Jeffrey C. Sprecher
Second Amendment to
Contribution and Asset Transfer Agreement
This Second Amendment to Contribution and Asset Transfer Agreement (this “Amendment”)
is entered into as of October 24, 2005 and is by and among IntercontinentalExchange, Inc., a
Delaware corporation (“ICEX”), Continental Power Exchange, Inc., a Delaware corporation
(“CPEX”) and Jeffrey C. Sprecher (“Sprecher”).
W I T N E S S E T H
WHEREAS, IntercontinentalExchange, LLC, a Delaware limited liability company, CPEX and
Sprecher are the parties to that certain Contribution and Asset Transfer Agreement dated as of May
11, 2000 (the “Agreement”) and the First Amendment to the Agreement dated as of May 17,
2000;
WHEREAS, ICEX is the successor to IntercontinentalExchange, LLC;
WHEREAS, the parties hereto (the “Parties”) wish to amend the Agreement further as hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and on the terms and subject to the conditions herein set forth, the Parties,
intending to be bound, hereby agree as follows:
Section 1. Amendment of Agreement. The Agreement is hereby amended as follows,
effective immediately upon the closing of the initial public offering of common stock of ICEX:
(a) The provisions of Section 5.2 of the Agreement are hereby terminated, and the rights of
CPEX and the obligations of ICEX set forth therein shall expire and be of no further force and
effect.
(b) Article VI of the Agreement is hereby amended to read as set forth in Appendix A attached
hereto.
(c) Section 7.7 is hereby amended to read as follows:
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, and any such purported
transfer, assignment or delegation without the prior written consent of such other
parties shall be null and void; provided, however, that CPEX may
assign its rights under Article VI to Sprecher or any other person directly or
indirectly controlled by Sprecher to which any portion of the CPEX Interest (as
defined in Section 6.1) is transferred. Any such assignment must either carry with
it all of CPEX’s rights under Article VI or must provide that the assigned rights
may be exercised only in parallel with the exercise of the retained rights and with
any rights assigned to a third person. As an illustration of this principle, if
CPEX assigns half of the
1
CPEX Interest to Sprecher, together with the related rights, and Sprecher
demands registration, that will use up one of the two permitted demands under
Section 6.3. However, if CPEX demands registration at the same time as Sprecher,
there will still be one permitted demand remaining.
(d) Section 8.1(h) is hereby amended to read as follows:
(h) “Employment Agreement” means the Employment Agreement between ICEX
and Sprecher, with an initial term commencing September 27, 2004.
Section 2. Expenses. Notwithstanding the provisions of Section 7.10 of the
Agreement, within 45 days following execution of this Agreement, ICEX shall reimburse CPEX and
Sprecher for their respective out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel and valuation consultants) incurred in negotiating this Agreement and related
matters, upon presentation by CPEX and Sprecher of appropriate documentation therefor.