INTERCONTINENTALEXCHANGE, INC.
As filed with the Securities and
Exchange Commission on August 1, 2007
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
INTERCONTINENTALEXCHANGE,
INC.
(Exact name of registrant as
specified in its charter)
|
|
|
Delaware
(State or Other
Jurisdiction of
Incorporation or Organization)
|
|
58 2555 670
(I.R.S. Employer
Identification Number)
|
2100 RiverEdge Parkway
Suite 500
Atlanta, GA 30328
(770) 857-4700
(Address, including zip code,
and telephone number,
including area code, of
registrants principal executive offices)
Johnathan H.
Short, Esq.
Andrew J.
Surdykowski, Esq.
IntercontinentalExchange,
Inc.
2100 RiverEdge Parkway
Suite 500
Atlanta, GA 30328
(770) 857-4700
(Name, address, including zip
code, and telephone number,
including area code, of agent
for service)
Copy to:
Catherine M.
Clarkin, Esq.
Sullivan & Cromwell
LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION
OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
Amount to be registered/Proposed maximum
|
|
Title of each class of
|
|
|
offering price per unit/Proposed maximum
|
|
securities to be registered
|
|
|
offering price/Amount of registration fee
|
|
Common Stock, par value $0.01 per
share(1)
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
(1)
|
The common stock may be offered and sold by the Registrant
and/or may be offered and sold from time to time by one or more
selling shareholders to be identified in the future.
|
|
(2)
|
An indeterminate aggregate initial offering price or number of
shares of common stock is being registered as may from time to
time be issued at indeterminate prices. In accordance with
Rules 456(b) and 457(r) the Registrant is deferring payment
of all of the registration fee.
|
PROSPECTUS
INTERCONTINENTALEXCHANGE,
INC.
Common Stock
This prospectus relates to shares of our common stock that we
may offer and sell from time to time in amounts, at prices and
on terms that will be determined at the time of the offering. In
addition, selling shareholders to be named in a prospectus
supplement may use this prospectus to offer and sell shares of
our common stock from time to time as provided herein.
Each time any common stock is offered pursuant to this
prospectus, we will provide a prospectus supplement and attach
it to this prospectus. The prospectus supplement will contain
more specific information about the offering, including the
names of and other information relating to the selling
shareholders, if applicable. A prospectus supplement may also
add, update or change information contained in this prospectus.
This prospectus may not be used to offer or sell securities
unless accompanied by a prospectus supplement describing the
method and terms of the applicable offering.
We and any selling shareholders may offer and sell shares of
common stock directly, through agents, dealers or underwriters
as designated from time to time, or through a combination of
these methods. If any agents, dealers or underwriters are
involved in the sale of any shares of our common stock, the
applicable prospectus supplement will set forth any applicable
commissions or discounts.
Our common stock is listed on the New York Stock Exchange and
trades under the ticker symbol ICE.
You should carefully read this prospectus and the applicable
prospectus supplement, together with the documents incorporated
by reference, before you invest in our common stock.
See Risk Factors beginning on page 23 of
our Annual Report on
Form 10-K
for the year ended December 31, 2006 and on page 51 of
our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2007, which are incorporated
herein by reference, to read about factors you should consider
before buying shares of our common stock.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
Prospectus dated August 1, 2007
You should rely only on the information contained in this
prospectus and the accompanying prospectus supplement, including
the information incorporated by reference herein as described
under Where You Can Find More Information, or any
free writing prospectus that we prepare and distribute. Neither
we nor any selling shareholder have authorized anyone to provide
you with information different from that contained in or
incorporated by reference into this prospectus and the
accompanying prospectus supplement or any such free writing
prospectus. This prospectus, the accompanying prospectus
supplement and any such free writing prospectus may be used only
for the purposes for which they have been published, and no
person has been authorized to give any information not contained
in or incorporated by reference into this prospectus and the
accompanying prospectus supplement or any such free writing
prospectus. If you receive any other information, you should not
rely on it. You should not assume that the information contained
in or incorporated by reference into this prospectus is accurate
as of any date other than the date on the cover page of this
prospectus. Neither we nor any selling shareholder are making an
offer of these securities in any jurisdiction where the offer is
not permitted.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC, using
a shelf registration process. Under this shelf
process, we and the selling shareholders may sell the securities
described in this prospectus in one or more offerings. Each time
we or the selling shareholders sell securities, we will provide
a prospectus supplement along with this prospectus that will
contain specific information about the terms of the offering.
The accompanying prospectus supplement may also add, update or
change information contained in this prospectus. If information
varies between this prospectus and the accompanying prospectus
supplement, you should rely on the information in the
accompanying prospectus supplement. You should read both this
prospectus and the accompanying prospectus supplement together
with the additional information described under Where You
Can Find More Information.
WHERE YOU
CAN FIND MORE INFORMATION
We are required to file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may
read and copy any documents filed by us at the SECs public
reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Our
filings with the SEC are also available to the public through
the SECs Internet site at
http://www.sec.gov
and through the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, on which our common stock is listed.
We have filed with the SEC a registration statement on
Form S-3
relating to the securities covered by this prospectus. This
prospectus is a part of the registration statement and does not
contain all of the information in the registration statement.
Whenever a reference is made in this prospectus to a contract or
other document of ours, please be aware that the reference is
only a summary and that you should refer to the exhibits that
are a part of the registration statement for a copy of the
contract or other document. You may review a copy of the
registration statement at the SECs public reference room
in Washington, D.C., as well as through the SECs
Internet site.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SECs rules allow us to incorporate by
reference information into this prospectus. This means
that we can disclose important information to you by referring
you to another document. Any information referred to in this way
is considered part of this prospectus from the date we file that
document. Any reports filed by us with the SEC after the date of
this prospectus and before the date that the offering of the
securities by means of this prospectus is terminated will
automatically update and, where applicable, supersede any
information contained in this prospectus or incorporated by
reference in this prospectus.
We incorporate by reference into this prospectus the following
documents or information filed by us with the SEC (other than,
in each case, documents or information deemed to have been
furnished and not filed in accordance with SEC rules):
(1) Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006, filed on
February 26, 2007 (File
No. 001-32671);
(2) Quarterly Reports on
Form 10-Q
for the fiscal quarters ended March 31, 2007 and
June 30, 2007, filed on May 4, 2007 and July 27,
2007, respectively (File
No. 001-32671);
(3) Current Report on
Form 8-K,
dated and filed on January 12, 2007 (File
No. 001-32671);
(4) Current Report on
Form 8-K,
dated January 29, 2007 and filed on February 1, 2007
(File
No. 001-32671);
(5) Amendment to Current Report on
Form 8-K,
dated on January 12, 2007 and filed on February 14,
2007 (File
No. 001-32671);
2
(6) Current Report on
Form 8-K,
dated March 6, 2007 and filed on March 9, 2007 (File
No. 001-32671);
(7) Current Report on
Form 8-K,
dated and filed on March 15, 2007 (File
No. 001-32671);
(8) Current Report on
Form 8-K,
dated and filed on March 26, 2007 (File
No. 001-32671);
(9) Current Report on
Form 8-K,
dated April 30, 2007 and filed on May 2, 2007 (File
No. 001-32671);
(10) Current Report on
Form 8-K,
dated May 30, 2007 and filed on June 5, 2007 (File
No. 001-32671);
(11) Current Report on
Form 8-K,
dated June 11, 2007 and filed on June 14, 2007 (File
No. 001-32671);
(12) Current Report on
Form 8-K,
dated June 15, 2007 and filed on June 20, 2007 (File
No. 001-32671);
(13) Current Report on
Form 8-K,
dated July 18, 2007 and filed on July 24, 2007 (File
No. 001-32671);
(14) the description of our common stock contained in our
Registration Statement on
Form S-1
(File
No. 333-123500),
as amended, which description is incorporated by reference in
our Registration Statement on
Form 8-A,
dated November 14, 2005 (File
No. 001-32671),
filed with the SEC under Section 12(b) of the Securities
Exchange Act of 1934; and
(15) All documents filed by us under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 on or
after the date of this prospectus and before the termination of
the applicable offering.
