Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF INTERCONTINENTALEXCHANGE, INC.
(ORIGINALLY INCORPORATED ON JUNE 16, 2000 UNDER THE SAME NAME)
(Pursuant to Sections 242 and 245 of the Delaware General Corporation Law)
ARTICLE I.
The name of the Corporation is IntercontinentalExchange, Inc.
ARTICLE II.
The address of the Corporation's registered office in the
State of Delaware, County of New Castle, is 1209 Orange Street, Wilmington,
Delaware 19801. The name of its registered agent at such address is: The
Corporation Trust Company.
ARTICLE III.
The nature or purposes to be conducted or promoted by the
Corporation are to engage in any lawful act or activity for which Corporations
may be organized under the Delaware General Corporation Law.
ARTICLE IV.
A. Classes and Series of Stock.
1. General: The Corporation is authorized to issue three
classes of stock to be designated, respectively, "Common Stock", "Class A Common
Stock" and "Preferred Stock." The total number of shares of stock that the
Corporation is authorized to issue is three hundred million (300,000,000)
shares, consisting of:
(a) one hundred ninety four million two hundred seventy
five thousand (194,275,000) shares of Common Stock, par value $0.01 per share,
which shares shall be designated as "Common Stock" (the "Common Stock");
(b) eighty million seven hundred twenty five thousand
(80,725,000) shares of Class A Common Stock, par value $0.01 per share, of which
five million seven hundred twenty five thousand (5,725,000) shares shall be
designated as "Class A Common Stock, Series 1" and seventy five million
(75,000,000) shares shall be designated as "Class A Common Stock, Series 2"
(both series, collectively, the "Class A Common Stock"); and
(c) twenty-five million (25,000,000) shares of Preferred
Stock, par value $0.01 per share, which shares shall be designated as "Preferred
Stock" (the "Preferred Stock").
2. Reverse Stock Split of the Class A Common Stock: On
the date this Amended and Restated Certificate of Incorporation becomes
effective under the provisions of the Delaware General Corporation Law then in
effect (the "Effective Date"), every four shares of the Corporation's Class A
Common Stock issued and outstanding immediately prior to the Effective Date
shall, without any other action on the part of the Corporation, the holders of
the Class A Common Stock or any other person, be reclassified and combined as
set forth below:
(a) Every four shares of Class A Common Stock of either
series issued and outstanding immediately prior to the Effective Date shall be
reclassified and combined into one fully paid and nonassessable share of Class A
Common Stock of the same series as the original Class A Common Stock; and
(b) The aggregate amount of stated capital represented by
such shares of Class A Common Stock reclassified and combined pursuant to
Section A(2)(a) of this Article IV shall not be reduced solely by reason of the
reclassification and combination.
Each holder of record of a certificate for four or more shares
of Class A Common Stock at the close of business on the Effective Date shall be
entitled to receive, as soon as practicable, upon surrender of such certificate,
a certificate or certificates representing one share of Class A Common Stock for
every four shares of Class A Common Stock represented by the certificate of such
holder, provided, however, that no fractional shares of Class A Common Stock
shall be issued and, in lieu of issuing fractional shares of Class A Common
Stock, the Corporation shall pay in cash the fair value of fractions of a share
(which shall be calculated by the Corporation using as the fair value of each
whole share the initial public offering price per share of Common Stock in the
Corporation's initial public offering).
B. Common Stock and Class A Common Stock.
Except as expressly set forth in this Amended and Restated
Certificate of Incorporation and subject to the rights, powers and preferences
of the holders of Preferred Stock at any time outstanding, all shares of Common
Stock and Class A Common Stock, both of which are classes of common stock of the
Corporation, shall have the same rights and powers and shall rank equally, share
ratably and be identical in respect of all matters, including voting rights and
powers and rights upon the liquidation, dissolution or winding up of the
Corporation. All shares of Class A Common Stock, Series 1 and Class A Common
Stock, Series 2 will be identical in all respects and will entitle the holders
thereof to the same rights and privileges, except as otherwise provided in this
Amended and Restated Certificate of Incorporation.
1. Voting Rights. Except as otherwise expressly required
by the Delaware General Corporation Law as it now exists or as it may hereafter
be amended, and subject to any voting rights provided to holders of Preferred
Stock at any time outstanding, the Common Stock and Class A Common Stock shall
have voting rights and powers on all matters requiring a vote of the
stockholders of the Corporation.
