EX-10.2






Exhibit 10.2




      



      



      



      



      



INTERCONTINENTALEXCHANGE, INC.




2009 OMNIBUS INCENTIVE PLAN





 









 








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I	    GENERAL	 	 	1	 
	 	1.1	 	 	Purpose
	 	 	1	 
	 	1.2	 	 	Definitions of Certain Terms
	 	 	1	 
	 	1.3	 	 	Administration
	 	 	4	 
	 	1.4	 	 	Persons Eligible for Awards
	 	 	6	 
	 	1.5	 	 	Types of Awards under Plan
	 	 	6	 
	 	1.6	 	 	Shares of Common Stock Available for Awards
	 	 	7	 
	ARTICLE II	    AWARDS UNDER THE PLAN	 	 	7	 
	 	2.1	 	 	Agreements Evidencing Awards
	 	 	7	 
	 	2.2	 	 	No Rights as a Stockholder
	 	 	8	 
	 	2.3	 	 	Options
	 	 	8	 
	 	2.4	 	 	Stock Appreciation Rights
	 	 	9	 
	 	2.5	 	 	Restricted Shares
	 	 	10	 
	 	2.6	 	 	Restricted Stock Units
	 	 	11	 
	 	2.7	 	 	Dividend Equivalent Rights
	 	 	11	 
	 	2.8	 	 	Other Stock-Based Awards
	 	 	12	 
	 	2.9	 	 	Individual Limitation on Awards
	 	 	12	 
	ARTICLE III	    MISCELLANEOUS	 	 	12	 
	 	3.1	 	 	Amendment of the Plan
	 	 	12	 
	 	3.2	 	 	Tax Withholding
	 	 	13	 
	 	3.3	 	 	Required Consents and Legends
	 	 	13	 
	 	3.4	 	 	Right of Offset
	 	 	14	 
	 	3.5	 	 	Nonassignability; No Hedging
	 	 	14	 
	 	3.6	 	 	Change in Control
	 	 	14	 
	 	3.7	 	 	Right of Discharge Reserved
	 	 	15	 
	 	3.8	 	 	Nature of Payments
	 	 	15	 
	 	3.9	 	 	Non-Uniform Determinations
	 	 	16	 
	 	3.10	 	 	Other Payments or Awards
	 	 	16	 
	 	3.11	 	 	Plan Headings
	 	 	16	 
	 	3.12	 	 	Termination of Plan
	 	 	16	 
	 	3.13	 	 	Section 409A
	 	 	17	 
	 	3.14	 	 	Governing Law
	 	 	17	 
	 	3.15	 	 	Choice of Forum
	 	 	17	 
	 	3.16	 	 	Severability; Entire Agreement
	 	 	18	 
	 	3.17	 	 	Waiver of Claims
	 	 	18	 
	 	3.18	 	 	No Third Party Beneficiaries
	 	 	19	 
	 	3.19	 	 	Successors and Assigns of ICE
	 	 	19	 
	 	3.20	 	 	Waiver of Jury Trial
	 	 	19	 
	 	3.21	 	 	Date of Adoption, Approval of Stockholders and Effective Date
	 	 	19	 







 









 








INTERCONTINENTALEXCHANGE, INC.

2009 OMNIBUS INCENTIVE PLAN




ARTICLE I

GENERAL





			
	1.1	 	Purpose





     The purpose of the IntercontinentalExchange, Inc. 2009 Omnibus Incentive Plan is to attract,
retain and motivate officers, directors and key employees (including prospective employees),
consultants and others who may perform services for the Company (as hereinafter defined), to
compensate them for their contributions to the long-term growth and profits of the Company and to
encourage them to acquire a proprietary interest in the success of the Company.



     This 2009 Omnibus Incentive Plan replaces the Company’s 2005 Equity Incentive Plan, the
Company’s 2004 Restricted Stock Plan, the Company’s 2000 Stock Option Plan and the Creditex 1999
Stock Option/Stock Incentive (together, the “Prior Plans”), each as amended to the
Effective Date (as hereinafter defined), for Awards (as hereinafter defined) granted on or after
the Effective Date. Awards may not be granted under the Prior Plans beginning on the Effective
Date, but this 2009 Omnibus Incentive Plan will not affect the terms or conditions of any stock
option grants under the Prior Plans before the Effective Date.




			
	1.2	 	Definitions of Certain Terms





     For purposes of this 2009 Omnibus Incentive Plan, the following terms have the meanings set
forth below:



     1.2.1 “Award” means an award made pursuant to the Plan.



     1.2.2 “Award Agreement” means the written document by which each Award is evidenced,
and which may, but need not be (as determined by the Committee) executed or acknowledged by a
Grantee as a condition to receiving an Award or the benefits under an Award, and which sets forth
the terms and provisions applicable to Awards granted under the Plan to such Grantee. Any
reference herein to an agreement in writing will be deemed to include an electronic writing to the
extent permitted by applicable law.



     1.2.3 “Board” means the Board of Directors of ICE.



     1.2.4 “Certificate” means a stock certificate (or other appropriate document or
evidence of ownership) representing shares of Common Stock.



     1.2.5 “Change in Control” means the happening of any of the following:




     (a) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the 1934 Act),
is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly
or indirectly, of securities representing 30% or more of the combined voting power of the
then outstanding securities of ICE eligible to vote for the election of the members of ICE’s
Board (the “Company Voting Securities” unless, (1) such person



 









 







is ICE or any subsidiary of ICE, (2) such person is an employee benefit plan (or a
trust which is a part of such a plan) which provides benefits exclusively to, or on behalf
of, employees or former employees of ICE or a subsidiary of ICE, (3) such person is the
Grantee, an entity controlled by the Grantee or a group which includes the Grantee or (4)
such person acquired such securities in a Non-Qualifying Transaction (as defined in
1.2.5(c));




     (b) any dissolution or liquidation of ICE or any sale or the disposition of 50% or more
of the assets or business of ICE, or




     (c) the consummation of any reorganization, merger, consolidation or share exchange or
similar form of corporate transaction involving ICE unless (1) the persons who were the
beneficial owners of the outstanding securities eligible to vote for the election of the
members of ICE’s Board immediately before the consummation of such transaction hold more
than 60% of the voting power of the securities eligible to vote for the members of the board
of directors of the successor or survivor corporation in such transaction immediately
following the consummation of such transaction and (2) the number of the securities of such
successor or survivor corporation representing the voting power described in 1.2.5(c)(1)
held by the persons described in 1.2.5(c)(1) immediately following the consummation of such
transaction is beneficially owned by each such person in substantially the same proportion
that each such person had beneficially owned the outstanding securities eligible to vote for
the election of the members of ICE’s Board immediately before the consummation of such
transaction, provided (3) the percentage described in 1.2.5(c)(1) of the securities of the
successor or survivor corporation and the number described in 1.2.5(c)(2) of the securities
of the successor or survivor corporation shall be determined exclusively by reference to the
securities of the successor or survivor corporation which result from the beneficial
ownership of shares of common stock of ICE by the persons described in 1.2.5(c)(1)
immediately before the consummation of such transaction (any transaction which satisfies all
of the criteria specified in (1), (2) and (3) above shall be deemed to be a
“Non-Qualifying Transaction”).



