Contribution and Asset Transfer Agreement
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Title: |
Contribution and Asset Transfer Agreement |
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Entities: |
Intercontinentalexchange Inc |
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Date: |
2005 |
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Size: |
Preview shows 7KB of 58KB total |
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Price: |
$50 |
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ID: |
#1602495 |
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Start of
Preview |
CONTRIBUTION AND ASSET TRANSFER AGREEMENT
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 Jeffrey C. Sprecher (“Sprecher”).
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 Sprecher 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 Sprecher to CPEX (the
“Sprecher Loans”) and shall discharge such Sprecher 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 Sprecher 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: