AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

THE CLEARING CORPORATION,

ICE US HOLDING COMPANY L.P.,

PONY MERGER SUB LLC,

Solely for the purposes described herein,

INTERCONTINENTALEXCHANGE, INC.,

AND

TCC STOCKHOLDERS’ REPRESENTATIVE, LLC,

AS STOCKHOLDERS’ REPRESENTATIVE,

Dated as of March 6, 2009

TABLE OF CONTENTS

EXHIBITS

SCHEDULES

Company Disclosure Schedule
Purchaser Disclosure Schedule

          THIS AGREEMENT AND PLAN OF MERGER is entered into as of March 6, 2009 (the “ Closing Date ”) by and among (i) The Clearing Corporation, a Delaware corporation (the “ Company ”), (ii) ICE US Holding Company L.P., a Cayman Islands exempted limited partnership and a subsidiary of ICE (defined below) (the “ Purchaser ”), (iii) Pony Merger Sub LLC, a Delaware limited liability company and a wholly-owned subsidiary of Purchaser (“ Merger Sub ”), (iv) solely for the purposes described in Sections 2.02 , 2.12 , 4.05 , 4.06 , 5.02 and 6.02 , IntercontinentalExchange, Inc., a Delaware corporation (“ ICE ”), and (v) TCC Stockholders’ Representative, LLC, a Delaware limited liability company (the “ Stockholders’ Representative ”), solely in its capacity as the Stockholders’ Representative, in accordance with that certain operating agreement of the Stockholders’ Representative, dated as of the Closing Date (defined below), and not in any other capacity.

          WHEREAS, the Purchaser, Merger Sub and the Company intend to effect a merger (the “ Merger ”) of Merger Sub with and into the Company in accordance with this Agreement and the General Corporation Law of the State of Delaware (the “ DGCL ”) and the Delaware Limited Liability Company Act (the “ Act ”, and collectively with the DGCL, “ Delaware Law ”);

          WHEREAS, upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly-owned subsidiary of the Purchaser;

          WHEREAS, the board of directors of the Company (the “ Company Board ”) has carefully considered the terms and conditions of this Agreement and has determined that the terms and conditions of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, are fair to, and in the best interests of, and are advisable to, the Company and the Stockholders, and the Company Board recommends that the Stockholders vote to approve and adopt the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;

          WHEREAS, the Company Board has approved and adopted the terms and conditions of this Agreement and the consummation of the transactions contemplated hereby, including the Merger;

          WHEREAS, concurrently with the execution and delivery of this Agreement, Stockholders holding the requisite number of Shares of the Company have executed written consents, dated as of the Closing Date (the “ Written Consent ”), adopting this Agreement and approving the transactions contemplated hereby, including the Merger, in accordance with Sections 228 and 251 of the DGCL and Section 18-209 of the Act;

          WHEREAS, ICE, as the initial limited partner, and ICE US Holding Company GP LLC, a Delaware limited liability company (“ ICE GP ”), as the general partner of the Purchaser immediately prior to the Closing, and the Purchaser, as the sole member of Merger Sub, have each approved and adopted the terms and conditions of this Agreement and the consummation of the transactions contemplated hereby, including the Merger;

          WHEREAS, concurrently with the Closing (defined below), the Dealers, the Purchaser and ICE are entering into a number of agreements to create a solution (such solution,

the “ Clearinghouse ”) to clear credit default swaps (“ CDSs ”) and related products through ICE US Trust LLC, a New York limited liability trust company (“ ICE Trust ”), a wholly-owned subsidiary of the Purchaser;

          WHEREAS, concurrently with the Closing, the Company and ICE Trust will enter into an agreement pursuant to which the Company will grant to ICE Trust a license to use certain intellectual property of the Company subject to the terms thereof, in connection with developing and operating the Clearinghouse and, at the Closing, ICE will pay to the Company an upfront license fee of $5 million (the “ License Fee ”);

          WHEREAS, concurrently with the Closing, the Company and ICE Trust will enter into an agreement pursuant to which the Company will provide certain services for the implementation of the Clearinghouse, subject to the terms thereof;

          WHEREAS, concurrently with the Closing, ICE GP, the Stockholders and ICE will enter into an amended and restated limited partnership agreement of the Purchaser (the “ LP Agreement ”) in the form attached hereto as Exhibit A ;

          WHEREAS, ICE is a party to this Agreement for the limited purposes set forth herein;

          NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

          SECTION 1.01.  Certain Defined Terms . For purposes of this Agreement:

          “ Acquisition Documents ” means this Agreement and any certificate delivered pursuant to this Agreement.

          “ Action ” means any Claim, Investigation, action or arbitration by or before any Governmental Authority.

          “ Additional Expenses ” means all unpaid costs, fees and expenses of outside professionals incurred by certain Dealers relating to the process of setting up the Clearinghouse whether incurred in connection with this Agreement, the LP Agreement or otherwise, including, without limitation, all legal, accounting, tax and investment banking fees and expenses.

          “ Affiliate ” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

          “ Aggregate Escrow Amount ” means the sum of the Deferred Revenue Escrow Amount, the Indemnity Escrow Amount, the Real Property Escrow Amount and the Working Capital Escrow Amount.

          “ Agreement ” or “ this Agreement ” means this Agreement and Plan of Merger between the parties hereto (including the Exhibits and Schedules hereto) and all amendments hereto made in accordance with the provisions of Section 8.07 .

          “ Assets ” means the assets and properties of the Company and the Subsidiaries.

          “ Bank Account ” means, with respect to a Surrendering Stockholder, the bank account in the United States designated by such Surrendering Stockholder in its duly completed Letter of Transmittal submitted to the Paying Agent on or after the Effective Time.

          “ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.

          “ Cash ” means cash and cash equivalents of the Company and its Subsidiaries, determined on a consolidated basis and in accordance with Company GAAP; provided , however , that Cash shall not include cash held by the Company in guaranty fund deposits or cash in participant margin accounts held by the Company on behalf of third parties.

          “ CFTC ” means the Commodity Futures Trading Commission.

          “ Claims ” means any and all administrative, regulatory or judicial suits, petitions, appeals, demands, demand letters, claims, liens, notices of noncompliance or violation, proceedings, consent orders or consent agreements.

          “ Closing Agreements ” means the Escrow Agreement, the LP Agreement and the Registration Rights Agreement.

          “ Closing Balance Sheet ” means the consolidated balance sheet of the Company, as of the close of business on the Closing Date without giving effect to the Merger or the transactions contemplated hereby, prepared in accordance with Company GAAP.

          “ CME Settlement Agreement ” means that certain Settlement Agreement and Mutual General Release, dated as of May 2, 2008, by and between the Company and Chicago Mercantile Exchange, Inc.

          “ Code ” means the Internal Revenue Code of 1986, as amended.

          “ Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company.

          “ Company Disclosure Schedule ” means the Company Disclosure Schedule attached hereto, dated as of the Closing Date, delivered by the Company to the Purchaser in connection with this Agreement.

          “ Company GAAP ” means (i) to the extent in accordance with GAAP, the accounting principles, practices and methodologies of the Company and the Subsidiaries used in preparing the Financial Statements, applied on a basis consistent with the past practices of the Company and the Subsidiaries applied consistently throughout the periods involved and, (ii) GAAP to the extent the accounting principles, practices and methodologies of the Company and the Subsidiaries used in preparing the Financial Statements are not in accordance with GAAP.

          “ Company Intellectual Property ” means the Owned Intellectual Property and the Licensed Intellectual Property.

          “ Company IP Agreements ” means all contracts and agreements (including oral agreements) concerning Intellectual Property or IT Assets to which the Company or any Subsidiary is a party or beneficiary or by which the Company or any Subsidiary, or any of its properties or assets, may be bound, including all (a) licenses of Intellectual Property by the Company or any Subsidiary to any Person, (b) licenses of Intellectual Property by any Person to the Company or any Subsidiary and (c) contracts between any Person and the Company or any Subsidiary relating to the transfer, development, maintenance or use of Intellectual Property or IT Assets, the development or transmission of data, or the use, modification, framing, linking, advertisement or other practices of or with respect to Internet websites.