We will provide without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon his
or her written or oral request, a copy of any or all documents
referred to above which have been or may be incorporated by
reference into this prospectus excluding exhibits to those
documents unless they are specifically incorporated by reference
into those documents. You can request those documents from
Investor Relations, 2100 RiverEdge Parkway, Suite 500,
Atlanta, GA 30328, telephone
(770) 857-4700.
When we refer to we, our or
us in this prospectus we mean
IntercontinentalExchange, Inc. and its consolidated subsidiaries.
FORWARD-LOOKING
STATEMENTS
We have included or incorporated by reference in this prospectus
statements that may constitute forward-looking
statements within the meaning of the safe harbor
provisions of The Private Securities Litigation Reform Act of
1995. These forward-looking statements are not historical facts
but instead represent only our belief regarding future events,
many of which, by their nature, are inherently uncertain and
outside of our control. It is possible that our actual results
may differ, possibly materially, from the anticipated results
indicated in these forward-looking statements.
Information regarding important factors that could cause actual
results to differ, perhaps materially, from those in our
forward-looking statements is set forth in Item 1(A) under
the caption Risk Factors and elsewhere in our Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2006 and our
Quarterly Reports on
Form 10-Q
for the fiscal quarters ended March 31, 2007 and
June 30, 2007, which are incorporated in this prospectus by
reference (and in any of our annual or quarterly reports for a
subsequent fiscal year or fiscal quarter that are so
incorporated). See Available Information above for
information about how to obtain a copy of these documents.
3
INTERCONTINENTALEXCHANGE,
INC.
We operate the leading electronic global futures and
over-the-counter, or OTC, marketplace for trading a broad array
of energy products as well as the leading global soft
commodities exchange. We are the only marketplace to offer an
integrated electronic platform for
side-by-side
trading of energy products in both futures and OTC markets. We
also offer open-outcry trading in NYBOTs regulated futures
and options markets, including soft commodities, foreign
exchange and equity and commodity indices. We conduct our OTC
business directly as an Exempt Commercial Market under the
Commodity Exchange Act, and we conduct our regulated energy
futures business through our wholly-owned subsidiary, ICE
Futures. Following the completion of our acquisition of NYBOT on
January 12, 2007, we conduct our regulated soft commodities
and financial futures and options markets through NYBOT, which
owns the ICE Clear US, Inc. (formerly known as New York Clearing
Corp.), a clearing house. NYBOT plans to change its name to ICE
Futures US in September 2007. We also offer a variety of market
data services for both energy futures and OTC markets through
ICE Data, our market data subsidiary. Our principal executive
offices are located at 2100 RiverEdge Parkway, Suite 500,
Atlanta, Georgia 30328, and our telephone number is
770-857-4700.
DESCRIPTION
OF CAPITAL STOCK
The following descriptions are summaries of the material
terms of our amended and restated charter and bylaws. They may
not contain all of the information that is important to you. To
understand them fully, you should read our amended and restated
charter and bylaws, copies of which are filed with the SEC as
exhibits to the registration statement of which this prospectus
is a part. The following descriptions are qualified in their
entirety by reference to the amended and restated charter and
bylaws and applicable law.
Pursuant to our amended and restated charter, our authorized
capital stock consists of 300,000,000 shares, each with a
par value of $0.01 per share, of which:
|
|
|
|
|
25,000,000 shares are designated as preferred
stock; and
|
|
|
|
275,000,000 shares are designated as common stock, divided
into the following classes:
|
|
|
|
|
|
194,275,000 shares are designated as common stock, which we
refer to as common stock, 69,288,488 shares of which are
outstanding as of July 23, 2007; and
|
|
|
|
80,725,000 shares are designated as Class A common
stock, divided into two series: Class A common stock,
Series 1 and Class A common stock, Series 2, of
which no shares are outstanding as of July 23, 2007.
|
In this prospectus, unless the context otherwise requires, we
refer to the common stock and the Class A common stock,
collectively, as our common stock. All outstanding shares of
common stock are, and the shares of common stock offered hereby
will be, when issued and sold, validly issued, fully paid and
nonassessable.
