As filed with the Securities and Exchange Commission on May 22, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Intercontinental Exchange, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 46-2286804 | |
(State or Other Jurisdiction of Incorporation or Organization) | (IRS Employer Identification No.) | |
5660 New Northside Drive, Third Floor Atlanta, GA | 30328 | |
| (Address of Principal Executive Offices) | (Zip code) | |
Intercontinental Exchange, Inc. 2017 Omnibus Employee Incentive Plan (Full title of the Plan)
Andrew J. Surdykowski, Esq. Senior Vice President & Associate General Counsel Intercontinental Exchange, Inc. 5660 New Northside Drive, Third Floor 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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered | Amount to be Registered (1)(2) | Proposed Maximum Offering Price Per Share (3) | Proposed Maximum Aggregate Offering Price (3) | Amount of Registration Fee | ||||
Common Stock, par value $0.01 per share | 38,898,218 shares | $58.37 | $2,270,488,984.66 | $263,149.67 | ||||
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| (1) | This Registration Statement (this “Registration Statement”) registers the issuance of an aggregate 38,898,218 shares of the common stock of Intercontinental Exchange, Inc. (the “Registrant”), par value $0.01 per share (the “Common Stock”), comprised of 30,000,000 shares of Common Stock reserved for issuance under the Intercontinental Exchange, Inc. 2017 Omnibus Employee Incentive Plan (the “Plan”) and 8,898,218 shares of Common Stock that were previously authorized to be issued under the 2013 Omnibus Employee Incentive Plan (the “Prior Plan”) and remain available for issuance. For more details, please see the explanatory note following this page. |
| (2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock which may become issuable under the above-named employee benefit plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock. In addition, any shares subject to outstanding awards pursuant to the Prior Plan which terminate, expire unexercised or are forfeited, canceled or otherwise lapse for any reason after May 19, 2017 will be added to the share maximum available for issuance under the Plan, but such shares are not at this time covered by this Registration Statement. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, based upon the average of the high and low reported market prices of the shares of Common Stock on May 18, 2017. |
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EX-4.1 INTERCONTINENTAL EXCHANGE, INC. 2017 OMNIBUS EMPLOYEE INCENTIVE PLAN | ||||||
EX-5.1 OPINION OF ANDREW J. SURDYKOWSKI, ESQ. | ||||||
EX-23.1 CONSENT OF ERNST & YOUNG LLP | ||||||
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On May 19, 2017 (the “Effective Date”), at the 2017 Annual Meeting of Shareholders of Intercontinental Exchange, Inc., a Delaware corporation (the “Registrant”), the Registrant’s shareholders approved the Intercontinental Exchange, Inc. 2017 Omnibus Employee Incentive Plan (the “Plan”), which the Registrant’s Board of Directors had previously approved, subject to such shareholder approval. The Plan provides, among other things, that a maximum of 38,898,218 shares of the Registrant’s common stock, $0.01 par value per share (“Common Stock”), is reserved for issuance under the Plan (subject to equitable adjustment in the event of a change in the Registrant’s capitalization), which includes 8,898,218 shares of Common Stock that were previously authorized for issuance under the 2013 Omnibus Employee Incentive Plan (the “Prior Plan”) and that, as of the Effective Date, were not issued and were not subject to outstanding awards granted under the Prior Plan (the “Unused Shares”). In addition, any shares subject to awards under the Prior Plan outstanding at the Effective Date that subsequently terminate, expire unexercised or are forfeited, canceled or otherwise lapse for any reason will be added to the share maximum available for issuance under the Plan, but such shares are not at this time covered by this Registration Statement on Form S-8 (this “Registration Statement”). Upon shareholder approval of the Plan, the Plan replaced the Prior Plan, and no additional awards will be made under the Prior Plan. This Registration Statement is filed by the Registrant to register 38,898,218 shares of Common Stock, including the Unused Shares, which may be issued under the Plan.
Concurrently with this Registration Statement, the Registrant is filing a post-effective amendment to its prior Registration Statement (File No. 333-192301) to deregister the Unused Shares that are being carried forward under this Registration Statement and such prior registration statement will only remain in effect with respect to (i) previously granted awards under the Prior Plan and (ii) the other equity compensation plans covered by such registration statement.
