Second Amendment to Contribution and Asset Transfer Agreement Dated as of October 24, 2005 By and among IntercontinentalExchange, Inc. Continental Power Exchange, Inc. and Jeffrey C. Sprecher
Exhibit 10.33
Second Amendment to
Dated as of October 24, 2005
By and among
IntercontinentalExchange, Inc.
Continental Power Exchange, Inc.
and
Xxxxxxx X. Xxxxxxxx
Second Amendment to
Contribution and Asset Transfer Agreement
Contribution and Asset Transfer Agreement
This Second Amendment to Contribution and Asset Transfer Agreement (this “Amendment”)
is entered into as of October 24, 2005 and is by and among IntercontinentalExchange, Inc., a
Delaware corporation (“ICEX”), Continental Power Exchange, Inc., a Delaware corporation
(“CPEX”) and Xxxxxxx X. Xxxxxxxx (“Xxxxxxxx”).
W I T N E S S E T H
WHEREAS, IntercontinentalExchange, LLC, a Delaware limited liability company, CPEX and
Xxxxxxxx are the parties to that certain Contribution and Asset Transfer Agreement dated as of May
11, 2000 (the “Agreement”) and the First Amendment to the Agreement dated as of May 17,
2000;
WHEREAS, ICEX is the successor to IntercontinentalExchange, LLC;
WHEREAS, the parties hereto (the “Parties”) wish to amend the Agreement further as hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and on the terms and subject to the conditions herein set forth, the Parties,
intending to be bound, hereby agree as follows:
Section 1. Amendment of Agreement. The Agreement is hereby amended as follows,
effective immediately upon the closing of the initial public offering of common stock of ICEX:
(a) The provisions of Section 5.2 of the Agreement are hereby terminated, and the rights of
CPEX and the obligations of ICEX set forth therein shall expire and be of no further force and
effect.
(b) Article VI of the Agreement is hereby amended to read as set forth in Appendix A attached
hereto.
(c) Section 7.7 is hereby amended to read as follows:
7.7. Assignability. This Agreement shall not be transferable or
assignable, nor shall any obligations hereunder be delegable, by CPEX or ICEX,
without the prior written consent of the other parties, and any such purported
transfer, assignment or delegation without the prior written consent of such other
parties shall be null and void; provided, however, that CPEX may
assign its rights under Article VI to Xxxxxxxx or any other person directly or
indirectly controlled by Xxxxxxxx to which any portion of the CPEX Interest (as
defined in Section 6.1) is transferred. Any such assignment must either carry with
it all of CPEX’s rights under Article VI or must provide that the assigned rights
may be exercised only in parallel with the exercise of the retained rights and with
any rights assigned to a third person. As an illustration of this principle, if
CPEX assigns half of the
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CPEX Interest to Xxxxxxxx, together with the related rights, and Xxxxxxxx
demands registration, that will use up one of the two permitted demands under
Section 6.3. However, if CPEX demands registration at the same time as Xxxxxxxx,
there will still be one permitted demand remaining.
(d) Section 8.1(h) is hereby amended to read as follows:
(h) “Employment Agreement” means the Employment Agreement between ICEX
and Xxxxxxxx, with an initial term commencing September 27, 2004.
Section 2. Expenses. Notwithstanding the provisions of Section 7.10 of the
Agreement, within 45 days following execution of this Agreement, ICEX shall reimburse CPEX and
Xxxxxxxx for their respective out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel and valuation consultants) incurred in negotiating this Agreement and related
matters, upon presentation by CPEX and Xxxxxxxx of appropriate documentation therefor.
Section 3. Effect. Except as amended hereby, the Agreement shall remain in full
force and effect in all respects.
Section 4. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict of law provisions
thereof.
Section 5. Counterparts. This Amendment may be executed in two or more separate
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have hereunto signed their names in the space provided below.
| IntercontinentalExchange, Inc. | ||
| By: /s/ Xxxxxx X. Xxxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: Director | ||
| Continental Power Exchange, Inc. | ||
| By: /s/ Xxxxxxx X. Xxxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Chief Executive Officer | ||
| /s/ Xxxxxxx X. Xxxxxxxx | ||
| Xxxxxxx X. Xxxxxxxx |
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Second Amendment to
Contribution and Asset Transfer Agreement
Contribution and Asset Transfer Agreement
APPENDIX A
ARTICLE VI.
CPEX REGISTRATION RIGHTS
6.1. Definitions.
As used in this Article VI, the following terms have the following meanings:
(a) CPEX Interest” means the Interest (including, for purposes of this Article VI, all
shares or other securities or interests in ICEX or any successor which may be granted or exchanged
in respect of the Interest), less any portion of the Interest held by CPEX subject to an option on
the part of, or otherwise held for the benefit of, any persons who were employees of CPEX prior to
May 1, 2000.