Preferred
Stock
Our authorized capital stock includes 25,000,000 shares of
preferred stock, none of which is outstanding. Our board of
directors is authorized to divide the preferred stock into
series and, with respect to each series, to determine the
designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, including
the dividend rights, conversion or exchange rights, voting
rights, redemption rights and terms, liquidation preferences,
sinking fund provisions and the number of shares constituting
the series. Our board of directors could, without shareholder
approval, issue preferred stock with voting and other rights
that could adversely affect the voting power of the holders of
common stock and which could have certain anti-takeover effects.
Subject to the rights of the holders of any series of preferred
stock, the number of authorized shares of any series of
preferred stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by resolution adopted
by our board of directors and approved by the affirmative vote
of the
4
holders of a majority of the voting power of all outstanding
shares of capital stock entitled to vote on the matter, voting
together as a single class.
Common
Stock
Our authorized capital stock includes 275,000,000 shares of
common stock, divided into two classes: common stock and
Class A common stock. Of the Class A common stock, no
shares are outstanding or may be issuable. Following the
conversion of all outstanding shares of Class A1 and
Class A2 common stock to common stock, the
Class A1 shares and the Class A2 shares were
cancelled and may no longer be issued. The terms of our common
stock are discussed below.
Our common stock has the following rights and privileges:
|
|
|
|
|
Voting: Each holder of shares of common stock
is entitled to one vote for each share owned of record on all
matters submitted to a vote of shareholders. Except as otherwise
required by law or as described below, holders of shares of
common stock will vote together as a single class on all matters
presented to the shareholders for their vote or approval,
including the election of directors. There are no cumulative
voting rights. Accordingly, the holders of a majority of the
total shares of common stock voting for the election of
directors can elect all the directors if they choose to do so,
subject to the voting rights of holders of any preferred stock
to elect directors.
|
|
|
|
Dividends and distributions: The holders of
shares of common stock have the right to receive dividends and
distributions, whether payable in cash or otherwise, as may be
declared from time to time by our board of directors from
legally available funds.
|
|
|
|
Liquidation, dissolution or
winding-up: In
the event of our liquidation, dissolution or
winding-up,
holders of the shares of common stock are entitled to share
equally, share-for-share, in the assets available for
distribution after payment of all creditors and the liquidation
preferences of our preferred stock.
|
|
|
|
Restrictions on transfer: Neither our charter
nor our bylaws contain any restrictions on the transfer of
shares of common stock. In the case of any transfer of shares,
there may be restrictions imposed by applicable securities laws.
|
|
|
|
Redemption, conversion or preemptive
rights: Holders of shares of common stock have no
redemption or conversion rights or preemptive rights to purchase
or subscribe for our securities.
|
|
|
|
Other provisions: There are no redemption
provisions or sinking fund provisions applicable to the common
stock, nor is the common stock subject to calls or assessments
by us.
|
The rights, preferences, and privileges of the holders of common
stock are subject to and may be adversely affected by, the
rights of the holders of any series of preferred stock that we
may designate and issue in the future. As of the date of this
prospectus, there are no shares of preferred stock outstanding.
Limitation
of Liability and Indemnification Matters
Our charter provides that none of our directors will be liable
to us or our shareholders for monetary damages for breach of
fiduciary duty as a director, except in those cases in which
liability is mandated by the Delaware General Corporation Law,
and except for liability for breach of the directors duty
of loyalty, acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law, or any
transaction from which the director derived any improper
personal benefit. Our bylaws provide for indemnification, to the
fullest extent permitted by law, of any person made or
threatened to be made a party to any action, suit or proceeding
by reason of the fact that such person is or was one of our
directors or senior officers or, at our request, serves or
served as a director, officer, employee or agent of any other
enterprise, against all expenses, liabilities, losses and claims
actually incurred or suffered by such person in connection with
the action, suit or proceeding. Our bylaws also provide that, to
the extent authorized from time to time by our board of
directors, we may provide to any one or more other persons
rights of indemnification and rights to receive payment or
reimbursement of expenses, including attorneys fees.
