CONTRIBUTION AND ASSET TRANSFER AGREEMENT
Exhibit 10.31
This CONTRIBUTION AND ASSET TRANSFER AGREEMENT (“Agreement”) is made and entered into
this 11th day of May, 2000 by and between IntercontinentalExchange, LLC, a Delaware limited
liability company (“ICEX”), Continental Power Exchange, Inc., a Delaware corporation
(“CPEX”), and Xxxxxxx X. Xxxxxxxx (“Xxxxxxxx”).
R E C I T A L S
WHEREAS, CPEX owns and operates an electronic trading platform;
WHEREAS, ICEX desires to acquire and CPEX desires to contribute to ICEX all of CPEX’s right,
title and interest in and to the Transferred Assets (as defined herein), constituting all of the
assets of CPEX, including but not limited to the software, operational know-how and intellectual
property related to the operation of the CPEX Business except as set forth herein;
WHEREAS, ICEX desires, in exchange for the asset transfer described below, to issue specified
interests in ICEX to CPEX on the terms and subject to the conditions contained in this Agreement,
and to assume certain of the liabilities of CPEX, as described in Section 1.3 hereof;
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants, agreements and conditions set forth herein, the parties agree as follows:
ARTICLE I.
CONTRIBUTION AND TRANSFER OF ASSETS; ISSUANCE OF INTEREST
1.1. Transfer of Assets. On the terms and subject to the conditions contained in this
Agreement, at the Closing, (i) CPEX shall contribute, sell, transfer, convey and assign to ICEX and
(ii) ICEX shall purchase and accept from CPEX, all of CPEX’s right, title and interest in and to
the Transferred Assets as the same shall exist on the Closing Date, free and clear of any and all
Encumbrances, except for Encumbrances that are disclosed in Section 3.1(d) of CPEX’s Disclosure
Schedule as Encumbrances that will not be extinguished on or before the Closing (the
“Transfer”). As of the Closing Date, the value of the Transferred Assets is equal to the
principal amount of the Xxxxxxxx Loans (as defined below).
1.2. Acknowledgment of Consideration. ICEX and CPEX acknowledge and agree that the
entry by CPEX into this Agreement and its performance of its obligations hereunder is a material
inducement to ICEX to enter into the LLC
Agreement with CPEX and to issue to CPEX the Interest, subject to the terms and conditions
contained therein.
1.3. Assumption of Certain Liabilities; Disclaimer of All Other Liabilities.
(a) ICEX hereby assumes (x) CPEX’s obligations under all loans made by Xxxxxxxx to CPEX (the
“Xxxxxxxx Loans”) and shall discharge such Xxxxxxxx Loans in the manner set forth on
Exhibit 1 in accordance with the instructions set forth on Exhibit 2, (y) CPEX’s obligations under
that certain Promissory Note, dated October 24, 1997, by CPEX in favor of InterCoast Energy Company
and shall discharge such obligations as set forth in Section 2(b) of the Termination Agreement and
(z) CPEX’s obligations under the (I) GS Interim Facility Agreement and GS Interim Note and (II) the
MS Interim Facility Agreement and the MS Interim Note, and shall discharge such obligations in the
manner set forth on Exhibit 3 in accordance with the instructions set forth on Exhibit 4. The
obligations of CPEX under (x) the Xxxxxxxx Loans, (y) said Promissory Note and (z) the GS Interim
Facility Agreement, MS Interim Facility Agreement and GS Interim Note and MS Interim Note are
collectively referred to herein as the “Assumed Obligations”.
(b) ICEX does not assume or agree to pay, discharge or perform any Liabilities of CPEX other
than the Assumed Obligations, and CPEX shall retain, and agrees to pay, discharge and
perform, as and when due, any and all of its Liabilities.
ARTICLE II.
TRANSFER; OBLIGATION TO DELIVER CERTAIN DOCUMENTS
2.1. Transfer. Concurrently with the execution of this Agreement, the parties shall
take the following actions:
(a) CPEX shall deliver, or cause to be delivered, to ICEX such deeds, bills of sale,
assignments, affidavits, instruments of conveyance, and other instruments and certificates, and all
books and records, as are necessary or reasonably requested by ICEX to consummate and record the
transfer of all of the Transferred Assets to ICEX as contemplated by this Agreement. All
Transferred Assets shall be deemed delivered at the locations where they are located or exist and
are used in the CPEX Business immediately upon the execution hereof; and
(b) ICEX shall duly reflect in its books and records the ownership by CPEX of the Interest as
of the date hereof.
2.2. Obligation of Parties to Deliver Certain Documents. Concurrently with the
execution of this Agreement CPEX shall deliver to ICEX the following documents:
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(a) a favorable written opinion from counsel to CPEX, dated the date hereof in the form
attached as Annex A;
(b) a copy of the resolutions of the shareholders of CPEX approving the entry into this
Agreement by CPEX, the performance of CPEX’s obligations hereunder and its taking part in the
transactions contemplated hereby;
(c) copies of the Invention Assignment and Confidentiality Agreements executed and delivered
by all employees of CPEX and all persons retained as “independent contractors” of CPEX; and
(d) such other certificates, opinions and documents as ICEX shall reasonably request.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF CPEX
3.1. The disclosure schedule delivered by CPEX to ICEX prior to execution of this Agreement
(“CPEX’s Disclosure Schedule”) is appended to this Agreement as Exhibit 3.1. CPEX’s
Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered
sections and subparagraphs contained in this Section 3.1, and the disclosures in any section of
CPEX’s Disclosure Schedule shall qualify any other section in this Article III only to the extent
that the section of CPEX’s Disclosure Schedule corresponding to such other section clearly
cross-references such qualifying section of CPEX’s Disclosure Schedule.