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The holders of Common Stock and Class A Common Stock shall be
entitled to one vote per outstanding share of Common Stock or Class A Common
Stock, as the case may be, on all matters to be voted on by the stockholders of
the Corporation, except as may otherwise be provided with respect to a vote by
holders of Preferred Stock. Without limiting the provisions of the immediately
following paragraph and except as may otherwise be provided with respect to a
vote by holders of Preferred Stock, on any matter to be voted on by the
stockholders of the Corporation, the holders of outstanding shares of Common
Stock and Class A Common Stock, and all other outstanding shares of stock of the
Corporation entitled to vote on such matter, shall vote together as holders of
stock of a single class.
The Corporation shall not amend, alter or repeal the special
rights or other powers of any class or series of its Class A Common Stock so as
to affect adversely the shares of such class or series, without the written
consent or affirmative vote of the holders of at least 66-2/3% (excluding, in
the case of an amendment to the Class A Common Stock, Series 1, those holders
who also hold shares of the Class A Common Stock, Series 2 and their
affiliates) of the then outstanding aggregate number of shares of such class or
series adversely affected given in writing or by vote at a meeting, consenting
or voting (as the case may be) separately as a class or series.
2. Dividends and Distributions. Subject to the rights of
the holders of Preferred Stock, and subject to any other provisions of this
Amended and Restated Certificate of Incorporation, holders of Common Stock and
Class A Common Stock shall be entitled to receive such dividends and other
distributions in cash, in property or in shares of the Corporation as may be
declared thereon by the Board of Directors of the Corporation from time to time
out of assets or funds of the Corporation legally available therefor; provided,
however, that no cash, property or share dividend or distribution may be
declared or paid on the outstanding shares of either the Common Stock or the
Class A Common Stock unless an identical per share dividend or distribution is
simultaneously declared and paid on the outstanding shares of the other such
class of common stock; provided, further, however, that a dividend of shares may
be declared and paid in shares of Common Stock to holders of Common Stock and in
shares of Class A Common Stock to holders of Class A Common Stock if the number
of shares declared and paid per share to holders of Common Stock and to holders
of Class A Common Stock shall be the same. Except as provided in Section A(2) of
this Article IV, if the Corporation shall in any manner subdivide, combine or
reclassify the outstanding shares of Common Stock or Class A Common Stock, the
outstanding shares of the other such class of common stock shall be subdivided,
combined or reclassified proportionately in the same manner and on the same
basis as the outstanding shares of Common Stock or Class A Common Stock, as the
case may be, have been subdivided, combined or reclassified.
3. Liquidation Rights. Upon the liquidation, dissolution
or winding up of the Corporation, if assets are available for distribution to
the holders of the Corporation's common stock, the holders of the outstanding
Class A Common Stock shall share with the holders of the outstanding Common
Stock on a pari passu basis in
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such remaining assets in proportion to the number of shares of common stock held
by each such holder.
4. Optional Conversion.
(a) Each holder of shares of Class A Common Stock shall
have the right, at the holder's option, to convert any and all of such holder's
shares of Class A Common Stock into fully paid and non-assessable shares of
Common Stock at such time or times or during such period or periods, upon such
terms and conditions (including, without limitation, a condition that the
holders agree to such restrictions on transfer as the Board of Directors may
require to insure compliance with applicable laws) and subject to such
procedures for conversion as the Board of Directors may authorize from time to
time. Without limiting the authority of the Board of Directors pursuant to this
paragraph, the Board of Directors may authorize conversion of the Class A Common
Stock, Series 1 at different times from the Class A Common Stock, Series 2. Upon
conversion of any share of Class A Common Stock, such share shall convert into
and be one share of Common Stock.
(b) Unless otherwise authorized by the Board of
Directors, the procedures for the optional conversion described in Section
B(4)(a) of this Article IV shall be as follows:
(i) Each conversion of shares of Class A Common Stock
pursuant to Section B(4)(a) of this Article IV will
be effected by the delivery by the holder at the
principal office of the transfer agent of the Class A
Common Stock at any time during normal business hours
of a written notice stating the name of the holder of
Class A Common Stock and the number of shares of
Class A Common Stock that such holder desires to
convert (together with, in the case of any
certificated shares of Class A Common Stock to be
converted, the certificate or certificates, duly
endorsed, representing such shares). Such conversion
shall be deemed to have been effected as of the close
of business on the date on which such notice (and
certificate or certificates, if any) has been
delivered, or when such conversion is permitted by
the terms and conditions imposed thereon by the Board
of Directors, whichever is later, and, at such time,
the rights of any such holder with respect to the
converted shares of Class A Common Stock will cease
and the person or persons in whose name or names the
Common Stock is registered upon such conversion will
be deemed to have become the holder or holders of
record of such shares of Common Stock.
