-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FfvhshGPfMapr65F5wJu6uBTCvEkhhIxXia6mgyyVeyDCxjYDy00awhBo7jDqmhH 3vq4ib0p3LO4M6TJZTikMA== 0000903423-06-000350.txt : 20060330 0000903423-06-000350.hdr.sgml : 20060330 20060330164035 ACCESSION NUMBER: 0000903423-06-000350 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20060330 DATE AS OF CHANGE: 20060330 GROUP MEMBERS: MORGAN STANLEY & CO. INTERNATIONAL LIMITED GROUP MEMBERS: MORGAN STANLEY CAPITAL GROUP INC. GROUP MEMBERS: MORGAN STANLEY DW INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERCONTINENTALEXCHANGE INC CENTRAL INDEX KEY: 0001174746 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81171 FILM NUMBER: 06723715 BUSINESS ADDRESS: STREET 1: 2100 RIVEREDGE PARKWAY STREET 2: SUITE 500 CITY: ATLANTA STATE: GA ZIP: 30328 BUSINESS PHONE: 7708574700 MAIL ADDRESS: STREET 1: 2100 RIVEREDGE PARKWAY STREET 2: SUITE 500 CITY: ATLANTA STATE: GA ZIP: 30328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MORGAN STANLEY CENTRAL INDEX KEY: 0000895421 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE SERVICES [6199] IRS NUMBER: 363145972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 212-761-4000 MAIL ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: MORGAN STANLEY DEAN WITTER & CO DATE OF NAME CHANGE: 19980326 FORMER COMPANY: FORMER CONFORMED NAME: DEAN WITTER DISCOVER & CO DATE OF NAME CHANGE: 19960315 SC 13D 1 ms-inter13d_0320.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

Information to be Included in Statements Filed Pursuant

to Rule 13d-1(a) and Amendments Thereto Filed Pursuant to

Rule 13d-2(a)

IntercontinentalExchange, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

45865V100

(CUSIP Number)

Herbert Thornhill

Morgan Stanley

2000 Westchester Avenue, One South C

Purchase, NY 10577
(914) 225-5542

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

March 21, 2006

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: o.

(Continued on the following pages)

Page 1 of 10 Pages

The information required on this cover page shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act.

Page 2 of 10

SCHEDULE 13D

CUSIP No. 45865V100

1	NAME OF REPORTING PERSONS Morgan Stanley
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) x
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER -0-
		8	SHARED VOTING POWER 6,463,364
		9	SOLE DISPOSITIVE POWER -0-
		10	SHARED DISPOSITIVE POWER 6,463,364
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,463,364 (See Items 4 and 5).
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.0% (See Item 5).
14	TYPE OF REPORTING PERSON HC, CO

Page 3 of 10

SCHEDULE 13D

CUSIP No. 45865V100

1	NAME OF REPORTING PERSONS Morgan Stanley Capital Group Inc.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) x
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER -0-
		8	SHARED VOTING POWER 6,418,384
		9	SOLE DISPOSITIVE POWER -0-
		10	SHARED DISPOSITIVE POWER 6,418,384
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,418,384 (See Items 4 and 5).
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.0% (See Item 5).
14	TYPE OF REPORTING PERSON CO

Page 4 of 10

SCHEDULE 13D

CUSIP No. 45865V100

1	NAME OF REPORTING PERSONS Morgan Stanley & Co. International Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) x
6	CITIZENSHIP OR PLACE OF ORGANIZATION England

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER -0-
		8	SHARED VOTING POWER 34,180
		9	SOLE DISPOSITIVE POWER -0-
		10	SHARED DISPOSITIVE POWER 34,180
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,180 (See Items 4 and 5).
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) <0.1% (See Item 5).
14	TYPE OF REPORTING PERSON BD, CO

Page 5 of 10

SCHEDULE 13D

CUSIP No. 45865V100

1	NAME OF REPORTING PERSONS Morgan Stanley DW Inc.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS BK, CO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) x
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER -0-
		8	SHARED VOTING POWER 10,800
		9	SOLE DISPOSITIVE POWER -0-
		10	SHARED DISPOSITIVE POWER 10,800
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,800 (See Items 4 and 5).
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o < /td>
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) <0.1% (See Item 5).
14	TYPE OF REPORTING PERSON CO

Page 6 of 10

Item 1.

Security and Issuer.

The class of equity securities to which this statement (the “Schedule 13D”) relates is the common stock, $0.01 par value per share (the “Common Stock”), of IntercontinentalExchange, Inc., a Delaware corporation (the “Company”). The principal executive offices of the Company are located at 2100 RiverEdge Parkway, Suite 500, Atlanta, GA 30328.

Item 2.

Identity and Background.

This Schedule 13D is being filed jointly on behalf of Morgan Stanley, a Delaware corporation (“MS”), Morgan Stanley Capital Group Inc., a Delaware corporation (“MSCG”), Morgan Stanley & Co. International Limited, a company organized under the laws of England (“MSIL”) and Morgan Stanley DW Inc., a Delaware corporation (“MSDW” together with MS, MSCG and MSIL the “Reporting Persons”). The name, business address, present principal occupation or employment and citizenship of each director and executive officer of MS, MSCG, MSIL and MSDW are set forth in Schedules A, B, C and D, respectively.