          “ Company IT Assets ” means all IT Assets used or held for use in the operation of the businesses of the Company and its Subsidiaries, including the Company Software.

          “ Company Material Adverse Effect ” means any event, circumstance, change or effect that, individually or in the aggregate with all other events, circumstances, changes or effects: is materially adverse to the business, results of operations or the financial condition of the Company and its Subsidiaries, taken as a whole; provided , however , that none of the following, either alone or in combination, shall be considered in determining whether a Company Material Adverse Effect has occurred: (i) any event, circumstance, change or effect that generally affects the industries in which the Company or any Subsidiary operates, including legal and regulatory changes (except to the extent that any such event, circumstance, change or effect has a disproportionately adverse impact on the Company and the Subsidiaries, taken as a whole, compared to other participants in such industries); (ii) general economic conditions or events, circumstances, changes or effects affecting the capital markets generally, taken as a whole (except to the extent that any such event, circumstance, change or effect has a disproportionately adverse impact on the Company and the Subsidiaries taken as a whole); (iii) any event, circumstance, change or effect arising from or relating to changes in GAAP; (iv) any event, circumstance, change or effect arising from or relating to changes in Law or other binding directives issued by any Governmental Authority; or (v) any event, circumstance, change or effect arising from or relating to the commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity or act of terrorism directly or indirectly involving the United States of America (other than any of the foregoing to the extent that it causes any damage or destruction to or renders physically unusable or inaccessible any facility or property of the Company or any of its Subsidiaries).

          “ Company Products ” means all service offerings or products currently made commercially available or otherwise distributed or the subject of formal development efforts (but excluding (i) all ICE IP Improvements and (ii) any developments made after the date hereof), by the Company or any Subsidiary, including any and all Company Websites.

          “ Company Software ” means all Owned Software and all other Software that is used or licensed to the Company or any Subsidiary for use in the operation of the businesses of the Company and/or any of its Subsidiaries, including all (a) Software used in the Company’s or any Subsidiary’s provision of Company Products to customers and/or end users, including any Software incorporated in, or integrated or bundled with, any Company Product, (b) Software intended for license to customers and/or end users, and (c) Software, libraries, modules and other materials used by the Company or any Subsidiary in the development, design, construction or testing of any of the Software described in clauses (a) or (b) above.

          “ Company Transaction Expenses ” means all unpaid costs, fees and expenses of outside professionals incurred by the Company relating to the process of selling the Company and in connection with the formation of the Clearinghouse, whether incurred in connection with this Agreement or otherwise, including, without limitation, all legal, accounting, tax and investment banking fees and expenses.

          “ Company Websites ” means all Internet or intranet websites owned and/or operated by the Company or any Subsidiary.

          “ Company’s Knowledge ” and “ Company has Knowledge ” mean the actual knowledge, after due inquiry, of Kevin McClear, Dirk Pruis, Jessica Bertoldi, Don Sternard, Stan Ivanov, Rick Tsuru and Rich Jerge.

          “ Confidentiality Agreement ” means that certain Amended and Restated Confidentiality Agreement, dated as of October 28, 2008, by and between ICE and the Company.

          “ control ” (including the terms “ controlled by ” and “ under common control with ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise.

          “ Conveyance Taxes ” means all sales, use, value added, transfer, stamp, stock transfer, real property transfer or gains and similar Taxes.

          “ Dealer Assignment Agreements ” means those certain Intellectual Property Assignment agreements between each of the Dealers (other than Barclays Bank PLC) and the Company dated as of the Closing Date.

          “ Dealers ” means Banc of America Strategic Investments Corporation; Barclays Bank PLC; Citigroup Global Markets, Inc.; Credit Suisse First Boston Next Fund, Inc.; Deutsche Bank Securities Inc.; Goldman, Sachs & Co.; LabMorgan Corporation; Merrill Lynch, Pierce,

Fenner & Smith Incorporated; Morgan Stanley & Co. Incorporated; and UBS Americas Inc. or an Affiliate thereof.

          “ Deferred Revenue ” means the aggregate amount of any deferred revenue of the Company determined in accordance with Company GAAP from JSE Securities Exchange South Africa and as set forth on the Estimated Balance Sheet as of the Closing Date.

          “ Deferred Revenue Escrow Account ” means an interest-bearing bank account with the Escrow Agent established and maintained by the Escrow Agent in accordance with the terms of the Escrow Agreement in order to maintain and administer the Deferred Revenue Escrow Fund.

          “ Deferred Revenue Escrow Amount ” means an amount equal to $500,000.

          “ Deferred Revenue Escrow Fund ” means the Deferred Revenue Escrow Amount deposited with the Escrow Agent as such sum may be increased or decreased as provided in the Escrow Agreement.

          “ Deferred Revenue Resolution Event ” means the elimination of any obligations of the Surviving Company with respect to the Deferred Revenue.

          “ Eligible Clearinghouse Profits ” means Clearinghouse Profits (as defined in the LP Agreement) for the period beginning on January 1, 2010 which would otherwise be distributable to holders of the Purchaser Class B Interests.

          “ Encumbrance ” means any security interest, pledge, hypothecation, mortgage, lien (including environmental and Tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.

          “ Environment ” means surface waters, groundwaters, soil, subsurface strata and ambient air.

          “ Environmental Claims ” means any Claims relating in any way to any Environmental Law or any Environmental Permit, including (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (b) any and all Claims by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from hazardous materials or arising from alleged injury or threat of injury to health, safety or the Environment.

          “ Environmental Laws ” means all Laws, now or hereafter in effect and as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, health, safety, natural resources or hazardous materials.

          “ Environmental Permits ” means all permits, approvals, identification numbers, licenses and other authorizations required under or issued pursuant to any applicable Environmental Law.

          “ Escrow Agent ” means The Bank of New York Mellon Trust Company, N.A.

          “ Escrow Funds ” means the Deferred Revenue Escrow Fund, the Indemnity Escrow Fund, the Real Property Escrow Fund and the Working Capital Escrow Fund.

          “ Eurex ” means Eurex Frankfurt AG.

          “ Eurex Deferred Revenue Settlement Payment ” means an amount equal to $2,692,621.

          “ Eurex Parties ” means, collectively, Eurex, FEX, Eurex U.S. and Eurex Clearing AG, Frankfurt.

          “ Eurex U.S. ” means U.S. Exchange Holdings, Inc.

          “ Eurex Waiver ” means (i) that certain Amendment No. 2 to Link Clearing Agreement, dated as of February 18, 2009, between the Company and Eurex Clearing AG, (ii) that certain Termination of Stock Purchase Agreement and Termination of Stock Option Agreement, dated as of February 18, 2009, among the Company, Eurex and Eurex U.S. and (iii) that certain Termination Agreement, dated as of January 8, 2009, between the Company and FEX.

          “ Excess Capacity Liabilities ” means any liabilities arising in connection with eliminating excess resources or capacity of the Company, including employee severance costs (but excluding liabilities associated with the Key Real Property Lease) as of the Closing Date.

          “ FEX ” means U.S. Futures Exchange, L.L.C.

          “ GAAP ” means United States generally accepted accounting principles and practices in effect from time to time applied consistently throughout the periods involved.

          “ Governmental Authority ” means any federal, national, supranational, state, provincial, local, or similar government, governmental, regulatory or administrative authority, agency or commission including the CFTC or any court, tribunal, or judicial or arbitral body and any Self-Regulatory Organization.

          “ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

          “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

          “ ICE IP Improvements ” means any improvements or modifications to the Company Intellectual Property or Company IT Assets made on or after November 4, 2008 in

connection with activities undertaken in cooperation among the Company, ICE and ICE’s Affiliates in connection with the formation and operation of the Clearinghouse.