CPEX and Xxxxxxxx, as the controlling shareholder of CPEX, hereby jointly and severally
represent and warrant to ICEX as of the Closing Date as follows:
(a) Organization and Qualification of CPEX. CPEX has been duly organized, and is
validly existing and in good standing under the laws of the State of Delaware, and has full power
and authority to conduct the CPEX Business and to own and operate the Transferred Assets. CPEX is
duly qualified to do business as a foreign corporation in and is in good standing under the laws of
the State of Georgia and is qualified to do business in and is in good standing under the laws of
all other jurisdictions where the activities conducted by it or the nature of the assets or
properties owned or leased by it make such qualification necessary and the absence of such
qualification has resulted in, or could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
(b) Authorization of Agreement. CPEX has all requisite power and authority needed to
execute, deliver and perform this Agreement and to consummate the transactions contemplated on its
part hereby. The execution, delivery and performance by CPEX of this Agreement and the
consummation by it of the transactions contemplated on its part hereby have been duly authorized by
all necessary proceedings. This
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Agreement has been duly and validly executed and delivered by CPEX and constitutes a valid and
binding agreement of CPEX, enforceable against CPEX in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to or
affecting creditors’ rights and, as to enforcement, to general equity principles.
(c) Non-Contravention. Except as disclosed on Schedule 3.1(c) of CPEX’s Disclosure
Schedule, neither the execution, delivery and performance by CPEX of this Agreement nor the
performance of its obligations or the consummation of the transactions contemplated hereunder on
the part of CPEX will, with or without the giving of notice or the lapse of time, or both, (i)
conflict with, result in a breach, violation or default under or the termination of, or require the
consent of any party to, or create in any party the right to accelerate, terminate, modify or
cancel, any Contract relating to the CPEX Business or to a Transferred Asset; (ii) result in the
creation or imposition of any Encumbrance upon any of the Transferred Assets pursuant to any
provision of any Contract or other instrument to which CPEX is a party or by which it may be bound;
(iii) violate any provision of the Charter Documents; (iv) violate any Law, Order or Permit; or (v)
violate or conflict with any other material restriction to which CPEX is subject.
(d) Title to and Condition of Assets; CPEX. Except as disclosed on Schedule 3.1(d) of
CPEX’s Disclosure Schedule, CPEX is the true and lawful owner of all of the Transferred Assets free
and clear of any and all Encumbrances except for (x) liens for Taxes not yet due and payable and
(y) Encumbrances which do not individually or in the aggregate materially and adversely affect the
ownership, use, value, marketability or operations of such Transferred Assets (“Permitted
Encumbrances”). The Transferred Assets constitute all of the tangible and intangible property
related to, used in, dedicated to, or otherwise necessary to the conduct of the CPEX Business (with
the exception of the Excluded Patents). The transfer and assignment of the Transferred Assets will
effectively convey to ICEX all of the assets, properties and rights that are owned by CPEX related
to, used in, dedicated to, or otherwise necessary to the conduct of the CPEX Business as presently
conducted (other than the Excluded Patents and the Interest). The material tangible Transferred
Assets (A) have been maintained in accordance with normal industry practice, and (B) are in good
operating condition and repair (subject to normal wear and tear) and are suitable for the purposes
for which they presently are used. Schedule 3.1(d) of CPEX’s Disclosure Schedule contains a list of
all real property in which it owns a fee simple, leasehold, or sub-leasehold interest which are
included in the Transferred Assets (the “Real Property”).
(e) Capital Structure of CPEX. Xxxxxxxx is the true and lawful owner of 92.5% of the
CPEX Shares free and clear of any and all Encumbrances. X.X. Xxxxxxxx, Xx., Living Trust, Xxxxx X.
Xxxxxxxx and Xxxx X. Xxxxxxxx (such trust and individuals, together, the “Other Holders”)
are, collectively, the holders of 7.5% of the CPEX Shares, in each case free and clear of any
encumbrances. Each Other Holder pursuant, in each case, to an Agreement Granting Irrevocable Proxy
dated January 18, 1999 (each, a “Proxy” and, together, the “Proxies”), has validly
and irrevocably transferred all of its right to vote its or her respective CPEX Shares to Xxxxxxxx.
Xxxxxxxx has the right, pursuant to his ownership of CPEX Shares and the Proxies, to cause CPEX
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to
effect the
transactions contemplated hereunder and to bind CPEX to the terms hereof without obtaining the
consent of any Other Holder (other than the consents set forth in the Proxies). With the sole
exception of the Warrant dated October 24, 1997 issued to (and held continuously since issuance by)
InterCoast Energy Company, the CPEX Shares are the only securities that have been issued by CPEX
and are outstanding on the date hereof.
(f) Enforceable Obligation. Xxxxxxxx has the capacity, power and authority to enter
into this Agreement and to perform his obligations hereunder. Xxxxxxxx’x execution and delivery of
this Agreement has been duly authorized by all necessary action (including any consultation,
approval or other action by or with the Other Holders and any other person). Such execution,
delivery and compliance does not conflict with, or constitute a default under, any applicable Law,
regulation or Order, or any agreement to which Xxxxxxxx is a party or by which Xxxxxxxx is bound,
including the Proxies. This Agreement has been duly executed by Xxxxxxxx and constitutes a valid,
legally binding and enforceable agreement of Xxxxxxxx enforceable against Xxxxxxxx in accordance
with its terms, subject to bankruptcy, insolvency and other Laws of general applicability relating
to or affecting creditors’ rights and, as to enforcement, to general equity principles.
(g) Certain Financial Information. CPEX has previously delivered to ICEX unaudited
consolidated financial statements for the CPEX Business. Such financial statements include a
balance sheet as of December 31, 1999 and include income statements and statements of cash flows
for the twelve-month period ending December 31, 1999 (collectively the “Financial
Statements”). Each of such Financial Statements fully and accurately set forth in all respects
the financial condition and results of operations of the CPEX Business as of the respective date
thereof and for the period referred to therein, and have been properly derived from the books and
records of CPEX.
