares of Common Stock until the date that is 180 days following the closing date of the IPO and such conversion will be subject to such terms and conditions as may be adopted by the Company's board of directors. As of November 21, 2005, GSI beneficially owned directly and GS Group may be deemed to beneficially own indirectly 34,180 A1 Shares, which as described in Item 3 above may not be converted into an equal number of shares of Common Stock until the date that is 180 days following the closing date of the IPO and such conversion will be subject to such terms and conditions as may be adopted by the Company's board of directors. Page 4 of 11 Pages In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998), this filing reflects the securities beneficially owned by the investment banking division ("IBD") of GS Group and its subsidiaries and affiliates (collectively, "Goldman Sachs Group"). This filing does not reflect securities, if any, beneficially owned by any other operating unit of Goldman Sachs Group. IBD disclaims beneficial ownership of the securities beneficially owned by any client accounts with respect to which IBD or its employees have voting or investment discretion, or both. (b) GS Group had sole power to vote or direct the vote or to dispose or direct the disposition of the 1,100,000 shares of Common Stock to which this Schedule 13D relates. (c) Except with respect to (a) the acquisition of shares of Common Stock by GS Group as described herein and (b) transactions effected by Goldman Sachs in its capacity as an underwriter in the IPO (as further described in Item 6), Schedule III sets forth the transactions in the shares of Common Stock that have been effected during the last 60 days, all of which were effected in the ordinary course of business of Goldman Sachs. The transactions in the shares of Common Stock, described in Schedule III, were effected either on the New York Stock Exchange or in the over-the-counter market. The aggregate consideration (exclusive of commissions) for the Common Stock purchased during such period was $52,000. Except with respect to (a) the acquisition of shares of Common Stock by GS Group as described herein and (b) transactions effected by Goldman Sachs in its capacity as an underwriter in the IPO (as further described in Item 6), and except as set forth in Schedule III, no transactions in the shares of Common Stock were effected by the Reporting Person, or, to the knowledge of the Reporting Person, any of the persons listed on Schedule I hereto during the last 60 days. (d) No other person is known by GS Group to have had the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the 1,100,000 shares of Common Stock to which this Schedule 13D relates. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. LOCK-UP AGREEMENT In connection with the IPO, GS Group has agreed that, for a period of 180 days following the date of the Final Prospectus, it will not, without the prior written consent of the representatives (the "Representatives") of the underwriters named therein, dispose of, directly or indirectly (including by means of any hedge that results in a short sale or any swap or other arrangement that transfers any of the economic consequences of ownership of the shares to another party), any A1 Shares or A2 Shares, any option to acquire Common Stock, A1 Shares or A2 Shares or any securities convertible into or exchangeable for Common Stock, A1 Shares or A2 Shares, subject to certain exceptions including sales made in the IPO and the conversion of A2 Shares into shares of Common Stock in connection therewith. However, the Representatives, in their sole discretion, may release any of the securities subject to the Lockup Agreement, at any time without notice. UNDERWRITING AGREEMENT In connection with the IPO, an Underwriting Agreement, dated November 15, 2005 (the "Underwriting Agreement"), was entered into by the Company, GS Group and the other selling stockholders named therein (the "Selling Stockholders"), Sandler O'Neill & Partners, L.P., as the qualified independent underwriter, and Morgan Stanley & Co. Incorporated and Goldman Sachs, as Representatives of the several underwriters listed in Schedule I thereto (the "Underwriters"). The Underwriting Agreement provided for the Underwriters' purchase of (i) 2,497,500 shares of Common Stock from the Company and (ii) 13,500,000 shares of Common Stock from the Selling Stockholders, and the Underwriters' option to purchase up to 2,400,000 shares of Common Stock at the same purchase price for the purpose of covering over-allotments. The Underwriters exercised their overallotment option in full on November 16, 2005. The initial public offering price in the IPO was $26.00 per share. Under the Underwriting Agreement, the Underwriters purchased the Common Stock net of an underwriting discount of $1.69 per share. Page 5 of 11 Pages REGISTRATION RIGHTS AGREEMENT GS Group is a party to a Registration Rights Agreement, dated November 21, 2005, by and among the Company and certain of its stockholders (the "Registration Rights Agreement"), pursuant to which the Company has agreed to register shares of Common Stock that GS Group and the other stockholders that are parties to the agreement (together, the "Designated Stockholders") may receive upon conversion of their A2 Shares from time to time following the IPO under the circumstances described below. Once the Company is eligible to use Form S-3 to register Company securities, the Designated Stockholders will have the right to request an unlimited number of registrations on Form S-3, provided that any such request is received from one or more Designated Stockholders as a group holding 25% or more of the shares subject to registration. Each of the Designated Stockholders other than those originally requesting registration can request to participate in, or "piggy-back" on, any registration on Form S-3. If the Company files a registration statement (on Form S-3 or otherwise) for an offering of common stock by it or by other stockholders other than the Designated Stockholders, the Company is required to offer the Designated Stockholders the opportunity to register their registrable shares. The registration rights of the Designated Stockholders are subject to conditions and limitations, including the right of the underwriters to limit the number of shares to be included in a registration and the Company's right to delay or withdraw a registration statement under specified circumstances. In addition, the Company is not obligated to effect more than two S-3 registrations in any 12-month period or any S-3 registration if the participating holders propose to sell their registrable shares at an aggregate price to the public of less than $20.0 million. Other than underwriting discounts and commissions and brokers' commissions, the Company will pay all registration expenses in connection with one S-3 registration per year, whether or not such registration becomes effective, unless the registration is withdrawn at the request of a majority of the participating stockholders. If more than one S-3 registration is invoked per year, all registration expenses for the additional registration will be borne by the participating stockholders pro rata. The foregoing descriptions of the Underwriting Agreement, the Lock-Up Agreement and the Registration Rights Agreement are qualified in their entirety by reference to Underwriting Agreement, the Lock-Up Agreement and the Registration Rights Agreement, each of which is filed as an exhibit to this Statement and incorporated by reference in their entirety to this Item 6. Except as described herein, neither GS Group, nor, to the knowledge of GS Group, any of the persons listed on Schedule I hereto, is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Company. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit Description - ------- ----------- 1. Lock-Up Agreement, dated as of October 26, 2005, between Morgan Stanley & Co. Incorporated and Goldman Sachs, as representatives of the several underwriters listed in Schedule I thereto (the "Underwriters"), and GS Group. 2. Underwriting Agreement, dated November 15, 2005, among the Company, the selling stockholders named therein, Sandler O'Neill & Partners, L.P., as the qualified independent underwriter, and Morgan Stanley & Co. Incorporated and Goldman Sachs, as representatives of the Underwriters. 3. Registration Rights Agreement, dated as of November 21, 2005, by and among the Company and the parties listed in Annex A thereto. 4. Power of Attorney, dated November 7, 2005, relating to The Goldman Sachs Group, Inc. Page 6 of 11 Pages SIGNATURES After reasonable inquiry and to the best knowledge and belief of GS Group, GS Group certifies that the information set forth in this Statement is true, complete and correct. Date: December 1, 2005 THE GOLDMAN SACHS GROUP, INC. By: /s/ Roger S. Begelman -------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact Page 7 of 11 Pages SCHEDULE I ---------- The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - -------------------------------------------------------------------------------- Henry M. Paulson, Jr. Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc. Lloyd C. Blankfein President and Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP plc John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Claes Dahlback Senior Advisor to Investor AB Stephen Friedman Former Assistant to the President for Economic Policy and Director of the National Economic Council William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. James A. Johnson Vice Chairman of Perseus, L.L.C. Lois D. Juliber Retired Vice Chairman of Colgate-Palmolive Company Edward M. Liddy Chairman of the Board, President and Chief Executive Officer of The Allstate Corporation Ruth J. Simmons President of Brown University Page 8 of 11 Pages SCHEDULE II ----------- In November 2002, the SEC, the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the SEC, the NYSE, the NASD and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944). On September 4, 2003, Goldman Sachs and the SEC settled administrative proceedings relating to certain trading in U.S. Treasury securities by Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of the Exchange Act as a result of certain trading in U.S. Treasury bonds over an eight minute period on October 31, 2001; and (ii) Section 15(f) of the Exchange Act by failing to maintain policies and procedures specifically addressed to the possible misuse of non-public information obtained from outside consultants. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, (i) censured Goldman Sachs; (ii) directed Goldman Sachs to cease and desist from committing or causing any violations of Section 15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act; (iii) ordered Goldman Sachs to pay disgorgement and prejudgment interest in the amount of $1,742,642, and a civil monetary penalty of $5 million; and (iv) directed Goldman Sachs to conduct a review its policies and procedures and to adopt, implement and maintain policies and procedures consistent with the Order and that review. Goldman Sachs also undertook to pay $2,562,740 in disgorgement and interest relating to certain trading in U.S. Treasury bond futures during the same eight minute period. On July 1, 2004, Goldman Sachs and the SEC settled administrative proceedings relating to communications from Goldman Sachs sales traders on its Asian Shares Sales Desk to certain institutional customers and news media Page 9 of 11 Pages concerning four international public securities offerings during the period between October 1999 and March 2000. The SEC alleged (i) that certain of these communications by Goldman Sachs employees were made after the registration statements pertaining to those offerings were filed, but not yet declared effective by the SEC, in violation of Section 5(b) of the Securities Act and (ii) that certain comments to the news media by Goldman Sachs with respect to one of the offerings constituted an offer to sell securities in violation of Section 5(c) of the Securities Act. The SEC also alleged that Goldman Sachs failed to adequately supervise the Asian Shares Sales Desk traders, as required by Section 15(b)(4)(E) of the Exchange Act. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, directed Goldman Sachs to cease and desist from committing or causing any violations of Sections 5(b) and 5(c) of the Securities Act., and ordered Goldman Sachs to pay a civil monetary penalty of $2 million. On January 24, 2005, the SEC filed an action in the U.S. District Court for the Southern District of New York alleging that Goldman Sachs violated Rule 101 of Regulation M under the Exchange Act by attempting to induce, or inducing certain investors to make, aftermarket purchases of certain initial public offerings underwritten by Goldman Sachs during 2000. On February 4, 2005, without admitting or denying the allegations of the complaint, a final judgment was entered against Goldman Sachs, with the consent of Goldman Sachs, under which Goldman Sachs was permanently restrained and enjoined from violating Rule 101 of Regulation M and required to pay a $40 million civil penalty, which was paid on March 31, 2005. Page 10 of 11 Pages SCHEDULE III Purchases Sales Price Trade Date Settlement Date - --------- ----- ----- ---------- --------------- 2,000 $26.00 11/15/05 11/21/05 2,000 $35.30 11/21/05 11/25/05 Page 11 of 11 Pages EX-99.1 2 ex-1.txt EXHIBIT 1 -- LOCK-UP AGREEMENT EXHIBIT 1 IntercontinentalExchange, Inc. Lock-Up Agreement October 26, 2005 Morgan Stanley & Co. Incorporated Goldman, Sachs & Co. As representatives of the several Underwriters named in Schedule I to the Underwriting Agreement (as defined below) c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 and Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Re: IntercontinentalExchange, Inc. - Lock-Up Agreement -------------------------------------------------- Ladies and Gentlemen: The undersigned understands that Morgan Stanley & Co. Incorporated, and Goldman, Sachs & Co., as representatives (the "Representatives"), propose to enter into an Underwriting Agreement (the "Underwriting Agreement") on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the "Underwriters"), with IntercontinentalExchange, Inc., a Delaware corporation (the "Company"), providing for a public offering (the "Public Offering") of shares of Common Stock, par value $0.01 per share, of the Company (the "Shares") pursuant to a Registration Statement on Form S-1 (File No. 333-123500) filed with the Securities and Exchange Commission (the "SEC"). Common stock, at any time means all shares of the Company's common stock issued and outstanding at such time, including (i) the Class A Common Stock, Series 1 and the Class A Common Stock, Series 2 then outstanding and (ii) at any time after the recapitalization, the common stock into which all such Class A Common Stock, Series 1 and Class A Common Stock, Series 2 may be convertible pursuant to the Fourth Amended and Restated Certificate of Incorporation and is then outstanding (collectively, "Common Stock"). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period specified below (the "Lock-Up Period"), the undersigned will not (1) offer, sell, contract to sell, pledge, hypothecate, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, make any short sale or otherwise transfer or 1 dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock or any securities convertible into, exercisable or exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively, the "Undersigned's Shares") or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Undersigned's Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) file or cause the Company to file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The foregoing sentence shall not apply to the sale of any shares to the Underwriters pursuant to the Underwriting Agreement. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned's Shares even if such shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned's Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such shares. Notwithstanding anything herein to the contrary, Goldman, Sachs & Co., Goldman Sachs Execution & Clearing, L.P. and their respective affiliates may engage in brokerage, investment advisory, investment company, financial advisory, principal investing, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage and other similar activities conducted in the ordinary course of its and its affiliates' business and any hedging or other transactions incidental thereto; provided, however, that the undersigned's investment of 29,977,918 shares of the Company's Class A Common Stock, Series 2, and 136,720 shares of the Company's Class A Common Stock, Series 1, as such investment (as a capital investment and not as a result of the financial services activities of the undersigned or its affiliates described above in this paragraph) may be increased or reduced in accordance with the provisions of this Lock-Up Agreement and whether held by the undersigned or any of its affiliates, shall be subject to the restrictions of this Lock-Up Agreement. Notwithstanding anything to the contrary contained herein, the undersigned may (A) transfer the Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, or (iii) with the prior written consent of Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. on behalf of the Underwriters, (B) exercise any options or other rights granted pursuant to the Company's 2000 Stock Option Plan, the 2 Company's 2003 Restricted Stock Deferral Plan for Outside Directors, the Company's 2004 Restricted Stock Plan, or the Company's 2005 Equity Incentive Plan (collectively, the "Benefit Plans"), or convert or exchange any convertible or exchangeable securities outstanding on the date hereof; provided that in the case of any transfer or distribution pursuant to the foregoing no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as amended, (the "Exchange Act"), shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period). For purposes of this Lock-Up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the corporation may transfer the capital stock of the Company to any wholly-owned subsidiary of such corporation; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this Agreement, that no filing under Section 16(a) of the Exchange Act, shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period) and there shall be no further transfer of such capital stock except in accordance with this Agreement, and provided further that any such transfer shall not involve a disposition for value. As of the date hereof, the undersigned has good and marketable title to the Undersigned's Shares, free and clear of all liens, encumbrances and claims whatsoever. In addition, the undersigned agrees that, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Undersigned's Shares except in compliance with the foregoing restrictions. The initial Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for 180 days after the date of the final prospectus covering the Public Offering; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the announcement of the material news or material event, as applicable, unless Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., on behalf of the Underwriters, waive, in writing, such extension. The undersigned hereby acknowledges that the Company has agreed in the Underwriting Agreement to provide written notice of any event that would result in an extension of the Lock-Up Period pursuant to the previous paragraph to the undersigned (in accordance with Section 6(e) of the Underwriting Agreement) and agrees that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned hereby further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Lock-Up 3 Agreement during the period from the date of this Lock-Up Agreement to and including the 34th day following the expiration of the initial Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period (as such may have been extended pursuant to the previous paragraph) has expired. 4 The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors and assigns. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. If the closing of the Public Offering does not occur on or before December 31, 2005, this Lock-Up Agreement shall terminate. Any Public Offering will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. Very truly yours, THE GOLDMAN SACHS GROUP, INC. ------------------------------------ Exact Name of Shareholder /s/ TIMOTHY J. O'NEILL ------------------------------------ Authorized Signature Managing Director ------------------------------------ Title 5 EX-99.2 3 ex-2.txt EXHIBIT 2 -- UNDERWRITING AGREEMENT EXHIBIT 2 IntercontinentalExchange, Inc. Common Stock -------------- Underwriting Agreement November 15, 2005 Morgan Stanley & Co. Incorporated Goldman, Sachs & Co. As representatives of the several Underwriters named in Schedule I hereto (the "Representatives"), c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 and Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Sandler O'Neill & Partners, L.P. 919 3rd Avenue, 6th floor New York, New York 10022 Ladies and Gentlemen: IntercontinentalExchange, Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 2,497,500 shares of common stock, par value $0.01 per share, of the Company ("Common Stock"). The shareholders of the Company named in Schedule II hereto (the "Selling Shareholders") propose, subject to the terms and conditions stated herein, severally and not jointly, to sell to the Underwriters an aggregate of 13,500,000 shares of Common Stock and, at the election of the Underwriters, up to 2,400,000 additional shares of Common Stock. The aggregate of 15,997,500 shares to be sold by the Company and the Selling Shareholders is herein called the "Firm Shares" and the aggregate of 2,400,000 additional shares to be sold by the Selling Shareholders is herein called the "Optional Shares". The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 of this Agreement are herein collectively called the "Shares". Pursuant to the filing of the Fourth Amended and Restated Certificate of Incorporation of the Company (the "Fourth Amended Certificate") with the Secretary of State of the State of Delaware (the "Secretary of State"), the Company will effect a recapitalization of its outstanding equity (the "Recapitalization"), pursuant to which each share of the Company's outstanding Class A Common Stock, Series 1 and Class A 1 Common Stock, Series 2 will be convertible into undifferentiated Common Stock, subject to the terms and conditions of the Fourth Amended Certificate. It is understood and agreed that Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. are joint book runners for the offering and any determination or other actions to be made under this Agreement by the Representatives shall require the concurrence of both Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. The Underwriters have agreed to reserve a portion of the Shares to be purchased by them under this Agreement for sale to the Company's directors, officers, employees, certain designees of such directors, officers and employees, and other parties related to the Company (collectively, "Participants"), as set forth in the Prospectus under the heading "Underwriting" (the "Directed Share Program"). The Shares to be sold pursuant to the Directed Share Program are referred to hereinafter as the "Directed Shares." Morgan Stanley & Co. Incorporated and its affiliates have agreed to make offers and sales pursuant to the Directed Share Program. Any Directed Shares not confirmed for purchase by any Participants by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus. The Company and the Underwriters, in accordance with the requirements of Rule 2720 ("Rule 2720") of the NASD, Inc. (the "NASD") and subject to the terms and conditions stated herein, also hereby confirm the engagement of the services of Sandler O'Neill & Partners, L.P. (the "Independent Underwriter") as a "qualified independent underwriter" within the meaning of Rule 2720(b)(15) in connection with the offering and sale of the Shares. The "Independent Underwriter" is also an "Underwriter" for purposes of this Agreement. 1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters and the Independent Underwriter that: (i) A registration statement on Form S-1 (File No. 333-123500) (the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the 2 Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 6(a) of this Agreement and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; and such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"); (ii) No order preventing or suspending the use of the Preliminary Prospectus, dated October 27, 2005, or any Preliminary Prospectus dated subsequent thereto, has been issued by the Commission, and each such Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated expressly for use therein or by a Selling Shareholder expressly for use therein; (iii) The Registration Statement conforms, and any further amendment to the Registration Statement will conform, as of the applicable effective date, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus conforms, and any further amendments or supplements to the Prospectus will conform, as of the applicable filing date, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable filing date, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated expressly for use therein or by a Selling Shareholder expressly for use therein; 3 (iv) Otherwise than as set forth or contemplated in the Prospectus, (A) neither the Company nor any of its subsidiaries has, since the date of the latest audited financial statements included in the Prospectus, sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; or incurred any material liability or obligation, direct or contingent, or entered into any material transaction not in the ordinary course of business; and (B) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock, short-term debt or long-term debt of the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, business, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; (v) The Company and each of its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property owned or leased by them, in each case free and clear of all liens, encumbrances, equities, claims and title defects (collectively, "Liens") that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the current or future consolidated financial position, business, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"), except as set forth or contemplated in the Prospectus; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to so qualify would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and each significant subsidiary of the Company as defined in Rule 1-02 of Regulation S-X (the "Significant Subsidiaries") has been duly incorporated or organized and is validly existing in good standing (if applicable) under the laws of its jurisdiction of incorporation or organization; (vii) Prior to the First Time of Delivery (as hereinafter defined), upon effectiveness of the Company's Fourth Amended Certificate, the Company will have an authorized capitalization as set forth in the Prospectus, and all of the 4 issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the capital stock contained in the Prospectus; and all of the issued shares of capital stock of each subsidiary of the Company except ICE Futures Holdings Plc ("ICE Futures") have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors' qualifying shares) are owned directly or indirectly by the Company, free and clear of all Liens except as set forth in the Prospectus; all of the issued shares of capital stock of ICE Futures (the "ICE Futures Stock") have been duly and validly authorized and issued and are fully paid and non-assessable, and, except as set forth in the Prospectus, the Company owns its shares of the ICE Futures Stock free and clear of all Liens; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to acquire from the Company the Shares or any other shares of capital stock of the Company, except as part of the Recapitalization as set forth in the Prospectus; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, shares of Common Stock or any other class of shares or other equity or ownership interest of the Company, except as set forth or contemplated in the Prospectus; (viii) The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable and will conform in all material respects to the description of the Common Stock contained in the Prospectus; (ix) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether considered in a proceeding in equity or at law), and except to the extent that rights to indemnity or contribution under this Agreement may be limited by applicable law; (x) The issue and sale of the Shares to be sold by the Company and the compliance by the Company with all of the provisions of this Agreement and the consummation by the Company of the transactions herein contemplated, including the Recapitalization, will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) result in any violation of the provisions of the certificate of incorporation or by-laws of the Company as in effect on the date hereof or, with respect to the issue and sale of the Shares and the Recapitalization, the Fourth Amended Certificate, which will become 5 effective on the First Time of Delivery, or (C) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except, in the case of clause (A) or (C), as would not, individually or in the aggregate, have a Material Adverse Effect; no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares to be sold by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws or by the rules and regulations of the NASD in connection with the purchase and distribution of the Shares by the Underwriters; and, other than the filing of the Fourth Amended Certificate with the Secretary of State, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the Company to effect the Recapitalization, except as would not, individually or in the aggregate, have a Material Adverse Effect or adversely affect the validity, or materially affect the performance, of the transactions contemplated herein; (xi) Neither the Company nor any of its Significant Subsidiaries (A) is in violation of its charter or by-laws (or other organizational document), (B) is in default in any respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets are subject or (C) is in violation in any respect of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets is subject, except in the case of clause (B) or (C) as may be set forth or contemplated in the Prospectus or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (xii) Except as set forth or contemplated in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the Company to register any securities with the Shares pursuant to the Registration Statement; (xiii) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Common Stock, under the caption "Underwriting", insofar as they purport to describe the provisions of this Agreement and the lockup agreements described in Annex IV hereto, and under the caption "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock", insofar as 6 they purport to describe the provisions of the laws and tax consequences referred to therein, are accurate, complete and fair in all material respects; (xiv) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any of the properties or assets of the Company or any of its subsidiaries is the subject which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and, to the knowledge of the Company, no such proceedings are threatened by governmental authorities or by others other than as set forth or