          “ Income Taxes ” means Taxes based upon, measured by, or calculated with respect to (i) net income, net profits, or gross receipts (including, but not limited to, any capital gains, minimum Taxes and any Taxes on items of Tax preference, but not including sales, use, real or personal property transfer, value added or other similar taxes) and (ii) multiple bases (including corporate franchise, doing business or occupation Taxes imposed by a jurisdiction in lieu of Taxes on net income, net profits or gross receipts) if one or more of the bases upon which such Tax may be imposed on, measured by, or calculated with respect to, is net income, net profits or gross receipts.

          “ Indebtedness ” means, with respect to any Person, without duplication, (a) all indebtedness of such Person, whether or not contingent, for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services, (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar facilities, (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock of such Person or any warrants, rights or options to acquire such capital stock, valued, in the case of redeemable preferred stock, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, and (h) all Indebtedness of others referred to in clauses (a) through (g) above guaranteed directly or indirectly in any manner by such Person; provided , however , that with respect to the Company, Indebtedness shall not include any obligations of the Company related to guaranty fund deposits or participant margin accounts held on behalf of third parties.

          “ Indemnified Party ” means a Purchaser Indemnified Party or a Stockholder Indemnified Party, as the case may be.

          “ Indemnifying Party ” means the Indemnity Escrow Fund pursuant to Section 7.02 or the Purchaser pursuant to Section 7.03 , as the case may be.

          “ Indemnity Escrow Account ” means an interest-bearing bank account with the Escrow Agent established and maintained by the Escrow Agent in accordance with the terms of the Escrow Agreement in order to maintain and administer the Indemnity Escrow Fund.

          “ Indemnity Escrow Amount ” means an amount equal to $5,100,000.

          “ Indemnity Escrow Fund ” means the Indemnity Escrow Amount deposited with the Escrow Agent as such sum may be increased or decreased as provided in the Escrow Agreement.

          “ Insolvency Laws ” means any bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether enforcement is considered in a proceeding in Law or equity).

          “ Intellectual Property ” means, in any and all jurisdictions throughout the world, all (a) inventions and discoveries, patents, invention disclosures, industrial designs and mask works, (b) trademarks, service marks, domain names, uniform resource locators, trade dress, trade names and other identifiers of source or goodwill, including the goodwill symbolized thereby or associated therewith, (c) works of authorship (including Software), community designs and copyrights, and moral rights, design rights and database rights therein and thereto, (d) confidential and proprietary information, including trade secrets, know-how and invention rights, (e) rights of privacy and publicity, (f) registrations, applications, renewals and extensions for any of the foregoing in clauses (a) through (e) , and (g) any and all other intangible proprietary rights.

          “ Investigation ” means any inquiry or investigation by or before any Governmental Authority of which the Company has Knowledge.

          “ IRS ” means the Internal Revenue Service of the United States.

          “ IT Assets ” means systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches, Internet and intranet websites, databases and compilations (including data and collections of data, whether machine readable or otherwise), and all other information technology equipment, and all associated documentation.

          “ Key Real Property Lease ” means that certain Lease, dated as of August 21, 2008, by and between Orient Overseas Associates, a New York partnership, as landlord, and the Company, as tenant.

          “ Law ” means any federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment decree or other order, requirement or rule of law (including common law).

          “ Leased Real Property ” means the real property leased by the Company or any Subsidiary as tenant, together with, to the extent leased by the Company or any Subsidiary, all office space, equipment and items of personal property of the Company or any Subsidiary attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing.

          “ Liabilities ” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking.

          “ Licensed Intellectual Property ” means all Intellectual Property licensed to the Company and/or any Subsidiary by a third party, or that the Company is otherwise permitted by a third party to use, pursuant to the Company IP Agreements.

          “ Losses ” means any and all Liabilities, losses, damages, claims, costs and expenses, Taxes, interest, awards, judgments, penalties and fines (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or incurred by an Indemnified Party (including any Action brought or otherwise initiated by an Indemnified Party).

          “ New Chicago Lease ” means that certain Sublease, dated September 30, 2008, by and between Material Service Corporation, a Delaware corporation d/b/a Hanson Material Service Corporation, as landlord, and the Company, as tenant.

          “ New Chicago Lease Termination Payment ” means an amount equal to $1,100,000.

          “ Off-the-Shelf Software ” means all Company Software that is commercially available off-the-shelf Software that (a) has not been modified or customized for the Company or any Subsidiary, and (b) is licensed to the Company or any Subsidiary for a one-time or annual fee of $25,000 or less.

          “ Old Chicago Lease ” means that certain Office Sublease, dated June 8, 2004, by and between AT&T Corp., a New York corporation, as landlord, and the Company, as tenant.

          “ Organizational Documents ” means (a) with respect to a corporation, the certificate or articles of incorporation and bylaws, (b) with respect to any other entity, any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person, including any operating agreement for any limited liability company, and (c) any amendment to any of the foregoing.

          “ Owned Intellectual Property ” means all Intellectual Property owned by the Company or any Subsidiary, including any and all Intellectual Property assigned or under the obligation of assignment to the Company or any Subsidiary pursuant to the Dealer Assignment Agreements.

          “ Owned Software ” means all Software owned by the Company or any Subsidiary, including any and all Software assigned or under the obligation of assignment to the Company or any Subsidiary pursuant to the Dealer Assignment Agreements.

          “ Permitted Encumbrances ” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced and as to which neither the Company nor any Subsidiary is otherwise subject to civil or criminal liability due to its existence: (a) liens for Taxes not yet due and payable, (b) Encumbrances imposed by Law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days, (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations, (d) non-exclusive licenses granted in the ordinary course of business, consistent with past practice, (e) other Encumbrances that would not be expected to materially impair the value or fitness for use of the affected asset, property or right, or (f) any deposits held by any landlord under the Old Chicago Lease or the Key Real Property Lease.

          “ Person ” means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization, Governmental Authority or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.

          “ Pro Rata Per Share Portion ” means a fraction, the numerator of which is 1 and the denominator of which is 801,659.

          “ Pro Rata Portion ” means, with respect to each Stockholder, the percentage set forth opposite such Stockholder’s name in Section 2.05(a) of the Company Disclosure Schedule.

          “ Public Software ” means any Software that contains, or is derived in any manner from, in whole or in part, any Software that is distributed as freeware, shareware, open source Software (e.g., Linux) or similar licensing or distribution models that (a) require the licensing or distribution of source code to any other Person, (b) prohibit or limit the receipt of consideration in connection with sublicensing or distributing any Software, (c) except as specifically permitted by applicable Law, allow any Person to decompile, disassemble or otherwise reverse-engineer any Software, or (d) require the licensing of any Software to any other Person for the purpose of making derivative works. For the avoidance of doubt, “Public Software” includes Software licensed or distributed under any of the following licenses or distribution models (or licenses or distribution models similar thereto): (q) GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (r) the Artistic License (e.g., PERL); (s) the Mozilla Public License; (t) the Netscape Public License; (u) the Sun Community Source License (SCSL); (v) the Sun Industry Standards Source License (SISSL); (w) the BSD License; (x) Red Hat Linux; (y) the Apache License; and (z) any other license or distribution model described by the Open Source Initiative as set forth on www.opensource.org .

          “ Purchaser Class A Interests ” means the 1,000 Class A Units of the Purchaser outstanding on the date hereof with such rights, powers and duties as provided in the LP Agreement.

          “ Purchaser Class B Interests ” means the 1,000 Class B Units of the Purchaser issued pursuant to the Merger with such rights, powers and duties as provided in the LP Agreement.

          “ Purchaser Disclosure Schedule ” means the Purchaser Disclosure Schedule attached hereto, dated as of the Closing Date, delivered by the Purchaser to the Company in connection with this Agreement.

          “ Purchaser GP Interest ” means the general partnership unit of the Purchaser outstanding on the date hereof with such rights, powers and duties as provided in the LP Agreement.

          “ Purchaser Material Adverse Effect ” means any event, circumstance, change or effect that, individually or in the aggregate with all other events, circumstances, changes or effects is materially adverse to the business, results of operations or the financial condition of the Purchaser and its Affiliates, taken as a whole.

