INTERCONTINENTALEXCHANGE, INC.
As filed with the Securities and Exchange Commission on
September 2, 2008
(Registration Statement No. 333- )
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
IntercontinentalExchange, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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58 2555 670
(IRS Employer
Identification No.) |
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2100 RiverEdge Parkway, Suite 500
Atlanta, GA
(Address of Principal Executive Offices)
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30328
(Zip code) |
IntercontinentalExchange, Inc.
Amended and Restated 1999 Stock Option/Stock Issuance Plan
(Full title of the Plan)
Andrew J. Surdykowski, Esq.
Vice President & Assistant General Counsel
IntercontinentalExchange, Inc.
2100 RiverEdge Parkway, Suite 500
Atlanta, GA 30328
(770) 857-4700
(Name and Address of Agent For Service)
Please Send Copies of Communications to:
Catherine M. Clarkin, Esq.
Sullivan & Cromwell LLP
125 Broad Street, New York, New York 10004-2498
(212) 558-4000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one)
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Large accelerated filer þ |
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Accelerated filer o |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Title of Each Class of |
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Amount to be |
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Offering Price |
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Aggregate |
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Amount of |
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Securities to be Registered |
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Registered(2) |
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Per Share(3) |
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Offering Price(3) |
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Registration Fee |
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Common Stock, par value
$0.01 per share (1) |
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1,599,944 |
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$84.30 |
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$134,875,279.20 |
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$5,300.60 |
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(1) |
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In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the
Securities Act), this registration statement shall include any additional shares of
common stock, par value $0.01 per share (Common Stock), of IntercontinentalExchange, Inc.
(the Company) as may be required pursuant to the anti-dilution provisions of the
IntercontinentalExchange, Inc. Amended and Restated 1999 Stock Option/Stock Issuance Plan
(the Plan), any additional shares of Common Stock that may become issuable by reason of
any stock split, stock dividend, recapitalization or other similar transaction effected
without consideration, which results in an increase in the number of outstanding shares of
Common Stock, and an indeterminate number of shares of Common Stock to be offered or sold
pursuant to the Plan. |
(2) |
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The number of shares of Common Stock being registered represents the estimated minimum
aggregate amount of shares of Common Stock to be issuable in connection with the Plan. |
(3) |
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Estimated solely for the purpose of computing the amount of the registration fee. In
accordance with Rule 457(h), the maximum offering price per share of Common Stock for
options granted pursuant to the Plan was calculated by multiplying the weighted average
exercise price at which such options may be exercised. With respect to any restricted
stock units granted pursuant to the Plan, the maximum offering price per share of Common
Stock was calculated by reference to the market value of the shares of Common Stock in
accordance with Rule 457(c) as reported on the New York Stock
Exchange on August 26, 2008. |
TABLE OF CONTENTS
EXPLANATORY NOTE
In connection with the Agreement and Plan of Merger by and among IntercontinentalExchange,
Inc. (the Company), Columbia Merger Corporation, Creditex Group Inc. (Creditex), and TA
Associates, Inc., as the Stockholders Representative, dated June 3, 2008 (the Plan of Merger),
at the completion of the merger (the Effective Time), each restricted stock unit measured in
shares of common stock of Creditex, each option to purchase shares of common stock of Creditex and
each other right to acquire shares of common stock of Creditex, outstanding immediately prior to
the Effective Time, ceased to represent a restricted stock unit, an option to purchase shares of
common stock of Creditex or a right to acquire shares of Creditex, respectively, and was converted,
at the Effective Time, into an adjusted number of restricted stock units measured in Common Stock,
options to purchase shares of Common Stock (with an adjusted exercise price) and rights to acquire
shares of Common Stock, respectively, on generally the same terms and conditions as were applicable
under the IntercontinentalExchange, Inc. Amended and Restated 1999 Stock Option/Stock Issuance Plan
(formerly Creditex Group Inc. Amended and Restated 1999 Stock Option/Stock Issuance Plan) (the
Plan). The formula for the adjustments is set forth in the Plan of Merger. In addition, any
shares of common stock of Creditex that remain issuable under the Plan at the Effective Time will
be converted on an adjusted basis into shares of Common Stock and will be available for issuance
under the Plan in the future.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I (plan and registrant information)
will be delivered in accordance with Rule 428(b)(1) under the U.S. Securities Act of 1933, as
amended (the Securities Act). Such documents are not required to be, and are not, filed with the
Securities and Exchange Commission (the Commission), either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents, and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Company will provide participants of the Plan, upon written or oral request and without
charge, a copy of the documents incorporated by reference in Item 3 of Part II of this registration
statement, which are incorporated by reference in the Section 10(a) prospectus, and all documents
required to be delivered to employees pursuant to Rule 428(b) under the Securities Act. Requests
for such documents should be directed to IntercontinentalExchange, Inc., 2100 RiverEdge Parkway,
Suite 500, Atlanta, Georgia 30328, Attention: Assistant General Counsel, telephone number (770)
857-4700.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission by the Company are incorporated
herein by reference and made a part hereof:
(a) The Companys Annual Report on Form 10-K, filed with the Commission on February 13,
2008, which contains audited financial statements of the Company for the latest period for
which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the U.S. Securities
Exchange Act of 1934, as amended (the Exchange Act), since the end of the fiscal year
covered by the document referred to in (a) above.
(c) The description of the Companys Common Stock contained under the heading Description
of Capital Stock in the prospectus forming a part of the Companys Registration Statement
on Form S-1 (File No. 333-123500), as amended (the S-1 Registration Statement), which
description has been incorporated by reference in Item 1 of the Companys Registration
Statement on Form 8-A (File No. 001-32671).