5
Section 203
of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the
Delaware General Corporation Law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in
a business combination with an interested shareholder for a
period of three years after the date of the transaction in which
the person became an interested shareholder, unless the business
combination is approved in a prescribed manner. A business
combination includes a merger, asset sale or a transaction
resulting in a financial benefit to the interested shareholder.
An interested shareholder is a person who, together with
affiliates and associates, owns (or, in certain cases, within
three years prior, did own) 15% or more of the
corporations outstanding voting stock. Under
Section 203, a business combination between us and an
interested shareholder is prohibited during the relevant
three-year period unless it satisfies one of the following
conditions:
|
|
|
|
|
prior to the time the shareholder became an interested
shareholder, our board of directors approved either the business
combination or the transaction that resulted in the shareholder
becoming an interested shareholder;
|
|
|
|
on consummation of the transaction that resulted in the
shareholder becoming an interested shareholder, the interested
shareholder owned at least 85% of our voting stock outstanding
at the time the transaction commenced (excluding, for purposes
of determining the number of shares outstanding, shares owned by
persons who are directors and officers); or
|
|
|
|
the business combination is approved by our board of directors
and authorized at an annual or special meeting of the
shareholders by the affirmative vote of at least
662/3%
of our outstanding voting stock that is not owned by the
interested shareholder.
|
Certain
Anti-Takeover Matters
Our charter and bylaws include a number of provisions that may
have the effect of encouraging persons considering unsolicited
tender offers or other unilateral takeover proposals to
negotiate with our board of directors rather than pursue
non-negotiated takeover attempts. These provisions include:
Board
of Directors
Vacancies and newly created seats on our board may be filled
only by our board of directors. Only our board of directors may
determine the number of directors on our board. The inability of
shareholders to determine the number of directors or to fill
vacancies or newly created seats on the board makes it more
difficult to change the composition of our board of directors,
but these provisions promote a continuity of existing management.
Advance
Notice Requirements
Our bylaws establish advance notice procedures with regard to
shareholder proposals relating to the nomination of candidates
for election as directors or new business to be brought before
meetings of our shareholders. These procedures provide that
notice of such shareholder proposals must be timely given in
writing to our secretary prior to the meeting at which the
action is to be taken. Generally, to be timely, notice must be
received at our principal executive offices not less than
90 days nor more than 120 days prior to the first
anniversary date of the annual meeting for the preceding year.
The notice must contain certain information specified in the
bylaws.
Adjournment
of Meetings of Shareholders Without a Shareholder
Vote
Our bylaws permit the chairman of the meeting of shareholders,
who is appointed by the board of directors, to adjourn any
meeting of shareholders for a reasonable period of time without
a shareholder vote.
6
Special
Meetings of Shareholders
Our bylaws provide that special meetings of the shareholders may
be called by the board of directors, the chairman of the board,
the chief executive officer, or at the request of holders of at
least 50% of the shares of common stock outstanding at the time.
No
Written Consent of Shareholders
Our charter requires all shareholder actions to be taken by a
vote of the shareholders at an annual or special meeting. Our
charter generally does not permit our shareholders to act by
written consent without a meeting.
Amendment
of Bylaws and Charter
Our charter requires the approval of not less than
662/3%
of the voting power of all outstanding shares of our capital
stock entitled to vote to amend any bylaw by shareholder action
or to amend the charter provisions described in this section.
This supermajority voting requirement makes it more difficult to
alter the anti-takeover provisions of our bylaws and our
charter. Our charter also authorizes the board of directors to
amend the bylaws at any time without shareholder action.