contemplated in the Prospectus; (xv) None of the Company or any of its subsidiaries is or, upon consummation of the issuance and sale of the Shares and the application of the proceeds therefrom will be, required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), and the rules and regulations of the Commission thereunder; (xvi) Ernst & Young LLP, who have certified certain consolidated financial statements of the Company and its subsidiaries, are independent public accountants with respect to the Company and its subsidiaries, as required by the Act and the rules and regulations thereunder. The consolidated financial statements of the Company and its consolidated subsidiaries included in the Registration Statement and the Prospectus have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby, and together with the related schedules and notes, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the respective dates indicated and the results of the operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the respective periods specified; the selected financial data and the summary financial information included in the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement; (xvii) Except as set forth or contemplated in the Prospectus, (A) the Company and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as presently conducted ("Intellectual Property"), except where the failure to own or possess any such Intellectual Property would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (B) neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing that is still outstanding which, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have, 7 individually or in the aggregate, a Material Adverse Effect, and (C) the Company owns or has obtained licenses for all Intellectual Property described in the Prospectus as being owned or licensed to the Company, except to the extent that the failure to own any such Intellectual Property or obtain any such license would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (xviii) Except as set forth or contemplated in the Prospectus, there is no claim pending or, to the knowledge of the Company, threatened under any Environmental Law (as defined below) against the Company or any of its subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and there are no past or present actions or conditions which are, individually or in the aggregate, reasonably likely to form the basis of any such claim under existing Environmental Law against the Company or any of its subsidiaries that would, singularly or in the aggregate, reasonably be expected to have a Material Adverse Effect. The term "Environmental Law" means any federal, local or foreign law, regulation, ordinance, order, judgment, decree, permit or rule (including rule of common law) now in effect governing pollution, protection of the environment or injury or property damage arising from the presence of, or actual or alleged exposure to, hazardous or toxic materials, substances or wastes, including but not limited to, asbestos or asbestos-containing materials; (xix) The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance is in amounts and insures against such losses and risks, in each case as in accordance with customary industry practice, except where the failure to maintain such insurance would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (xx) Except as otherwise set forth or contemplated in the Prospectus, each of the Company and its subsidiaries possesses all material licenses, certificates, authorizations and permits issued by, and has made all declarations and filings with, the appropriate federal, state or foreign regulatory agencies or bodies which are necessary for the ownership of its properties or the conduct of its businesses as presently conducted and as described in the Prospectus, except where the failure to possess or make the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and none of the Company or its subsidiaries have received notification of any revocation or modification of any such license, certificate, authorization or permit that would reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect or have any reason to believe that any such license, certificate, authorization or permit will not be renewed; (xxi) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that in all material respects (A) transactions are executed in accordance with management's general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of 8 financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (C) access to assets is permitted only in accordance with management's general or specific authorization, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (xxii) The Company is in compliance in all material respects with all provisions of the Sarbanes-Oxley Act of 2002 that are effective and applicable to the Company as of the date hereof and expects to be in compliance with all additional provisions of the Sarbanes-Oxley Act of 2002 that will become applicable to it, including those provisions relating to internal control over financial reporting, when such provisions become applicable to the Company. (xxiii) Prior to the date of this Agreement, there are no securities of the Company or any of its subsidiaries registered under the Exchange Act, or listed on a national securities exchange or quoted in a U.S. automated inter-dealer quotation system; (xxiv) None of the Company or its subsidiaries has taken, and to the best knowledge of the Company, none of its directors or officers has taken, directly or indirectly, any action in connection with the distribution of the Shares contemplated hereby which is designed to or which constitutes or which might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company or its subsidiaries in order to facilitate the sale or resale of the Shares; (xxv) The ICE Futures Entities (as defined in 8(e) of this Agreement) are the only Significant Subsidiaries of the Company; (xxvi) The Registration Statement, the Prospectus and any Preliminary Prospectus referenced in paragraph (ii) of this Section 1 comply, and any amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions in which the Prospectus or any Preliminary Prospectus are distributed in connection with the Directed Share Program; (xxvii) No consent, approval, authorization or order of, or qualification with, any governmental body or agency, other than those obtained, is required in connection with the offering of the Directed Shares in any jurisdiction where the Directed Shares are being offered; and (xxviii) The Company has not offered, or caused Morgan Stanley & Co. Incorporated or its affiliates to offer, Shares to any person pursuant to the Directed Share Program with the intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer's or supplier's level or type of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products or services. 9 (b) Each of the Selling Shareholders, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters, the Independent Underwriter and the Company that: (i) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required to be obtained by such Selling Shareholder for the sale of the Shares by such Selling Shareholder, or the execution and delivery by such Selling Shareholder of this Agreement, the Power of Attorney (as defined below) and the Custody Agreement hereinafter referred to, other than the Commission declaring the Registration Statement effective (and no representation is made with respect to state securities or Blue Sky laws or NASD review of the offering); such Selling Shareholder has full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder; and each of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and delivered by such Selling Shareholder and constitutes a valid and legally binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether considered in a proceeding in equity or at law), and except to the extent that rights to indemnity or contribution under this Agreement may be limited by applicable law; (ii) The sale of the Shares by such Selling Shareholder hereunder and such Selling Shareholder's compliance with all of the provisions of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated for such Selling Shareholder will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, except for breaches, violations or defaults that would not adversely affect such Selling Shareholder's ability to fulfill its obligations under this Agreement, the Power of Attorney or the Custody Agreement in any material respect, nor will such action result in any violation of the provisions of the organizational documents of such Selling Shareholder if such Selling Shareholder is not an individual or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's properties; (iii) Immediately prior to each Time of Delivery (as defined in Section 5 of this Agreement), the Selling Shareholder will be the registered owner of the Shares to be sold by such Selling Shareholder hereunder, free and clear of all Liens, and upon payment for the Shares to be sold by such Selling Shareholders as provided in this Agreement, delivery of such Shares, as directed by the 10 Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by DTC, registration of such shares in the name of Cede or such other nominee and the crediting of such Shares on the records of DTC to securities accounts of the Underwriters, (i) DTC shall be a "protected purchaser" of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) assuming that each Underwriter does not have "notice of an adverse claim" (within the meaning of Section 8-105 of the UCC) to such Shares, no action based on any "adverse claim" (within the meaning of Section 8-102 of the UCC) to such Shares may be asserted against the Underwriters with respect to such security entitlement. (iv) Such Selling Shareholder, in its capacity as a Selling Shareholder, has not taken and will not take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company in order to facilitate the sale or resale of the Shares; (v) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, which information consists solely of the information which relates to such Selling Shareholder set forth in the Registration Statement and Prospectus under the caption "Principal and Selling Shareholders", such Registration Statement, Preliminary Prospectus, the Prospectus and any further amendments or supplements thereto, in each case as of the effective date or date of filing with the Commission, as the case may be, conformed or will conform, as the case may be, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and did not or will not, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (vi) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder will deliver to you prior to or at the First Time of Delivery (as defined in Section 5(a) of the Agreement) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (vii) Such Selling Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the persons indicated in Schedule II hereto, and each of them, as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling 11 Shareholders as provided in Section 2 of this Agreement, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and (viii) The appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to the extent stated therein irrevocable; the obligations of the Selling Shareholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if any Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by or on behalf of the Selling Shareholders in accordance with the terms and conditions of this Agreement and of the Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian (as defined in the Custody Agreement) or any Attorney-in-Fact or any of them shall have received notice of such death, incapacity, termination, dissolution or other event. 2. Subject to the terms and conditions herein set forth, (a) the Company and each of the Selling Shareholders agree, severally and not jointly, to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each of the Selling Shareholders, at a purchase price per share of $24.31, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company or such Selling Shareholder, as the case may be, as set forth opposite its names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company and all of the Selling Shareholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, each of the Selling Shareholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Shareholders, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares set forth opposite such Selling Shareholder's name in Schedule II hereto as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I 12 hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. The Selling Shareholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 2,400,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares. Any such election to purchase Optional Shares shall be made in proportion to the number of Optional Shares to be sold by each Selling Shareholder as set forth in Schedule II hereto. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 5 of this Agreement) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Company hereby confirms its engagement of the services of the Independent Underwriter as, and the Independent Underwriter hereby confirms its agreement with the Company to render services as, a "qualified independent underwriter" within the meaning of Rule 2720(b)(15) with respect to the offering and sale of the Shares. (b) As compensation for the services of the Independent Underwriter hereunder, the Company agrees to pay the Independent Underwriter $175,000 at the Time of Delivery. In addition, the Company agrees promptly to reimburse the Independent Underwriter for reasonable documented out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with this Agreement and the services to be rendered hereunder. 5. (a) The Shares to be purchased by each Underwriter hereunder in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company and the Selling Shareholders shall be delivered by or on behalf of the Company and the Selling Shareholders to the Representatives, through the facilities of the Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company and each of the Selling Shareholders, as their interest may appear, to the Representatives at least forty-eight hours in advance. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on November 21, 2005 or such other time and date as the Representatives and the Company may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Representatives 13 in the written notice given by them of the Underwriters' election to purchase such Optional Shares, or such other time and date as they and the Company may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 of this Agreement, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 8(m) of this Agreement, will be delivered at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 (the "Closing Location"), and the Shares will be delivered at such Time of Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New York time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 5, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 6. The Company agrees with each of the Underwriters and with the Independent Underwriter: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to provide you and the Independent Underwriter with as many signed copies of the Registration Statement and each amendment thereto as you may request; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to the last Time of Delivery which shall be disapproved by you or the Independent Underwriter promptly after reasonable notice thereof; to advise you and the Independent Underwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you and the Independent Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; 14 (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation, to subject itself to taxation or to file a general consent to service of process in any jurisdiction; (c) As soon as practicable on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters and the Independent Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you and the Independent Underwriter may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare, file with the Commission and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date of this Agreement and continuing to and including the date that is 180 days after the date of the Prospectus (the initial "Lock-Up Period"), not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly any shares of Common Stock of the Company, any securities that are convertible into or exchangeable for shares of Common Stock, or that represent the right to receive, Common Stock or any other securities that are substantially similar to the Shares or (ii) 15 enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock of the Company or such other securities, in cash or otherwise, without the prior written consent of the Representatives; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless the Representatives waive, in writing, such extension. The Company will provide the Representatives and each shareholder subject to the Lock-Up Period pursuant to the lockup letters described in Section 8(k) with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period. The foregoing shall not apply to (A) the Firm Shares and the Optional Shares; (B) the issuance by the Company of shares of, options for, or rights convertible into, Common Stock pursuant to any of the Company's stock option plans, equity incentive plans or restricted stock plans, each as in effect on the date of this Agreement; (C) the issuance by the Company of shares of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement; (D) the issuance by the Company of shares of Common Stock pursuant to the exercise of options or warrants or the conversion of restricted stock unit awards outstanding as of the date of this Agreement; or (E) the ability of the Company to (i) provide holders of its Class A Common Stock, Series 1 and Class A Common Stock, Series 2 with a right to convert such shares into shares of Common Stock, and (ii) issue shares of Common Stock to such holders upon the exercise of the conversion right, in each case, pursuant to the Recapitalization as described in the Prospectus; (f) To make generally available to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of two years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, except that any reports or communications filed with the Commission and available through the Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) system need not be provided, and to deliver to you as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; 16 (h) To use the net proceeds received by it from the sale by the Company of the Shares pursuant to this Agreement as contemplated in the Prospectus under the caption "Use of Proceeds", provided that the Company may change its plans regarding the use of proceeds as contemplated in the Prospectus; (i) Not to (and to use its best efforts to cause its affiliates not to) take, directly or indirectly, any action in connection with the distribution of the Shares contemplated hereby which is designed to or which constitutes or which might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company or its subsidiaries in order to facilitate the sale or resale of the Shares; (j) To use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange (the "Exchange"); (k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act; (l) If the Company elects to rely upon Rule 462(b), to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and at the time of filing, to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and (m) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares in accordance with applicable law (the "License"); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. 7. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and each of the Selling Shareholders covenant and agree with one another and with the several Underwriters that: (a) The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses of the Company in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, any Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided 17 in Section 6(b) of this Agreement, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with any Blue Sky survey (not to exceed $10,000); (iv) all fees and expenses in connection with listing the Shares on the Exchange; (v) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the NASD of the terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges of any transfer agent or registrar; (viii) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program; (ix) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show; (x) the Selling Shareholder's share of the fees and expenses of the Attorneys-in-Fact and the Custodian, up to an aggregate amount not to exceed $10,000; and all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; (b) Such Selling Shareholder will pay or cause to be paid all costs and expenses incident to the performance of such Selling Shareholder's obligations hereunder which are not otherwise specifically provided for in this Section, including (i) any fees and expenses of counsel for such Selling Shareholder, (ii) such Selling Shareholder's pro rata share of the fees and expenses of the Attorneys-in-Fact and the Custodian to the extent such fees in the aggregate exceed $10,000, and (iii) all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling Shareholder to the Underwriters hereunder. In connection with clause (b)(iii) of the preceding sentence, the Representatives agree to pay New York State stock transfer tax, and the Selling Shareholder agrees to reimburse the Representatives for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood, however, that the Company shall bear, and the Selling Shareholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant to this Agreement; and (c) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program. (d) Except as provided in subsections (a) and (b) above, and Sections 10, 11 and 14 of this Agreement, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 18 8. The respective obligations of the Underwriters, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Selling Shareholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Shareholders shall have performed all of its and their respective obligations hereunder to be performed prior to the Time of Delivery and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 6(a) of this Agreement; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, shall have furnished to you their written opinion or opinions, dated such Time of Delivery, with respect to such matters as you may reasonably request, in form and substance reasonably satisfactory to you, and such counsel shall have received such papers and information as they may request to enable them to pass upon such matters; (c) Sullivan & Cromwell LLP, counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex III (a) hereto), dated such Time of Delivery, in form and substance reasonably satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Company's Fourth Amended Certificate authorizes the issuance of up to three hundred million shares of capital stock. All outstanding shares of the Company's Common Stock, including the Shares, have been duly authorized and validly issued and are fully paid and nonassessable and the sale of the Shares hereunder does not give rise under the Company's certificate of incorporation or the Delaware General Corporation Law to any preemptive or similar right to acquire shares of capital stock of the Company on the part of any holder of outstanding capital stock of the Company; (iii) This Agreement has been duly authorized, executed and delivered by the Company; 19 (iv) The issuance of the Shares and the sale of the Shares by the Company to the Underwriters pursuant to this Agreement and the performance by the Company of its obligations under this Agreement will not (A) violate the Fourth Amended Certificate or Bylaws of the Company, (B) result in a default under or breach of the agreements listed on Annex A to such opinion filed as exhibits to the Company's Registration Statement (File No. 333-123500), or (C) violate any Federal law of the United States or law of the State of New York, or the General Corporation Law of the State of Delaware, in each case applicable to the Company; provided, however, that for purposes of this paragraph (iv), such counsel need not express any opinion with respect to Federal or state securities laws, other antifraud laws, fraudulent transfer laws, antitrust and commodities laws or the Employee Retirement Income Security Act of 1974 and related laws, or as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights or to general equity principles, or as to validity or enforceability of this Agreement; (v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of Shares of the Company to the Underwriters have been obtained or made; (vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an "investment company," as such term is defined in the Investment Company Act of 1940; and (vii) In rendering the opinions, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware. Such counsel may also state that they have relied as to certain matters upon information obtained from officers of the Company and its subsidiaries, public officials and other sources believed by such counsel to be responsible. Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the Act and the applicable rules and regulations thereunder; between the date of the Prospectus and such Time of Delivery, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates of certain officers of the Company, an opinion addressed to you from Johnathan H. Short, Esq. and Patrick Davis and letters addressed to you from the Company's independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel's understanding of the applicable law and the experience such counsel 20 have gained through their practice under the Act, they will confirm to you that, in such counsel's opinion, the Registration Statement, and the Prospectus, as of the effective date of the Registration Statement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; nothing that came to such counsel's attention in the course of such review has caused such counsel to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as it may be amended or supplemented, as of such Time of Delivery, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus except for those made under the captions "Description of Capital Stock" and "Underwriting" in the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock" in the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement or the Prospectus. (d) Johnathan H. Short, Esq., Senior Vice President and General Counsel, of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in the form of Annex III (b) hereto that, to the best of such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any of the properties or assets of the Company or any of its subsidiaries is the subject which would reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect; and, to the best of such counsel's knowledge and other than as set forth or contemplated in the Prospectus, no such proceedings are threatened by governmental authorities or by others. (e) Patrick Davis, counsel for ICE Futures, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex III(c) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that, (i) IntercontinentalExchange Holdings and ICE Futures (each, an "ICE Futures Entity") are 21 duly incorporated in accordance with the laws of England and Wales, (ii) ICE Futures is currently an unlimited company without a share capital with its sole member being ICE Futures Holdings Plc, (iii) ICE Futures Holdings Plc has an authorized share capital of GBP(pound)100,050,000.00, divided into 500,000,000 ordinary shares of GBP(pound)0.20, and 50,000 redeemable shares of GBP(pound)1.00 each and has validly issued 11,450,319 ordinary shares of GBP(pound)0.20 each, which are held by IntercontinentalExchange Holdings and no other shares have been issued or are outstanding, and (iv) IntercontinentalExchange Holdings has a nominal share capital of GBP(pound)50,003.00, divided into 50,003 shares of GBP(pound)1.00 each and has validly issued all of these shares, which are held by IntercontinentalExchange International Inc. and no other shares have been issued or are outstanding. (f) The respective counsel for each of the Selling Shareholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinion with respect to each of the Selling Shareholders for whom they are acting as counsel (a draft of each such opinion is attached as Annex III(d) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) A Power of Attorney and a Custody Agreement have been duly authorized, executed and delivered by such Selling Shareholder and constitute valid and legally binding agreements of such Selling Shareholder; (ii) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder; and the sale of the Shares to be sold by such Selling Shareholder hereunder and the compliance by such Selling Shareholder with all of the provisions of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, nor will such action result in any violation of the provisions of the organizational documents of such Selling Shareholder if such Selling Shareholder is not an individual or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's properties; (iii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder, the execution and delivery of this Agreement, the Power of Attorney, the Custody Agreement hereinafter referred to, such Selling Shareholder has full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws or by the rules and 22 regulations of the NASD in connection with the purchase and distribution of the Shares by the Underwriters; (iv) Immediately prior to the First Time of Delivery such Selling Shareholder has good and valid title to the Shares to be sold at the First Time of Delivery by such Selling Shareholder under this Agreement, free and clear of all Liens (such counsel may rely upon a certificate of such Selling Shareholder in respect of matters of fact as to ownership of, and liens, encumbrances, equities or claims on, the Shares sold by such Selling Shareholder); and (v) Immediately prior to each Time of Delivery (as defined in Section 5 of this Agreement), the Selling Shareholder will be the registered owner of the Shares to be sold by such Selling Shareholder hereunder, free and clear of all Liens, and upon payment for the Shares to be sold by such Selling Shareholders as provided in this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by DTC, registration of such shares in the name of Cede or such other nominee and the crediting of such Shares on the records of DTC to securities accounts of the Underwriters, (i) DTC shall be a "protected purchaser" of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) assuming that each Underwriter does not have "notice of an adverse claim" (within the meaning of Section 8-105 of the UCC) to such Shares, no action based on any "adverse claim" (within the meaning of Section 8-102 of the UCC) to such Shares may be asserted against the Underwriters with respect to such security entitlement. (g) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex II hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto); (h) Otherwise than as set forth or contemplated in the Prospectus, (i) neither the Company nor any of its subsidiaries shall have, since the date of the latest audited financial statements included in the Prospectus, sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; or incurred any material liability or obligation, direct or