          “ Purchaser Partnership Interests ” means all partnership interests of the Purchaser with such rights, powers and duties as provided in the LP Agreement.

          “ Purchaser’s Knowledge ” means the actual knowledge, after due inquiry, of David Clifton, John Harding, Scott Hill, Johnathan Short, Jeff Sprecher and Chuck Vice.

          “ Real Property Escrow Account ” means an interest-bearing bank account with the Escrow Agent established and maintained by the Escrow Agent in accordance with the terms of the Escrow Agreement in order to maintain and administer the Real Property Escrow Fund.

          “ Real Property Escrow Amount ” means $1,200,000.

          “ Real Property Escrow Fund ” means the Real Property Escrow Amount deposited with the Escrow Agent as such sum may be increased or decreased as provided in the Escrow Agreement.

          “ Reasonable Efforts ” means the good faith efforts that a reasonably prudent Person desirous of achieving a result would use in similar circumstances to ensure that such result is achieved as reasonably expeditiously as possible.

          “ Registered ” means issued by, registered, recorded or filed with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.

          “ Regulations ” means the Treasury Regulations (including Temporary Regulations) promulgated by the United States Department of Treasury with respect to the Code.

          “ Registration Rights Agreement ” means that certain registration rights agreement among the Purchaser and those Stockholders executing a signature page thereto.

          “ Rules and Procedures ” means the Rules and Procedures of ICE Trust as of the Closing Date.

          “ Self-Regulatory Organizations ” means the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Securities Exchange Act of 1934, as amended), any other securities exchange, futures exchange, contract market commodities market, any other such exchange, clearinghouse or corporation or other similar federal, state or foreign self-regulatory body or organization.

          “ Shareholders Agreement ” means that certain Subscription, Contribution and Shareholders Agreement, dated December 14, 2007, by and among the Company (as successor in interest to the Clearing Merger Corporation, a Delaware corporation) and each of the Stockholders.

          “ Shares ” means the issued and outstanding shares of Common Stock.

          “ Software ” means all (a) computer programs, applications, systems and code, including software implementations of algorithms, models and methodologies, program interfaces, and source code and object code, and all such applications supporting websites, (b) database management systems, (c) development and design tools, library functions and compilers, and (d) media, documentation and other works of authorship, including user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded.

          “ Stockholder ” means any holder of Shares who is set forth in Section 2.05(a) of the Company Disclosure Schedule.

          “ Stockholders’ Representative Account ” means the account established by the Stockholders’ Representative to hold the Stockholders’ Representative Fund Amount.

          “ Stockholders’ Representative Fund Amount ” means an amount equal to $500,000.

          “ Stockholders’ Representative Fund Balance ” means the balance, if any, remaining in the Stockholders’ Representative Account upon the termination of the duties of the Stockholders’ Representative.

          “ Subsidiaries ” means any and all corporations, partnerships, limited liability companies, joint ventures, associations and other Persons controlled by the Company directly or indirectly through one or more intermediaries.

          “ Tax ” or “ Taxes ” means (i) any foreign or U.S. federal, state or local income, gross receipts, sales, licenses, payroll, employment, excise, severance, stamp, occupation, premium, windfall or excess profits, environmental, customs, duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, use, ad valorem, intangible, unitary, transfer, value added, alternative or add-on minimum, estimated, or other tax or other like assessment or charge of any kind whatsoever in the nature of a tax, or other amounts payable under unclaimed property, escheatment or similar common law concepts, including any interest, penalty, or addition thereto, whether disputed or not and (ii) any liability for the payment of any amount of the type described in the immediately preceding clause (i) above as a result of any obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Persons including by reason of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity, being a member of an affiliated, consolidated, unitary or combined group or being an indemnitor, guarantor, or surety or in a similar capacity under any contract, arrangement, agreement or understanding.

          “ Tax Returns ” means any return, declaration, report, election, claim for refund or information return or other statement or form required to be filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto or any amendment thereof.

          “ Virus ” means any virus, malware, trojan horse, worm, back door, time bomb, drop dead device or other routine, contaminant or effect designed to disable, disrupt, erase,

enable any Person to access without authorization, or otherwise adversely affect the functionality of any Software or other IT Asset.

          “ Working Capital Escrow Account ” means an interest-bearing bank account with the Escrow Agent established and maintained by the Escrow Agent in accordance with the terms of the Escrow Agreement in order to maintain and administer the Working Capital Escrow Fund.

          “ Working Capital Escrow Amount ” means an amount equal to $4,000,000.

          “ Working Capital Escrow Fund ” means the Working Capital Escrow Amount deposited with the Escrow Agent as such sum may be increased or decreased as provided in the Escrow Agreement.

          SECTION 1.02.  Definitions . The following terms have the meanings set forth in the Sections set forth below:

          SECTION 1.03.  Interpretation and Rules of Construction . In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

     (i) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;

     (ii) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

     (iii) whenever the words “include”, “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;

     (iv) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;

     (v) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein;

     (vi) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;

     (vii) any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law or statute as from time to time amended, modified or supplemented, including by succession of comparable successor Laws;

     (viii) references to a Person are also to its successors and permitted assigns; and

     (ix) the use of “or” is not intended to be exclusive unless expressly indicated otherwise.

ARTICLE II

THE MERGER

          SECTION 2.01.  The Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Delaware Law, at the Effective Time (defined below), Merger Sub and the Company shall consummate the Merger pursuant to which (a) Merger Sub shall be merged with and into the Company, (b) the separate existence of Merger Sub shall cease and (c) the Company shall continue as the surviving company (the “ Surviving Company ”) and shall continue its corporate existence under the DGCL. At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, and all debts, liabilities, obligations, restrictions, disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving Company.

          SECTION 2.02.  Effective Time; Closing; Closing Deliveries .

          (a) The Merger shall become effective at the time of filing of a certificate of merger substantially in the form of Exhibit B attached hereto (the “ Certificate of Merger ”), with the Secretary of State of the State of Delaware in accordance with the provisions of Section 251 of the DGCL (the “ Effective Time ”). Subject to the terms and conditions of this Agreement, the Company and Merger Sub shall duly execute and file the Certificate of Merger with the Secretary of State of the State of Delaware at the time of the closing of the Merger (the “ Closing ”). The Closing shall take place at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or such other place as the parties shall agree, at 10:00 A.M. eastern time on the Closing Date.

          (b)  Stockholders’ Representative Deliveries . At the Closing, the Stockholders’ Representative shall deliver to the Purchaser:

     (i) an executed counterpart to the Escrow Agreement; and

     (ii) payoff letters and releases, in form and substance acceptable to the Purchaser and the party executing such release, from and duly executed by each of (1) Cleary Gottlieb Steen & Hamilton, (2) Crowell & Moring LLP, (3) Diamond Management & Technology Consultants NA, Inc., (4) Katten Muchin Rosenman LLP, (5) Maples and Calder, (6) Lenz & Staehelin, (7) Sandler O’Neill & Partners, LP, and (8) Shearman & Sterling LLP.

          (c)  Company Deliveries . At the Closing, the Company shall deliver or cause to be delivered, as the case may be, to the Purchaser the following:

     (i) true and complete copies, certified by the Secretary of the Company, of the resolutions duly and validly adopted by the Company Board evidencing its authorization of the execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby;

     (ii) a certificate of the Secretary of the Company certifying (i) the names and signatures of the officers of the Company authorized to sign this Agreement and the other documents to be delivered hereunder, (ii) the certificates of incorporation, as amended, of the Company and of each Subsidiary, certified by the Secretary of State of the jurisdiction in which each such entity is incorporated or organized, as of a date not earlier than ten Business Days prior to the Closing accompanied by a certificate of the Secretary of each such entity, dated as of the Closing Date, stating that no amendments have been made to such certificate of incorporation since such date, and (iii) the bylaws of the Company and of each Subsidiary, certified by the Secretary of each such entity;

     (iii) the resignations, effective as of the Closing, of all of the directors and officers of the Company and each Subsidiary, except for such persons as shall have been designated in writing at the Closing by the Purchaser to the Company;

     (iv) good standing certificates for the Company and for each Subsidiary from the Secretary of State of the jurisdiction in which each such entity is incorporated and, as applicable, from the Secretary of State of Illinois or New York to the extent that the Company or any Subsidiary is required to be qualified to do business as a foreign corporation in such states, in each case dated as of a date not earlier than ten Business Days prior to the Closing;

     (v) a certificate (in a form reasonably satisfactory to the Purchaser) to the effect that the Common Stock is not a “United States real property interest” for purposes of Sections 897 and 1445 of the Code;

     (vi) an executed copy of the Written Consent; and

     (vii) an executed copy of the Eurex Waiver.