INFORMATION REQUIRED IN THE SECTION 10(a)PROSPECTUS
Information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). The document(s) containing the information specified in Part I will be sent or given to the participants in the Intercontinental Exchange, Inc. 2017 Omnibus Employee Incentive Plan, as specified by Rule 428(b)(1). Such document(s) are not being filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These document(s) and the documents incorporated by reference in the Registration Statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates by reference into this Registration Statement the following documents of the Registrant previously filed with the Commission:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 (File No. 001-36198), filed with the Commission on February 7, 2017, which contains audited financial statements of the Registrant for the latest period for which such statements have been filed. |
| (b) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2017, filed with the Commission on May 3, 2017. |
| (c) | The Registrant’s Current Reports on Form 8-K (File No. 001-36198), filed with the Commission on February 1, 2017, March 6, 2017 and May 22, 2017. |
| (d) | The description of the Registrant’s Common Stock, which is contained in the Post-Effective Amendment to the Registration Statement on Form S-3 (File No. 333-206169), filed on December 3, 2015, under the heading “Description of Securities”, as well as any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the effective date of this Registration Statement (except for the portions of the Registrant’s Current Reports on Form 8-K furnished or otherwise not filed with the Commission which are deemed not to be incorporated by reference into this Registration Statement), but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
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”) permits a corporation to indemnify its directors and officers, as well as other employees and individuals (the “Indemnitee”), against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The Indemnitee must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant Indemnitee are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Section 10.6 of the Registrant’s bylaws provides for indemnification by the Registrant of its directors, senior 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 director’s 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. The Registrant’s charter provides for such limitation of liability.
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The Registrant maintains standard policies of insurance under which coverage is provided (1) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (2) to it 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.
The Exhibits to this Registration Statement are listed in the Exhibit Index to this Registration Statement, which Index is incorporated herein by reference.
(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;
(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 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 Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s 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.
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(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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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 May 22, 2017.
| INTERCONTINENTAL EXCHANGE, INC. | ||
| By: | /s/ Jeffrey C. Sprecher | |
| Jeffrey C. Sprecher | ||
| Chairman and Chief Executive Officer | ||
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.
Signature | Title | Date | ||
/s/ Jeffrey C. Sprecher | Chairman and Chief Executive Officer (principal executive officer) | May 22, 2017 | ||
| Jeffrey C. Sprecher | ||||
/s/ Scott A. Hill | Chief Financial Officer (principal financial officer) | May 22, 2017 | ||
| Scott A. Hill | ||||
/s/ Dean S. Mathison | Chief Accounting Officer and Corporate Controller (principal accounting officer) | May 22, 2017 | ||
| Dean S. Mathison | ||||
/s/ Ann M. Cairns | Director | May 22, 2017 | ||
| Ann M. Cairns | ||||
/s/ Charles R. Crisp | Director | May 22, 2017 | ||
| Charles R. Crisp | ||||
/s/ Duriya M. Farooqui | Director | May 22, 2017 | ||
| Duriya M. Farooqui | ||||
/s/ Jean Marc Forneri | Director | May 22, 2017 | ||
| Jean Marc Forneri | ||||
/s/ The Rt. Hon. the Lord Hague of Richmond | Director | May 22, 2017 | ||
| The Rt. Hon. the Lord Hague of Richmond | ||||
/s/ Fredrick W. Hatfield | Director | May 22, 2017 | ||
| Fredrick W. Hatfield | ||||
/s/ Thomas E. Noonan | Director | May 22, 2017 | ||
| Thomas E. Noonan | ||||
/s/ Frederic V. Salerno | Director | May 22, 2017 | ||
| Frederic V. Salerno | ||||
/s/ Judith Sprieser | Director | May 22, 2017 | ||
| Judith Sprieser | ||||
/s/ Vincent Tese | Director | May 22, 2017 | ||
| Vincent Tese | ||||
EXHIBIT INDEX
Exhibit No. | Description | |
| 3.1 | Third Amended and Restated Certificate of Incorporation of Intercontinental Exchange, Inc., effective October 12, 2016 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on October 12, 2016). | |
| 3.2 | Seventh Amended and Restated Bylaws of Intercontinental Exchange, Inc., effective January 31, 2017 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on February 1, 2017). | |
| 4.1 | Intercontinental Exchange, Inc. 2017 Omnibus Employee Incentive Plan.* | |
| 5.1 | Opinion of Andrew J. Surdykowski, Esq.* | |
| 23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.* | |
| 23.2 | Consent of Andrew J. Surdykowski, Esq. (included in Exhibit 5.1).* | |
| 24.1 | Power of Attorney (included in the signature page).* | |
| * | Filed herewith. |