(h) Business Conducted in Ordinary Course. Since October 24, 1997 the operations of
the CPEX Business have been conducted in the ordinary course of business consistent with past
practice and CPEX has not (i) transferred, sold or otherwise conveyed any assets of any type that
would fall within the definition of Transferred Assets exceeding $100,000 in the aggregate; or (ii)
mortgaged, pledged or subjected to any Encumbrance any Transferred Assets, or in any way created or
consented to the creation of any title condition affecting any such assets.
(i) Compliance with Laws; Permits. CPEX is in compliance with all Laws or Orders
applicable to the CPEX Business, except for incidents of noncompliance which have not resulted in,
and could not be considered reasonably likely to result in, individually or in the aggregate, a
Material Adverse Effect. CPEX holds, maintains in valid condition and complies with, all Permits
that relate to the CPEX Business and the Transferred Assets and that are required in connection
with the conduct, use, operation or ownership thereof, except for those Permits the failure of
which to hold, maintain or comply with have not resulted in, and could not reasonably be expected
to result in, individually or in the aggregate, a Material Adverse Effect. No governmental
proceeding is pending, or to the Knowledge of CPEX threatened, to cancel, amend, modify or fail to
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renew any such Permit, and no such action is likely to occur as a result of the consummation
of the transactions contemplated by this Agreement.
(j) Regulatory Approvals. No notices, reports or other filings are required to be
made by CPEX with, nor are any consents, registrations, approvals, permits or authorizations
required to be obtained by CPEX from any Governmental Authorities, in connection with the execution
and delivery of this Agreement and the consummation of the transactions contemplated hereby, the
failure of which to make or obtain any or all of which (i) is reasonably likely to be material to
any part of the CPEX Business, (ii) could prevent, delay or burden the transactions contemplated by
this Agreement or (iii) would subject CPEX, ICEX or any of their respective Affiliates to a
Material Adverse Effect.
(k) Litigation. There is no legal, judicial, administrative or other civil or
criminal action, claim, proceeding or governmental investigation, U.S. or foreign
(“Litigation”), pending or to the Knowledge of Xxxxxxxx and CPEX threatened or probable of
assertion within less than one year (i) against CPEX which could reasonably be expected to have a
Material Adverse Effect, or (ii) that challenges or reviews the execution, delivery or performance
of this Agreement by CPEX or of the consummation of the transactions contemplated hereby, or (iii)
that seeks to enjoin or obtain damages in respect of the consummation of any of the transactions
contemplated hereby.
(l) Intellectual Property.
(i) Inventory. Schedule 3.1(l) of CPEX’s Disclosure Schedule sets forth a
list (omitting for such purposes the Excluded Patents) of all Intellectual Property of CPEX
(other than (A) trade secrets, know-how and goodwill attendant to the Intellectual Property
and (B) other intellectual property rights not reducible to schedule form), true and
complete copies of the embodiments of which have been delivered or made available to ICEX.
To the Knowledge of Xxxxxxxx and CPEX, CPEX has all right, title and interest in all such
Intellectual Property and all of the Intellectual Property is valid and in good standing,
except to the extent lack of such right, title and interest in such Intellectual Property
could not reasonably be expected to result in, individually or in the aggregate, a Material
Adverse Effect;
(ii) Registrations. Except (x) as disclosed in Schedule 3.1(l) of CPEX’s
Disclosure Schedule and (y) to the extent a failure to obtain a registration or make an
application, or a restriction or default, could not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect, to the Knowledge of CPEX and
Xxxxxxxx, (A) all registrations with and applications to governmental or regulatory
authorities in respect of the Intellectual Property are valid and in full force and effect,
(B) there are no material restrictions on the direct or indirect transfer of any license,
or other Contract pursuant to which CPEX has been granted a right, to use the Intellectual
Property, or any interest therein, held by CPEX in respect of the Intellectual Property,
and
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(C) CPEX is not in default (or with the giving of notice or lapse of time or both,
will not be in default) in any material respect under any license, or any other Contract
pursuant to which CPEX has been granted a right, to use the Intellectual Property;
(iii) No Infringement. Except as disclosed in Schedule 3.1(l) of CPEX’s
Disclosure Schedule, (A) to the best respective knowledge of CPEX and Xxxxxxxx, the use of
the Intellectual Property in a manner consistent with applicable license rights and
obligations does not infringe upon the rights of any other person and is not infringed upon
by any other person or its property; and (B) neither CPEX nor Xxxxxxxx has received any
notice of any claim of any other person relating to any of the Intellectual Property or any
process or confidential information of CPEX, and neither CPEX nor Xxxxxxxx knows of any
basis for any such charge or claim;
(iv) No Documentation of Know-How. There is no documentation relating to any
know-how included in the Intellectual Property in sufficient detail and content to identify
or explain such know-how;
(v) No Required Third Party Approvals. Except (x) as separately identified on
Schedule 3.1(l) of CPEX’s Disclosure Schedule and (y) with respect to the Excluded Patents,
no approval or consent of any person is needed so that ICEX may continue to use the
Intellectual Property as used by CPEX prior to the Closing Date without obtaining any third
party consents, but otherwise subject to compliance with applicable licenses; and
(vi) Invention Assignment and Confidentiality Agreements. All employees of
CPEX and all individuals retained as “independent contractors” of CPEX as of the date
hereof who have any involvement in programming or creating CPEX’s Intellectual Property
have executed Invention Assignment and Confidentiality Agreements in favor of CPEX and
ICEX.
(m) Entire Interest; All Assets. Except as disclosed on Schedule 3.1(m), the
Transferred Assets include all property, assets and rights (including without limitation, all
Intellectual Property) related to, used in, dedicated to, or otherwise necessary to the conduct of
the CPEX Business as currently conducted and are adequate for such purpose.