          (d)  Purchaser Deliveries . At the Closing, the Purchaser shall deliver or cause to be delivered:

     (i) to the Paying Agent, for delivery by the Paying Agent to each Stockholder who at the Closing shall have delivered to the Purchaser a duly completed letter of transmittal, substantially in the form of Exhibit E attached hereto (the “ Letter of Transmittal ”), and either the Certificates evidencing such Stockholder’s Shares or an affidavit of lost stock certificate in the form attached to the Letter of Transmittal (collectively, the “ Stockholder Delivery Requirements ”), such Stockholder’s Pro Rata Portion of the Closing Merger Consideration;

     (ii) executed counterparts of each Closing Agreement to which the Purchaser is a party;

     (iii) a certificate of the Secretary or an Assistant Secretary of ICE certifying the names and signatures of the officers of ICE authorized to sign this Agreement and true and complete copies of the resolutions duly and validly adopted by the Board of Directors of ICE evidencing its authorization of the execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby;

     (iv) a certificate of Secretary of ICE GP, in its capacity as the general partner of the Purchaser, certifying (1) the names and signatures of the officers of ICE GP, in its capacity as the general partner of the Purchaser, authorized to sign this Agreement and the Closing Agreements to which the Purchaser is a party and the other documents to be delivered hereunder and thereunder, (2) true and complete copy of the written resolutions duly and validly adopted by ICE GP, as the general partner of Purchaser, evidencing its authorization of the execution and delivery of this Agreement and the Closing Agreements to which the Purchaser is a party and the consummation of the Merger and the transactions contemplated hereby and thereby, (3) the certificate of formation of ICE GP, certified by the Secretary of State of Delaware, as of a date not earlier than ten Business Days prior to the Closing accompanied by a certificate of the Secretary or Assistant Secretary of ICE GP, dated as of the Closing, stating that no amendments have been made to such certificate of formation since such date, (4) the certificate of registration of the Purchaser, issued by the Registrar of Exempted Limited Partnerships in the Cayman Islands, (5) the articles of organization of ICE Trust, dated as of December 4, 2008, as approved by the Superintendent of Banks for the State of New York and accompanied by a letter dated December 5, 2008 from the Deputy Superintendent of Banks for the State of New York informing ICE Trust that such articles were approved and filed in the Office of the Superintendent, (6) the restated articles of organization of ICE Trust, as approved by the Superintendent of Banks for the State of New York and accompanied by a letter from the Deputy Superintendent of Banks for the State of New York authorizing the restatement, accompanied by a certificate of the Secretary or Assistant Secretary of ICE Trust, dated as of the Closing, stating that no amendments have been made to such restated articles of organization since such date and, (7) the operating agreement (or similar organizational documents) of ICE Trust accompanied by a certificate of the Secretary of ICE Trust, dated as of the Closing, stating that such operating agreement is the current authorized and valid operating agreement of ICE Trust; and

     (v) (1) a good standing certificate for ICE GP from the Secretary of State of Delaware, dated as of a date not earlier than ten Business Days prior to the Closing, and (2) a good standing certificate for the Purchaser from the Registrar of Exempted Limited Partnerships in the Cayman Islands, dated as of a date not earlier than ten Business Days prior to the Closing.

          (e) At the Closing, the Purchaser shall deliver or cause to be delivered to the Escrow Agent, in accordance with the Escrow Agreement, the Aggregate Escrow Amount by wire transfer in immediately available funds to the accounts designated therefor in the Escrow Agreement as follows: (i) the Deferred Revenue Escrow Amount to be deposited in the Deferred Revenue Escrow Account; (ii) the Indemnity Escrow Amount to be deposited in the Indemnity Escrow Account; (iii) the Real Property Escrow Amount to be deposited in the Real Property Escrow Account; and (iv) the Working Capital Escrow Amount to be deposited in the Working Capital Escrow Account.

          (f) At the Closing, the Purchaser shall deliver or cause to be delivered to an account designated by the Stockholders’ Representative the Stockholders’ Representative Fund Amount by wire transfer of immediately available funds to the Stockholders’ Representative Account to be held and disbursed by the Stockholders’ Representative.

          (g) At the Closing, the Company shall pay by wire transfer of immediately available funds the Company Transaction Expenses set forth in Section 2.02(g) of the Company Disclosure Schedule to such accounts designated by the recipients thereof.

          SECTION 2.03.  Certificate of Incorporation; Bylaws; Directors and Officers .

          (a) At the Effective Time, the amended and restated certificate of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended as set forth in Exhibit C and, as so amended, shall be the Certificate of Incorporation of the Surviving Company until thereafter changed or amended as provided therein or by Delaware Law or other applicable Law.

          (b) At the Effective Time, the amended and restated bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended as set forth in Exhibit D and, as so amended, shall be the bylaws of the Surviving Company until thereafter changed or amended as provided therein or by Delaware Law or other applicable Law.

          (c) The managers of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Company and shall hold office until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and Bylaws of the Surviving Company.

          (d) The officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Company and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.

          SECTION 2.04.  Effect on Capital Stock . (a) Upon the terms and subject to the conditions contained in this Agreement, as of the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or any Stockholder:

     (i) With respect to each Share issued and outstanding immediately prior to the Effective Time (other than any Shares to be canceled pursuant to Section 2.04(a)(ii) and any Dissenting Shares (defined below)), (x) 20.56% of

each Share shall automatically, subject to Section 2.05 , be treated as contributed to the Purchaser in exchange for the Pro Rata Per Share Portion of the Purchaser Class B Interests and (y) 79.44% of each Share shall be converted automatically, subject to Section 2.05 , into the right to receive a Pro Rata Per Share Portion of the sum of (A) the Closing Date Cash Payment and (B) the Post-Closing Merger Consideration (the aggregate of (x) and (y), the “ Per Share Merger Consideration ”), payable and/or deliverable, in the manner provided in Section 2.05 , to the holder thereof, without any interest thereon, upon satisfaction of the Stockholder Delivery Requirements with respect to such Share; provided , however , that the percentages set forth in this Section 2.04(a)(i) shall be adjusted from time to time as set forth in Section 2.12 of the Company Disclosure Schedule;

     (ii) each Share held in the treasury of the Company immediately prior to the Effective Time shall automatically be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; and

     (iii) each issued and outstanding membership interest of Merger Sub shall be converted into and become 1,000 validly issued, fully paid and nonassessable shares of common stock, par value $0.01 per share of the Surviving Company.

          (b) For purposes of this Agreement:

     (i) “ Aggregate Cash Consideration ” means an amount equal to: (A) $34 million in cash (the “ Cash Consideration ”), plus (B) the amount of the Closing Cash Distribution, plus (C) the License Fee.

     (ii) “ Closing Cash Distribution ” means an amount equal to (v) the amount of Cash reflected on the Estimated Balance Sheet (“ Closing Cash ”), plus (w) the Estimated Working Capital Adjustment, if any, it being understood that in the event the Estimated Working Capital Adjustment is a negative number, the absolute value of the Estimated Working Capital Adjustment shall be deducted from the Closing Cash in order to determine the Closing Cash Distribution, minus (x) the Company Transaction Expenses payable at the Closing, it being understood that Closing Cash shall be determined prior to any payment of Company Transaction Expenses, minus (y) the Eurex Deferred Revenue Settlement Payment, it being understood that Closing Cash shall be determined prior to any payment of the Eurex Deferred Revenue Settlement Payment, minus (z) the New Chicago Lease Termination Payment, it being understood that Closing Cash shall be determined prior to any payment of the New Chicago Lease Termination Payment.