     1.2.6 “Code” means the Internal Revenue Code of 1986, as amended from time to time, or
any successor thereto, and the applicable rulings and regulations thereunder.



     1.2.7 “Committee” has the meaning set forth in Section 1.3.1.



     1.2.8 “Common Stock” means the common stock of the Company, par value $0.01 per share,
and any other securities or property issued in exchange therefor or in lieu thereof pursuant to
Section 1.6.3.



     1.2.9 “Company” means IntercontinentalExchange, Inc. and its consolidated
subsidiaries.



     1.2.10 “Consent” has the meaning set forth in Section 3.3.2.



     1.2.11 “Consultant” means any individual, corporation, partnership, limited liability
company or other entity that provides bona fide consulting or advisory services to the Company
pursuant to a written agreement.



-2-









 





     1.2.12 “Covered Person” has the meaning set forth in Section 1.3.4.



     1.2.13 “Director” means a member of the Board or a member of the board of directors of
a consolidated subsidiary of ICE.



     1.2.14 “Effective Date” means May 14, 2009, or such other date when the Plan is
approved by the stockholders of ICE.



     1.2.15 “Employee” means a regular, active employee and a prospective employee of the
Company.



     1.2.16 “Employment” means a Grantee’s performance of services for the Company, as
determined by the Committee. The terms “employ” and “employed” will have their correlative
meanings. The Committee in its sole discretion may determine (a) whether and when a Grantee’s
leave of absence results in a termination of Employment, (b) whether and when a change in a
Grantee’s association with the Company results in a termination of Employment and (c) the impact,
if any, of any such leave of absence or change in association on outstanding Awards. Unless
expressly provided otherwise, any references in the Plan or any Award Agreement to a Grantee’s
Employment being terminated will include both voluntary and involuntary terminations.
Notwithstanding the foregoing, with respect to any Award subject to Section 409A of the Code (and
not exempt therefrom), a termination of Employment occurs when a Grantee experiences a “separation
from service” (as such term is defined under Section 409A of the Code).



     1.2.17 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time
to time, or any successor thereto, and the applicable rules and regulations thereunder.



     1.2.18 “Fair Market Value” means, with respect to a share of Common Stock, the closing
price reported for the Common Stock on the applicable date as reported on the New York Stock
Exchange or, if not so reported, as determined in accordance with a valuation methodology approved
by the Committee, unless determined as otherwise specified herein. For purposes of the grant of
any Award, the applicable date will be the trading day on which the Award is granted or, if the
date the Award is granted is not a trading day, the trading day immediately prior to the date the
Award is granted. For purposes of the exercise of any Award, the applicable date is the date a
notice of exercise is received by the Company or, if such date is not a trading day, the trading
day immediately following the date a notice of exercise is received by the Company.



     1.2.19 “Grantee” means an Employee, Director or Consultant who receives an Award.



     1.2.20 “Incentive Stock Option” means a stock option to purchase shares of Common
Stock that is intended to be an “incentive stock option” within the meaning of Sections 421 and 422
of the Code, as now constituted or subsequently amended, or pursuant to a successor provision of
the Code, and which is designated as an Incentive Stock Option in the applicable Award Agreement.



     1.2.21 “ICE” means IntercontinentalExchange, Inc. or a successor entity contemplated
by Section 3.6.



-3-









 





     1.2.22 “Performance Goals” means the goals determined by the Committee, in its
discretion, to be applicable to a Grantee with respect to an Award. As determined by the
Committee, the Performance Goals applicable to an Award may provide for a targeted level or levels
of achievement using certain Company or individual performance measures. The Performance Goals may
differ from Grantee to Grantee and from Award to Award. Any criteria used may be measured in
absolute terms or relative to comparative companies. Such Performance Goals may include, but are
not limited to, earnings; earnings per share; earnings before interest, taxes, depreciation and
amortization; revenue; profits; profit growth; profit-related return ratios; cost management;
dividend payout ratios; market share; economic value added; cash flow; total shareholder return, or
other measures of performance selected by the Committee. The Committee shall have the authority to
make equitable adjustments to the Performance Goals in recognition of unusual or non-recurring
events affecting the Company or the financial statements of the Company, or in response to changes
in Applicable Laws, or to account for items of gain, loss or expense determined to be extraordinary
or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a
business or related to a change in accounting principles.



     1.2.23 “Plan” means this 2009 Omnibus Incentive Plan, as amended from time to time.



     1.2.24 “Plan Action” will have the meaning set forth in Section 3.3.1.



     1.2.25 “Securities Act” means the Securities Act of 1933, as amended from time to
time, or any successor thereto, and the applicable rules and regulations thereunder.



     1.2.26 “Ten Percent Stockholder” means a person owning stock possessing more than 10%
of the total combined voting power of all classes of stock of ICE and of any subsidiary corporation
of ICE.




			
	1.3	 	Administration





     1.3.1 The Compensation Committee of the Board (as constituted from time to time, and including
any successor committee, the “Committee”) will administer the Plan. In particular, the
Committee will have the authority in its sole discretion to:




     (a) exercise all of the powers granted to it under the Plan;




     (b) construe, interpret and implement the Plan and all Award Agreements;




     (c) prescribe, amend and rescind rules and regulations relating to the Plan, including
rules governing the Committee’s own operations;




     (d) make all determinations necessary or advisable in administering the Plan;




     (e) correct any defect, supply any omission and reconcile any inconsistency in the
Plan;



-4-









 






     (f) amend the Plan to reflect changes in applicable law but, subject to Section
1.6.3 or as otherwise specifically provided herein, no such amendment shall adversely
impair the rights of the Grantee of any Award without the holder’s consent;




     (g) grant Awards and determine who will receive Awards, when such Awards will be
granted and the terms of such Awards, including setting forth provisions with regard to the
effect of a termination of Employment on such Awards;