Promptly after the conversion pursuant to Section
B(4)(a)(i) of this Article IV, the Corporation will
issue and deliver in accordance with the surrendering
holder's instructions either (i) a certificate or
certificates for the shares of Common Stock issuable
upon such
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conversion, or (ii) in the case of uncertificated
shares of Common Stock, a written notice containing
the information required by law to be set forth or
stated on certificates representing shares of Common
Stock.
(ii) The conversion of shares of Class A Common Stock
pursuant to Section B(4)(a) of this Article IV will
be made without charge to the holder or holders of
such shares for any issuance tax (except stock
transfer tax) in respect thereof or other costs
incurred by the Corporation in connection therewith.
(iii) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares
of Common Stock or its treasury shares, solely for
the purpose of issuance upon the conversion of any
shares of Class A Common Stock for which conversion
has been authorized by the Board of Directors, such
number of shares of Common Stock as may be issued
upon conversion of such shares of Class A Common
Stock.
(iv) All shares of Common Stock that may be issued upon
conversion of shares of Class A Common Stock will,
upon issue, be fully paid and non-assessable.
5. Transfer Restrictions Applicable to Holders of Class
A Common Stock, Series 1. A holder of Class A Common Stock, Series 1 may
Transfer all or any portion of its shares of Class A Common Stock, Series 1 to
any transferee, subject to applicable securities laws and regulations and the
prior written consent of the Board of Directors, such consent not to be
unreasonably withheld. For purposes of this Amended and Restated Certificate of
Incorporation, "Transfer" means to sell, pledge, hypothecate, encumber, assign
or otherwise dispose of (whether voluntarily or involuntarily, by operation of
law or otherwise).
6. Transfer Restrictions Applicable to Holders of Class
A Common Stock, Series 2. A holder of Class A Common Stock, Series 2 may not
Transfer all or any portion of its shares of Class A Common Stock, Series 2
except in accordance with the bylaws of the Corporation or with the prior
written consent of the Board of Directors; provided, however, that a holder may,
subject to applicable securities laws and regulations, Transfer its Class A
Common Stock, Series 2 at any time without the prior written consent of the
Board of Directors to (i) another holder of Class A Common Stock, Series 2 or
(ii) an Affiliate of such holder. For purposes of this provision, "Affiliate"
means, with respect to the holder, any other person that directly or indirectly
through one or more intermediaries controls or is controlled by or is under
common control with the holder.
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7. No Reissuance of Class A Common Stock. No share of
Class A Common Stock acquired by the Corporation by reason of conversion,
repurchase or otherwise shall be reissued.
C. Preferred Stock. Shares of Preferred Stock may be issued in
one or more series from time to time by the Board of Directors, and the Board of
Directors is expressly authorized, to the fullest extent permitted by law, to
fix by resolution or resolutions the designations and the powers, preferences
and rights, and the qualifications, limitations and restrictions thereof, of the
shares of each series of Preferred Stock, including without limitation the
following:
(a) the distinctive serial designation of such series,
which shall distinguish it from other series;
(b) the number of shares included in such series;
(c) whether dividends shall be payable to the holders of
the shares of such series and, if so, the basis on which such holders shall be
entitled to receive dividends (which may include, without limitation, a right to
receive such dividends or distributions as may be declared on the shares of such
series by the Board of Directors of the Corporation, a right to receive such
dividends or distributions, or any portion or multiple thereof, as may be
declared on the Common Stock, the Class A Common Stock or any other class of
stock or, in addition to or in lieu of any other right to receive dividends, a
right to receive dividends at a particular rate or at a rate determined by a
particular method, in which case such rate or method of determining such rate
may be set forth), the form of such dividends, any conditions on which such
dividends shall be payable and the date or dates, if any, on which such
dividends shall be payable;
(d) whether dividends on the shares of such series shall
be cumulative and, in the case of shares of any series having cumulative
dividend rights, the date or dates or method of determining the date or dates
from which dividends on the shares of such series shall be cumulative;
(e) the amount or amounts that shall be payable out of
the assets of the Corporation to the holders of the shares of such series upon
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of the
shares of such series;
(f) the price or prices at which, the period or periods
within which and the terms and conditions upon which the shares of such series
may be redeemed, in whole or in part, at the option of the Corporation or at the