contingent, or entered into any material transaction not in the ordinary course of business; and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock, short-term debt or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective 23 change, in or affecting the general affairs, management, business, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (i) On or after the date of this Agreement, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange; (ii) a suspension or material limitation in trading in the Company's securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement, payment or clearance services in the United States; (iv) any outbreak or escalation of hostilities or any declaration by the United States of a national emergency or war; (v) no downgrading shall have occurred in the rating accorded the Company's preferred stock by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act; (vi) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company's preferred stock; or (vii) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (vii), singularly or together with any other such event, in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (j) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of issuance, on the Exchange; (k) The "lockup" agreements, each substantially in the form of Annex IV hereto, between you and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date of this Agreement, shall be in full force and effect on the Closing Date; (l) The Company shall have complied with the provisions of Section 6(c) of this Agreement with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; (m) The Company and the Selling Shareholders shall have furnished or caused to be furnished to you at such Time of Delivery (i) certificates of officers of the Company and the Selling Shareholders, respectively, reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Shareholders, respectively, herein at and as of such Time of Delivery, as to the incumbency of such officers, as to the performance by the Company and the Selling Shareholders of all of their respective obligations hereunder to be performed at or prior to 24 such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (h) and (i) of this Section and as to such other matters as you may reasonably request and (ii) such documents as you may reasonably request with respect to the due incorporation or formation and good standing of the Company and its subsidiaries and the due authorization and issuance of the Firm Shares and the Optional Shares; and (n) The Fourth Amended Certificate, substantially in the form in which it was included in Part II, Item 16(a), as Exhibit 3.1 of the Registration Statement, shall have been filed with the Secretary of State and shall be in effect; and (o) The Underwriters shall have received a certificate of good standing dated within one month of the Closing Date from the Financial Services Authority relating to the organization, existence and good standing of ICE Futures. 9. The Independent Underwriter hereby consents to the references to it as set forth under the caption "Underwriting" in the Prospectus and in any amendment or supplement thereto made in accordance with Section 6(a) of this Agreement. 10. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein. (b) Each of the Selling Shareholders severally and not jointly will indemnify and hold harmless the Company and each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such indemnified party may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case, to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary 25 Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein; and will reimburse the Company and each Underwriter for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the liability of such Selling Shareholder pursuant to this Section 10 shall not exceed the product of the number of Shares sold by such Selling Shareholder and the initial public offering price of the Shares as set forth in the Prospectus. (c) Each Underwriter will indemnify and hold harmless the Company, each Selling Shareholder and the Independent Underwriter, as the case may be, against any losses, claims, damages or liabilities to which such indemnified party, may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company, each Selling Shareholder and the Independent Underwriter, as the case may be, for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim as such expenses are incurred. (d) In addition to and without limitation of the Company's obligation to indemnify the Independent Underwriter as an Underwriter, the Company also agrees to indemnify and hold harmless the Independent Underwriter, and each person, if any, who controls the Independent Underwriter within the meaning of the Act, or who is an affiliate or partner of the Independent Underwriter, from and against any and all loss, liability, claim, damage and expense whatsoever, as incurred, incurred as a result of the Independent Underwriter's participation as a "qualified independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of the NASD in connection with the offering of the Shares, except for any losses, claims, damages, liabilities and judgments resulting from the Independent Underwriter's, or such controlling person's gross negligence or willful misconduct. (e) Promptly after receipt by an indemnified party under subsection (a), (b), (c) or (d) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such 26 subsection (except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or 27 judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (f) If the indemnification provided for in this Section 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b), (c) or (d) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (e) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by each of the Company, the Selling Shareholders, the Underwriters and the Independent Underwriter shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Selling Shareholders, the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus and the fee payable to the Independent Underwriter pursuant to the first sentence of Section 4(b) of this Agreement, respectively, bear to the sum of the total proceeds from the sale of the Shares (before deducting expenses) in the offering and the fee payable to the Independent Underwriter pursuant to the first sentence of Section 4(b) of this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Shareholders on the one hand or either the Underwriters or the Independent Underwriter on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Selling Shareholders, the Underwriters and the Independent Underwriter agree that it would not be just and equitable if contributions pursuant to this subsection (f) were determined by pro rata allocation (even if the Underwriters and the Independent Underwriter were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (f). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (f) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (f), no Underwriter nor the Independent Underwriter shall be required to contribute any amount 28 in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public, exceeds the amount of any damages which such Underwriter or the Independent Underwriter, as the case may be, have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (f) to contribute are several in proportion to their respective underwriting obligations and not joint. The Selling Shareholder's obligations in this Section 10(f) to contribute are several in proportion to the amount being sold and not joint and no Selling Shareholder shall be required to contribute an amount greater than it would have been required to indemnify under this Agreement. (g) The obligations of the Company and the Selling Shareholders under this Section 10 shall be in addition to any liability which the Company and the Selling Shareholders may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter or the Independent Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 10 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any and each person, if any, who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company, any Selling Shareholder or the Independent Underwriter within the meaning of the Act. 11. (a) The Company agrees to indemnify and hold harmless Morgan Stanley & Co. Incorporated and its affiliates, within the meaning of Rule 405 under the Securities Act, and each person, if any, who controls Morgan Stanley & Co. Incorporated or its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("Morgan Stanley Entities"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Shares that the Participant has agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Morgan Stanley Entities. (b) In case any proceeding (including any governmental investigation) shall be instituted involving any Morgan Stanley Entity in respect of which indemnity may be sought pursuant to Section 11(a), the Morgan Stanley Entity seeking indemnity shall promptly notify the Company in writing and the Company, upon request of the 29 Morgan Stanley Entity, shall retain counsel reasonably satisfactory to the Morgan Stanley Entity to represent the Morgan Stanley Entity and any others the Company may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Morgan Stanley Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Morgan Stanley Entity unless (i) the Company shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and the Morgan Stanley Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Morgan Stanley Entities in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all Morgan Stanley Entities. Any such separate firm for the Morgan Stanley Entities shall be designated in writing by Morgan Stanley & Co. Incorporated. The Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Morgan Stanley Entities from and against any loss or liability by reason of such settlement or judgment. The Company shall not, without the prior written consent of Morgan Stanley & Co. Incorporated, effect any settlement of any pending or threatened proceeding in respect of which any Morgan Stanley Entity is or could have been a party and indemnity could have been sought hereunder by such Morgan Stanley Entity, unless such settlement includes an unconditional release of the Morgan Stanley Entities from all liability on claims that are the subject matter of such proceeding. (c) To the extent the indemnification provided for in Section 11(a) is unavailable to a Morgan Stanley Entity or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then the Company, in lieu of indemnifying the Morgan Stanley Entity thereunder, shall contribute to the amount paid or payable by the Morgan Stanley Entity as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Morgan Stanley Entities on the other hand from the offering of the Directed Shares or (ii) if the allocation provided by clause 11(c)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(c)(i) above but also the relative fault of the Company on the one hand and of the Morgan Stanley Entities on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and of the Morgan Stanley Entities on the other hand in connection with the offering of the Directed Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Directed Shares (before deducting expenses) and the total underwriting discounts and commissions received by the Morgan Stanley Entities for the Directed Shares, bear to the aggregate initial public offering price of the Shares. If the loss, claim, damage or liability is caused by an untrue or alleged untrue statement of a material fact, the relative fault of the Company on the one hand and the Morgan Stanley Entities on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue 30 statement or the omission or alleged omission relates to information supplied by the Company or by the Morgan Stanley Entities and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (d) The Company and the Morgan Stanley Entities agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Morgan Stanley Entities were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(c). The amount paid or payable by the Morgan Stanley Entities as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by the Morgan Stanley Entities in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Morgan Stanley Entity shall be required to contribute any amount in excess of the amount by which the total price at which the Directed Shares distributed to the public were offered to the public exceeds the amount of any damages that such Morgan Stanley Entity has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The remedies provided for in this Section 11 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Morgan Stanley Entity at law or in equity. (e) The indemnity and contribution provisions contained in this Section 11 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Morgan Stanley Entity or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Directed Shares. 12. (a) If any Underwriter shall default in its obligation to purchase the Shares that it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company and the Selling Shareholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Shareholders that you have so arranged for the purchase of such Shares, or the Company and the Selling Shareholders notify you that they have so arranged for the purchase of such Shares, you or the Company and the Selling Shareholders shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. 31 (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Shareholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company and the Selling Shareholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Shareholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, or if the Company and the Selling Shareholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and the Selling Shareholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company or the Selling Shareholders, except for the expenses to be borne by the Company and the Selling Shareholders and the Underwriters as provided in Section 7 of this Agreement and the indemnity and contribution agreements in Section 10 of this Agreement; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 13. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Shareholders, the several Underwriters and the Independent Underwriter, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter, the Independent Underwriter or any controlling person of any Underwriter, the Independent Underwriter or the Company or any of the Selling Shareholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Shareholder and shall survive delivery of and payment for the Shares. 14. If this Agreement shall be terminated pursuant to Section 12 of this Agreement, neither the Company nor the Selling Shareholders shall then be under any liability to any Underwriter or the Independent Underwriter except as provided in the second sentence of Section 4(b) of this Agreement and Sections 7, 10 and 11 of this Agreement; but, if for any other reason, any Shares are not delivered by or on behalf of 32 the Company and the Selling Shareholders as provided herein, the Company and each of the Selling Shareholders pro rata (based on the number of Shares to be sold by the Company and the Selling Shareholders hereunder), will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Shareholders shall then be under no further liability to any Underwriter or the Independent Underwriter in respect of the Shares not so delivered except as provided in the second sentence of Section 4(b) of this Agreement and Sections 7, 10 and 11 of this Agreement. 