The address of the principal business office of MS is 1585 Broadway, New York, New York, 10036. The address of the principal business office of MSCG and MSDW is 2000 Westchester Avenue, Floor 01, Purchase, NY 10577. The address of the principal business office of MSIL is 25 Cabot Square, Canary Wharf, London E14 4QA, England.

MS is a global financial services firm that maintains leading market positions in each of its business segments – Institutional Securities, Global Wealth Management Group, Asset Management and Discover.

MSCG is a wholly owned subsidiary of MS. MSCG effects non-regulated transactions with various international clients in various international markets. MSCG is a non-clearing member of NYMEX and executes transactions for its own account on such exchange. MSIL and MSDW are wholly owned subsidiaries of MS. MSIL is a broker-dealer doing business under the laws of England.

During the last five years, none of the Reporting Persons, and to the knowledge of the Reporting Persons, any of the persons listed on Schedules A, B, C, and D attached hereto, has (1) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws, other than, in the case of clause (2), as described in paragraphs (i), (ii) and (iii) below. Unless the context otherwise requires, the term “Morgan Stanley” means MS and its consolidated subsidiaries:

(i) In April 2003, Morgan Stanley & Co., a wholly owned subsidiary of MS (“MS & Co.”), along with nine other financial services firms operating in the U.S., reached a settlement with the Securities and Exchange Commission (“SEC”), the New York State Attorney General’s Office, the New York Stock Exchange (“NYSE”), the National Association of Securities Dealers, Inc. (“NASD”), and the North American Securities Administrators Association (on behalf of state securities regulators) to resolve their investigations relating to alleged research conflicts of interest. Without admitting or denying allegations with respect to violations of certain rules of the NYSE and NASD relating to investment research activities (there were no allegations of fraud or federal securities law violations made against MS & Co.), Morgan Stanley agreed, among other things, to (1) pay $2 5 million as a penalty, (2) pay $25 million as disgorgement of commissions and other monies, (3) provide $75 million over five years to make available independent third-party research to clients and (4) be permanently enjoined from violating certain rules of the NYSE and NASD relating to investment research activities.

(ii) On November 17, 2003, MSDW consented, without admitting or denying the findings, to an entry of an order (the “Order”) that resolved the SEC’s and NASD’s investigations into certain practices relating to MSDW’s offer and sale of certain mutual funds from January 1, 2000 to the date of the Order. Pursuant to the Order, MSDW was ordered to (1) cease and desist from committing any violations and any future violations of Section 17(a)(2) of the Securities Act of 1933 and Rule 10b-10 under the Securities Exchange Act of 1934 (“Exchange Act”), (2) distribute for the benefit of certain customers who purchased funds through MSDW pursuant to marketing arrangements between MSDW and certain mutual fund complexes the amount of $50 million and (3) make certain disclosures and take certain other actions with respect to proprietary mutual funds.

(iii) In January 2005, the SEC announced a settlement with MS & Co. and Goldman Sachs & Co. resolving the SEC’s investigation relating to initial public offering (“IPO”) allocation practices. The SEC filed a settled civil injunction action in the United States District Court for the District of Columbia against MS&Co. relating to the allocation of stock to institutional customers in IPOs underwritten during 1999 and 2000. Under the terms of the settlement, Morgan Stanley agreed, without admitting or denying the allegations, to the entry of a judgment enjoining it from violating Rule 101 of Regulation M and the payment of a $40 million civil penalty. The court approved the settlement on February 4, 2005. The complaint alleges that MS&Co. violated Rule 101 of Regulation M by attempting to induce certain customers who received allocations of IPOs to place purchase orders for addition al shares in the aftermarket.

Item 3. Source and Amount of Funds or Other Consideration

Prior to the initial public offering of the Company (the “IPO”), MSCG directly owned 7,813,779 shares of Class A Common Stock, Series 2, of the Company (the “Class A2 Shares”) and MSIL directly owned 34,180 shares of Class A Common Stock, Series 1, of the Company (the “Class A1 Shares”, together with the Class A2 Shares, the “Class A Shares”). On November 21, 2005 (the “Closing Date”), immediately prior to the closing of the IPO and pursuant to a plan of recapitalization (the “Plan”) approved by the Company’s board of directors, the Company (i) created the Common Stock as a new class of stock, (ii) effected a 1-for-4 reverse split of the Company’s outstanding Class A Shares, and (iii) granted the holders of the Class A Shares a right to convert their Class A Shares on a one-for-one basis into shares of Common Stock at the holders’ option. As part of the Plan, (i) the Class A2 Shares convertible into shares of Common Stock proposed to be sold in the IPO were automatically converted into an equal number of shares of Common Stock immediately prior to the closing of the IPO, (ii) the Class A1 Shares (other than Class A1 Shares held by holders of Class A2 Shares) may be converted at any time at the option of the holder, subject to such terms and conditions as may be adopted by the Company's board of directors, following the date that is 90 days after the closing date of the IPO and (iii) the remaining Class A2 Shares may be converted at any time at the option of the holder, subject to such terms and conditions as may be adopted by the Company's board of directors, following the date that is 180 days after the closing date of the IPO. Pursuant to the Plan, on the Closing

Page 7 of 10

Date, MSCG converted 1,395,395 Class A2 Shares into an equal number of shares of Common Stock which were sold immediately thereafter in the IPO pursuant to an underwriting agreement, dated November 15, 2005, between the Company, MSCG, other selling stockholders named therein and the underwriters named therein.