     (h) amend any outstanding Award Agreement in any respect, but, subject to Section
1.6.3 or as otherwise specifically provided herein, no such amendment shall adversely
impair the rights of the Grantee of any Award without the holder’s consent, including,
without limitation, to (1) accelerate the time or times at which the Award becomes vested,
unrestricted or may be exercised (and, in connection with such acceleration, the Committee
may provide that any shares of Common Stock acquired pursuant to such Award will be
restricted shares, which are subject to vesting, transfer, forfeiture or repayment
provisions similar to those in the Grantee’s underlying Award), (2) accelerate the time or
times at which shares of Common Stock are delivered under the Award (and, without limitation
on the Committee’s rights, in connection with such acceleration, the Committee may provide
that any shares of Common Stock delivered pursuant to such Award will be restricted shares,
which are subject to vesting, transfer, forfeiture or repayment provisions similar to those
in the Grantee’s underlying Award), (3) waive or amend any goals, restrictions or conditions
set forth in such Award Agreement, or impose new goals, restrictions and conditions or (4)
reflect a change in the Grantee’s circumstances (e.g., a change to part-time employment
status or a change in position, duties or responsibilities); and




     (i) determine at any time whether, to what extent and under what circumstances and
method or methods (1) Awards may be (A) settled in cash, shares of Common Stock, other
securities, other Awards or other property (in which event, the Committee may specify what
other effects such settlement will have on the Grantee’s Award, including the effect on any
repayment provisions under the Plan or Award Agreement), (B) exercised or (C) canceled,
forfeited or suspended, (2) shares of Common Stock, other securities, other Awards or other
property and other amounts payable with respect to an Award may be deferred either
automatically or at the election of the Grantee thereof or of the Committee, (3) to the
extent permitted under applicable law, loans (whether or not secured by Common Stock) may be
extended by the Company with respect to any Awards, (4) Awards may be settled by ICE, any of
its subsidiaries or affiliates or any of its or their designees and (5) the exercise price
for any stock option (other than an Incentive Stock Option, unless the Committee determines
that such a stock option will no longer constitute an Incentive Stock Option) or stock
appreciation right may be reset.



     1.3.2 Actions of the Committee may be taken by the vote of a majority of its members present
at a meeting (which may be held telephonically). Any action may be taken by a written instrument
signed by a majority of the Committee members, and action so taken will be fully as effective as if
it had been taken by a vote at a meeting. The determination of the Committee on all matters
relating to the Plan or any Award Agreement will be final, binding and conclusive.



-5-









 





The Committee may allocate among its members and delegate to any person who is not a member of
the Committee or to any administrative group within the Company, any of its powers,
responsibilities or duties. In delegating its authority, the Committee will consider the extent to
which any delegation may cause Awards to fail to be deductible under Section 162(m) of the Code or
to fail to meet the requirements of Rule 16(b)-3(d)(1) or Rule 16(b)-3(e) under the Exchange Act.



     1.3.3 Notwithstanding anything to the contrary contained herein, the Board may, in its sole
discretion, at any time and from time to time, grant Awards or administer the Plan. In any such
case, the Board will have all of the authority and responsibility granted to the Committee herein.



     1.3.4 No Director or Employee (each such person, a “Covered Person”) will have any
liability to any person (including any Grantee) for any action taken or omitted to be taken or any
determination made in good faith with respect to the Plan or any Award. Each Covered Person will
be indemnified and held harmless by ICE against and from (a) any loss, cost, liability or expense
(including attorneys’ fees) that may be imposed upon or incurred by such Covered Person in
connection with or resulting from any action, suit or proceeding to which such Covered Person may
be a party or in which such Covered Person may be involved by reason of any action taken or omitted
to be taken under the Plan or any Award Agreement, in each case, in good faith and (b) any and all
amounts paid by such Covered Person, with ICE’s approval, in settlement thereof, or paid by such
Covered Person in satisfaction of any judgment in any such action, suit or proceeding against such
Covered Person, provided that ICE will have the right, at its own expense, to assume and defend any
such action, suit or proceeding and, once ICE gives notice of its intent to assume the defense, ICE
will have sole control over such defense with counsel of ICE’s choice. The foregoing right of
indemnification will not be available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case, not subject to
further appeal, determines that the acts or omissions of such Covered Person giving rise to the
indemnification claim resulted from such Covered Person’s bad faith, fraud or willful misconduct.
The foregoing right of indemnification will not be exclusive of any other rights of indemnification
to which Covered Persons may be entitled under ICE’s Restated Certificate of Incorporation or
Amended and Restated Bylaws, as a matter of law, or otherwise, or any other power that ICE may have
to indemnify such persons or hold them harmless.




			
	1.4	 	Persons Eligible for Awards





     Awards under the Plan may be made to Employees, Directors and Consultants.




			
	1.5	 	Types of Awards under Plan





     Awards may be made under the Plan in the form of any of the following, in each case in respect
of Common Stock: (a) stock options, (b) stock appreciation rights, (c) restricted shares, (d)
restricted stock units, (e) dividend equivalent rights and (f) other equity-based or equity-related
Awards (including performance awards) that the Committee determines to be consistent with the
purposes of the Plan and the interests of the Company.



-6-









 






			
	1.6	 	Shares of Common Stock Available for Awards





     1.6.1 Common Stock Subject to the Plan. Subject to the other provisions of this
Section 1.6, the total number of shares of Common Stock that may be granted under the Plan
is 3,700,000. Such shares of Common Stock may, in the discretion of the Committee, be either
authorized but unissued shares or shares previously issued and reacquired by ICE. Shares of Common
Stock issued in connection with awards that are assumed, converted or substituted as a result of
the Company’s acquisition of another company (including by way of merger, combination or similar
transaction) will not count against the number of shares that may be issued under the Plan.



     1.6.2 Replacement of Shares. If any Award is forfeited, expires, terminates or
otherwise lapses, in whole or in part, without the delivery of Common Stock, then the shares of
Common Stock covered by such forfeited, expired, terminated or lapsed award will again be available
for grant under the Plan. For the avoidance of doubt, the following will not again become
available for issuance under the Plan: (A) any shares of Common Stock withheld in respect of
taxes, (B) any shares tendered or withheld to pay the exercise price of stock options, (C) any
shares repurchased by the Company from the optionee with the proceeds from the exercise of stock
options and (D) any shares subject to stock appreciation rights but not issued on exercise as a
result of the operation of Section 2.4.4.