     (iii) “ Closing Date Cash Payment ” means an amount equal to (x) the Aggregate Cash Consideration, minus (y) the Aggregate Escrow Amount, minus (z) the Stockholders’ Representative Fund Amount.

     (iv) “ Closing Merger Consideration ” means the sum of (i) the Purchaser Class B Interests and (ii) the Closing Date Cash Payment.

     (v) “ Merger Consideration ” means the sum of (i) the Purchaser Class B Interests and (ii) the Aggregate Cash Consideration.

     (vi) “ Post-Closing Merger Consideration ” means an amount equal to the sum of (A) any amounts payable to Stockholders from the Escrow Funds (each such amount, an “ Escrow Distribution ”) in accordance with this Agreement and the Escrow Agreement, (B) any Stockholders’ Representative Fund Balance distributed to the Stockholders and (C) any NWC True-Up Payment Amount pursuant to Section 2.07(e)(i) hereof.

          (c) The Paying Agent (as defined below) and any parties making payments pursuant to this Agreement shall be entitled to deduct and withhold from the Per Share Merger Consideration and any amounts otherwise payable pursuant to this Agreement any amount such party is required to deduct and withhold with respect to the making of such payment under the Code or any applicable Law and such party agrees to timely remit all such amounts withheld to the applicable Governmental Authorities on behalf of any Stockholders from whom such amounts were withheld. Prior to such deduction or withholding, the Paying Agent shall use reasonable efforts to notify such holder of its intent to withhold or deduct any amount and such holder may provide any properly completed forms or certificates which may reduce the amount of Tax that the Paying Agent is required to deduct or withhold; provided , however , that failure to give such notice will not affect the Paying Agent’s obligation to withhold. To the extent that amounts are so withheld and remitted to the applicable Governmental Authorities, such withheld amounts shall be treated for purposes of this Agreement as having been paid to the Stockholder in respect of which such deduction and withholding was made.

          (d) All Shares, when converted as provided in Section 2.04(a) , shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate (“ Certificate ”) previously evidencing such Shares shall thereafter represent only the right to receive the Per Share Merger Consideration applicable to each Share underlying such Certificate. The Stockholders holding Certificates previously evidencing Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to the Shares except as otherwise provided herein or by Law and, upon satisfaction of the Stockholder Delivery Requirements, shall only represent the right to receive the Per Share Merger Consideration in exchange for each of their Shares.

          SECTION 2.05.  Allocation and Payment of Merger Consideration; Stock Transfer Books .

          (a) Closing Merger Consideration Payment Allocation Schedule. Section 2.05(a) of the Company Disclosure Schedule (the “ Closing Merger Consideration Payment Allocation Schedule ”), (i) lists all Stockholders as of the Closing, (ii) reflects the number of Shares held by each such Stockholder as of the Closing, (iii) reflects, as determined pursuant to the Company’s certificate of incorporation, this Agreement and applicable Law, the amount of the Closing Date Cash Payment payable to such Stockholder and the number of

Purchaser Class B Interests issuable to such Stockholder and (iv) reflects such Stockholder’s Pro Rata Portion.

          (b) Distribution of the Closing Merger Consideration.

     (i) Paying Agent . Purchaser hereby appoints as paying agent the Company (in such capacity, the “ Paying Agent ”) and upon the Effective Time, the Surviving Company hereby agrees to assume the role and responsibility of the Paying Agent. From and after the Effective Time, Paying Agent shall act as the paying agent in effecting the payment of (x) the Closing Merger Consideration to the Stockholders in accordance with the Closing Merger Consideration Payment Allocation Schedule and (y) any other amounts that may become payable to any Stockholder who was not a Surrendering Stockholder at the Effective Time pursuant to the applicable provisions of this Agreement. At the Effective Time, the Purchaser shall deposit, or cause to be deposited, with the Paying Agent the Closing Merger Consideration (such cash and interests being hereinafter referred to as the “ Surviving Company Fund ”) (it being understood that the deposit of the Closing Cash Distribution shall be made from funds of the Company and shall reflect a deemed redemption of Shares as described in Section 2.12 ), and shall cause the Paying Agent to make, and the Paying Agent shall make, payments of (A) the Closing Merger Consideration out of the Surviving Company Fund to the Surrendering Stockholders and (B) any other amounts that may become payable to any Stockholder who was not a Surrendering Stockholder at the Effective Time pursuant to the applicable provisions of this Agreement, in each case in accordance with this Agreement.

     (ii) Letter of Transmittal . As promptly as practicable after the Effective Time, the Purchaser shall cause the Paying Agent to mail to each Stockholder who did not satisfy the Stockholder Delivery Requirements at the Closing: (x) a Letter of Transmittal and (y) instructions for effecting the surrender of the Certificates in exchange for the Closing Merger Consideration. Upon satisfaction by a Stockholder of the Stockholder Delivery Requirements with respect to a Share (each, a “ Surrendered Share ”), such Stockholder (in such case, a “ Surrendering Stockholder ”) shall be entitled to receive in exchange therefor, and the Paying Agent shall promptly pay to such Surrendering Stockholder, the Closing Merger Consideration payable to such Surrendering Stockholder as set forth on the Closing Merger Consideration Payment Allocation Schedule in respect of the Surrendered Shares. If the Closing Merger Consideration (or any portion thereof) is to be delivered to any Person other than the Stockholder in whose name the Certificate formerly representing Surrendered Shares thereof is registered, it shall be a condition to such right to receive payment of such Closing Merger Consideration that the Certificate representing such Surrendered Share shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent the transfer or other similar taxes required by reason of payment of the Closing Merger Consideration to a Person other than the registered holder of the Certificate so surrendered, or shall establish to the satisfaction of the Paying Agent that such tax has been paid or is not applicable. Until the Stockholder Delivery Requirements are satisfied with respect to any Share, each Certificate shall be deemed at all times after the Effective Time to represent only the right

to receive upon satisfaction of the Stockholder Delivery Requirements the Per Share Merger Consideration for each Share represented thereby. No interest shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article II .

     (iii) The Surviving Company, as the Paying Agent, shall remain liable for payment of the Closing Merger Consideration to any Stockholder who shall have failed to perfect or who otherwise shall have withdrawn or lost such Stockholder’s rights to appraisal of such shares under Section 262 of the DGCL, payable in accordance with the Closing Merger Consideration Payment Allocation Schedule.

          (c)  Distribution of Post-Closing Merger Consideration . After the Closing, whenever any component of Post-Closing Merger Consideration becomes available for distribution to the Surrendering Stockholders, such component of Post-Closing Merger Consideration shall be distributed as follows:

     (i) with respect to any of the Escrow Funds, an Escrow Distribution by the Escrow Agent in accordance with the terms and provisions of the Escrow Agreement to each Surrendering Stockholder of an amount equal to the product of (A) the amount to be distributed pursuant to such Escrow Distribution, times (B) such Stockholder’s Pro Rata Portion;

     (ii) with respect to the Stockholders’ Representative Fund Balance, the distribution by the Stockholders’ Representative to each Surrendering Stockholder of an amount equal to the product of (A) the Stockholders’ Representative Fund Balance, times (B) such Stockholder’s Pro Rata Portion; and

     (iii) with respect to any NWC True-Up Payment Amount, the distribution by the Purchaser in accordance with Section 2.07(e)(i) to each Surrendering Stockholder of an amount equal to the product of (A) the NWC True-Up Payment Amount, times (B) such Stockholder’s Pro Rata Portion.