Blank
Check Preferred Stock
Our charter provides for 25,000,000 authorized shares of
preferred stock. The existence of authorized but unissued shares
of preferred stock may enable the board of directors to render
more difficult or to discourage an attempt to obtain control of
us by means of a merger, tender offer, proxy contest or
otherwise. For example, if in the due exercise of its fiduciary
obligations, our board of directors were to determine that a
takeover proposal is not in our best interests, the board of
directors could cause shares of preferred stock to be issued
without shareholder approval in one or more private offerings or
other transactions that might dilute the voting or other rights
of the proposed acquirer or insurgent shareholder or shareholder
group. In this regard, the charter grants our board of directors
broad power to establish the rights and preferences of
authorized and unissued shares of preferred stock. The issuance
of shares of preferred stock could decrease the amount of
earnings and assets available for distribution to holders of
shares of common stock. The issuance may also adversely affect
the rights and powers, including voting rights, of such holders
and may have the effect of delaying, deterring or preventing a
change in control. The board of directors currently does not
intend to seek shareholder approval prior to any issuance of
shares of preferred stock, unless otherwise required by law.
Listing
Our common stock is listed on the New York Stock Exchange under
the symbol ICE.
Transfer
Agent
The transfer agent for our common stock is Computershare
Investor Services.
USE OF
PROCEEDS
We intend to use the net proceeds we receive from the sale of
shares of our common stock as set forth in the applicable
prospectus supplement. We will not receive any proceeds from the
sale of shares of common stock by any selling shareholder.
PLAN OF
DISTRIBUTION
The shares of common stock offered by this prospectus may be
sold from time to time by us or by certain selling shareholders
(or by such shareholders pledgees, donees, transferees or
other successors in interest) directly or, alternatively,
through broker-dealers acting as underwriters, dealers or
agents. The shares of common stock may be sold on the New York
Stock Exchange, in the over-the-counter market or otherwise, in
7
one or more transactions at fixed prices (which may be changed),
at prevailing market prices at the time of sale, at varying
prices determined at the time of sale or at negotiated prices.
The sales may be made by one or more, or a combination, of the
following methods:
|
|
|
|
|
a block trade in which a broker-dealer will attempt to sell the
shares as agent, but may resell all or a portion of the block as
a principal to facilitate the transaction;
|
|
|
|
a broker-dealer may purchase the common stock as a principal and
then resell the common stock for its own account;
|
|
|
|
an exchange distribution in accordance with the rules of the
applicable exchange;
|
|
|
|
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
|
|
|
|
privately negotiated transactions;
|
|
|
|
by pledge to secure debts or other obligations;
|
|
|
|
through the issuance of derivative securities, including
warrants, exchangeable securities, forward delivery contracts
and the writing of options;
|
|
|
|
to cover hedging transactions;
|
|
|
|
underwritten offerings; or
|
|
|
|
any other legally available means.
|
In connection with sales of the common stock or otherwise, we or
any selling shareholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume.
We or any selling shareholder may also sell common stock short
and deliver common stock to close out short positions, or loan
or pledge common stock to broker-dealers that in turn may sell
these securities.
We or any selling shareholder may select broker-dealers to sell
shares. Broker-dealers that we or any selling shareholder engage
may arrange for other broker-dealers to participate in selling
the shares. We or any selling shareholder may give these
broker-dealers commissions, discounts or other concessions in
amounts to be negotiated at the time of sale. In connection with
these sales and except as disclosed in the next paragraph, the
participating broker-dealers, as well as any selling shareholder
(and any such shareholders pledgees, donees, transferees
and other successors in interest), may be deemed to be
underwriters within the meaning of
Section 2(11) of the Securities Act of 1933 (the
Securities Act) in connection with the sales of the
shares. Accordingly, any commission, discount or other
concession received by them and any profit on the resale of the
shares received by them may be deemed to be underwriting
discounts or commissions under the Securities Act. The
applicable prospectus supplement will include any required
information about underwriting compensation we pay to
underwriters and any discounts, concessions or commissions
underwriters allow to participating dealers, in connection with
an offering of our common stock.
Any of the shares of common stock held by selling shareholders
that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. In addition, this prospectus may be
used by broker-dealers to resell any such shares of common stock
that are being sold by a selling shareholder (or any such
shareholders successors in interest described above)
pursuant to Rule 144. If any selling shareholder sells
pursuant to Rule 144, such selling shareholder will not be
deemed to be an underwriter under the Securities Act
with respect to those sales.