     1.6.3 Adjustments. The Committee will adjust the number of shares of Common Stock
authorized pursuant to Section 1.6.1, adjust the individual Grantee limitations set forth
in Sections 2.3.1 and 2.4.1 and 2.9 and adjust the terms of any outstanding Awards
(including, without limitation, the number of shares of Common Stock covered by each outstanding
Award, the type of property to which the Award relates and the exercise or strike price of any
Award), in such manner as it deems appropriate (including, without limitation, by payment of cash)
to prevent the enlargement or dilution of rights, or otherwise as it deems appropriate, for any
increase or decrease in the number of issued shares of Common Stock (or issuance of shares of stock
other than shares of Common Stock) resulting from a recapitalization, stock split, reverse stock
split, stock dividend, spinoff, splitup, combination, reclassification or exchange of shares of
Common Stock, merger, consolidation, rights offering, separation, reorganization or liquidation, or
any other change in the corporate structure or shares of ICE, including any extraordinary dividend
or extraordinary distribution. After any adjustment made pursuant to this Section 1.6.3,
the number of shares of Common Stock subject to each outstanding Award will be rounded down to the
nearest whole number.



ARTICLE II

AWARDS UNDER THE PLAN





			
	2.1	 	Agreements Evidencing Awards





     Each Award granted under the Plan will be evidenced by an Award Agreement that will contain
such provisions and conditions as the Committee deems appropriate. Unless otherwise provided
herein, the Committee may grant Awards in tandem with or in substitution for any other Award or
Awards granted under the Plan or any award granted under any other plan of
ICE. By accepting an Award pursuant to the Plan, a Grantee thereby agrees that the Award will
be subject to all of the terms and provisions of the Plan and the applicable Award Agreement.



-7-









 






			
	2.2	 	No Rights as a Stockholder





     No Grantee (or other person having rights pursuant to an Award) will have any of the rights of
a stockholder of ICE with respect to shares of Common Stock subject to an Award until the delivery
of such shares. Except as otherwise provided in Section 1.6.3, no adjustments will be made
for dividends, distributions or other rights (whether ordinary or extraordinary, and whether in
cash, Common Stock, other securities or other property) for which the record date is before the
date the Certificates for the shares are delivered.




			
	2.3	 	Options





     2.3.1 Grant. Stock options may be granted to eligible recipients in such number and
at such times during the term of the Plan as the Committee may determine; provided, however, that
the maximum number of shares of Common Stock as to which stock options may be granted under the
Plan to any one individual in any one fiscal year may not exceed 1,000,000 shares (as adjusted
pursuant to the provisions of Section 1.6.3).



     2.3.2 Incentive Stock Options. At the time of grant, the Committee will determine (a)
whether all or any part of a stock option granted to an eligible Employee will be an Incentive
Stock Option and (b) the number of shares subject to such Incentive Stock Option; provided,
however, that (1) the aggregate Fair Market Value (determined as of the time the option is granted)
of the stock with respect to which Incentive Stock Options are exercisable for the first time by an
eligible Employee during any calendar year (under all such plans of ICE and of any subsidiary
corporation of ICE) will not exceed $100,000 and (2) no Incentive Stock Option (other than an
Incentive Stock Option that may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies) may be granted to a person who is not
eligible to receive an Incentive Stock Option under the Code. The form of any stock option which
is entirely or in part an Incentive Stock Option will clearly indicate that such stock option is an
Incentive Stock Option or, if applicable, the number of shares subject to the Incentive Stock
Option.



     2.3.3 Exercise Price. The exercise price per share with respect to each stock option
will be determined by the Committee but will not be less than the Fair Market Value of the Common
Stock (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, 110% of
the Fair Market Value).



     2.3.4 Term of Stock Option. In no event will any stock option be exercisable after
the expiration of ten years (or, in the case of an Incentive Stock Option granted to a Ten Percent
Stockholder, five years) from the date on which the stock option is granted.



     2.3.5 Exercise of Stock Option and Payment for Shares. A stock option may be
exercised at such time or times and subject to such terms and conditions as will be determined by
the Committee at the time the stock option is granted and set forth in the Award Agreement.
Subject to any limitations in the applicable Award Agreement, any shares not acquired pursuant to
the exercise of a stock option on the applicable vesting date may be acquired thereafter at any



-8-









 




time before the final expiration of the stock option. To exercise a stock option, the Grantee
must give written notice to ICE specifying the number of shares to be acquired and accompanied by
payment of the full purchase price therefor in cash or by certified or official bank check or in
another form as determined by the Company, including: (a) personal check, (b) shares of Common
Stock, based on the Fair Market Value as of the exercise date, of the same class as those to be
granted by exercise of the stock option, (c) any other form of consideration approved by the
Company and permitted by applicable law and (d) any combination of the foregoing. Any person
exercising a stock option will make such representations and agreements and furnish such
information as the Committee may in its discretion deem necessary or desirable to assure compliance
by ICE, on terms acceptable to ICE, with the provisions of the Securities Act and any other
applicable legal requirements. If a Grantee so requests, shares acquired pursuant to the exercise
of a stock option may be issued in the name of the Grantee and another jointly with the right of
survivorship.




     2.3.6 Repricing. Except as otherwise permitted by Section 1.6.3, reducing the
exercise price of stock options issued and outstanding under the Plan, including through amendment,
cancellation in exchange for the grant of a substitute Award or repurchase for cash or other
consideration (in each case that has the effect of reducing the exercise price), will require
approval of the stockholders of ICE.



     2.3.7 Repayment if Conditions Not Met. If the Committee determines that all terms and
conditions of the Plan and a Grantee’s stock option Award Agreement in respect of exercised stock
options were not satisfied, then the Grantee will be obligated to pay the Company immediately upon
demand therefor, an amount equal to the excess of the Fair Market Value (determined at the time of
exercise) of the shares of Common Stock that were delivered in respect of such exercised stock
option over the exercise price paid therefor, without reduction for any shares of Common Stock
applied to satisfy withholding tax or other obligations in respect of such shares.




			
	2.4	 	Stock Appreciation Rights





     2.4.1 Grant. Stock appreciation rights may be granted to eligible recipients in such
number and at such times during the term of the Plan as the Committee may determine; provided,
however, that the maximum number of shares of Common Stock as to which stock appreciation rights
may be granted under the Plan to any one individual in any one fiscal year may not exceed 1,000,000
shares (as adjusted pursuant to the provisions of Section 1.6.3).



     2.4.2 Exercise Price. The exercise price per share with respect to each stock
appreciation right will be determined by the Committee but will not be less than the Fair Market
Value of the Common Stock.



     2.4.3 Term of Stock Appreciation Right. In no event will any stock appreciation right
be exercisable after the expiration of ten years from the date on which the stock appreciation
right is granted.