(b) “Date of Termination” means the date of the termination of Xxxxxxxx’x employment
under the Employment Agreement.
(c) “Form S-3” means such form under the Securities Act as in effect on the date
hereof or any successor form that permits significant incorporation by reference to a company’s
filings under the Securities Exchange Act of 1934, as amended.
(d) “SEC” means the Securities and Exchange Commission.
(e) “Securities Act” means the Securities Act of 1933, as amended.
6.2 Piggyback Rights. At any time after the Date of Termination, in the event that
ICEX proposes to register any equity securities of ICEX under the Securities Act, ICEX shall
promptly provide CPEX written notice of such proposed registration. If requested in writing by
CPEX no later than twenty (20) days after its receipt of the notice of ICEX specified in the
preceding sentence, ICEX shall include in its registration statement all of the CPEX Interest that
CPEX has requested to be registered in such proposed public offering, subject to underwriter
cutbacks on a pro rata basis with respect to the inclusion in such registration of securities other
than primary securities.
6.3 Registration. At any time after the Date of Termination, CPEX shall have the
right to demand in writing on no more than two occasions that ICEX effect a registration, on such
form that ICEX is then qualified to use, of that portion of the unregistered CPEX Interest
requested by CPEX; provided, that (i) ICEX shall not be obligated to effect any such
registration for any portion of the CPEX Interest having an anticipated aggregate offering price of
less than $1,000,000, and (ii) at least one of the two occasions must be a registration on Form
S-3.
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6.4 Delay. ICEX may delay the filing or effectiveness of any registration statement
requested to be filed pursuant to Section 6.3 for a period of up to seventy-five (75) days after
the date of a request for registration if (i) at the time of such request ICEX is engaged, or will
engage within sixty (60) days of the time of such request, in an underwritten public offering of
its securities right in which CPEX has piggyback rights under Section 6.2; (ii) ICEX determines in
good faith that it is in possession of material, non-public information concerning an acquisition,
merger, recapitalization, consolidation, reorganization or other material transaction by or of ICEX
or concerning pending or threatened litigation and disclosure of such information would jeopardize
any such transaction or litigation or otherwise materially harm ICEX, or (iii) the Board of
Directors of ICEX determines in its good faith judgment that it would otherwise be seriously
detrimental to ICEX and its equity holders for such registration statement to be filed and it is
therefore prudent to defer the filing of such registration statement; provided, however, that ICEX
may not exercise such deferral right pursuant to this subclause (iii) on the ground of the identity
of the seller or more than twice in any twelve (12) month period.
6.5 Termination. The right conferred on CPEX pursuant to Section 6.3 to demand that
ICEX effect a registration shall terminate and be of no further force or effect upon the first to
occur of (i) the CPEX Interest having become eligible for resale in reliance on Rule 144(k) under
the Securities Act or (ii) such time as CPEX no longer holds any portion of the unregistered CPEX
Interest. If CPEX demands registration pursuant to Section 6.3 before the CPEX Interest has become
eligible for resale in reliance on Rule 144(k), the registration need not occur prior to the CPEX
Interest becoming eligible for resale in reliance on Rule 144(k), but ICEX must nonetheless perform
the obligations related to a timely demand pursuant to Section 6.3 even if the CPEX Interest
becomes eligible for resale in reliance on Rule 144(k) before such registration becomes effective.
6.6 Reasonable Efforts. Whenever required under Section 6.3 to effect the
registration of the CPEX Interest, ICEX shall use its commercially reasonable efforts to:
(a) prepare and file with the SEC within seventy-five (75) days a registration statement (or
thirty (30) days if such registration is on
Form S-3) with respect to the CPEX Interest and as expeditiously as reasonably possible cause such registration statement to become effective, and, upon the request of CPEX, keep such registration statement effective for up to ninety (90) days (or sooner if all securities covered by such registration statement have been earlier sold).
Form S-3) with respect to the CPEX Interest and as expeditiously as reasonably possible cause such registration statement to become effective, and, upon the request of CPEX, keep such registration statement effective for up to ninety (90) days (or sooner if all securities covered by such registration statement have been earlier sold).
(b) as expeditiously as reasonably possible prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration statement for such
period of time as the registration statement remains effective.
(c) furnish to CPEX such numbers of copies of a prospectus including a preliminary prospectus
in conformity with the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the CPEX Interest.
