EXHIBIT 1
IntercontinentalExchange, Inc.
Lock-Up Agreement
October 26, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
As representatives of the several Underwriters
named in Schedule I to the Underwriting Agreement (as defined below)
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: IntercontinentalExchange, Inc. - Lock-Up Agreement
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Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated, and
Xxxxxxx, 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
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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, Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Sachs Execution & Clearing, L.P. and their respective affiliates may
engage in brokerage, investment advisory, investment company, financial
advisory, principal investing, anti-raid advisory, merger advisory, financing,
asset management, trading, market making, arbitrage and other similar activities
conducted in the ordinary course of its and its affiliates' business and any
hedging or other transactions incidental thereto; provided, however, that the
undersigned's investment of 29,977,918 shares of the Company's Class A Common
Stock, Series 2, and 136,720 shares of the Company's Class A Common Stock,
Series 1, as such investment (as a capital investment and not as a result of the
financial services activities of the undersigned or its affiliates described
above in this paragraph) may be increased or reduced in accordance with the
provisions of this Lock-Up Agreement and whether held by the undersigned or any
of its affiliates, shall be subject to the restrictions of this Lock-Up
Agreement.
Notwithstanding anything to the contrary contained herein, the
undersigned may (A) transfer the Undersigned's Shares (i) as a bona fide gift or
gifts, provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, or (iii) with the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. on behalf of the
Underwriters, (B) exercise any options or other rights granted pursuant to the
Company's 2000 Stock Option Plan, the
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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 Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx,
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
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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.
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The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns. Whether or not the Public Offering
actually occurs depends on a number of factors, including market conditions. If
the closing of the Public Offering does not occur on or before December 31,
2005, this Lock-Up Agreement shall terminate. Any Public Offering will only be
made pursuant to the Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
THE XXXXXXX XXXXX GROUP, INC.
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Exact Name of Shareholder
/s/ XXXXXXX X. X'XXXXX
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Authorized Signature
Managing Director
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Title
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