(n) Insider Interests. Except as disclosed on Schedule 3.1(n), no officer, director
or shareholder of CPEX or any Affiliate of CPEX (including but not limited to Xxxxxxxx), and no
Affiliate of such officer, director or shareholder or organization, entity or group controlled by
such officer, director or shareholder or Affiliate has any interest in any property real, personal
or mixed, tangible or intangible, used in or pertaining to the CPEX Business, except as an
employee, director or shareholder thereof.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF ICEX
4.1. ICEX hereby represents and warrants to CPEX and Xxxxxxxx as follows:
(a) Organization and Qualification of ICEX. ICEX is a limited liability company duly
organized and validly existing under the Laws of Delaware.
(b) Authorization of Agreement. ICEX has full power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated on its part hereby. The
execution, delivery and performance by ICEX of this Agreement and the consummation by ICEX of the
transactions contemplated on its part hereby have been duly authorized by all necessary company
proceedings. This Agreement has been duly and validly executed and delivered by ICEX and
constitutes a valid and binding agreement of ICEX, enforceable against ICEX in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability
relating to or affecting creditors’ rights and, as to enforcement, to general equity principles.
(c) Non-Contravention. Neither the execution, delivery and performance by ICEX of
this Agreement, nor the consummation on the part of ICEX of the transactions contemplated by this
Agreement, will, with or without the giving of notice or the lapse of time, or both, (i) violate
any provision of the LLC Agreement, or (ii) violate any material Law, Order or Permit to which ICEX
or any of its Members (other than CPEX) is subject, that in any of the foregoing instances could
reasonably be expected to have a Material Adverse Effect.
(d) Filings, Consents. No notices, reports or other filings are required to be made
by ICEX or its Affiliates with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by ICEX or its Members (other than CPEX) from any
governmental or regulatory authorities, U.S. or foreign, in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated hereby, the
failure of which to make or obtain any or all of which (x) is reasonably likely to have a Material
Adverse Effect, or (y) could prevent, delay or burden the transactions contemplated by this
Agreement.
ARTICLE V.
COVENANTS
5.1. Appropriate Action; Approvals. (a) CPEX and Xxxxxxxx agree to take, or cause to
be taken, all further actions and to do, or cause to be done, all further things reasonably
necessary, proper or advisable to perfect and protect ICEX’s interest in the Transferred Assets
(including but not limited to the Intellectual Property).
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(b) Without limiting the generality of the foregoing, CPEX and Xxxxxxxx each hereby covenants
and binds itself and himself and its and his respective successors, assigns and legal
representatives to cooperate fully and promptly with ICEX and to do all acts necessary or requested
to be done by ICEX in order to evidence, establish, apply for, perfect, procure, register, record,
maintain, enforce and/or defend ICEX’s rights in the Intellectual Property and in connection with
all proceedings before the United States Patent and Trademark Office (the “PTO”), the
United States Copyright Office (the “Copyright Office”) and all equivalent offices and
government agencies in foreign countries (“Foreign Offices”) without additional
consideration from ICEX but at ICEX’s reasonable expense, including, without limitation, (i) to
execute and deliver to ICEX any and all lawful application documents including, without limitation,
petitions, specifications, oaths, assignments, disclaimers and legal affidavits in form and
substance as may be requested by ICEX; (ii) to communicate to ICEX all facts known to it or him, as
the case may be, related to any Intellectual Property; (iii) to furnish ICEX with all information,
documents, materials or records of any kind (whether or not in electronic or any other form and
regardless of the medium or form of storage) in its or his, as the case may be, control which may
be useful for establishing the facts of authorship, creation, conception, disclosure and reduction
to practice and the like; (iv) to testify in, and assist ICEX in its preparation for and/or defense
in connection with, all legal, administrative and other proceedings (including without limitation
proceedings in connection with any application, reissue application and any reexamination,
interference or other proceeding before the PTO, the Copyright Office and/or any Foreign Offices);
(v) to sign, execute and deliver all assignments, instruments and all other lawful papers, when
called upon to do so, that may be necessary or desirable to ICEX in connection with the foregoing.
Each of CPEX and Xxxxxxxx hereby appoints ICEX (and its duly authorized officers and agents) as its
or his, as applicable, agent and attorney-in-fact to act for and on its or his, as the case may be,
behalf in connection with the foregoing, which appointment is irrevocable and coupled with an
interest. Each of CPEX and Xxxxxxxx (and each of its or his respective successors, assigns and
legal representatives) shall discharge its or his, as the case may be, obligations under this
Section 5.1(b) promptly but in any event within such time as is required to enable ICEX to timely
preserve or assert its rights in connection with the protection of ICEX’s rights in the
Intellectual Property. The rights provided to ICEX in this Section 5.1 are cumulative of any
rights of ICEX provided in this Agreement.
(c) To the extent ICEX requires technical assistance in connection with its use of the
Intellectual Property, CPEX will provide all personnel necessary to sufficiently and adequately
assist ICEX.
5.2. No Issuance or Transfer of Securities. CPEX and Xxxxxxxx jointly covenant and
agree that (i) CPEX shall not issue securities of any type or enter into any agreement to issue
securities of any type and (ii) Xxxxxxxx shall not sell, transfer, convey, pledge, hypothecate or
otherwise alienate his interest in any CPEX Shares, in either case without the prior written
consent of ICEX for so long as CPEX (or any affiliated transferee of CPEX’s membership interest in
ICEX) is a member of ICEX. The foregoing covenant shall not apply to sales, transfers or
conveyances of CPEX Shares to any immediate family member of Xxxxxxxx or any charitable
organization to which such
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CPEX Shares are contributed, provided that any such transfers do not, either individually or
in the aggregate (i) violate the securities laws of any jurisdiction or (ii) result in a change in
the control of CPEX or in the right to direct the disposition or voting of 50% or more of the CPEX
Shares.