15. (a) In all dealings hereunder, you shall act on behalf of each of the Underwriters (including the Independent Underwriter), and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter (including the Independent Underwriter) made or given by you jointly as the Representatives; and in all dealings with any Selling Shareholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Shareholder made or given by any or all of the Attorneys-in-Fact for such Selling Shareholder. (b) All statements, requests, notices and agreements hereunder shall be in writing and effective only upon receipt, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the Representatives in care of (i) Morgan Stanley & Co Incorporated, 1585 Broadway, New York, New York 10036, Attention: Equity Capital Markets Syndicate Desk and (ii) Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to the Independent Underwriter shall be delivered or sent by mail, telex or facsimile transmission to Sandler O'Neill & Partners, L.P., 919 Third Avenue, Sixth Floor, New York, New York, 10022, Attention: General Counsel; if to any Selling Shareholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Shareholders at its address set forth in Schedule II hereto and if to the Company shall be delivered or sent by mail to the address of the Company set forth in the Registration Statement, Attention: General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 10(e) of this Agreement shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Shareholder by you upon request; provided, however, that notices under subsection 6(e) shall be in writing and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the Representatives at Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention: Global Capital Markets Syndicate Desk and Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. Attention: Control Room and to the persons listed on Schedule III. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 16. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Independent Underwriter, the Company and the Selling 33 Shareholders and, to the extent provided in Sections 10 and 13 of this Agreement, the officers and directors of the Company (including any and each person, if any, who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and each person who controls the Company, any Selling Shareholder, the Independent Underwriter, any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 17. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Underwriters with respect to the preparation of the Prospectus, the conduct of the offering, and the purchase and sale of the Shares. (b) The Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares 18. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 19. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 20. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. If the foregoing is in accordance with your understanding, please sign and return to us eight counterparts of this Agreement, and upon the acceptance of this Agreement by you, on behalf of each of the Underwriters including the Independent Underwriter, this letter and such acceptance of this Agreement shall constitute a binding agreement among each of the Underwriters, the Independent Underwriter, the Company and each of the Selling Shareholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Shareholders for examination upon request, but without warranty on your part as to the authority of the signers thereof. 34 Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Shareholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, IntercontinentalExchange, Inc. By: /s/ RICHARD V. SPENCER ----------------------------- Name: Richard V. Spencer Title: Chief Financial Officer The Selling Shareholders set forth in Schedule II to this Agreement. By: /s/ RICHARD V. SPENCER ----------------------------- Name: Richard V. Spencer Title: Chief Financial Officer As Attorney-in-Fact acting on behalf of each of the Selling Shareholders named in Schedule II to this Agreement. Accepted as of the date of this Agreement: Morgan Stanley & Co. Incorporated Goldman, Sachs & Co. By: /s/ JOHN TYREE --------------------------------- Morgan Stanley & Co. Incorporated By: /s/ GOLDMAN, SACHS & CO. --------------------------------- (Goldman, Sachs & Co.) On behalf of each of the Underwriters 35
SCHEDULE I Number of Optional Shares to be Total Number of Purchased if Firm Shares Maximum Option Underwriter To be Purchased Exercised - ----------- --------------- ----------------- Morgan Stanley & Co. Incorporated.................... 6,035,857 905,520 Goldman, Sachs & Co.................................. 6,035,857 905,520 William Blair & Company, L.L.C. ..................... 1,567,756 235,200 SG Corporate & Investment Banking.................... 470,326 70,560 Sandler O'Neill & Partners, L.P. .................... 1,567,756 235,200 Susquehanna Financial Group, LLP .................... 79,987 12,000 Blaylock & Company, Inc. ............................ 79,987 12,000 Chatsworth Securities LLC ........................... 79,987 12,000 E*TRADE Securities, Inc. ............................ 79,987 12,000 ---------- --------- Total..................................... 15,997,500 2,400,000 ========== =========
36
SCHEDULE II NUMBER OF OPTIONAL SHARES TOTAL NUMBER TO BE SOLD IF OF FIRM SHARES MAXIMUM OPTION TO BE SOLD EXERCISED -------------- --------------- IntercontinentalExchange Inc................................... 2,497,500 0 The Selling Shareholders: Morgan Stanley Capital Group Inc............................... 1,395,395 0 The Goldman Sachs Group, Inc................................... 1,100,000 0 Total Investments USA Inc. .................................... 487,445 0 BP Products North America Inc. ................................ 463,783 0 Societe Generale Financial Corporation......................... 1,500,000 0 S T Exchange Inc. ............................................. 1,781,538 0 Continental Power Exchange, Inc................................ 209,122 0 AEP Investments, Inc........................................... 1,494,704 599,850 Mirant Americas Energy Marketing, LP .......................... 1,406,243 564,349 Duke Energy Trading Exchange, LLC ............................. 1,343,766 539,275 El Paso Merchant Energy North America Company.................. 1,235,617 495,874 TA Associates Funds ........................................... 442,712 0 DB Structured Products, Inc. .................................. 500,307 200,652 MHC Investment Company......................................... 139,368 0 ----------- --------- Total.................................................... 15,997,500 2,400,000 =========== =========
37 SCHEDULE III [signatures of lock-up agreements] Morgan Stanley Capital Group Inc. The Goldman Sachs Group, Inc. Total Investments USA Inc. BP Products North America Inc. Societe Generale Financial Corporation S T Exchange Inc. Continental Power Exchange, Inc. AEP Investments, Inc. Mirant Americas Energy Marketing, LP Duke Energy Trading Exchange, LLC El Paso Merchant Energy North America Company TA IX L.P. TA / Atlantic and Pacific IV L.P. TA Strategic Partners Fund A L.P. TA Strategic Partners Fund B L.P. TA Investors II L.P. DB Structured Products, Inc. Jeffrey C. Sprecher Charles A. Vice Richard V. Spencer David S. Goone Edwin D. Marcial Richard Ward David J. Peniket Johnathan H. Short Vincent Tese Jean-Marc Forneri Robert P. Reid Charles R. Crisp Frederic V. Salerno Judith A. Sprieser Richard L. Sandor 38 EX-99.3 4 ex-3.txt EXHIBIT 3 -- REGISTRATION RIGHTS AGREEMENT EXHIBIT 3 ================================================================================ REGISTRATION RIGHTS AGREEMENT DATED AS OF NOVEMBER 21, 2005 BY AND AMONG INTERCONTINENTALEXCHANGE, INC. AND THE PARTIES LISTED IN ANNEX A HERETO ================================================================================ REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (the "Agreement") is dated as of November 21, 2005 by and among IntercontinentalExchange, Inc., a Delaware corporation (the "Company"), and those parties listed in Annex A hereto (the "Stockholders"). RECITALS WHEREAS, the Stockholders own shares of the issued and outstanding Class A Common Stock, Series 2, of the Company, par value $0.01 per share (the "Class A Shares"); WHEREAS, in connection with the Company's recapitalization, each Class A Share will be reclassified by way of a reverse stock split at a ratio of one-for-four and may be converted into one share of new common stock of the Company, par value $0.01 per share (the "Shares"), as provided by the Company's Fourth Amended and Restated Certificate of Incorporation; and WHEREAS, the Company and the Stockholders have entered into this Agreement for the purpose of designating the registration rights of the Stockholders. NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the parties agree as follows: ARTICLE I CERTAIN DEFINITIONS The following terms shall have the definitions set forth below: "Affiliate" has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act. "Board of Directors" means the board of directors of the Company. "Business Day" means any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in New York. "CPEX" means Continental Power Exchange, Inc. and its successors or assigns. "CPEX Agreement" has the meaning set forth in Section 3.1(c). "Class A Shares" has the meaning set forth in the preamble of this Agreement. "Closing Price" means, with respect to the Registrable Securities, as of the date of determination, the closing price per share of a Registrable Security on such date on the principal national securities exchange on which the Registrable Securities are then listed or admitted for trading as published in The Wall Street Journal (National Edition) or, if no such closing price on such date is published in The Wall Street Journal (National Edition), the average of the closing bid and asked prices on such date, as officially reported on the principal national securities exchange on which the Registrable Securities are then listed or admitted to trading; or if the Registrable Securities are not then listed or admitted to trading on any national securities exchange but are designated as national market system securities by the NASD, the last trading price per share of a Registrable Security on such date. "Commission" means the United States Securities and Exchange Commission, or any successor governmental agency or authority. "Covered Registration" means any Piggyback Registration or any S-3 Registration. "Cutback Registration" means any Covered Registration to be effected as an underwritten Public Offering in which the Managing Underwriter with respect thereto advises the Company and the Requesting Holders in writing that, in its opinion, the number of securities requested to be included in such registration (including securities of the Company that are not Registrable Securities) exceeds the number which can be sold in such offering without a reduction in the selling price anticipated to be received for the securities to be sold in such Public Offering. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Form S-3" has the meaning set forth in Section 3.2(a). "Indemnified Party" has the meaning set forth in Section 4.1(c). "Indemnifying Party" has the meaning set forth in Section 4.1(c). "Initial Public Offering" means the Company's initial Public Offering. "Losses" has the meaning set forth in Section 4.1(a). "Managing Underwriter" means, with respect to any Public Offering, the lead managing underwriter or underwriters for such Public Offering. "Market Price" means, on any date of determination, the average of the daily Closing Price of Shares for the immediately preceding thirty (30) days on which the national securities exchanges are open for trading. -2- "NASD" means the National Association of Securities Dealers, Inc. "Notice of Piggyback Registration" has the meaning set forth in Section 3.1(a). "Participating Holders" means the Stockholders participating in any Covered Registration. "Participating Stock" means the shares of Registrable Securities of each such Participating Holder that will be included in a Covered Registration. "Person" means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or association. "Piggyback Registration" means any registration of equity securities of the Company under the Securities Act (other than a registration in respect of a dividend reinvestment or similar plan or on Form S-4 or Form S-8 promulgated by the Commission, or any successor or similar forms thereto), whether for sale for the account of the Company or for the account of any holder of securities of the Company. "Public Offering" means any offering of Shares to the public, either on behalf of the Company or any of its securityholders, pursuant to an effective registration statement under the Securities Act. "Registrable Securities" means the Shares, including any security or instrument issued by the Company that is exchangeable for the Shares or issuable upon the conversion of the Shares, provided that Shares shall cease to be Registrable Securities when (x) a registration statement with respect to the sale of such Shares shall have become effective under the Securities Act and such Shares shall have been disposed of in accordance with such registration statement or (y) (i) all Shares owned by a Stockholder may be sold in a single sale, without any limitation as to volume pursuant to Rule 144, and (ii) until such time as such Stockholder is no longer subject to the volume restrictions of Rule 144(e) under the Securities Act by virtue of Rule 144(k) under the Securities Act, such Stockholder owning such Shares owns less than one percent of the outstanding class of Shares proposed to be sold. "Registration Expenses" means all expenses arising from or incident to its performance of, or compliance with, this Agreement, including, without limitation, (i) Commission, stock exchange and NASD registration and filing fees, (ii) all fees and expenses incurred in complying with securities or "blue sky" laws (including reasonable fees, charges and disbursements of counsel to the Managing Underwriter incurred in connection with "blue sky" qualifications of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all printing, messenger and delivery expenses, and (iv) the fees, charges and expenses of counsel to the Company and of its independent -3- public accountants and any other accounting fees, charges and expenses incurred by the Company. Notwithstanding anything to the contrary contained herein, each Participating Holder of Registrable Securities sold pursuant to a registration statement shall bear the expense of any broker's commission or underwriter's discount or commission relating to the registration and sale of such Participating Holders' Registrable Securities and, subject to the next succeeding sentence, shall bear the fees and expenses of its own counsel. In connection with the initial S-3 Registration in any twelve (12) month period, the Company shall reimburse the Participating Holders of Registrable Securities sold pursuant to the S-3 Registration for the reasonable fees and disbursements of one counsel chosen by the Requesting Holders representing a majority of such Registrable Securities included in the S-3 Registration. "Request for Registration" means a written request by a Stockholder to the Company for registration of Registrable Securities in response to a Notice of Piggyback Registration, which request shall specify the number of Registrable Securities intended to be disposed of and the intended method of disposition thereof. "Requesting Holders" mean, with respect to any registration, the Stockholders requesting to have Registrable Securities included in a registration. "Rule 144" means Rule 144 promulgated under the Securities Act, and any successor provision thereto. "S-3 Initiating Holders" has the meaning set forth in Section 3.2(a). "S-3 Registration" has the meaning set forth in Section 3.2(a). "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Shares" has the meaning set forth in the preamble of this Agreement. "Stockholders" has