-9-









 





     2.4.4 Exercise of Stock Appreciation Right and Delivery of Shares. Each stock
appreciation right may be exercised in such installments as may be determined in the Award
Agreement at the time the stock appreciation right is granted. Subject to any limitations in
the applicable Award Agreement, any stock appreciation rights not exercised on the applicable
installment date may be exercised thereafter at any time before the final expiration of the stock
appreciation right. To exercise a stock appreciation right, the Grantee must give written notice
to ICE specifying the number of stock appreciation rights to be exercised. Upon exercise of stock
appreciation rights, shares of Common Stock with a Fair Market Value equal to (a) the excess of (1)
the Fair Market Value of the Common Stock on the date of exercise over (2) the exercise price of
such stock appreciation right multiplied by (b) the number of stock appreciation rights exercised
will be delivered to the Grantee. Any person exercising a stock appreciation right will make such
representations and agreements and furnish such information as the Committee may in its discretion
deem necessary or desirable to assure compliance by ICE, on terms acceptable to ICE, with the
provisions of the Securities Act and any other applicable legal requirements. If a Grantee so
requests, shares purchased may be issued in the name of the Grantee and another jointly with the
right of survivorship.



     2.4.5 Repricing. Except as otherwise permitted by Section 1.6.3, reducing the
exercise price of stock appreciation rights issued and outstanding under the Plan, including
through amendment, cancellation in exchange for the grant of a substitute Award or repurchase for
cash or other consideration (in each case that has the effect of reducing the exercise price), will
require approval of the stockholders of ICE.



     2.4.6 Repayment if Conditions Not Met. If the Committee determines that all terms and
conditions of the Plan and a Grantee’s stock appreciation right Award Agreement in respect of
exercised stock appreciation rights were not satisfied, then the Grantee will be obligated to pay
the Company, immediately upon demand therefor, an amount equal to the excess of the Fair Market
Value (determined at the time of exercise) of the shares of Common Stock subject to the exercised
stock appreciation rights over the exercise price therefor, without reduction for any amount
applied to satisfy withholding tax or other obligations in respect of such stock appreciation
rights.




			
	2.5	 	Restricted Shares





     2.5.1 Grants. The Committee may grant or offer for sale restricted shares in such
amounts and subject to such terms and conditions as the Committee may determine. The terms and
conditions set forth by the Committee in the applicable Award Agreement may relate to vesting and
nontransferability restrictions that will lapse upon the achievement of one or more goals related
to the completion of service by the Grantee or the achievement of Performance Goals, as determined
by the Committee at the time of grant. Upon the delivery of such shares, the Grantee will have the
rights of a stockholder with respect to the restricted shares, subject to any other restrictions
and conditions as the Committee may include in the applicable Award Agreement. In the event that a
Certificate is issued in respect of restricted shares, such Certificate may be registered in the
name of the Grantee but will be held by ICE or its designated agent until the time the restrictions
lapse.



     2.5.2 Right to Vote and Receive Dividends on Restricted Shares. Each Grantee of an
Award of restricted shares will, during the period of restriction, be the beneficial and record
owner of such restricted shares and will have full voting rights with respect thereto. Unless the



-10-









 




Committee determines otherwise in an Award Agreement, during the period of restriction, all
dividends (whether ordinary or extraordinary and whether paid in cash, additional shares or other
property) or other distributions paid upon any restricted share will be retained by the Company for
the account of the relevant Grantee. Such dividends or other distributions will revert back to the
Company if for any reason the restricted share upon which such dividends or other distributions
were paid reverts back to the Company. Upon the expiration of the period of restriction, all such
dividends or other distributions made on such restricted share and retained by the Company will be
paid to the relevant Grantee.




     2.5.3 Repayment if Conditions Not Met. If the Committee determines that all terms and
conditions of the Plan and a Grantee’s restricted share Award Agreement in respect of restricted
shares which have become vested were not satisfied, then the Grantee will be obligated to pay the
Company, immediately upon demand therefor, an amount equal to the Fair Market Value (determined at
the time such shares became vested) of such restricted shares, without reduction for any amount
applied to satisfy withholding tax or other obligations in respect of such restricted shares.




			
	2.6	 	Restricted Stock Units





     2.6.1 Grant. The Committee may grant Awards of restricted stock units in such amounts
and subject to such terms and conditions as the Committee may determine. A Grantee of a restricted
stock unit will have only the rights of a general unsecured creditor of ICE until delivery of
shares of Common Stock, cash or other securities or property is made as specified in the applicable
Award Agreement. The terms and conditions set forth by the Committee in the applicable Award
Agreement may relate to vesting and nontransferability restrictions that will lapse upon the
achievement of one or more goals related to the completion of service by the Grantee or the
achievement of Performance Goals, as determined by the Committee at the time of grant. On the
delivery date specified in the Award Agreement, the Grantee of each restricted stock unit not
previously forfeited or terminated will receive one share of Common Stock, cash or other securities
or property equal in value to a share of Common Stock or a combination thereof, as specified by the
Committee.



     2.6.2 Repayment if Conditions Not Met. If the Committee determines that all terms and
conditions of the Plan and a Grantee’s restricted stock unit Award Agreement in respect of the
delivery of shares underlying such restricted stock units were not satisfied, then the Grantee will
be obligated to pay the Company, immediately upon demand therefor, an amount equal to the Fair
Market Value (determined at the time of delivery) of the shares of Common Stock delivered with
respect to such delivery date, without reduction for any shares applied to satisfy withholding tax
or other obligations in respect of such shares of Common Stock.




			
	2.7	 	Dividend Equivalent Rights





     The Committee may include in the Award Agreement with respect to any Award a dividend
equivalent right entitling the Grantee to receive amounts equal to all or any portion of the
regular cash dividends that would be paid on the shares of Common Stock covered by such Award if
such shares had been delivered pursuant to such Award. The Grantee of a dividend equivalent right
will have only the rights of a general unsecured creditor of ICE until payment of



-11-









 




such amounts is made as specified in the applicable Award Agreement. In the event such a
provision is included in an Award Agreement, the Committee will determine whether such payments
will be made in cash, in shares of Common Stock or in another form, whether they will be
conditioned upon the exercise of the Award to which they relate, the time or times at which they
will be made, and such other terms and conditions as the Committee will deem appropriate.





			
	2.8	 	Other Stock-Based Awards





     The Committee may grant other types of equity-based or equity-related Awards (including the
grant or offer for sale of unrestricted shares of Common Stock and the grant of performance based
awards) in such amounts and subject to such terms and conditions as the Committee may determine.
The terms and conditions set forth by the Committee in the applicable Award Agreement may relate to
vesting and nontransferability restrictions that will lapse upon the achievement of one or more
goals related to the completion of service by the Grantee or the achievement of Performance Goals,
as determined by the Committee at the time of grant. Such Awards may entail the transfer of actual
shares of Common Stock to Award recipients and may include Awards designed to comply with or take
advantage of the applicable local laws of jurisdictions other than the United States.