Item 4.

Purpose of Transaction.

As described in Item 3 above, on the Closing Date, MSCG disposed of 1,395,395 shares of Class A2 Shares in connection with the IPO and was granted the right, at its option, to convert its remaining 6,418,384 shares of Class A2 Shares into an equal number of shares of Common Stock, and such right is exercisable beginning on the date that is 180 days following the Closing Date, subject to such terms and conditions for conversion as may be adopted by the Company's board of directors. Also on the Closing Date, MSIL was granted the right, at its option, to convert 34,180 shares of Class A1 Shares into an equal number of shares of Common Stock, and such option became exercisable beginning on the date that is 90 days following the Closing Date, subject to such terms and conditions for conversion as may be adopted by the Company’s board of directors. Consequently, as of March 21, 2006, (i) MSCG has an option to acquire 6,418,384 shares of Common Stock that will be exercisable within 60 days and (ii) MSIL has an option to acquire 34,180 shares of Common Stock that is currently exercisable.

Lock-Up Agreement

In connection with the IPO, MSCG has entered into a lock-up agreement with the representatives (the “Representatives”) of the underwriters named therein, dated October 27, 2005, (the “Lock-Up Agreement”) pursuant to which MSCG has agreed that, for a period of 180 days following the date of the final prospectus for the IPO, it will not, without the prior written consent of the Representatives, dispose of, directly or indirectly (including by means of any hedge that results in a short sale or any swap or other arrangement that transfers any of the economic consequences of ownership of the shares to another party), any Class A1 Share, Class A2 Share, share of Common Stock, any option to acquire Class A1 Shares, Class A2 Shares, shares of Common Stock or any securities convertible into or exchangeable for Common Stock, subject to certain exceptions. However, the Representatives, in their sole discretion, may release any of the securities subject to the Lock -Up Agreement, at any time without notice.

Registration Rights Agreement

MSCG is a party to a Registration Rights Agreement, dated November 21, 2005, by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), pursuant to which the Company has agreed to register shares of Common Stock that MSCG and the other stockholders that are parties to the agreement (together, the “Designated Stockholders”) may receive upon conversion of their Class A2 Shares from time to time following the IPO under the circumstances described below.

Once the Company is eligible to use Form S-3 to register Company securities, the Designated Stockholders will have the right to request, subject to certain limitations, an unlimited number of registrations on Form S-3, provided that any such request is received from one or more Designated Stockholders as a group holding 25% or more of the shares subject to registration. Each of the Designated Stockholders other than those originally requesting registration can request to participate in, or “piggy-back” on, any registration on Form S-3. If the Company files certain registration statements (on Form S-3 or otherwise) for an offering of common stock by it or by other stockholders other than the Designated Stockholders, the Company is required to offer the Designated Stockholders the opportunity to register their registrable shares.

The registration rights of the Designated Stockholders are subject to conditions and limitations, including the right of the underwriters to limit the number of shares to be included in a registration and the Company's right to delay or withdraw a registration statement under specified circumstances. In addition, the Company is not obligated to effect more than two S-3 registrations in any 12-month period or any S-3 registration if the participating holders propose to sell their registrable shares at an aggregate price to the public of less than $20.0 million.

Other than underwriting discounts and commissions and brokers' commissions, the Company will pay all registration expenses in connection with one S-3 registration per year, whether or not such registration becomes effective, unless the registration is withdrawn at the request of a majority of the participating stockholders. If more

Page 8 of 10

than one S-3 registration is invoked per year, all registration expenses for the additional registration will be borne by the participating stockholders pro rata.

The foregoing descriptions of the Lock-Up Agreement and the Registration Rights Agreement are qualified in their entirety by reference to the full text of each of the Lock-Up Agreement and the Registration Rights Agreement, each of which is filed as an exhibit to this Schedule 13D and incorporated herein by reference in its entirety. Except as described herein, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedules A, B, C and D hereto, is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Company.

As of the date of this Schedule 13D, none of the Reporting Persons, nor, to the knowledge and belief of the Reporting Persons, any of the persons listed on Schedules A, B, C and D hereto, has any present plan or proposals which would relate to or would result in any transaction event or action enumerated in paragraphs (a) though (j) of Item 4 of Schedule 13D, other than as described above.

Item 5.

Interest in Securities of the Issuer.