5.3. Notification of Certain Matters. Each of ICEX and CPEX shall give prompt notice
to the other of any fact, event or circumstance known to it that is reasonably likely, individually
or taken together with all other facts, events and circumstances known to it, to result in a
material breach of any of its representations, warranties, covenants or agreements contained
herein.
ARTICLE VI.
CPEX PUT
6.1. CPEX Put.
(a) Upon the expiration or other termination of the Employment Agreement between ICEX and
Xxxxxxxx, for any reason whatsoever, CPEX shall have the right, exercisable at any time within six
months after the Date of Termination (as defined in the Employment Agreement), to require ICEX to
purchase all, but not less than all of the CPEX Interest for an amount equal to the greater of (x)
the Fair Market Value of the CPEX Interest or (y) the Minimum Amount (such right, the “CPEX
Put”).
(b) If CPEX exercises the CPEX Put, ICEX shall purchase the CPEX Interest and shall pay the
purchase price thereof in cash within 30 days of receiving a written demand therefor;
provided, that, if, in the reasonable judgment of the Board of Managers (or Directors,
should ICEX reorganize as a corporation) of ICEX, ICEX has insufficient cash on hand to pay the
full amount due under this Section 6.1, ICEX may, at its option, defer payment for one year of any
amount owed in excess of the Minimum Amount and instead issue to CPEX a promissory note for such
excess amount bearing interest at the rate of six month LIBOR plus 1%.
(c) If the equity securities of ICEX (which for purposes of Sections 6.1 and 6.2 shall be
deemed to include any corporation succeeding to ICEX) are not publicly traded on the Date of
Termination, Xxxxxxxx shall, at any time prior to the first to occur of (x) the Exercise Date and
(y) the date that is six months after the Date of Termination, upon reasonable request made from
time to time, be provided with reasonable access to information about the current intentions of
ICEX with respect to an initial public offering of its equity securities, which right shall include
the right to receive full and forthright answers to reasonable inquiries directed to the Board of
Managers of ICEX and, as appropriate, its advisors, and the right to receive the most recent draft
(if any) of the IPO Plan (as such term is defined in the LLC Agreement) of ICEX, subject to the
right of ICEX to require Xxxxxxxx to enter into such confidentiality undertakings as are
commercially reasonable under the circumstances.
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(d) As used in this Article VI, the following terms have the following meanings:
(i) “CPEX Interest” means the Interest (including, for purposes of this
Article VI, all shares or other securities or interests in ICEX or any successor which may
be granted or exchanged in respect of the Interest), less any portion of the Interest held
by CPEX subject to an option on the part of, or otherwise held for the benefit of, any
persons who were employees of CPEX prior to May 1, 2000.
(ii) The “Fair Market Value” of the CPEX Interest means (i) subject to clause
(iii) of this definition, if the equity securities of ICEX are not publicly traded on the
date on which the CPEX Put is exercised, the fair market value of the CPEX Interest as
determined by a nationally recognized investment banking firm selected by mutual agreement
of ICEX and CPEX, the cost of which shall be borne by ICEX; provided, that, if the
parties are unable to agree on a firm, such determination will be made in accordance with
the arbitration procedure set forth in Section 16.12 of the LLC Agreement; and
provided, further, that the fair market value shall represent the price
that a willing buyer would pay for the CPEX Interest (without giving effect to any
liquidity discount), (ii) if the equity securities of ICEX are publicly traded on the date
on which the CPEX Put is exercised, the average of the bid prices for the publicly traded
equity securities of ICEX at the close of trading on the primary exchange or interdealer
quotation system on which ICEX’s equity securities are traded (or, if none, at 4:30 p.m.,
New York City time) on each of the twenty trading days immediately preceding the date on
which the CPEX Put is exercised (the “Exercise Date”) and (iii) if Xxxxxxxx
terminates his employment prior to January 1, 2001, the Minimum Amount.
(iii) “Form S-3” means such form under the Securities Act as in effect on the
date hereof or any successor form that permits significant incorporation by reference to a
company’s filings under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(iv) “Minimum Amount” means $5 million, provided that if Xxxxxxxx is
terminated for Cause (as such term is defined in the Employment Agreement between Xxxxxxxx
and ICEX), or if Xxxxxxxx terminates the Employment Agreement without Good Reason (as
defined in the Employment Agreement), then the Minimum Amount shall be $4 million.
(v) “SEC” means the Securities and Exchange Commission.
(vi) “Securities Act” means the Securities Act of 1933, as amended.
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6.2. If CPEX does not elect to exercise the CPEX Put the terms of Sections 6.2, 6.3 and 6.4
shall apply.
(a) In the event that ICEX proposes to register any equity securities of ICEX under the
Securities Act in connection with the Initial Public Offering (as defined in the LLC Agreement) of
ICEX, ICEX shall, promptly after its formulation of an IPO Plan (as defined in the LLC Agreement),
provide CPEX written notice of such proposed registration. If requested in writing by CPEX no
later than twenty (20) days after its receipt of the notice of ICEX specified in the preceding
sentence, ICEX shall include in its initial registration statement on Form S-1 (or successor form
if applicable) all of the CPEX Interest that CPEX has requested to be registered in such proposed
public offering, subject to underwriter cutbacks on a pro rata basis with respect to the inclusion
in such registration of securities other than primary securities.
(b) If any of the CPEX Interest is not registered in connection with the Initial Public
Offering of ICEX, as provided in Paragraph (a) above, then at such time as ICEX has qualified for
the use of Form S-3, CPEX shall have the right to demand in writing on no more than two occasions
that ICEX effect a registration on Form S-3 of that portion of the unregistered CPEX Interest
requested by CPEX; provided, that ICEX shall not be obligated to effect any such
registration (i) for any portion of the CPEX Interest having an anticipated aggregate offering
price of less than $1,000,000; (ii) if Form S-3 is not available for such offering; or (iii) if
ICEX has, within the six (6) month period preceding the date of such request, (x) effected its
Initial Public Offering or (y) effected a registration on Form S-3.