option of the holder or holders thereof or upon the happening of a specified
event or events;
(g) the obligation, if any, of the Corporation to
purchase or redeem shares of such series pursuant to a sinking fund or otherwise
and the price or prices at which, the period or periods within which and the
terms and conditions upon which the
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shares of such series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(h) whether or not the shares of such series shall be
convertible or exchangeable, at any time or times at the option of the holder or
holders thereof or at the option of the Corporation or upon the happening of a
specified event or events, into shares of any other class or classes or any
other series of the same or any other class or classes of stock of the
Corporation, and the price or prices or rate or rates of exchange or conversion
and any adjustments applicable thereto; and
(i) whether or not the holders of the shares of such
series shall have voting rights or powers, in addition to the voting rights and
powers provided by law, and if so the terms of such voting rights or powers,
which may provide, among other things and subject to the other provisions of
this Amended and Restated Certificate of Incorporation, that each share of such
series shall carry one vote or more or less than one vote per share, that the
holders of such series shall be entitled to vote on certain matters as a
separate class (which for such purpose may be comprised solely of such series or
of such series together with one or more other series or classes of stock of the
Corporation) and that all of the shares of such series entitled to vote on a
particular matter shall be deemed to be voted on such matter in the manner that
a specified portion of the voting power of the shares of such series or separate
class are voted on such matter.
For all purposes, this Amended and Restated Certificate of
Incorporation shall include each certificate of designations (if any) setting
forth the terms of a series of Preferred Stock.
Subject to the rights, if any, of the holders of any series of
Preferred Stock set forth in a certificate of designations, an amendment of this
Amended and Restated Certificate of Incorporation to increase or decrease the
number of authorized shares of any series of Preferred Stock (but not below the
number of shares thereof then outstanding) may be adopted by resolution adopted
by the Board of Directors of the Corporation and approved by the affirmative
vote of the holders of a majority of the voting power of all outstanding shares
of Common Stock and Class A Common Stock entitled to vote thereon and all other
outstanding shares of stock of the Corporation entitled to vote thereon
irrespective of the provisions of Section 242(b)(2) of the Delaware General
Corporation Law as it now exists or as it may hereafter be amended, with such
outstanding shares of Common Stock, Class A Common Stock and other stock
considered for this purpose as a single class, and no vote of the holders of any
series of Preferred Stock, voting as a separate class, shall be required
therefor.
Except as otherwise required by law or provided in the
certificate of designations for the relevant series of Preferred Stock, and
subject to the last paragraph of Section B(l) of this Article IV, holders of
Common Stock or Class A Common Stock, as such, shall not be entitled to vote on
any amendment of this Amended and Restated Certificate of Incorporation that
alters or changes the powers, preferences, rights or other terms of one or more
outstanding series of Preferred Stock if the holders of such affected
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series are entitled, either separately or together with the holders of one or
more other series of Preferred Stock, to vote thereon as a separate class
pursuant to this Amended and Restated Certificate of Incorporation or pursuant
to the Delaware General Corporation Law as then in effect.
ARTICLE V.
All corporate powers shall be exercised by the Board of
Directors of the Corporation, except as otherwise specifically required by law
or as otherwise provided in this Amended and Restated Certificate of
Incorporation.
Except as otherwise provided in this Amended and Restated
Certificate of Incorporation, in furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to adopt,
amend or repeal any or all of the bylaws of the Corporation; provided, however,
that no adoption, amendment or repeal of a bylaw by action of stockholders shall
be effective unless approved by the affirmative vote of the holders of not less
than 66 2/3% of the voting power of all outstanding shares of Common Stock and
Class A Common Stock and all other outstanding shares of stock of the
Corporation entitled to vote on such matter, with such outstanding shares of
Common Stock and Class A Common Stock and other stock considered for this
purpose as a single class. Any vote of stockholders required by this Article V
shall be in addition to any other vote of stockholders that may be required by
law, this Amended and Restated Certificate of Incorporation, the bylaws of the
Corporation, any agreement with a national securities exchange or otherwise.
ARTICLE VI.