For the purposes of Rule 13d-3 promulgated under the Exchange Act, MS may be deemed to beneficially own up to 6,463,364 shares of Common Stock (6,418,384 shares of which are issuable upon exercise of Class A2 Shares within 60 days of March 21, 2006, 34,180 shares of which are issuable upon exercise of Class A1 Shares and 10,800 shares of common stock) or approximately 24.0% of the outstanding shares of Common Stock MS is filing solely in its capacity as parent company of, and indirect beneficial owner of securities held by or potentially to be held by, MSIL, MSCG and MSDW.

For the purposes of Rule 13d-3 promulgated under the Exchange Act, MSCG may be deemed to beneficially own up to 6,418,384 shares of Common Stock issuable upon exercise of Class A2 Shares within 60 days of March 21, 2006, or approximately 24.0% of the outstanding shares of Common Stock.

For the purposes of Rule 13d-3 promulgated under the Exchange Act, MSIL may be deemed to beneficially own up to 34,180 shares of Common Stock issuable upon exercise of Class A1 Shares, or approximately <0.1% of the outstanding shares of Common Stock.

MSDW has dispositive or voting authority over certain shares of Common Stock held in accounts of certain of its clients and customers and as a result, for the purposes of Rule 13d-3 promulgated under the Exchange Act, MSDW may be deemed to beneficially own 10,800 shares of Common Stock, or approximately <0.1% of the outstanding shares of Common Stock.

All percentages of Common Stock owned described in this statement are based upon an outstanding amount of 20,371,303 shares of Common Stock as set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, and assuming the conversion in full of the Class A Shares.

The Reporting Persons do not affirm the existence of a group and are filing this statement jointly pursuant to Rule 13d-1(k)(1) promulgated under the Exchange Act, provided that, as contemplated by Section 13d-1(k)(1)(ii), no Reporting Person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such Reporting Person knows or has reason to believe that such information is inaccurate.

By virtue of the relationships previously reported under Item 2 of this statement, (i) each of MS and MSCG may be deemed to have shared voting and dispositive power with respect to 6,418,384 shares of Common Stock to be beneficially owned directly by MSCG upon exercise of its Class A2 Shares; (ii) each of MS and MSIL may be deemed to have shared voting and dispositive power with respect to 34,180 shares of Common Stock to be beneficially owned directly by MSIL upon exercise of its Class A1 Shares and (iii) each of MS and MSDW may be deemed to have shared voting and dispositive power with respect to 10,800 shares of Common Stock beneficially owned by MSDW. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by each Reporting Person that it is the beneficial owner of any of the Common Stock referred to herein for purposes of Section 13(d) of the Exchange Act, o r for any other purpose, and such beneficial ownership is expressly disclaimed.

Except for transfers of Common Stock resulting from a client or customer transferring their brokerage account containing such shares of Common Stock from a different brokerage firm to MSDW, none of the Reporting Persons has effected any transactions in any shares of Common Stock which may have been or may be deemed to be beneficially owned by such Reporting Persons during the past 60 days. None of the Reporting Persons is aware of any information that indicates that any other of the persons listed on Schedule A, B, C, or D has effected any such transaction.

Page 9 of 10

By virtue of the relationships described in Item 2 of this statement, MS may be deemed to have the power to direct the receipt of dividends declared on the shares of Common Stock held by MSCG, MSIL and MSDW and the proceeds from the sale of such shares of Common Stock.

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
	See responses to Items 3 and 4 above.
Item 7.	Exhibits.
Exhibit 1		Lock-Up Agreement
Exhibit 2		Registration Rights Agreement
Exhibit 3		Joint Filing Agreement dated as of March 30, 2006 between MS, MSCG, MSIL and MSDW.

Page 10 of 10

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: March 30, 2006

	MORGAN STANLEY

	/s/ Dennine Bullard
	Name:	Dennine Bullard
	Title:	Authorized Signatory

	MORGAN STANLEY CAPITAL GROUP INC
	/s/ Robert P. Kinney
	Name:	Robert P. Kinney
	Title:	Vice President

	MORGAN STANLEY & CO. INTERNATIONAL LIMITED
	/s/ Colin Bryce
	Name:	Colin Bryce
	Title:	Authorized Signatory



	MORGAN STANLEY DW INC.

	/s/ Kirk Wickman
	Name:	Kirk Wickman
	Title:	Managing Director, General Counsel and Secretary

CGSH Draft March 16, 2006

SCHEDULE A

EXECUTIVE OFFICERS AND DIRECTORS
OF
MORGAN STANLEY

The names of the directors and the names and titles of the executive officers of Morgan Stanley (“MS”) and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of MS at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MS and each individual is a United States citizen.

Name	Title

*John J. Mack	Chairman and CEO

*Roy J. Bostock	Chairman of the Partnership for a Drug Free America

*Erskine B. Bowles	President-Elect of the University of North Carolina

*Sir Howard Davies¹	Director, the London School of Economics and Political Science

*C. Robert Kidder	Principal, Stonehenge Partners, Inc.