(c) ICEX may delay the filing or effectiveness of any registration statement requested to be
filed pursuant to paragraph (b) above for a period of up to 120 days after the date of a request
for registration if (i) at the time of such request ICEX is engaged, or intends to engage within
sixty (60) days of the time of such request, in an underwritten public offering of its securities;
(ii) ICEX determines in good faith that (A) it is in possession of material, non-public information
concerning an acquisition, merger, recapitalization, consolidation, reorganization or other
material transaction by or of ICEX or concerning pending or threatened litigation and (B)
disclosure of such information would jeopardize any such transaction or litigation or otherwise
materially harm ICEX; or (iii) the Board of Managers (or, if applicable, the Directors) of ICEX
determines in its good faith judgment that it would otherwise be seriously detrimental to ICEX and
its equity holders for such registration statement to be filed and it is therefore prudent to defer
the filing of such registration statement; provided, however, that ICEX may not
exercise such deferral right pursuant to this subclause (iii) more than twice in any twelve (12)
month-period.
(d) The rights conferred on CPEX pursuant to Section 6.2(b) shall terminate and be of no
further force or effect upon the first to occur of (i) the CPEX Interest having become eligible for
resale in reliance on Rule 144(k) under the Securities Act or (ii) such time as CPEX no longer
holds any portion of the unregistered CPEX Interest.
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6.3. Whenever required under Section 6.2(b) to effect the registration of the CPEX Interest,
ICEX shall use its commercially reasonable efforts to:
(a) prepare and file with the SEC within 120 days a registration statement with respect to the
CPEX Interest and as expeditiously as reasonably possible cause such registration statement to
become effective, and, upon the request of CPEX, keep such registration statement effective for up
to ninety (90) days (or sooner if all securities covered by such registration statement have been
earlier sold).
(b) as expeditiously as reasonably possible prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration statement for such
period of time as the registration statement remains effective.
(c) furnish to CPEX such numbers of copies of a prospectus including a preliminary prospectus
in conformity with the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the CPEX Interest.
(d) use its best efforts to register and qualify the securities covered by such registration
statement under the securities or Blue Sky laws of such state jurisdictions as shall be reasonably
requested by CPEX; provided, however, that ICEX shall not be required to consent to
general service of process for all purposes or qualify as a foreign corporation in any jurisdiction
where it is not then qualified, or to register or qualify the CPEX Interest in any jurisdiction
which would require ICEX to amend its constituent documents or covenant or undertake to do any
other act or make any other change regarding its capitalization or equity ownership.
(e) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering.
(f) during the period of time that such registration statement remains effective, notify CPEX
as expeditiously as reasonably possible at any time when a prospectus relating thereto is required
to be delivered under the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact necessary in order to make the statements, in
light of the circumstances in which they were made, not misleading.
(g) cause the CPEX Interest to be listed on the securities exchange or interdealer quotation
system on which similar securities issued by ICEX then primarily trade; provided that ICEX
then meets or is reasonably capable of meeting the eligibility requirements for such exchange or
system.
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(h) provide a transfer agent and registrar for the CPEX Interest registered pursuant hereunder
and a CUSIP number therefor, in each case not later than the effective date of such registration.
(i) pay (so far as is lawful) all expenses incurred in connection with registrations, filings
or qualifications pursuant to Section 6.2(a) or (b), including (without limitation) all
registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements
of counsel for ICEX; provided, however, that under all circumstances all
underwriting discounts, income and transfer taxes, selling commissions and legal fees and expenses
of counsel to CPEX shall not be borne by ICEX but shall be borne solely by CPEX.
6.4. ICEX shall not be obligated to effect the registration of the CPEX Interest unless CPEX
consents and adheres to customary conditions of a reasonable nature that are imposed by ICEX,
including but not limited to, the following:
(a) conditions prohibiting the sale of the CPEX Interest by CPEX until the registration is
effective;
(b) conditions requiring CPEX to comply with all provisions of the Securities Act and the
Exchange Act of 1934, as amended, including, but not limited to, the prospectus delivery
requirements of the Securities Act, and to furnish ICEX with information about sales made in the
public offering;
(c) conditions prohibiting CPEX from effecting sales upon receipt of notice from ICEX that
ICEX is required to correct or update the registration statement, until such time as ICEX has
completed the necessary correction or updating; and
(d) conditions requiring CPEX to provide ICEX on a timely basis with such information and
materials as ICEX may reasonably request in order to effect the applicable registration.
(e) in the event of any underwritten public offering, conditions requiring CPEX to enter into
and perform its obligations under an underwriting agreement, in usual and customary form, with the
managing underwriter of such offering.
ARTICLE VII.
MISCELLANEOUS
7.1. Notices. Unless otherwise specified in this Agreement, all notices, demands,
elections, requests or other communications that any party to this Agreement may desire or be
required to give hereunder shall be in writing and shall be given by hand, by facsimile, or by a
recognized overnight courier service providing confirmation of delivery, addressed as follows:
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| (a) | to ICEX: IntercontinentalExchange, LLC 0000 XxxxxXxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 Attn: Members of the Board of Managers |
| (b) | to CPEX: Continental Power Exchange, Inc. c/o Xxxxxxx X. Xxxxxxxx IntercontinentalExchange, LLC 0000 XxxxxXxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 to Xxxxxxxx: Xxxxxxx X. Xxxxxxxx IntercontinentalExchange, LLC 0000 XxxxxXxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 |
All notices given pursuant to this Section 7.1 shall be deemed to have been given (i) if delivered
by hand on the date of delivery or on the date delivery was refused by the addressee, (ii) if
delivered by facsimile transmission, when transmitted to the applicable number so specified in (or
pursuant to) this Section 7.1 and an appropriate answerback is received or (iii) if delivered by
overnight courier, on the date of delivery as established by the courier service confirmation (or
the date on which the courier service confirms that acceptance of delivery was refused by the
addressee). Any party from time to time may change its address, facsimile number or other
information for purposes of notices to that party by giving notice specifying such change to the
other parties hereto.