the meaning set forth in the preamble of this Agreement. "Valid Business Reason" means a determination by the Board of Directors, in its good faith judgment, that any registration of Registrable Securities should not be made or continued because it would (x) materially adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction involving the Company or (y) require the Company to disclose in a registration statement information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the Board of Directors, (A) such disclosure would be materially harmful to the Company and its stockholders or (B) the Company has a bona fide purpose for preserving the confidentiality of such information. -4- ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Company Representations and Warranties. The Company hereby represents and warrants to the Stockholders as follows: (a) Organization. The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. (b) Due Authorization. The Company has full corporate power and authority to execute this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate proceedings on the part of the Company. This Agreement is a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally and, as to enforceability, general equitable principles. Section 2.2. Stockholder Representations and Warranties. Each Stockholder hereby severally (and not jointly) represents and warrants to the Company and the other Stockholders with respect to itself as follows: (a) Organization. If such Stockholder is a corporation or other entity, it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. (b) Due Authorization. Each Stockholder that is a corporation or other entity has full corporate or other power and authority, to execute this Agreement and to consummate the transactions contemplated hereby. In the case of each Stockholder that is a corporation or other entity, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate or other proceedings on its part. This Agreement is a valid and legally binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally and, as to enforceability, general equitable principles. -5- ARTICLE III REGISTRATION RIGHTS Section 3.1. "Piggyback" Registration. (a) Request for Registration. If at any time following the Initial Public Offering, the Company proposes to effect a Piggyback Registration, it shall give prompt written notice (a "Notice of Piggyback Registration") at least ten (10) days before the anticipated filing date to the Stockholders of its intention to do so and of such Stockholders' rights under this Section 3.1(a) to participate in such Piggyback Registration, which Notice of Piggyback Registration shall include a description of the intended method of disposition of such securities. If any such Stockholder delivers a Request for Registration to the Company within ten (10) days after such Stockholder receives a Notice of Piggyback Registration, the Company will use its reasonable best efforts to include in the registration statement relating to such Piggyback Registration all Registrable Securities that the Company has been so requested to register. Notwithstanding the foregoing, if, at any time after giving a Notice of Piggyback Registration and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Requesting Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith) and (ii) in the case of a determination to delay registration, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities. (b) Registration Expenses. The Company will pay all Registration Expenses incurred in connection with each Piggyback Registration, whether or not such Piggyback Registration becomes effective. (c) Priority in Cutback Registrations. If a Piggyback Registration becomes a Cutback Registration and such registration as initially proposed by the Company was solely a primary registration of securities for its account or for the account of CPEX, the Company will include in such registration to the extent of the amount of the securities which the Managing Underwriter advises the Company can be sold in such offering without a reduction in the selling price anticipated to be received for the securities to be sold in such Public Offering: (A) first, any securities proposed by the Company to be sold for its own account, (B) second, any securities proposed to be sold by CPEX pursuant to the exercise of its demand registration rights in accordance with the Second Amendment to Contribution and Asset Transfer Agreement among the Company, CPEX and Jeffrey C. Sprecher entered into as of October 24, 2005 ("CPEX Agreement"), (C) third, the Registrable Securities included in the Requests for Registration of Requesting Holders, pro rata based on the number of Registrable Securities owned by each such Requesting Holder; provided, that if the number of shares of Participating Stock allocated to any Requesting Holder exceeds the amount of Registrable Securities specified in such Requesting Holder's Request for Registration, such excess shares will be allocated pro rata among the other Requesting Holders based on the number of Registrable Securities owned by the remaining Requesting Holders until all such excess shares are allocated -6- among the remaining Requesting Holders. Any securities excluded shall be withdrawn from and shall not be included in such Piggyback Registration. Section 3.2. S-3 Registration. (a) Request for S-3 Registration. Upon the Company becoming eligible for use of Form S-3 (or any successor form thereto) under the Securities Act in connection with a Public Offering of its securities, in the event that the Company shall receive from one or more Stockholders as a group holding 25% or more of the Registrable Securities held by all Stockholders (each, an "S-3 Initiating Holder") a written request that the Company register under the Securities Act on Form S-3 ("Form S-3") (or any successor form then in effect) (an "S-3 Registration") all or a portion of the Registrable Securities owned by such Stockholders, the Company shall give written notice of such request to all of the Stockholders (other than the S-3 Initiating Holders that have requested an S-3 Registration under this Section 3.2(a)) at least ten (10) days before the anticipated filing date of such Form S-3, and such notice shall describe the proposed registration and offer such Stockholders the opportunity to register the number of Registrable Securities as each such Stockholder may request in writing to the Company given within ten (10) days after their receipt from the Company of the written notice of such S-3 Registration. With respect to each S-3 Registration, the Company shall (i) include in such offering the Registrable Securities of the S-3 Initiating Holders and the Registrable Securities of any Stockholder who has requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the S-3 Initiating Holders included therein and (ii) use its reasonable best efforts to cause such registration pursuant to this Section 3.2(a) to become and remain effective as soon as practicable, but in any event not later than ninety (90) days after it receives a request therefor. (b) Form S-3 Underwriting Procedures. If the Requesting Holders of Registrable Securities to be registered pursuant to Section 3.2(a) holding a majority of all such Registrable Securities so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Section 3.2(b) to be in the form of a firm commitment underwritten offering and the Managing Underwriter selected for such offering shall be an investment banking firm of national reputation selected and obtained by the Company, acting through the Board of Directors. In connection with any S-3 Registration under this Section 3.2 involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Participating Holders accept the terms of the underwritten offering as agreed upon between the Company, the Managing Underwriter and the S-3 Initiating Holders. (c) Priority in Cutback Registrations. If an S-3 Registration becomes a Cutback Registration, the Company will include in such registration to the extent of the amount of the securities which the Managing Underwriter advises the Company can be sold in such offering without a reduction in the selling price anticipated to be received for the securities to be sold in such Public Offering: (A) first, the Registrable Securities requested for inclusion by the Requesting Holders, pro rata based on the number of -7- Registrable Securities owned by each such Requesting Holder; provided, that if the number of shares of Participating Stock allocated to any Requesting Holder exceeds the amount of Registrable Securities specified in such Requesting Holder's Request for Registration, such excess shares will be allocated pro rata among the other Requesting Holders, (B) second, any securities proposed to be sold by CPEX pursuant to its exercise of its registration rights in accordance with the CPEX Agreement, (C) third, any securities proposed by the Company to be sold for its own account. Any securities excluded shall be withdrawn from and shall not be included in such S-3 Registration. (d) Limitations on S-3 Registrations. If the Board of Directors has a Valid Business Reason, the Company (x) may postpone filing a registration statement relating to an S-3 Registration until such Valid Business Reason no longer exists, but in no event for more than one hundred and twenty (120) days and (y) in case a registration statement has been filed relating to an S-3 Registration, upon the approval of a majority of the Board of Directors, may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement. The Company shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing due to a Valid Business Reason more than once in any twelve (12) month period. In addition, the Company shall not be required to effect any registration pursuant to Section 3.2(a), (i) within ninety (90) days after the effective date of any other registration statement of the Company, (ii) if within the twelve (12) month period preceding the date of such request, the Company has effected two (2) S-3 Registrations pursuant to Section 3.2(a), (iii) if Form S-3 is not available for such offering by the S-3 Initiating Holders or (iv) if the Participating Holders (including the S-3 Initiating Holders), propose to sell their Registrable Securities to the public at an aggregate price (calculated based upon the Market Price of the Registrable Securities on the date of filing of the Form S-3 with respect to such Registrable Securities) of less than $20,000,000. (e) Expenses. The Company shall bear all Registration Expenses in connection with one S-3 Registration pursuant to this Section 3.2 per year, whether or not such registration statement becomes effective; provided, however, that if an S-3 Registration is withdrawn at the request of the Participating Holders holding a majority of the Registrable Securities held by all such Participating Holders and if such Participating Holders elect not to have such registration count as an S-3 Registration, each of such Participating Holders shall pay the Registration Expenses of such registration pro rata in accordance with the number of its Registrable Securities that were to have been included in such registration. If more than one S-3 Registration is invoked in a year, the Participating Holders shall pay the Registration Expenses of all additional S-3 Registrations so invoked pro rata in accordance with the number of Registrable Securities that were included (or in the case of registrations that are not completed, requested to be included) in such registration. -8- Section 3.3. Registration Procedures. (a) Obligations of the Company. If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act pursuant to Article III hereof, the Company will use its reasonable best efforts to effect the registration and sale of such Registrable Securities. Without limiting the foregoing (and subject to its rights under Article III hereof not to register or to delay registration of Registrable Securities), the Company in each such case will, as expeditiously as possible: (i) prepare and file with the Commission a registration statement on such form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with this Article III and the intended method of distribution thereof, and in the case of a Piggyback Registration, cause such registration statement to become effective within 120 days of the initial filing thereof; provided, that before filing any registration statement in a Covered Registration or any amendment thereto, the Company will furnish to counsel for the Requesting Holders copies of reasonably complete drafts of all such documents proposed to be filed, and any counsel shall have an adequate and appropriate opportunity to object to any information pertaining to such Requesting Holders that is contained therein, and the Company will make the corrections reasonably requested by such counsel within a reasonable period of time with respect to such information prior to filing any such registration statement or amendment; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and any prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration statement and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities included in such registration statement, in accordance with the intended methods of disposition thereof, until the earlier of (a) such time as when all Registrable Securities covered by the registration statement have been sold and (b) sixty (60) days after such registration statement becomes effective; (iii) notify counsel to the Requesting Holders and each seller of Registrable Securities of any stop order issued or threatened by the Commission; (iv) furnish to each holder of Registrable Securities included in such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus -9- filed under Rule 424 promulgated under the Securities Act relating to such holder's Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities; (v) use its reasonable best efforts to register or qualify all Registrable Securities included in such registration statement under such other securities or blue sky laws of such jurisdictions as each holder thereof shall reasonably request and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this paragraph (V) be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any jurisdiction; (vi) use its reasonable best efforts to cause all Registrable Securities included in such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable each holder thereof to consummate the disposition of such Registrable Securities; (vii) notify each holder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at the request of any such holder promptly prepare and furnish to such holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission; (ix) make available at reasonable times for inspection by any Participating Holder or any Managing Underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such Participating Holder or Managing Underwriter, all financial and other records, pertinent corporate documents and properties of the Company to the -10- extent it shall be reasonably necessary to enable such Persons to exercise their due diligence responsibility, and, in connection therewith, cause the Company's officers, directors and employees to supply all information reasonably requested by any such Person, in connection with such registration statement, in each case, subject to their execution of a confidentiality agreement with respect to information relating to ICE Futures Holdings Plc and ICE Futures (collectively, "ICE Futures") that is non-public or proprietary in nature, or as may be subject to contractual, regulatory or other obligations of confidentiality on the part of the Company or ICE Futures; (x) provide a transfer agent and registrar for all Registrable Securities included in such registration statement not later than the effective date of such registration