*Charles H. Noski	Retired; former Corporate Vice President, CFO and director of Northrop Grumman Corporation

*O. Griffith Sexton	Adjunct Professor of Finance at Columbia Business School

*Laura D’Andrea Tyson	Dean of the London Business School

*Klaus Zumwinkel²	Chairman of the Management Board of Deutsche Post AG

Walid Chammah	Head of Investment Banking

Jonathan Chenevix-Trench³	Chairman, Morgan Stanley International

Zoe Cruz	Co-President

Thomas Daula	Chief Risk Officer

James P. Gorman	President and COO, Global Wealth Management Group

David Heleniak	Vice Chairman

Roger C. Hochschild	President and COO, Discover Financial Services

Jerker Johansson⁴	Co-Head of Institutional Sales and Trading

* Director

Gary G. Lynch	Chief Legal Officer

Alasdair Morrison⁵	Chairman and CEO, Morgan Stanley Asia

Eileen Murray	Head of Global Operations and Technology

David W. Nelms	Chairman and CEO, Discover Financial Services

Thomas Nides	Chief Administrative Officer and Secretary

Robert W. Scully	Co-President

Neal Shear	Co-Head of Institutional Sales and Trading

David Sidwell	Executive Vice President and Chief Financial Officer

Cordell Spencer⁶	Deputy Head of Investment Banking

Owen D. Thomas	President and COO, Investment Management

_________________________

¹Sir Howard Davies is an English citizen.

² Klaus Zumwinkel is a German citizen.

³ Jonathan Chenevix-Trench is an English citizen.

⁴ Jerker Johansson is a Swedish citizen.

⁵ Alasdair Morrison is an English citizen.

⁶ Cordell Spencer is a Canadian citizen.

SCHEDULE B

EXECUTIVE OFFICERS AND DIRECTORS

MORGAN STANLEY CAPITAL GROUP INC.

The names of the directors and the names and titles of the executive officers of Morgan Stanley Capital Group Inc (“MSCG”) and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of MSCG 2000 Westchester Avenue, Floor 01, Purchase, NY 10577. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MSCG and each individual is a United States citizen.

Name	Title

*Shapiro, John A.	Chairman and President, Director

Brown, G. William Jr.	Vice President

Bryce, Colin	Vice President

Carlino, Kenneth	Vice President

Cross, Benjamin	Vice President

Drury, Michael H.	Vice President

Greenshields, Simon T.W.	Vice President

Hart, Deborah L.	Vice President

King, Nancy A.	Vice President

Kinney, Robert P.	Vice President

Marmo, Christopher	Vice President

Mettler, Stephen P.	Vice President

*Newcomb, Philip V.	Vice President

*Peters, Mary Lou	Vice President

Potter, Ian Henry Franklin	Vice President

Refvik, Olav N.	Vice President

Armstrong, Brian J.	Treasurer

McCoy, William F.	Secretary

* Director

SCHEDULE C

EXECUTIVE OFFICERS AND DIRECTORS

MORGAN STANLEY & CO. INTERNATIONAL LIMITED

The names of the directors and the names and titles of the executive officers of Morgan Stanley & Co. International Limited (“MSIL”) and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of 25 Cabot Square, Canary Wharf, London E14 4QA, England. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MSIL and each individual is a United States citizen.

Name	Title
Derek Bandeen	Director

Colin Bryce	Director

Jonathan Chenevix-Trench	Director

Keith Clark	Director

Michael Durbin	Director

Amelia Fawcett	Director

Jerker Johansson	Director

Colm Kelleher	Director

David Nicol	Director

Sean Notley	Director

Frank Petitgas	Director

Hanns Shuettler	Director

David Walker (Sir)	Director/Chairman

SCHEDULE D

EXECUTIVE OFFICERS AND DIRECTORS

MORGAN STANLEY DW INC.

The names of the directors and the names and titles of the executive officers of Morgan Stanley DW Inc. (“MSDW”) and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of MSDW at 2000 Westchester Avenue, Floor 01, Purchase, NY 10577. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MSDW and each individual is a United States citizen.

Name	Title
*Frank Bianco	Managing Director, Controller and Chief Financial Officer

*Michael R. Durbin	Managing Director

*Raymond A. Harris	Acting President and COO, Individual Investor Group of MS

*Richard R. Sanchez	Managing Director

*Kirk Wickman	Managing Director, General Counsel and Secretary

James P. Gorman	President, Chief Executive Officer, Chief Operating Officer, Managing Director

Jeffrey L. Adams	Managing Director

Frank Bianco	Managing Director, Controller and Chief Financial Officer

Michael R. Durbin	Managing Director

Raymond A. Harris	Acting President and COO, Individual Investor Group of MS

Richard R. Sanchez	Managing Director

Kirk Wickman	Managing Director, General Counsel and Secretary

James P. Gorman	President, Chief Executive Officer, Chief Operating Officer, Managing Director