The number of directors of the Corporation shall be fixed only
by resolution of the Board of Directors of the Corporation from time to time.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors or from any other cause (other than vacancies and
newly created directorships that the holders of any class or classes of stock or
series thereof are expressly entitled by this Amended and Restated Certificate
of Incorporation to fill) may be filled by, and only by, a majority of the
directors then in office, although less than a quorum, or by the sole remaining
director. Any director appointed to fill a vacancy or a newly created
directorship shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Notwithstanding the foregoing, in the event that the holders
of any class or series of Preferred Stock of the Corporation shall be entitled,
voting separately as a class, to elect any directors of the Corporation, then
the number of directors that may be elected by such holders voting separately as
a class shall be in addition to the number fixed pursuant to a resolution of the
Board of Directors of the Corporation. Except as otherwise provided in the terms
of such class or series, (i) the terms of the directors elected by such holders
voting separately as a class shall expire at the annual meeting of stockholders
next succeeding their election and (ii) any director or directors elected by
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such holders voting separately as a class may be removed, with or without cause,
by the holders of a majority of the voting power of all outstanding shares of
stock of the Corporation entitled to vote separately as a class in an election
of such directors.
ARTICLE VII.
Elections of directors need not be by written ballot unless
the bylaws of the Corporation shall so provide.
ARTICLE VIII.
No action of stockholders of the Corporation required or
permitted to be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting of stockholders, without prior notice
and without a vote, and the power of stockholders of the Corporation to consent
in writing to the taking of any action without a meeting is specifically denied
(provided that, to the extent any action of the holders of Class A Common Stock
or any series thereof is specifically required by the last paragraph of Section
B(l) of Article IV, such action may be taken by written consent of such holders
as specifically provided in such paragraph). Notwithstanding this Article VIII,
the holders of any series of Preferred Stock of the Corporation shall be
entitled to take action by written consent to such extent, if any, as may be
provided in the terms of such series.
Meetings of stockholders may be held within or without the
State of Delaware, as the bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the Delaware General Corporation
Law as it now exists or as it may hereafter be amended) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the bylaws of the Corporation.
ARTICLE IX.
No provision of Article V, VI or VIII or of this Article IX
shall be amended, modified or repealed, and no provision inconsistent with any
such provision shall become part of this Amended and Restated Certificate of
Incorporation, unless such matter is approved by the affirmative vote of the
holders of not less than 66 2/3% of the voting power of all outstanding shares
of Common Stock and Class A Common Stock of the Corporation and all other
outstanding shares of stock of the Corporation entitled to vote on such matter,
with such outstanding shares of Common Stock, Class A Common Stock and other
stock considered for this purpose as a single class. Any vote of stockholders
required by this Article IX shall be in addition to any other vote of the
stockholders that may be required by law, this Amended and Restated Certificate
of Incorporation, the bylaws of the Corporation, any agreement with a national
securities exchange or otherwise.
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ARTICLE X.
A director of the Corporation shall, to the fullest extent
permitted by the Delaware General Corporation Law as it now exists or as it may
hereafter be amended, not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law as it now exists or as it
may hereafter be amended, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General Corporation Law
is amended, after approval by the stockholders of this Article, to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law as so amended.
An amendment, repeal or modification of the foregoing
provisions of this Article X, or the adoption of any provision in an amended or
restated Certificate of Incorporation inconsistent with this Article X, by the
stockholders of the Corporation shall not apply to or adversely affect any right
or protection of a director of the Corporation existing at the time of such
amendment, repeal, modification or adoption.
ARTICLE XI.
To the fullest extent permitted by applicable law, the
Corporation is authorized to provide indemnification of (and advancement of
expenses to) such directors, officers or agents of the Corporation (and any
other persons to which Delaware law permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law as it now exists or as it may hereafter be
amended, subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to actions for breach of duty to the Corporation,
its stockholders and others.
Any amendment, repeal or modification of any of the foregoing
provisions of this Article XI shall not adversely affect any right or protection
of a director, officer, agent or other person existing at the time of, or
increase the liability of any person with respect to any acts or omissions of
such person occurring prior to, such amendment, repeal or modification.
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IN WITNESS WHEREOF, the undersigned has executed this Fourth
Amended and Restated Certificate of Incorporation, which restates and integrates
and further amends the provisions of the Amended and Restated Certificate of
Incorporation as heretofore amended or supplemented, having been duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law,
this 15th day of November, 2005. This Fourth Amended and Restated Certificate of
Incorporation shall be effective at 12:01 a.m. on the 21st of November, 2005.
INTERCONTINENTALEXCHANGE, INC.
By: /s/ Jeffrey C. Sprecher
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Name: Jeffrey C. Sprecher
Title: Chairman & Chief Executive
Officer
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