			
	2.9	 	Individual Limitation on Awards





     The maximum number of shares of Common Stock as to which restricted shares, restricted stock
units, dividend equivalent rights and other types of equity-based or equity- related Awards may be
granted under the Plan to any one individual in any one fiscal year may not exceed 1,000,000 shares
(as adjusted pursuant to the provisions of Section 1.6.3).



ARTICLE III

MISCELLANEOUS





			
	3.1	 	Amendment of the Plan





     3.1.1 Unless otherwise provided in the Plan or in an Award Agreement, the Board may from time
to time suspend, discontinue, revise or amend the Plan in any respect whatsoever but, subject to
Section 1.6.3 or as otherwise specifically provided herein, no such amendment shall
adversely impair the rights of the Grantee of any Award without the holder’s consent.



     3.1.2 Unless otherwise determined by the Board, stockholder approval of any suspension,
discontinuance, revision or amendment will be obtained only to the extent necessary to comply with
any applicable laws, regulations or rules of a securities exchange or self-regulatory agency;
provided, however, if and to the extent the Board determines that it is appropriate for Awards
granted under the Plan to constitute performance-based compensation within the meaning of Section
162(m)(4)(C) of the Code, no amendment that would require stockholder approval in order for amounts
paid pursuant to the Plan to constitute performance-based compensation within the meaning of
Section 162(m)(4)(C) of the Code will be effective without the approval of the stockholders of ICE
as required by Section 162(m) of the Code and, if and to the extent the Board determines it is
appropriate for the Plan to comply with the provisions of Section 422 of the Code, no amendment
that would require stockholder approval under Section 422 of the Code will be effective without the
approval of the stockholders of ICE.



-12-









 






			
	3.2	 	Tax Withholding





     As a condition to the delivery of any shares of Common Stock, cash or other securities or
property pursuant to any Award or the lifting or lapse of restrictions on any Award, or in
connection with any other event that gives rise to a federal or other governmental tax withholding
obligation on the part of the Company relating to an Award (including, without limitation, FICA
tax), (a) the Company may deduct or withhold (or cause to be deducted or withheld) from any payment
or distribution to a Grantee whether or not pursuant to the Plan (including shares of Common Stock
otherwise deliverable), (b) the Committee will be entitled to require that the Grantee remit cash
to the Company (through payroll deduction or otherwise) or (c) the Company may enter into any other
suitable arrangements to withhold, in each case in an amount sufficient in the opinion of the
Company to satisfy such withholding obligation.




			
	3.3	 	Required Consents and Legends





     3.3.1 If the Committee at any time determines that any Consent (as hereinafter defined) is
necessary or desirable as a condition of, or in connection with, the granting of any Award, the
delivery of shares of Common Stock or the delivery of any cash, securities or other property under
the Plan, or the taking of any other action thereunder (each such action a “Plan Action”),
then such Plan Action will not be taken, in whole or in part, unless and until such Consent will
have been effected or obtained to the full satisfaction of the Committee. The Committee may direct
that any Certificate evidencing shares delivered pursuant to the Plan will bear a legend setting
forth such restrictions on transferability as the Committee may determine to be necessary or
desirable, and may advise the transfer agent to place a stop transfer order against any legended
shares.



     3.3.2 The term “Consent” as used in this Article III with respect to any Plan Action
includes (a) any and all listings, registrations or qualifications in respect thereof upon any
securities exchange or under any federal, state, or local law, or law, rule or regulation of a
jurisdiction outside the United States, (b) any and all written agreements and representations by
the Grantee with respect to the disposition of shares, or with respect to any other matter, which
the Committee may deem necessary or desirable in order to comply with the terms of any such
listing, registration or qualification or to obtain an exemption from the requirement that any such
listing, qualification or registration be made, (c) any and all other consents, clearances and
approvals in respect of a Plan Action by any governmental or other regulatory body or any stock
exchange or self-regulatory agency, (d) any and all consents by the Grantee to (i) the Company’s
supplying to any third party recordkeeper of the Plan such personal information as the Committee
deems advisable to administer the Plan, (ii) the Company’s deducting amounts from the Grantee’s
wages, or another arrangement satisfactory to the Committee, to reimburse the Company for advances
made on the Grantee’s behalf to satisfy certain withholding and other tax obligations in connection
with an Award and (iii) the Company’s imposing sales and transfer procedures and restrictions and
hedging restrictions on shares of Common Stock delivered under the Plan and (e) any and all
consents or authorizations required to comply with, or required to be obtained under, applicable
local law or otherwise required by the Committee. Nothing herein will require the Company to list,
register or qualify the shares of Common Stock on any securities exchange.



-13-









 






			
	3.4	 	Right of Offset





     The Company will have the right to offset against its obligation to deliver shares of Common
Stock (or other property or cash) under the Plan or any Award Agreement any outstanding amounts
(including, without limitation, travel and entertainment or advance account balances, loans,
repayment obligations under any Awards, or amounts repayable to the Company pursuant to tax
equalization, housing, automobile or other employee programs) that the Grantee then owes to the
Company and any amounts the Committee otherwise deems appropriate pursuant to any tax equalization
policy or agreement. Notwithstanding the foregoing, if an Award provides for the deferral of
compensation within the meaning of Section 409A of the Code, the Committee will have no right to
offset against its obligation to deliver shares of Common Stock (or other property or cash) under
the Plan or any Award Agreement if such offset could subject the Grantee to the additional tax
imposed under Section 409A in respect of an outstanding Award.




			
	3.5	 	Nonassignability; No Hedging





     Unless otherwise provided in an Award Agreement, no Award (or any rights and obligations
thereunder) granted to any person under the Plan may be sold, exchanged, transferred, assigned,
pledged, hypothecated or otherwise disposed of or hedged, in any manner (including through the use
of any cash-settled instrument), whether voluntarily or involuntarily and whether by operation of
law or otherwise, other than by will or by the laws of descent and distribution, and all such
Awards (and any rights thereunder) will be exercisable during the life of the Grantee only by the
Grantee or the Grantee’s legal representative. Notwithstanding the foregoing, the Committee may
permit, under such terms and conditions that it deems appropriate in its sole discretion, a Grantee
to transfer any Award to any person or entity that the Committee so determines. Any sale,
exchange, transfer, assignment, pledge, hypothecation, or other disposition in violation of the
provisions of this Section 3.5 will be null and void and any Award which is hedged in any
manner will immediately be forfeited. All of the terms and conditions of the Plan and the Award
Agreements will be binding upon any permitted successors and assigns.