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(d) use its best efforts to register and qualify the securities covered by such registration
statement under the securities or Blue Sky laws of such state jurisdictions as shall be reasonably
requested by CPEX; provided, however, that ICEX shall not be required to consent to
general service of process for all purposes or qualify as a foreign corporation in any jurisdiction
where it is not then qualified, or to register or qualify the CPEX Interest in any jurisdiction
which would require ICEX to amend its constituent documents or covenant or undertake to do any
other act or make any other change regarding its capitalization or equity ownership.
(e) (i) in the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with the managing
underwriter of such offering and (ii) in the event any broker or brokers are engaged by CPEX to
assist in the sale of the proposed registered CPEX Interest, cooperate with CPEX and such brokers
in effecting such sale or sales, including (without limitation) by the provision of any documents,
opinions of counsel or other information reasonably requested by CPEX or such brokers.
(f) during the period of time that such registration statement remains effective, notify CPEX
as expeditiously as reasonably possible 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 the
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, in
light of the circumstances in which they were made, not misleading.
(g) cause the CPEX Interest to be listed on the securities exchange or interdealer quotation
system on which similar securities issued by ICEX then primarily trade; provided that ICEX
then meets or is reasonably capable of meeting the eligibility requirements for such exchange or
system.
(h) provide a transfer agent and registrar for the CPEX Interest registered pursuant hereunder
and a CUSIP number therefor, in each case not later than the effective date of such registration.
(i) pay (so far as is lawful) all expenses incurred in connection with registrations, filings
or qualifications pursuant to Section 6.2 or 6.3, including (without limitation) all registration,
filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for
ICEX and CPEX; provided, however, that under all circumstances (except as provided
in the following proviso) all underwriting discounts, brokers’ fees, selling commissions, income
and transfer taxes and legal fees and expenses of counsel to CPEX shall not be borne by ICEX but
shall be borne solely by CPEX; provided further, that notwithstanding the
foregoing, (A) subject to the limitations set forth in clauses (B), (C) and (D) below, ICEX shall
pay (less applicable withholding taxes) all underwriting discounts, brokers’ fees and selling
commissions incurred by CPEX in connection with sales of any portion of the CPEX Interest pursuant
to any registrations, filings or qualifications under Section 6.2 or 6.3 during the 12-month period
following the Date of Termination, (B) if the underwriter is chosen by ICEX, ICEX’s obligations
under the foregoing clause (A) shall be subject to a $4,500,000 overall limit for all such
underwriting discounts, brokers’ fees and selling commissions incurred by CPEX related to the
underwriting, (C) if the underwriter is not chosen by ICEX, the $4,500,000 limit
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referred to in the foregoing clause (B) shall be $3,000,000, and (D) the $3,000,000 limit
referred to in the foregoing clause (C) (to the extent applicable) shall be further reduced to
$2,400,000 if ICEX terminates Xxxxxxxx’x employment for “Cause,” Xxxxxxxx terminates his employment
without “Good Reason” and not for death or “Disability” (with Cause, Good Reason and Disability
having the meanings given in the Employment Agreement) or Xxxxxxxx violates Section 5.7
(Non-Compete) of the Employment Agreement.
6.7 Conditions. ICEX shall not be obligated to effect the registration of the CPEX
Interest unless CPEX consents and adheres to customary conditions of a reasonable nature that are
imposed by ICEX, including, but not limited to, the following:
(a) conditions prohibiting the sale of the CPEX Interest by CPEX until the registration is
effective; provided, however, that nothing in this Agreement shall prohibit CPEX
from effecting sales pursuant to Rule 144 under the Securities Act or any other available exemption
from the registration requirements of the Securities Act either before or after effectiveness of a
registration pursuant to Section 6.2 or 6.3;
(b) conditions requiring CPEX to comply with all provisions of the Securities Act and the
Exchange Act of 1934, as amended, including, but not limited to, the prospectus delivery
requirements of the Securities Act, and to furnish ICEX with information about sales made in the
public offering;
(c) conditions prohibiting CPEX from effecting sales upon receipt of notice from ICEX that
ICEX is required to correct or update the registration statement, until such time as ICEX has
completed the necessary correction or updating;
(d) conditions requiring CPEX to provide ICEX on a timely basis with such information and
materials as ICEX may reasonably request in order to effect the applicable registration; and
(e) in the event of any underwritten public offering, conditions requiring CPEX to enter into
and perform its obligations under an underwriting agreement, in usual and customary form, with the
managing underwriter of such offering.
6.8 Brokerage. ICEX shall pay (less applicable withholding taxes) all reasonable
brokers’ fees and selling commissions incurred by CPEX in connection with any sales of any portion
of the CPEX Interest during the 12-month period following the Date of Termination, other than sales
pursuant to a registration pursuant to Section 6.2 or 6.3.
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