7.2. Headings and Captions. All headings and captions contained in this Agreement are
inserted for convenience only and shall not be deemed a part of this Agreement.
7.3. Variance of Pronouns. All pronouns and all variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or
entity may require.
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7.4. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original and all of which, when taken together, shall constitute one
Agreement.
7.5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
7.6. Binding Effect; Benefit. This Agreement shall inure to the benefit of and be
binding upon CPEX and ICEX and their respective successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than CPEX and ICEX and
their respective successors and permitted assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
7.7. Assignability. This Agreement shall not be transferable or assignable, nor shall
any obligations hereunder be delegable, by CPEX or ICEX, without the prior written consent of the
other parties. Any such purported transfer, assignment or delegation without the prior written
consent of such other parties shall be null and void.
7.8. Amendment; Waiver. No provision of this Agreement may be amended, waived or
otherwise modified except by an instrument in writing executed by Xxxxxxxx, CPEX and ICEX.
7.9. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement. If a provision of this Agreement is held to be invalid and the rest
of this Agreement is not invalidated, each party shall use all reasonable efforts to effect as far
as practicable and valid under applicable law a new provision to achieve the purpose of such
invalidated provision.
7.10. Expenses. Without prejudice to its ability to recover for any losses, damages
or liabilities relating to any dispute, controversy or claim arising out of or relating to this
Agreement, each of CPEX and ICEX shall pay its own expenses in connection with this Agreement and
any amendments, consents or waivers (whether or not the same become effective) under or in respect
of this Agreement.
7.11. Further Assurances. Each of CPEX and ICEX will use all reasonable efforts to
cause all conditions to its obligations hereunder to be timely satisfied and to perform and fulfill
all obligations on its part to be performed and fulfilled under this Agreement, to the end that the
transactions contemplated by this Agreement shall be effected substantially in accordance with its
terms as soon as reasonably practicable. Each party shall deliver such further documents and take
such other actions as may be necessary or appropriate to consummate or implement the transactions
contemplated hereby or to evidence such events or matters.
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7.12. Remedies. Any Person having any rights under any provision of this Agreement
will be entitled to enforce such rights specifically, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law.
7.13. Survival of Representations and Warranties. The representations, warranties and
covenants of the parties contained in this Agreement shall survive the Closing.
7.14. Entire Agreement. This Agreement together with all Exhibits and Schedules to
this Agreement supersede all prior agreements among the parties with respect to the subject matter
hereof and contain the entire Agreement among the parties with respect to such subject matter.
7.15. Jurisdiction and Venue. Exclusive jurisdiction and venue for any dispute,
claims or controversies between or among the parties hereto arising out of or relating to this
Agreement, shall be with any state or federal court sitting in the Borough of Manhattan, City of
New York.
ARTICLE VIII.
DEFINITIONS
8.1. Definitions. For purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the meanings given to them below:
(a) “Affiliate” means, with reference to any entity, any other entity that, through
ownership of a majority of voting stock (or other equity ownership interests), directly or
indirectly controls or is controlled by, or is under common control with, the entity to which
reference is made.
(b) “Agreement” means this Contribution and Asset Transfer Agreement, including the
attached Annexes and Schedules, CPEX’s Disclosure Schedule, and the various agreements,
certificates and instruments to be entered into prior to or at Closing as contemplated in this
Agreement, as amended by any instrument executed by both parties hereto at the time of reference.
(c) “Charter Documents” means, with respect to CPEX, its (i) articles or certificate
of incorporation or similar document, and (ii) bylaws, operating agreement, or similar document.
(d) “Closing” and “Closing Date” has the meaning provided in the LLC
Agreement.
(e) “Contracts” includes all contracts, agreements, arrangements, understandings,
leases, subleases, licenses, sublicenses, indentures, mortgages, instruments of indebtedness and
commitments, written or oral, to which the person to
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whom reference is made is a party or by which such person is bound or by which such person or
any of its properties may be bound or affected, that relates to the Business, the Transferred
Assets.
(f) “CPEX Business” means the development of the tangible and intangible
infrastructure and know-how which, when the steps and measures identified in that certain report of
Xxxxxxxx Consulting entitled “Continental Power Exchange Technical Due Diligence Version 1.0” (the
“Report”) have been undertaken, will achieve (subject to the qualifications set forth in
the Report) the operation of an electronic facility for the trading of commodities and
over-the-counter derivatives on such commodities, as contemplated on the date hereof by the
business plan of ICEX.
(g) “CPEX Shares” means shares of the common stock of CPEX, par value $.01.
(h) “Employment Agreement” means the Employment Agreement between ICEX and Xxxxxxxx,
dated the Closing Date.
(i) “Encumbrance” means any mortgage, security interest, retention of title, pledge,
lease, sublease, judgment, notice of violation, notice of potential responsibility, lien, option,
claim, assessment, charge or other encumbrance, or liability of any kind whatsoever, other than
mechanics’, carriers’, workers’, repairers’, suppliers’, and other similar liens, relating to,
arising on the assets of or incurred by CPEX in the ordinary course of business, which do not and
could not in the aggregate have a Material Adverse Effect.
(j) “Excluded Patents” means the Pending Patent Applications, as defined in the Patent
Assignment Agreement between CPEX and MHC Investment Company, dated May ___, 2000.
(k) “Governmental Authority” means any court or any governmental or other
administrative or regulatory authority, department, ministry, agency or commission, domestic or
foreign.