We or any selling shareholder may have agreements with the
participating broker-dealers to indemnify them against certain
civil liabilities, including liabilities under the Securities
Act, or to contribute with respect to payments which the
participating broker-dealers may be required to make.
In connection with an offering, any participating broker-dealers
may purchase and sell common stock in the open market. These
transactions may include short sales, stabilizing transactions
and purchases to cover positions created by short sales. Short
sales involve the sale by the participating broker-dealers of a
greater
8
number of shares than they own or are required to purchase in an
offering. Stabilizing transactions consist of certain bids or
purchases made for the purpose of preventing or retarding a
decline in the market price of the common stock while an
offering is in progress.
The participating broker-dealers also may impose a penalty bid.
This occurs when a particular broker-dealer repays to the others
a portion of the underwriting discount or other concession
received by it because the broker-dealers have repurchased
shares sold by or for the account of that broker-dealer in
stabilizing or short-covering transactions.
These activities by the participating broker-dealers may
stabilize, maintain or otherwise affect the market price of the
common stock. As a result, the price of the common stock may be
higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be
discontinued by the participating broker-dealers at any time.
These transactions may be effected on the NYSE or any other
exchange or automated quotation system, if the common stock is
listed on that exchange or admitted for trading on that
automated quotation system, or in the over-the-counter market or
otherwise.
VALIDITY
OF THE COMMON STOCK
The validity of the common stock offered hereby will be passed
upon for us by Sullivan & Cromwell LLP, New York, New
York.
EXPERTS
The consolidated financial statements of
IntercontinentalExchange, Inc. appearing in
IntercontinentalExchange, Inc.s Annual Report
(Form 10-K)
for the year ended December 31, 2006 (including the
schedule appearing therein), and IntercontinentalExchange, Inc.
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2006
included therein, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth
in their reports thereon included therein, and incorporated
herein by reference. Such financial statements and
managements assessment are, and audited financial
statements and IntercontinentalExchange, Inc. managements
assessments of the effectiveness of internal control over
financial reporting to be included in subsequently filed
documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such
financial statements and managements assessments (to the
extent covered by consents filed with the Securities and
Exchange Commission) given on the authority of such firm as
experts in accounting and auditing.
9
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution
|
The following is a statement of the estimated expenses to be
incurred by the Registrant in connection with the distribution
of the securities registered under this registration statement:
|
|
|
|
|
|
|
Amount
|
|
|
|
to be paid
|
|
|
SEC registration fee
|
|
$
|
*
|
|
Legal fees and expenses
|
|
|
**
|
|
Accounting fees and expenses
|
|
|
**
|
|
Miscellaneous
|
|
|
**
|
|
|
|
|
|
|
Total
|
|
|
**
|
|
|
|
|
|
|
|
|
|
* |
|
Deferred in reliance on Rule 456(b) and 457(r). A portion
of these expenses may be paid by selling shareholders in
connection with sales of our common stock registered under this
registration statement made by such selling shareholders. |
|
** |
|
The amount of these expenses is not presently known. |
|
|
Item 15.
|
Indemnification
of Directors and Officers
|
Section 145 of the Delaware General Corporation Law (the
DGCL) provides that a corporation may indemnify
directors and officers, as well as other employees and
individuals, against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any
threatened, pending or completed actions, suits or proceedings
in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent of
the Corporation, subject to certain limitations. The statute
provides that it is not exclusive of other rights to which those
seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise. Section 7.6 of our bylaws provides for
indemnification by us of our directors, officers and employees
to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to
provide in its charter that a director of the corporation shall
not be personally liable to the corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director,
except for liability (1) for any breach of the
directors duty of loyalty to the corporation or its
shareholders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (3) for payments of unlawful dividends or unlawful
stock purchases or redemptions, or (4) for any transaction
from which the director derived an improper personal benefit.
Our charter provides for such limitation of liability.
We expect to maintain standard policies of insurance under which
coverage is provided (1) to our directors and officers
against loss rising from claims made by reason of breach of duty
or other wrongful act, and (2) to us with respect to
payments which may be made by us to such officers and directors
pursuant to the above indemnification provision or otherwise as
a matter of law.
