EXHIBIT 3
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 21, 2005
BY AND AMONG
INTERCONTINENTALEXCHANGE, INC.
AND
THE PARTIES LISTED IN ANNEX A HERETO
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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.
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"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
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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.
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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.
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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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 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
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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
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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.
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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
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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
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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
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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
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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
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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
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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,
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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.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
IntercontinentalExchange, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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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.
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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.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
AEP INVESTMENTS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
By /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Assistant Secretary
MIRANT AMERICAS ENERGY MARKETING, LP
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
-----------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL GROUP INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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SOCIETE GENERALE FINANCIAL CORPORATION
By /s/ GOVERNOR ▇▇▇▇▇▇
------------------------------------------
Name: Governor ▇▇▇▇▇▇
Title: Secretary
TOTAL INVESTMENTS USA INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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