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents unless all or a portion of such documents are
deemed not to be filed.
Any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded, for purposes of this registration statement,
to the extent that a statement contained herein or in any subsequently filed document that also is
or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any
statement modified or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the DGCL) provides that a corporation
may indemnify directors and officers, as well as other employees and individuals, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any threatened, pending or completed actions,
suits or proceedings in which such person is made a party by reason of such person being or having
been a director, officer, employee or agent of the corporation, subject to certain limitations.
The statute provides that it is not exclusive of other rights to which those seeking
indemnification may be entitled to under any bylaw, agreement, vote of shareholders or
disinterested directors or
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otherwise. Section 7.6 of our bylaws provides for indemnification by us of our directors,
officers and employees to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director
of the corporation shall not be personally liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director, except for liability (1) for any
breach of the directors duty of loyalty to the corporation or its shareholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(3) for payments of unlawful dividends or unlawful stock purchases or redemptions, or (4) for any
transaction from which the director derived an improper personal benefit. Our charter provides for
such limitation of liability.
We maintain standard policies of insurance under which coverage is provided (1) to our
directors and officers against loss rising from claims made by reason of breach of duty or other
wrongful act, and (2) to us with respect to payments which may be made by us to such officers and
directors pursuant to the above indemnification provision or otherwise as a matter of law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this registration statement.
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Exhibit No. |
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Description |
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3.1
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Fourth Amended and Restated Certificate of Incorporation of
IntercontinentalExchange, Inc. (incorporated by reference to
Exhibit 3.1 to the Annual Report on Form 10-K, filed with the SEC on
March 10, 2006, File No. 001-32671). |
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3.2
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Amended and Restated Bylaws of IntercontinentalExchange, Inc.
(incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K, filed with the SEC on
March 10, 2006, File No. 001-32671). |
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4.1
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IntercontinentalExchange, Inc. Amended and Restated 1999 Stock
Option/Stock Issuance Plan (formerly Creditex Group Inc.
Amended and Restated 1999 Stock Option/Stock Issuance Plan).* |
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5.1
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Opinion of Sullivan & Cromwell
LLP.* |
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23.1
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Consent of Ernst & Young LLP.* |
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23.2
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Consent of Sullivan & Cromwell
LLP (included in Exhibit 5.1).* |
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24.1
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Power of Attorney (included in the signature page).* |
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on September 2, 2008.
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INTERCONTINENTALEXCHANGE, INC.
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By: |
/s/ Jeffrey C. Sprecher
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Jeffrey C. Sprecher |
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Chief Executive Officer and Chairman |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Jeffrey C. Sprecher and Scott A. Hill, and each of them severally, his or her true and
lawful attorney-in-fact with power of substitution and resubstitution to do any and all things and
to sign in his or her name, place and stead, in any and all capacities, this registration statement
on Form S-8 and any and all amendments thereto (including post-effective amendments), and any other
documents in connection therewith, and to file the same with the Securities and Exchange
Commission, granting unto said attorney-in-fact full power and authority to do and perform each and
every act and things requisite and necessary to be done as fully for all intents and purposes as he
or she might or could do in person, and hereby ratifies and confirms all that said
attorneys-in-fact and agents, each acting alone, and his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
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Signatures |
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Title |
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/s/ Jeffrey C. Sprecher
Jeffrey C. Sprecher |
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Chief Executive
Officer and
Chairman (principal
executive officer)
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September 2, 2008 |
/s/ Scott A. Hill
Scott A. Hill |
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Senior Vice
President, Chief
Financial Officer
(principal
financial and
accounting officer)
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September 2, 2008 |
/s/ Charles R. Crisp
Charles R. Crisp |
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Director
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September 2, 2008 |
/s/ Fredrick W. Hatfield
Fredrick W. Hatfield |
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Director
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September 2, 2008 |
/s/ Jean-Marc Forneri
Jean-Marc Forneri |
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Director
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September 2, 2008 |
/s/ Terrence F. Martell
Terrence F. Martell |
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Director
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September 2, 2008 |
/s/ Sir Robert Reid
Sir Robert Reid |
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Director
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September 2, 2008 |
/s/ Frederic V. Salerno
Frederic V. Salerno |
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Director
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September 2, 2008 |
/s/ Fred W. Schoenhut
Fred W. Schoenhut |
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Director
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September 2, 2008 |
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Signatures |
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Title |
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Date |
/s/ Judith A. Sprieser
Judith A. Sprieser |
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Director
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September 2, 2008 |
/s/ Vincent Tese
Vincent Tese |
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Director
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September 2, 2008 |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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3.1
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Fourth Amended and Restated Certificate of Incorporation of
IntercontinentalExchange, Inc. (incorporated by reference to
Exhibit 3.1 to the Annual Report on Form 10-K, filed with the
SEC on
March 10, 2006, File No. 001-32671). |
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3.2
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Amended and Restated Bylaws of IntercontinentalExchange, Inc.
(incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K, filed with the
SEC on
March 10, 2006, File No. 001-32671). |
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4.1
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IntercontinentalExchange, Inc. Amended and Restated 1999 Stock
Option/Stock Issuance Plan (formerly Creditex Group Inc.
Amended and Restated 1999 Stock Option/Stock Issuance Plan).* |
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5.1
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Opinion of Sullivan & Cromwell
LLP.* |
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23.1
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Consent of Ernst & Young LLP.* |
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23.2
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Consent of Sullivan & Cromwell
LLP (included in Exhibit 5.1).* |
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24.1
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Power of Attorney (included in the signature page).* |