Ian Bernstein	Managing Director


Michael A. Burke, Sr.	Managing Director

Ronald T. Carman	Managing Director and Assistant Secretary

Noland Cheng	Managing Director

Scott R. Graflund	Managing Director

Shelley S. Hanan	Managing Director

Thomas K. Harms	Managing Director

Henry E. Kaplan	Managing Director

Douglas J. Ketterer	Managing Director

Paul W. Klug	Managing Director

Steven G. Magee	Managing Director

William A. McMahon	Managing Director

James Mahon	Managing Director

Kevin Morano	Managing Director

Thomas P. O’Brien	Managing Director

Michelle B. Oroschakoff	Chief Compliance Officer

Daniel Petrozzo	Managing Director

Raymond M. Smesko	Managing Director

Sririam Subramaniam	Managing Director

Edward M. Sullivan	Managing Director

George D. Sullivan	Managing Director

Jeffrey S. Swartz	Managing Director

Benedict R. Tarantino	Managing Director

Todd R. Taylor	Managing Director

Chris Van Aeken	Managing Director

Eileen Wallace	Treasurer

* Director

EXHIBIT INDEX

Exhibit 1	Lock-Up Agreement
Exhibit 2	Registration Rights Agreement
Exhibit 3	Joint Filing Agreement dated as of March 30, 2006 between MS, MSCG, MSIL and MSDW

EX-1 2 msinter13d-ex1_0320.htm

		EXHIBIT 1


Morgan Stanley	MORGAN STANLEY CAPITAL GROUP INC. 2000 WESTCHESTER AVENUE/FLOOR 01 PURCHASE, NEW YORK 10577-2530

IntercontinentalExchange, Inc.

Lock-Up Agreement

October 27, 2005

Morgan Stanley & Co. Incorporated

Goldman, Sachs & Co.

As representatives of the several Underwriters

named in Schedule I to the Underwriting Agreement (as defined below)

c/o Morgan Stanley & Co. Incorporated

1585 Broadway

New York, New York 10036

and

Goldman, Sachs & Co.

85 Broad Street

New York, New York 10004

Re:

IntercontinentalExchange, Inc. - Lock-Up Agreement

Ladies and Gentlemen:

The undersigned understands that Morgan Stanley & Co. Incorporated, and Goldman, Sachs & Co., as representatives (the “Representatives”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with IntercontinentalExchange, Inc., a Delaware corporation (the “Company”), providing for a public offering (the “Public Offering”) of shares of Common Stock, par value $0.01 per share, of the Company (the “Shares”) pursuant to a Registration Statement on Form S-1 (File No. 333-123500) filed with the Securities and Exchange Commission (the “SEC”). Common stock, at any time means all shares of the Company’s common stock issued and outstanding at such time, including (i) the Class A Common Stock, Series 1 and the Class A Common Stock, Series 2 then outstanding and (ii) at any time after the recapitalization, the common stock into which all such Class A Common Stock, Series 1 and Class A Common Stock, Series 2 may be convertible pursuant to the Fourth Amended and Restated Certificate of Incorporation and is then outstanding (collectively, “Common Stock”).

In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period specified below (the “Lock-Up Period”), the undersigned will not (1) offer, sell, contract to sell, pledge, hypothecate, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares

of Common Stock or any securities convertible into, exercisable or exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively, the “Undersigned’s Shares”) or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) file or cause the Company to file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The foregoing sentence shall not apply to the sale of any shares to the Underwriters pursuant to the Underwriting Agreement.

The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s Shares even if such shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such shares.

Notwithstanding anything herein to the contrary, Morgan Stanley & Co. Incorporated and its respective affiliates may engage in brokerage, investment advisory, investment company, financial advisory, principal investing, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage and other similar activities conducted in the ordinary course of its and its affiliates’ business and any hedging or other transactions incidental thereto; provided, however, that the undersigned’s investment of 31,255,116 shares in the Company, as such investment (as a capital investment and not as a result of the financial services activities of the undersigned or its affiliates described above in this paragraph) may be increased or reduced in accordance with the provisions of this Lock-Up Agreement and whether held by the undersigned or any of its affiliates, shall be subject to the restrictions of this Lock-Up Agreement.

Notwithstanding anything to the contrary contained herein, the undersigned may (A) transfer the Undersigned’s Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, or (iii) with the prior written consent of Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. on behalf of the Underwriters and (B) exercise any options or other rights granted pursuant to the Company’s 2000 Stock Option Plan, the Company’s 2003 Restricted Stock Deferral Plan for Outside Directors, the Company’s 2004 Restricted Stock Plan, or the Company’s 2005 Equity Incentive Plan (collectively, the “Benefit Plans”), or convert or exchange any convertible or exchangeable securities outstanding on the date hereof; provided that in the case of any transfer or distribution pursuant to the foregoing no filing by any party (donor, donee, transferor

or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”), shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period). For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the corporation may transfer the capital stock of the Company to any wholly-owned subsidiary of such corporation; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this Agreement, that no filing under Section 16(a) of the Exchange Act, shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period) and there shall be no further transfer of such capital stock except in accordance with this Agreement, and provided further that any such transfer shall not involve a disposition for value. As of the date hereof, the undersigned has good and marketable title to the Undersigned’s Shares, free and clear of all liens, encumbrances and claims whatsoever. In addition, the undersigned agrees that, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Shares except in compliance with the foregoing restrictions.