			
	3.6	 	Change in Control





     3.6.1 At the time of a Change in Control, the surviving, continuing, successor or purchasing
corporation or parent corporation thereof, as the case may be (the “Acquiror”), may either assume
ICE’s rights and obligations with respect to outstanding Awards or substitute for outstanding
Awards substantially equivalent Awards for the Acquiror’s stock. If the Acquiror is the same
corporate entity as ICE, or its successor by merger, a reaffirmation of the Award shall be treated
as an assumption, and a failure to reaffirm shall be treated as a failure to assume. Any
assumption or substitution of an option or stock appreciation rights shall be designed to meet the
requirements of Section 424 of the Code.



     3.6.2 Unless otherwise determined by the Committee, if the Acquiror does not assume or
substitute for outstanding Awards in connection with a Change in Control, Grantee’s outstanding
stock options and stock appreciation rights shall become fully vested and exercisable as of the
date twenty (20) days before the Effective Date of the Change in Control. The Committee shall
notify the Grantee in writing or electronically that the stock option or stock



-14-









 




appreciation rights shall be exercisable. Unless otherwise determined by the Committee, if the
Acquiror does not assume or substitute for a Grantee’s outstanding restricted shares, restricted
stock units or other equity-based awards in connection with a Change in Control, the Grantee’s
outstanding restricted shares, restricted stock units and other equity-based awards shall become
fully vested as of the Effective Date of the Change in Control, provided that any
outstanding performance-based Awards shall be deemed earned at the target level (or if no target
level is specified, the maximum level) with respect to all open performance periods. The vesting
and exercise of any Awards that was permissible solely by reason of a Change in Control shall be
conditioned upon consummation of the Change in Control.




     3.6.3 The Award agreements may provide for additional rules applicable to awards.



     3.6.4 In the event of a Change in Control, a Grantee’s Award shall be treated, to the extent
determined by the Committee to be permitted under Section 409A of the Code, in accordance with one
of the following methods as determined by the Committee in its sole discretion: (i) cancel such
awards for fair value (as determined in the sole discretion of the Committee) which, in the case of
stock options and stock appreciation rights, may equal the excess, if any, of the value of the
consideration to be paid in the Change in Control transaction to holders of the same number of
shares of Common Stock subject to such stock options or stock appreciation rights over the
aggregate exercise price of such stock options or stock appreciation rights, as the case may be;
(ii) provide for the issuance of substitute awards that will substantially preserve the otherwise
applicable terms of any affected Awards previously granted under the Plan, as determined by the
Committee in its sole discretion; or (iii) provide that for a period of at least 20 days prior to
the Change in Control, any stock options or stock appreciation rights will be exercisable as to all
shares of Common Stock subject thereto (but any such exercise will be contingent upon and subject
to the occurrence of the Change in Control and if the Change in Control does not take place within
a specified period after giving such notice for any reason whatsoever, the exercise will be null
and void) and that any stock options or stock appreciation rights not exercised prior to the
consummation of the Change in Control will terminate and be of no further force and effect as of
the consummation of the Change in Control. For the avoidance of doubt, in the event of a Change in
Control, the Committee may, in its sole discretion, terminate any stock option or stock
appreciation right for which the exercise price is equal to or exceeds the per share value of the
consideration to be paid in the Change in Control transaction without payment of consideration
therefor.




			
	3.7	 	Right of Discharge Reserved





     Neither the grant of an Award nor any provision in the Plan or in any Award Agreement will
confer upon any Grantee the right to continued Employment by the Company or affect any right which
the Company may have to terminate or alter the terms and conditions of such Employment.




			
	3.8	 	Nature of Payments





     3.8.1 Any and all grants of Awards and deliveries of Common Stock, cash, securities or other
property under the Plan will be in consideration of services performed or to be performed for the
Company by the Grantee. Awards under the Plan may, in the discretion of the



-15-









 




Committee, be made in substitution in whole or in part for cash or other compensation
otherwise payable to a Grantee. Only whole shares of Common Stock will be delivered under the
Plan. Awards will, to the extent reasonably practicable, be aggregated in order to eliminate any
fractional shares. Fractional shares may, in the discretion of the Committee, be forfeited or be
settled in cash or otherwise as the Committee may determine.




     3.8.2 All such grants and deliveries of shares of Common Stock, cash, securities or other
property under the Plan will constitute a special discretionary incentive payment to the Grantee
and will not be required to be taken into account in computing the amount of salary or compensation
of the Grantee for the purpose of determining any contributions to or any benefits under any
pension, retirement, profit-sharing, bonus, life insurance, severance or other benefit plan of the
Company or under any agreement with the Grantee, unless the Company specifically provides
otherwise.




			
	3.9	 	Non-Uniform Determinations





     3.9.1 The Committee’s determinations under the Plan and Award Agreements need not be uniform
and any such determinations may be made by it selectively among persons who receive, or are
eligible to receive, Awards under the Plan (whether or not such persons are similarly situated).
Without limiting the generality of the foregoing, the Committee will be entitled, among other
things, to make non-uniform and selective determinations under Award Agreements, and to enter into
non-uniform and selective Award Agreements, as to (a) the persons to receive Awards, (b) the terms
and provisions of Awards and (c) whether a Grantee’s Employment has been terminated for purposes of
the Plan.



     3.9.2 To the extent the Committee deems it necessary, appropriate or desirable to comply with
foreign law or practices and to further the purposes of the Plan, the Committee may, without
amending the Plan, establish special rules applicable to Awards to Grantees who are foreign
nationals, are employed outside the United States, or both, and grant Awards (or amend existing
Awards) in accordance with those rules.




			
	3.10	 	Other Payments or Awards





     Nothing contained in the Plan will be deemed in any way to limit or restrict the Company from
making any award or payment to any person under any other plan, arrangement or understanding,
whether now existing or hereafter in effect.




			
	3.11	 	Plan Headings





     The headings in the Plan are for the purpose of convenience only and are not intended to
define or limit the construction of the provisions hereof.




			
	3.12	 	Termination of Plan





     The Board reserves the right to terminate the Plan at any time; provided, however, that in any
case, the Plan will terminate May 14, 2019, and provided further, that all Awards made under the
Plan before its termination will remain in effect until such Awards have been satisfied or
terminated in accordance with the terms and provisions of the Plan and the applicable Award



-16-









 




Agreements and provided, further, that no Awards (other than a stock option or stock
appreciation right) that are intended to be “performance-based” under Section 162(m) of the Code
shall be granted on or after the five-year anniversary of the stockholder approval of the Plan
unless the Performance Goals are reapproved (or other designated performance goals are approved) by
the stockholders no later than the first stockholder meeting that occurs in the fifth year
following the year in which stockholders previously approved the Performance Goals.