The Merger Agreement incorporated by reference to
Exhibit 2.1 to our registration statement on
Form S-4
filed with the SEC on November 16, 2006 provides for
indemnification of the past and present directors, officers and
employees of Board of Trade of the City of New York, Inc. and
its subsidiaries, for acts or omissions occurring at or prior to
the completion of the merger, to the same extent as these
individuals had rights of indemnification prior to the
completion of the merger and to the fullest extent permitted by
law.
II-1
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Document
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement.*
|
|
5
|
.1
|
|
Opinion of Sullivan &
Cromwell LLP regarding the validity of the securities being
registered.**
|
|
23
|
.1
|
|
Consent of Ernst & Young LLP,
Independent Registered Public Accounting Firm.**
|
|
24
|
.1
|
|
Power of Attorney (included on
signature page).
|
|
|
|
* |
|
To be filed as an exhibit to a Current Report on
Form 8-K
and incorporated herein by reference. |
|
** |
|
Filed herewith. |
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by a Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule
II-2
415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which the prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of a
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, each undersigned
Registrant undertakes that in a primary offering of securities
of an undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of an undersigned Registrant or used or
referred to by an undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
an undersigned Registrant or its securities provided by or on
behalf of an undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by an undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of Registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of each Registrant pursuant to
the foregoing provisions, or otherwise, each Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or
controlling person of a Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, that Registrant will, unless in the opinion of
its counsel the has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Atlanta, State of Georgia, on the 1st day of
August, 2007.
INTERCONTINENTALEXCHANGE, INC.
Name: Scott A. Hill
|
|
|
|
Title:
|
Senior Vice President,
|
Chief Financial Officer
The undersigned directors and officers do hereby constitute and
appoint Jeffrey C. Sprecher and Richard V. Spencer and either of
them, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things
in our name and behalf in our capacities as directors and
officers, and to execute any and all instruments for us and in
our names in the capacities indicated below, that such person
may deem necessary or advisable to enable the Registrant to
comply with the Securities Act of 1933 (the Act) and
any rules, regulations and requirements of the Securities and
Exchange Commission in connection with this registration
statement, including specifically, but not limited to, power and
authority to sign for us, or any of us, in the capacities
indicated below, any and all amendments hereto (including
pre-effective and post-effective amendments or any other
registration statement filed pursuant to the provisions of
Rule 462(b) under the Act); and we do hereby ratify and
confirm all that such person or persons shall do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities indicated on the 1st day of August, 2007.
|
|
|
|
|
Signature
|
|
Title(s)
|
|
/s/ Jeffrey
C. Sprecher
Jeffrey
C. Sprecher
|
|
Chairman of the Board and Chief
Executive Officer
(principal executive officer)
|
|
|
|
/s/ Scott
A. Hill
Scott
A. Hill
|
|
Senior Vice President, Chief
Financial Officer
(principal financial and accounting officer)
|
|
|
|
/s/ Charles
R. Crisp
Charles
R. Crisp
|
|
Director
|
|
|
|
/s/ Jean-Marc
Forneri
Jean-Marc
Forneri
|
|
Director
|
|
|
|
/s/ Fred
W. Hatfield
Fred
W. Hatfield
|
|
Director
|
|
|
|
/s/ Terrence
F. Martell
Terrence
F. Martell
|
|
Director
|
II-4
|
|
|
|
|
Signature
|
|
Title(s)
|
|
/s/ Sir
Robert Reid
Sir
Robert Reid
|
|
Director
|
|
|
|
/s/ Frederic
V. Salerno
Frederic
V. Salerno
|
|
Director
|
|
|
|
/s/ Richard
L.
Sandor, Ph.D.
Richard
L. Sandor, Ph.D.
|
|
Director
|
|
|
|
/s/ Frederick
W. Schoenhut
Frederick
W. Schoenhut
|
|
Director
|
|
|
|
/s/ Judith
A. Sprieser
Judith
A. Sprieser
|
|
Director
|
|
|
|
/s/ Vincent
Tese
Vincent
Tese
|
|
Director
|
II-5