          (d)  Escheatment of Funds . Any portion of the Surviving Company Fund that remains undistributed for one year after the Effective Time shall be maintained in the Surviving Company Fund, and any Stockholder who has not theretofore complied with this Article II shall thereafter look only to the Surviving Company for, and the Surviving Company shall remain liable for, payment of the Closing Merger Consideration payable to such Stockholder in accordance with the terms and conditions of this Agreement and the Closing Merger Consideration Payment Allocation Schedule. Any portion of the Surviving Company Fund remaining unclaimed by any Stockholders as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Company free and clear of any claims or interest of any person previously entitled thereto. Neither the Purchaser nor the Surviving Company, as the Paying Agent or otherwise, shall be liable to any Stockholder for any Merger Consideration delivered to a public official pursuant to any abandoned property, escheat or similar Law.

          (e)  Stock Transfer Books . At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of Shares thereafter on the records of the Company.

          SECTION 2.06.  Appraisal Rights/Dissenting Shares .

          (a) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, Shares that are outstanding immediately prior to the Effective Time and that are held by any Stockholder who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Section 262 of the DGCL (such Shares, “ Dissenting Shares ” and such Stockholder, a “ Dissenting Stockholder ”) shall not represent the right to receive the Per Share Merger Consideration. Such Dissenting Stockholders shall be entitled to receive payment of the appraised value of such Dissenting Shares held by them in accordance with the provisions of such Section 262 of the DGCL, except that all Dissenting Shares held by Dissenting Stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Per Share Merger Consideration, without any interest thereon, upon surrender, in the manner provided in Section 2.05 , of the Certificate that formerly evidenced such Dissenting Shares.

          (b) The Surviving Company shall give the Purchaser (i) prompt notice of any demands for appraisal received by the Surviving Company, withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Surviving Company and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Surviving Company shall not, except with the prior written consent of the Purchaser, make any payment with respect to any demands for appraisal or offer to settle or settle any such demands.

          (c) Any portion of the Surviving Company Fund not payable to a Dissenting Stockholder after such Dissenting Stockholder shall have received payment of the appraised value of such Dissenting Shares shall be returned to the Purchaser.

          SECTION 2.07.  Net Working Capital Adjustment . The Net Working Capital shall be subject to adjustment after the Closing as specified in this Section 2.07 :

          (a) For purposes of this Agreement:

     (i) “ Closing Working Capital Adjustment ” means an amount (which may be expressed as a negative number) equal to the amount of the Net Working Capital as reflected on the Closing Balance Sheet.

     (ii) “ Estimated Working Capital Adjustment ” means an amount (which may be expressed as a negative number) equal to the amount of the Net Working Capital as reflected on the Estimated Balance Sheet.

     (iii) “ Final Working Capital Adjustment ” means an amount (which may be expressed as a negative number) equal to (x) the amount of the Closing Working Capital Adjustment less (y) the amount of the Estimated Working Capital Adjustment.

     (iv) “ Net Working Capital ” means an amount equal to the difference between the sum of the balances for each of the accounts set forth under Current Assets of the Company in Section 2.07(a)(iv) of the Company Disclosure Schedule attached hereto (and for no other accounts which constitute current assets) and the sum of the balances for each of the accounts set forth under Current Liabilities of the Company in Section 2.07(a)(iv) of the Company Disclosure Schedule (and for no other accounts which constitute current liabilities), determined in each instance as of the close of business on the Closing Date in accordance with Company GAAP; provided , however , that (A) to the extent any liability (1) is taken into account in the calculation of Net Working Capital, such liability shall not be taken into account for purposes of the Real Property Escrow Account or (2) is taken into account for purposes of the Real Property Escrow Account, such liability shall not be taken into account in the calculation of Net Working Capital and (B) no Company Transaction Expense for which a payment was made by or on behalf of the Company at the Closing, no Deferred Revenue and no Excess Capacity Liabilities shall be taken into account in determining Net Working Capital.

          (b)  Estimated Balance Sheet . The Company’s good faith determination of the Closing Balance Sheet (the “ Estimated Balance Sheet ”), together with the Company’s good faith determination of Net Working Capital and Deferred Revenue, without giving effect to the Merger or the transactions contemplated by this Agreement is set forth in Section 2.07(b) of the Company Disclosure Schedule.

          (c)  Closing Balance Sheet . As promptly as practicable, but in any event within 60 calendar days following the Closing, the Purchaser shall deliver to the Stockholders’ Representative the Closing Balance Sheet and a determination of Net Working Capital, without giving effect to the Merger or the transactions contemplated by this Agreement, each as prepared in good faith by the Purchaser.

          (d)  Disputes .

     (i) Within 30 calendar days after the Purchaser’s delivery of the Closing Balance Sheet to the Stockholders’ Representative, the Stockholders’ Representative may deliver a written notice (such notice, a “ Protest Notice ”) to the Purchaser of any objections that the amounts reflected on the Closing Balance Sheet and the Purchaser’s calculation of Net Working Capital (x) were not determined in accordance with the definition of Net Working Capital or (y) were arrived at based on mathematical or clerical error, and the basis therefor. In the event that less than all of the objections set forth in a Protest Notice are determined not to be valid or to have been made in violation of this Section 2.07(d)(i), then the Independent Accounting Firm shall make its

determination with respect to each other objection contained in such Protest Notice. If the Stockholders’ Representative timely delivers a Protest Notice to the Purchaser, then the Stockholders’ Representative and the Purchaser shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, conclusive and binding on the parties hereto. If the Stockholders’ Representative and the Purchaser are unable to reach a resolution with respect to all items in dispute within 20 Business Days after the receipt by the Purchaser of the Protest Notice, the Stockholders’ Representative and the Purchaser shall submit the items remaining in dispute for resolution to PricewaterhouseCoopers LLP (or, if such firm shall decline or is unable to act or is not, at the time of such submission, independent of the Company, the Stockholders’ Representative and the Purchaser, to another independent accounting firm of international reputation mutually acceptable to the Stockholders’ Representative and the Purchaser) (either PricewaterhouseCoopers LLP or a similarly qualified accounting firm to be mutually agreed by the Purchaser and the Stockholders’ Representative or such other accounting firm being referred to herein as the “ Independent Accounting Firm ”), which shall, within 30 Business Days after such submission, determine and report to the Stockholders’ Representative and the Purchaser upon such remaining disputed items, and such report shall be final, conclusive and binding on the Stockholders’ Representative and the Purchaser. In resolving any disputed item, the Independent Accounting Firm may not assign a value to any particular item greater than the greatest value for such item claimed by either the Stockholders’ Representative or the Purchaser or less than the lowest value for such item claimed by either such party, in each case as submitted to the Independent Accounting Firm. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Stockholders and the Purchaser in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by each such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted.

     (ii) In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators.

          (e)  Final Working Capital Adjustment . The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.07 upon the earliest of (x) the failure of the Stockholders’ Representative to deliver a Protest Notice to the Purchaser within 30 calendar days of the Purchaser’s delivery of the Closing Balance Sheet to the Stockholders’ Representative, (y) the resolution of all disputes, pursuant to Section 2.07(d)(i) , by the Stockholders’ Representative and the Purchaser, and (z) the resolution of all disputes, pursuant to Section 2.07(d)(i) , by the Independent Accounting Firm. Within three Business Days of the Closing Balance Sheet being deemed final, the Final Working Capital Adjustment shall be made as follows:

     (i) In the event that the Final Working Capital Adjustment is a positive amount (such amount, the “ NWC True-Up Payment Amount ”), (x) the

Purchaser shall pay each Surrendering Stockholder its Pro Rata Portion of the NWC True-Up Payment Amount and (y) the Purchaser and the Stockholders’ Representative shall cause the Escrow Agent to promptly pay a Pro Rata Portion of the aggregate amount in the Working Capital Escrow Fund (including all earnings thereon, but less any amounts payable by the Surrendering Stockholder for its portion of any fees and disbursements owed to the Independent Accounting Firm) to each Surrendering Stockholder. Amounts payable to any Stockholder which is not a Surrendering Stockholder (including as a Dissenting Stockholder) (in such case, “ Non-Surrendering Stockholder ”) shall be paid to the Paying Agent for distribution to such Non-Surrendering Stockholder at such time as such Stockholder becomes a Surrendering Stockholder or, in the case of a Dissenting Stockholder, pursuant to Section 2.06 .