			
	3.13	 	Section 409A





     It is the intention of the Company that no Award shall be “nonqualified deferred compensation”
subject to Section 409A of the Code, unless and to the extent that the Committee specifically
determines otherwise as provided below, and the Plan and the terms and conditions of all Awards
shall be interpreted, construed and administered in accordance with this intent, so as to avoid the
imposition of taxes and penalties on Grantees pursuant to Section 409A. The Company shall have no
liability to any Grantee or otherwise if the Plan or any Award, vesting, exercise or payment of any
Award hereunder is subject to the additional tax and penalties under Section 409A of the Code.
Notwithstanding any other provision of the Plan to the contrary, with respect to any Award that is
subject to Section 409A of the Code, if a Grantee is a “specified employee” (as such term is
defined in Section 409A of the Code and as determined by the Company) as of the Grantee’s
termination of Employment, any payments (whether in cash, Shares or other property) to be made with
respect to the Award upon the Grantee’s Termination of Service will be accumulated and paid
(without interest) on the earlier of (i) first business day of the seventh month following the
Grantee’s “separation from service” (as such term is defined and used in Section 409A of the Code)
or (ii) the date of the Grantee’s death.




			
	3.14	 	Governing Law





     THE PLAN WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
GEORGIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.




			
	3.15	 	Choice of Forum





     3.15.1 The Company and each Grantee, as a condition to such Grantee’s participation in the
Plan, hereby irrevocably submit to the exclusive jurisdiction of any state or federal court located
in [Atlanta, Georgia] over any suit, action or proceeding arising out of or relating to or
concerning the Plan. The Company and each Grantee, as a condition to such Grantee’s participation
in the Plan, acknowledge that the forum designated by this Section 3.15.1 has a reasonable
relationship to the Plan and to the relationship between such Grantee and the Company.
Notwithstanding the foregoing, nothing herein will preclude the Company from bringing any action or
proceeding in any other court for the purpose of enforcing the provisions of Section
3.15.1.



     3.15.2 The agreement by the Company and each Grantee as to forum is independent of the law
that may be applied in the action, and the Company and each Grantee, as a condition to such
Grantee’s participation in the Plan, (i) agree to such forum even if the forum may under applicable
law choose to apply non-forum law, (ii) hereby waive, to the fullest extent permitted



-17-









 




by applicable law, any objection which the Company or such Grantee now or hereafter may have
to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in any
court referred to in Section 3.15.1, (iii) undertake not to commence any action arising out
of or relating to or concerning the Plan in any forum other than the forum described in this
Section 3.15 and (iv) agree that, to the fullest extent permitted by applicable law, a
final and non-appealable judgment in any such suit, action or proceeding in any such court will be
conclusive and binding upon the Company and each Grantee.




     3.15.3 Each Grantee, as a condition to such Grantee’s participation in the Plan, hereby
irrevocably appoints the General Counsel of ICE as such Grantee’s agent for service of process in
connection with any action, suit or proceeding arising out of or relating to or concerning the
Plan, who will promptly advise such Grantee of any such service of process.



     3.15.4 Each Grantee, as a condition to such Grantee’s participation in the Plan, agrees to
keep confidential the existence of, and any information concerning, a dispute, controversy or claim
described in Section 3.15, except that a Grantee may disclose information concerning such
dispute, controversy or claim to the court that is considering such dispute, controversy or claim
or to such Grantee’s legal counsel (provided that such counsel agrees not to disclose any such
information other than as necessary to the prosecution or defense of the dispute, controversy or
claim).




			
	3.16	 	Severability; Entire Agreement





     If any of the provisions of the Plan or any Award Agreement is finally held to be invalid,
illegal or unenforceable (whether in whole or in part), such provision will be deemed modified to
the extent, but only to the extent, of such invalidity, illegality or unenforceability and the
remaining provisions will not be affected thereby; provided that if any of such provisions is
finally held to be invalid, illegal, or unenforceable because it exceeds the maximum scope
determined to be acceptable to permit such provision to be enforceable, such provision will be
deemed to be modified to the minimum extent necessary to modify such scope in order to make such
provision enforceable hereunder. The Plan and any Award Agreements contain the entire agreement of
the parties with respect to the subject matter thereof and supersede all prior agreements,
promises, covenants, arrangements, communications, representations and warranties between them,
whether written or oral with respect to the subject matter thereof.




			
	3.17	 	Waiver of Claims





     Each Grantee of an Award recognizes and agrees that before being selected by the Committee to
receive an Award he or she has no right to any benefits under such Award. Accordingly, in
consideration of the Grantee’s receipt of any Award hereunder, he or she expressly waives any right
to contest the amount of any Award, the terms of any Award Agreement, any determination, action or
omission hereunder or under any Award Agreement by the Committee, the Company or the Board, or any
amendment to the Plan or any Award Agreement (other than an amendment to the Plan or an Award
Agreement to which his or her consent is expressly required by the express terms of an Award
Agreement).



-18-









 






			
	3.18	 	No Third Party Beneficiaries





     Except as expressly provided in an Award Agreement, neither the Plan nor any Award Agreement
will confer on any person other than the Company and the Grantee of any Award any rights or
remedies thereunder. The exculpation and indemnification provisions of Section 1.3.4 will
inure to the benefit of a Covered Person’s estate and beneficiaries and legatees.




			
	3.19	 	Successors and Assigns of ICE





     The terms of the Plan will be binding upon and inure to the benefit of ICE and any successor
entity contemplated by Section 3.6.




			
	3.20	 	Waiver of Jury Trial





     EACH GRANTEE WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THE PLAN.




			
	3.21	 	Date of Adoption, Approval of Stockholders and Effective Date





     The Plan was adopted on March 6, 2009 by the Board, subject to the approval by the
stockholders of ICE at the 2009 Annual Meeting of Stockholders on May 14, 2009. The Plan will only
be effective if it is approved by the stockholders of ICE at the 2009 Annual Meeting. Any Awards
granted under the Plan prior to such stockholder approval shall be conditioned upon such approval
and shall be null and void if such approval is not obtained; provided, however, that stock options
and stock appreciation rights granted under the Plan prior to such stockholder approval may not be
exercisable until after such stockholder approval and no shares of Common Stock may be delivered
pursuant to a restricted stock unit granted under the Plan prior to such stockholder approval until
after such stockholder approval; provided, further, that restricted stock and other equity-based or
equity-related Awards may not be granted prior to obtaining stockholder approval. If the Plan is
not so approved by the stockholders of ICE, then the Plan will be null and void in its entirety and
the Prior Plans will remain in full force and effect.




-19-