The initial Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for 180 days after the date of the final prospectus covering the Public Offering; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the announcement of the material news or material event, as applicable, unless Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., on behalf of the Underwriters, waive, in writing, such extension.

The undersigned hereby acknowledges that the Company has agreed in the Underwriting Agreement to provide written notice of any event that would result in an extension of the Lock-Up Period pursuant to the previous paragraph to the undersigned (in accordance with Section 6(e) of the Underwriting Agreement) and agrees that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned hereby further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Lock-Up Agreement during the period from the date of this Lock-Up Agreement to and including the 34th day following the expiration of the initial Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period (as such may have been extended pursuant to the previous paragraph) has expired.

The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The

undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. If the closing of the Public Offering does not occur on or before December 31, 2005, this Lock-Up Agreement shall terminate. Any Public Offering will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.

Very truly yours,

MORGAN STANLEY CAPITAL GROUP INC.

By	/s/Nancy A. King

	Name:	Nancy A. King
	Title:	Vice President

EX-2 3 msinter13d-ex2_0320.htm

EXHIBIT 2

REGISTRATION RIGHTS AGREEMENT

DATED AS OF NOVEMBER 21, 2005

BY AND AMONG

INTERCONTINENTALEXCHANGE, INC.

AND

THE PARTIES LISTED IN ANNEX A HERETO

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (the “Agreement”) is dated as of November 21, 2005 by and among IntercontinentalExchange, Inc., a Delaware corporation (the “Company”), and those parties listed in Annex A hereto (the “Stockholders”).

RECITALS

WHEREAS, the Stockholders own shares of the issued and outstanding Class A Common Stock, Series 2, of the Company, par value $0.01 per share (the “Class A Shares”);

WHEREAS, in connection with the Company’s recapitalization, each Class A Share will be reclassified by way of a reverse stock split at a ratio of one-for-four and may be converted into one share of new common stock of the Company, par value $0.01 per share (the “Shares”), as provided by the Company’s Fourth Amended and Restated Certificate of Incorporation; and

WHEREAS, the Company and the Stockholders have entered into this Agreement for the purpose of designating the registration rights of the Stockholders.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the parties agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

The following terms shall have the definitions set forth below:

“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act.

“Board of Directors” means the board of directors of the Company.

“Business Day” means any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in New York.

“CPEX” means Continental Power Exchange, Inc. and its successors or assigns.

“CPEX Agreement” has the meaning set forth in Section 3.1(c).

“Class A Shares” has the meaning set forth in the preamble of this Agreement.

“Closing Price” means, with respect to the Registrable Securities, as of the date of determination, the closing price per share of a Registrable Security on such date on the principal national securities exchange on which the Registrable Securities are then listed or admitted for trading as published in The Wall Street Journal (National Edition) or, if no such closing price on such date is published in The Wall Street Journal (National Edition), the average of the closing bid and asked prices on such date, as officially reported on the principal national securities exchange on which the Registrable Securities are then listed or admitted to trading; or if the

Registrable Securities are not then listed or admitted to trading on any national securities exchange but are designated as national market system securities by the NASD, the last trading price per share of a Registrable Security on such date.

“Commission” means the United States Securities and Exchange Commission, or any successor governmental agency or authority.

“Covered Registration” means any Piggyback Registration or any S-3 Registration.

“Cutback Registration” means any Covered Registration to be effected as an underwritten Public Offering in which the Managing Underwriter with respect thereto advises the Company and the Requesting Holders in writing that, in its opinion, the number of securities requested to be included in such registration (including securities of the Company that are not Registrable Securities) exceeds the number which can be sold in such offering without a reduction in the selling price anticipated to be received for the securities to be sold in such Public Offering.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules `and regulations promulgated thereunder.

“Form S-3” has the meaning set forth in Section 3.2(a).

“Indemnified Party” has the meaning set forth in Section 4.1(c).

“Indemnifying Party” has the meaning set forth in Section 4.1(c).

“Initial Public Offering” means the Company’s initial Public Offering.

“Losses” has the meaning set forth in Section 4.1(a).

“Managing Underwriter” means, with respect to any Public Offering, the lead managing underwriter or underwriters for such Public Offering.

“Market Price” means, on any date of determination, the average of the daily Closing Price of Shares for the immediately preceding thirty (30) days on which the national securities exchanges are open for trading.

“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 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.

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.

ARTICLE III

REGISTRATION RIGHTS

Section 3.1 “Piggyback” Registration.

(a) Request for Registration. If at any time following the Initial Public Offering, the Company proposes to effect a Piggyback Registration, it shall give prompt written notice (a “Notice of Piggyback Registration”) at least ten (10) days before the anticipated filing date to the Stockholders of its intention to do so and of such Stockholders’ rights under this Section 3.1(a) to participate in such Piggyback Registration, which Notice of Piggyback Registration shall include a description of the intended method of disposition of such securities. If any such Stockholder delivers a Request for Registration to the Company within ten (10) days after such Stockholder receives a Notice of Piggyback Registration, the Company will use its reasonable best efforts to include in the registration statement relating to such Piggyback Registration all Registrable Securities that the Company has been so requested to register. Notwithstanding the foregoing, if, at any time after giving a Notice of Piggyback Registration and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Requesting Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith) and (ii) in the case of a determination to delay registration, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities.