statement; and (xi) use its reasonable best efforts to cause all Registrable Securities included in such registration statement to be listed, upon official notice of issuance, on any national securities exchange on which any of the securities of the same class as the Registrable Securities are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable best efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD. (b) Obligations of the Participating Holders. (i) the Company may require each Participating Holder whose Registrable Securities are being registered to, and each such Participating Holder, as a condition to including Registrable Securities in such registration, shall, furnish the Company and the underwriters with such information and affidavits regarding such Participating Holder and the distribution of such securities as the Company and the underwriters may from time to time reasonably request in writing in connection with such registration. (ii) upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (vii) of this Section 3.3, each Participating Holder will immediately discontinue such holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such holder receives the copies of the supplemented or amended prospectus contemplated by paragraph (vii) of this Section 3.3 and, if so directed by the Company, shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such holder's -11- possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the period referred to in paragraph (ii) of this Section 3.3 shall be extended by a number of days equal to the number of days during the period from and including the giving of notice pursuant to paragraph (vii) of this Section 3.3 and to and including the date when each Participating Holder whose Registrable Securities are included in such registration statement receives the copies of the supplemented or amended prospectus contemplated by paragraph (vii) of this Section 3.3. Section 3.4. Underwritten Offerings. If the Company at any time proposes to register any of its securities in a Piggyback Registration and such securities are to be distributed by or through one or more underwriters, the Company will, subject to the provisions of Section 3.1(c), use its best efforts, if requested by any Requesting Holder whose Registrable Securities are included in such registration, to arrange for such underwriters to include the Registrable Securities to be offered and sold by such Requesting Holder among the securities to be distributed by such underwriters, and such Requesting Holders shall be obligated to sell their Registrable Securities in such Piggyback Registration through such underwriters on the same terms and conditions as apply to the other Company securities to be sold by such underwriters in connection with such Piggyback Registration. The Requesting Holders whose Registrable Securities are to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriter or underwriters if requested by the Managing Underwriter. No Requesting Holder may participate in such underwritten offering unless such Requesting Holder agrees, if requested by the Managing Underwriter, to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. If any Requesting Holder disapproves of the terms of an underwriting, such Requesting Holder may elect to withdraw therefrom and from such registration by notice to the Company and the Managing Underwriter, and each of the remaining Requesting Holders shall be entitled to increase the number of Registrable Securities being registered to the extent of the Registrable Securities so withdrawn (i) in the case of a Cutback Registration, in accordance with the priorities set forth in Section 3.1(c) and (ii) in all other cases in the proportion which the number of Registrable Securities being registered by such remaining Requesting Holder bears to the total number of Registrable Securities being registered by all such remaining Requesting Holders. Section 3.5. Holdback Agreements. Unless the Managing Underwriter (or, in the case of a non-underwritten Public Offering, the Company) otherwise agrees in writing, no Stockholder shall effect any public sale or distribution (including a sale under Rule 144) of any Registrable Securities, or any securities convertible into or exchangeable or exercisable for Registrable Securities, including any Class A Shares, during the period beginning on the third business day prior to and ending on the 180th day after the effective date of any registration statement filed by the Company in connection -12- with a Public Offering (or for such shorter period of time as is sufficient and appropriate, in the opinion of the Managing Underwriter (or, in the case of a non-underwritten Public Offering, the Company), in order to complete the sale and distribution of the securities included in such registration), except as part of such registration statement, whether or not such Stockholder participates in such registration. IV INDEMNIFICATION AND CONTRIBUTION Section 4.1 Indemnification. (a) Indemnification by the Company. The Company shall, to the full extent permitted by law, indemnify and hold harmless each Participating Holder of Registrable Securities included in any registration statement filed in connection with a Covered Registration, its directors, officers, and partners, and each other Person, if any, who controls any such Participating Holder within the meaning of the Securities Act, against any losses, claims, damages, expenses or liabilities, joint or several (together, "Losses"), to which such Participating Holder or any such director, officer, partner or controlling Person may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, and the Company will reimburse such Participating Holder and each such director, officer, partner and controlling Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Loss (or action or proceeding in respect thereof); provided, that the Company shall not be liable in any such case to the extent that any such Loss (or action or proceeding in respect thereof) arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in any such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Participating Holder, or (ii) such Participating Holder's failure to send or give a copy of the final prospectus to the Persons asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such final prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Participating Holder or any such director, officer, partner or controlling Person, and shall survive the transfer of such securities by such Participating Holder. The Company shall also provide customary indemnification to -13- any underwriters of Registrable Securities, their officers and directors, and partners, and each other Person, if any, who controls any such underwriter within the meaning of the Securities Act. (b) Indemnification by the Participating Holder. Each Participating Holder, as a condition to including its Registrable Securities in a registration statement filed in connection with a Covered Registration, shall, to the full extent permitted by law, severally and not jointly, indemnify and hold harmless the Company, its directors and officers, any underwriter retained by the Company, and each other Person, if any, who controls the Company or such underwriter within the meaning of the Securities Act, against any Losses to which the Company or any such director or officer or controlling Person may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement of any material fact contained in any such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by such Participating Holder, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided that the obligation of such Participating Holder to provide indemnification pursuant to this Section 4.1 shall be limited in amount to the net proceeds received by such Participating Holder from the sale of Registrable Securities pursuant to such Covered Registration. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling Person and shall survive the transfer of such securities by such Participating Holder. (c) Notices of Claims, Etc. Promptly after receipt by any Person entitled to indemnification under subsection (a) or (b) above (the "Indemnified Party") of notice of the commencement of any proceeding or action, such Indemnified Party shall, if a claim in respect thereof is to be made against an indemnifying party (the "Indemnifying Party") under this Section 4, notify such Indemnifying Party in writing of the commencement thereof; but the omission so to notify the Indemnifying Party shall not relieve it from any liability which it may have to any Indemnified Party otherwise than under subsection (a) or (b) above (except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure). In case any such action shall be brought against any Indemnified Party and it shall notify an Indemnifying Party of the commencement thereof, such Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other Indemnifying Party similarly notified, to assume the defense thereof, with counsel satisfactory to such Indemnified Party, and, after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, such Indemnifying Party shall not be liable to such Indemnified Party under this Section 4 for any legal expenses of other -14- counsel or any other expenses, in each case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation. No Indemnifying Party shall, without the written consent of the Indemnified Party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought under this Section 4 (whether or not the Indemnified Party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any Indemnified Party. (d) Contribution. If for any reason the indemnification provided for in this Section 4.1 is unavailable to hold harmless an Indemnified Party under subsection (a) or (b) above in respect of any Losses referred to therein, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact has been made by or relates to information supplied by such Indemnifying Party or by such Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 4.1(d). The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. ARTICLE V MISCELLANEOUS Section 5.1 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted, -15- if transmitted by telecopy, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by registered or certified mail (or any substantially similar form of mail), postage prepaid and return receipt requested. In each case notice shall be sent to: If to the Company, addressed to: IntercontinentalExchange, Inc. 2100 RiverEdge Parkway Suite 500 Atlanta, GA 30328 Attention: Chief Executive Officer Telecopier No.: (770) 951-5481 With copies to: IntercontinentalExchange, Inc. 2100 RiverEdge Parkway Suite 500 Atlanta, GA 30328 Attention: General Counsel Telecopier No.: (770) 857-4755 and: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attention: David J. Gilberg Telecopier No.: (212) 558-3588 If to any Stockholder, to such Stockholder at the address indicated in Annex A hereto. Changes in notice addresses may be made by a notice delivered to the Company pursuant to this Section 5.1. Section 5.2 Governing Law; Jurisdiction. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. (b) By execution and delivery of this Agreement, each of the Stockholders accepts, generally and unconditionally, the exclusive jurisdiction of the state or federal courts of New York. -16- Section 5.3 Entire Agreement; Amendments and Waivers. (a) This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. This Agreement may not be terminated or amended except by an instrument in writing signed on behalf of the Stockholders holding at least a majority of the outstanding Registrable Securities held by Stockholders; provided that any amendment that expressly alters the rights of any Stockholder differently from other Stockholders shall require the consent of such affected Stockholder. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. (b) It being the intent of the Company and the Stockholders that this Agreement shall be the sole and exclusive agreement with respect to the matters set forth herein and, during the term of this Agreement, each party hereto agrees not to enter into any other agreements or arrangements that are in conflict with or are expressly governed by the terms of this Agreement except for agreements or arrangements (i) approved or consented to by the Stockholders of at least a majority of the outstanding Registrable Securities held by the Stockholders, (ii) agreements or arrangements between any Stockholder and its Affiliates, and (iii) agreements or arrangements pursuant to the Company's employee benefit plans. Section 5.4 Headings. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning thereof. Section 5.5 Successors, Assigns and Transferees. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, legatees, successors and any party to which any Stockholder has transferred or sold its Registrable Securities; provided that Shares which have been distributed in a registered Public Offering or sold under Rule 144 to Persons other than Stockholders shall no longer be subject to this Agreement. Except as provided herein, each transferee of shares of Registrable Securities from a Stockholder shall take such shares subject to the same restrictions as existed in the hands of the transferor. The Company may, however, require any transferee seeking to participate in a Covered Registration to sign an agreement acknowledging that it is bound by the terms and conditions of this Agreement as if such transferee were a Participating Holder with respect to the relevant Covered Registration. Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. -17- Section 5.7 Further Assurances. Each of the parties shall execute and deliver such further instruments and documents and take such further actions as may be reasonably required or desirable in the discretion of the Company to carry out the provisions hereof and the transactions contemplated hereby. Section 5.8 Cumulative Remedies. All rights and remedies of each party hereto are cumulative of each other and of every other right or remedy such party may otherwise have at law or in equity, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. Section 5.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. -18- IN WITNESS WHEREOF, the parties hereto have executed and delivered this Registration Rights Agreement as of the date first above written. INTERCONTINENTALEXCHANGE, INC. By /s/ JEFFREY C. SPRECHER ------------------------------------------ Name: Jeffrey C. Sprecher Title: Chief Executive Officer AEP INVESTMENTS, INC. By /s/ STEPHEN P. SMITH ------------------------------------------ Name: Stephen P. Smith Title: President THE GOLDMAN SACHS GROUP, INC. By /s/ GARY COHN ------------------------------------------ Name: Gary Cohn Title: Assistant Secretary MIRANT AMERICAS ENERGY MARKETING, LP By /s/ J. WILLIAM HOLDEN III ----------------------------------------- Name: J. William Holden III Title: Senior Vice President MORGAN STANLEY CAPITAL GROUP INC. By /s/ NANCY A. KING ------------------------------------------ Name: Nancy A. King Title: Vice President -19- SOCIETE GENERALE FINANCIAL CORPORATION By /s/ GOVERNOR TIPTON ------------------------------------------ Name: Governor Tipton Title: Secretary TOTAL INVESTMENTS USA INC. By /s/ SUSAN T. DUBB ------------------------------------------ Name: Susan T. Dubb Title: Vice President -20- EX-99.4 5 ex-4.txt EXHIBIT 4 -- POWER OF ATTORNEY EXHIBIT 4 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Yvette Kosic, John M. O'Rourke, Felicia J. Rector, Michael T. Seeley, and Stephen Wong, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of November 7, 2005. THE GOLDMAN SACHS GROUP, INC. By: /s/ Gregory K. Palm ------------------------------------ Name: Gregory K. Palm Title: Executive Vice President and General Counsel Page 1 -----END PRIVACY-ENHANCED MESSAGE-----