(l) “GS Interim Facility Agreement” means that certain Advance Facility/Security
Agreement, dated May 1, 2000 between CPEX and GS.
(m) “GS Interim Note” means that certain promissory note by CPEX in favor of GS dated
May 2, 2000 pursuant to the GS Interim Facility Agreement.
(n) “GS” mean Xxxxxxx, Sachs &Co.
(o) “Indebtedness” means all indebtedness other than indebtedness for trade payables
incurred in the ordinary course of business consistent with past practice, and otherwise in
accordance with the terms of this Agreement.
(p) “Intellectual Property” means all intellectual property rights used or held for
use in the conduct of the CPEX Business (including, without limitation,
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CPEX’s goodwill therein) and all rights, privileges, claims, causes of action and options
relating or pertaining to the CPEX Business or its assets or properties, including, without
limitation, all patents and patent rights, inventions, know-how, trade secrets, secret formulas,
business and marketing plans, computer software (including source codes) and related documentation,
copyrights and copyright rights, mask works, trademarks and trademark rights, trade names and trade
name rights, service marks and service xxxx rights, service name and service name rights, domain
names and all other names and slogans, and all pending applications for and registrations of
patents, trademarks, service marks and copyrights used by CPEX in connection with the CPEX
Business, and all licenses, contracts and/or agreements relating to any and all of the foregoing,
provided that the Intellectual Property shall not include the Excluded Patents.
(q) “Interest” means the membership interest in ICEX held by CPEX on the date hereof.
(r) “Knowledge” means, with respect to any party, to the best of such party’s
knowledge after due inquiry.
(s) “Law” includes any federal, state, local or other law or governmental requirement
of any kind, domestic or foreign, whether legislatively, judicially or administratively
promulgated, and any rules, regulations and interpretations promulgated thereunder.
(t) “Liabilities” includes all liabilities and obligations of any nature or kind
(including pursuant to guarantees or suretyships), whether primary, secondary, contingent or
otherwise.
(u) “LLC Agreement” means the First Amended and Restated Limited Liability Company
Operating Agreement of ICEX, dated as of the date hereof.
(v) “Material Adverse Effect” means, when used in connection with the CPEX Business,
any change, effect, event, occurrence or state of facts that is or could be materially adverse to
the CPEX Business or to the properties (including intangible assets), financial condition or
results of operations of the CPEX Business or on the ability of CPEX to consummate the transactions
contemplated by, or to perform their respective obligations under, this Agreement. For purposes of
this Agreement, the term “Material Adverse Effect” shall include any change, effect, event,
occurrence or state of facts that would or could result in a change of $100,000 or more in the
value of the CPEX Business or in the annual operating income of the CPEX Business before interest,
taxes and amortization.
(w) “MS means Xxxxxx Xxxxxxx Capital Group.
(x) “MS Interim Facility Agreement” means that certain Advance Facility/Security
Agreement, dated April 7, 2000 between CPEX and MS.
(y) “MS Interim Note” means that certain promissory note by CPEX in favor of MS dated
April 7, 2000 pursuant to the MS Interim Facility Agreement.
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(z) “Order” includes any judgment, order, direction, decree, stipulation, injunction,
charge or other restriction of any Governmental Entity.
(aa) “Permit” includes any approval, authorization, certificate of convenience and
necessity, qualification, consent, franchise, license, security clearance, easement, order or other
permit issued or granted by any Governmental Entity.
(bb) “Real Property” has the meaning provided in Section 3.1(d).
(cc) “Taxes” shall mean all taxes, however, denominated, including any interest,
penalties or other additions to tax that may become payable in respect thereof, imposed by any
federal, territorial, state, local or foreign government or any agency or political subdivision of
any such government, which taxes shall include, without limiting the generality of the foregoing,
all income or profits taxes (including, but not limited to, federal income taxes and state income
taxes), real property gains taxes, payroll and employee withholding taxes, unemployment insurance
taxes, social security taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupation taxes, real and personal property taxes,
stamp taxes, environmental taxes, transfer taxes, workers’ compensation, value added or VAT taxes,
Pension Benefit Guaranty Corporation premiums and other governmental charges, and other obligations
of the same or of a similar nature to any of the foregoing, which CPEX required to pay, withhold or
collect.
(dd) “Termination Agreement” means that certain Termination Agreement, dated as of the
date hereof, among InterCoast Energy Company, CPEX and Xxxxxxxx.
(ee) “Transferred Assets” means all of the properties, assets and rights of CPEX, with
the exception of the Excluded Patents and the Interest, which Transferred Assets include but are
not limited to those items listed in each of clauses (i) — (vii) below:
(i) CPEX’s interests (freehold, leasehold and sub-leasehold) in all Real Property
together with all related certificates of occupancy, permits, plans, specifications,
surveys, inspection reports, site inspections and related books and records as set forth in
Schedule 3.1(d) to this Agreement;
(ii) CPEX’s interests (leasehold and otherwise) in fixed machinery and equipment,
other fixtures and fittings, moveable plant and equipment, furniture and fixtures and other
items of personal property;
(iii) CPEX’s rights, title and interests in and to the Intellectual Property;
(iv) CPEX’s rights under existing Contracts (other than the LLC Agreement and the
Interim LLC Agreement);
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(v) all books and records relating to the CPEX Business;
(vi) all goodwill and going concern value of the CPEX Business; and
(vii) all other assets, tangible and intangible, real, personal and mixed, whether
currently in use or idle, wheresoever situated and whether or not specifically referred to
herein or in any instrument of conveyance delivered pursuant hereto, that are related to or
dedicated to the CPEX Business as the same shall exist on the Closing Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands as of the day and year
first written above.
| INTERCONTINENTALEXCHANGE, LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| CONTINENTAL POWER EXCHANGE, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | President | |||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
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