(b) Registration Expenses. The Company will pay all Registration Expenses incurred in connection with each Piggyback Registration, whether or not such Piggyback Registration becomes effective.

(c) Priority in Cutback Registrations. If a Piggyback Registration becomes a Cutback Registration and such registration as initially proposed by the Company was solely a primary registration of securities for its account or for the account of CPEX, the Company will include in

such registration to the extent of the amount of the securities which the Managing Underwriter advises the Company can be sold in such offering without a reduction in the selling price anticipated to be received for the securities to be sold in such Public Offering: (A) first, any securities proposed by the Company to be sold for its own account, (B) second, any securities proposed to be sold by CPEX pursuant to the exercise of its demand registration rights in accordance with the Second Amendment to Contribution and Asset Transfer Agreement among the Company, CPEX and Jeffrey C. Sprecher entered into as of October 24, 2005 (“CPEX Agreement”), (C) third, the Registrable Securities included in the Requests for Registration of Requesting Holders, pro rata based on the number of Registrable Securities owned by each such Requesting Holder; provided, that if the number of shares of Participating Stock allocated to any Requesting Holder exceeds the amount of Registrable Securities specified in such Requesting Holder’s Request for Registration, such excess shares will be allocated pro rata among the other Requesting Holders based on the number of Registrable Securities owned by the remaining Requesting Holders until all such excess shares are allocated 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 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.

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 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

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 m akers 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 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 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.

ARTICLE 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 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 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, if transmitted by telecopy, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by registered or certified mail (or any substantially similar form of mail), postage prepaid and return receipt requested. In each case notice shall be sent to:

If to the Company, addressed to:

IntercontinentalExchange, Inc.

2100 RiverEdge Parkway

Suite 500

Atlanta, GA 30328

Attention: Chief Executive Officer

Telecopier No.: (770) 951-5481

With copies to:

IntercontinentalExchange, Inc.

2100 RiverEdge Parkway

Suite 500

Atlanta, GA 30328

Attention: General Counsel

Telecopier No.: (770) 857-4755

and:

Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Attention: David J. Gilberg

Telecopier No.: (212) 558-3588

If to any Stockholder, to such Stockholder at the address indicated in Annex A hereto. Changes in notice addresses may be made by a notice delivered to the Company pursuant to this Section 5.1.

Section 5.2 Governing Law; Jurisdiction.

(a) This Agreement shall be governed by and be construed in accordance with the laws of the State of New York.

(b) By execution and delivery of this Agreement, each of the Stockholders accepts, generally and unconditionally, the exclusive jurisdiction of the state or federal courts of New York.

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.

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.

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Registration Rights Agreement as of the date first above written.

INTERCONTINENTALEXCHANGE, INC.


By	/s/ Jeffrey C. Sprecher
	Name:	Jeffrey C. Sprecher
	Title:	Chief Executive Officer


AEP INVESTMENTS, INC.


By	/s/ Stephen P. Smith
	Name:	Stephen P. Smith
	Title:	President


THE GOLDMAN SACHS GROUP, INC.

By	/s/ Gary Cohn
	Name:	Gary Cohn
	Title:	Assistant Secretary


MIRANT AMERICAS ENERGY MARKETING, LP

By	/s/ J. Willam Holden III
	Name:	J. Willam Holden III
	Title:	Senior Vice President


MORGAN STANLEY CAPITAL GROUP INC.

By	/s/ Nancy A. King
	Name:	Nancy A. King
	Title:	Vice President

SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION

By	/s/ Governor Tripton
	Name:	Governor Tripton
	Title:	Secretary


TOTAL INVESTMENTS USA INC.


By	/s/ Susan T. Dubb
	Name:	Susan T. Dubb
	Title:	Vice President

EX-3 4 msinter13d-ex3_0320.htm Untitled Document

EXHIBIT 3

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the persons named below agrees to the joint filing of a Statement on Schedule 13D (including amendments thereto) with respect to the common stock, $0.01 par value per share, of IntercontinentalExchange, Inc., a Delaware corporation, and further agrees that this joint filing agreement be included as an exhibit to such filings provided that, as contemplated by Section 13d-1(k)(1)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.

Dated as of March 30, 2006.

	MORGAN STANLEY

	/s/ Dennine Bullard
	Name:	Dennine Bullard
	Title:	Authorized Signatory


	MORGAN STANLEY CAPITAL GROUP INC

	/s/ Robert P. Kinney
	Name:	Robert P. Kinney
	Title:	Vice President


	MORGAN STANLEY & CO. INTERNATIONAL LIMITED

	/s/ Colin Bryce
	Name:	Colin Bryce
	Title:	Authorized Signatory


	MORGAN STANLEY DW INC.

	/s/ Kirk Wickman
	Name:	Kirk Wickman
	Title:	Managing Director, General Counsel and Secretary

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