     (ii) In the event that the Final Working Capital Adjustment is a negative number, the Purchaser and the Stockholders’ Representative shall direct the Escrow Agent to pay the lesser of (A) the absolute value of the Final Working Capital Adjustment and (B) the total amount remaining in the Working Capital Escrow Fund, to the Purchaser by wire transfer in immediately available funds from the Working Capital Escrow Fund. Notwithstanding anything to the contrary in this Agreement, the Purchaser acknowledges and agrees that the sole and exclusive source of satisfaction and payment for any amounts owed to the Purchaser pursuant to this Section 2.07 shall be the Working Capital Escrow Fund held by the Escrow Agent under the terms of the Escrow Agreement. In the event any amount is remaining in the Working Capital Escrow Fund (including all earnings thereon, but less any amounts payable by holders of Shares for their portion of any fees and disbursements owed to the Independent Accounting Firm) after making such payment to the Purchaser (the “ Working Capital Escrow Balance ”), the Purchaser and the Stockholders’ Representative shall cause the Escrow Agent to promptly pay to each Surrendering Stockholder such Surrendering Stockholder’s Pro Rata Portion of the Working Capital Escrow Balance. Amounts payable to any Non-Surrendering Stockholder shall be paid to the Paying Agent for distribution to such Non-Surrendering Stockholder at such time as such Stockholder becomes a Surrendering Stockholder or, in the case of a Dissenting Stockholder, pursuant to Section 2.06 hereof.

     (iii) All payments hereunder shall be by wire transfer in immediately available funds to such Surrendering Stockholder’s Bank Account or the bank account identified by the Purchaser, as applicable.

          (f)  Cooperation . In connection with the Final Working Capital Adjustment, the Purchaser will cause the Surviving Company to permit the Stockholders’ Representative and its representatives reasonable access to, and the right to make copies of, the Surviving Company’s books and records and other information and data, facilities and personnel, as may be reasonably requested (upon reasonable advance notice) in connection with, and only to the extent related to, the Stockholders’ Representative’s analysis of the Closing Balance Sheet and its preparation of any Protest Notice; provided , however , that in the event the Stockholders’

Representative meets with any of the Surviving Company’s personnel, the Stockholders’ Representative shall only be permitted to discuss the determination of Net Working Capital in accordance with the definition thereof in preparing the Closing Balance Sheet and in calculating Net Working Capital and the Surviving Company shall have the right to have its representatives attend and participate in such meetings; provided , further , that in the event the Stockholders’ Representative delivers a Protest Notice pursuant to Section 2.07(d) , neither the Purchaser nor the Company shall have any further obligations under this Section 2.07(f) . For the avoidance of doubt, the obligations of the Purchaser set forth in this Section 2.07(f) shall be the only obligations of the Surviving Company and the Purchaser with respect to the granting of access for the purposes of determining the Final Working Capital Adjustment.

          SECTION 2.08.  Escrow . At the Closing, the Stockholders’ Representative and the Purchaser shall enter into an Escrow Agreement with the Escrow Agent substantially in the form of Exhibit F (the “ Escrow Agreement ”). In accordance with the terms of the Escrow Agreement, the Purchaser shall deposit the Aggregate Escrow Amount by wire transfer in immediately available funds to the accounts designated therefor in the Escrow Agreement as specified therein and in Section 2.02(e) .

          SECTION 2.09.  Stockholders’ Representative Fund . The Paying Agent shall deposit the Stockholders’ Representative Fund Amount by wire transfer in immediately available funds to the Stockholders’ Representative Account.

          SECTION 2.10.  Key Property Lease . (a) From and after the Closing Date, the Purchaser, on behalf of itself, the Surviving Company and their respective Affiliates, on the one hand, and the Stockholders’ Representative, on behalf of the Stockholders, on the other hand, shall use their respective Reasonable Efforts from and after the Closing to terminate, assign or sublet the premises leased by the Company pursuant to the Key Real Property Lease (it being understood that the third party to which any assignment or sublease is made shall be reasonably creditworthy in view of the remaining obligations under the Key Real Property Lease) (the occurrence of any such termination, assignment or sublease, a “ Lease Resolution Event ”) and the Purchaser agrees to use, and to cause the Surviving Company to use, Reasonable Efforts to mitigate and otherwise minimize the costs associated with any such termination, assignment or sublease to the extent reasonably practicable. In the event the Stockholders’ Representative and the Purchaser agree in writing to effectuate a Lease Resolution Event with respect to the Key Real Property Lease, and such Lease Resolution Event results in payments and liability to the Company in an amount which is less than the Real Property Escrow Account, the Purchaser shall cause the Surviving Company to execute all documents and take all actions reasonably necessary to effectuate such Lease Resolution Event. Upon the incurrence of any out-of-pocket costs reasonably incurred by the Surviving Company after the Closing in connection with the Key Real Property Lease, such costs shall be paid to the Purchaser out of the Real Property Escrow Fund, to the extent available. Notwithstanding anything else to the contrary in this Agreement, the Purchaser acknowledges and agrees that the sole and exclusive source of satisfaction and payment for any amounts owed to the Purchaser, the Surviving Company or their respective Affiliates pursuant to this Section 2.10 shall be the Real Property Escrow Fund.

          (b) At such time that the final Lease Resolution Event has occurred with respect to the Key Real Property Lease and after the payment to the Purchaser of any out-of-

pocket costs in accordance with Section 2.10(a) incurred with respect to such Lease Resolution Event, then, in the event any amount is remaining in the Real Property Escrow Fund, including all earnings thereon (the “ Real Property Escrow Fund Balance ”), the Purchaser and the Stockholders’ Representative shall cause the Escrow Agent to promptly pay to each Surrendering Stockholder such Surrendering Stockholder’s Pro Rata Portion of the Real Property Escrow Fund Balance. Amounts payable to any Non-Surrendering Stockholder shall be paid to the Paying Agent for distribution to such Non-Surrendering Stockholder at such time as such Stockholder becomes a Surrendering Stockholder or, in the case of a Dissenting Stockholder, pursuant to Section 2.06 hereof.

          (c) Notwithstanding anything to the contrary in this Section 2.10 , to the extent that any Lease Resolution Event results in the return by the landlord of all or any portion of the security deposit applicable to the Key Real Property Lease or the Surviving Company receives a security deposit from any assignee or subtenant applicable to the Key Real Property Lease, then the Surviving Company shall promptly pay to each Surrendering Stockholder its Pro Rata Portion of any such amounts so received, with any amounts payable to any Non-Surrendering Stockholder to be paid by the Paying Agent at such time as such Stockholder becomes a Surrendering Stockholder or, in the case of a Dissenting Stockholder, pursuant to Section 2.06 hereof.

          (d) All payments made pursuant to this Section 2.10 shall be by wire transfer in immediately available funds to such Surrendering Stockholder’s Bank Account or the bank account identified by the Purchaser, as applicable.

          SECTION 2.11.  Deferred Revenue .

          (a) For a period of nine months following the Closing Date, the Purchaser, the Surviving Company and the Stockholders’ Representative shall use their respective Reasonable Efforts to effect a Deferred Revenue Resolution Event with respect to the Deferred Revenue, and the Purchaser agrees to use, and to cause the Surviving Company to use, Reasonable Efforts to mitigate and otherwise minimize the costs associated with any such Deferred Revenue Resolution Event to the extent reasonably practicable. Upon the incurrence of any out-of-pocket costs reasonably incurred by the Surviving Company or the Purchaser or their Affiliates after the Closing Date in connection with any Deferred Revenue Resolution Event, such costs shall be paid to the Purchaser out of the Deferred Revenue Escrow Fund, to the extent available. Notwithstanding anything to the contrary in this Agreement, the Purchaser acknowledges and agrees that the sole and exclusive source of satisfaction and payment for any amounts owed to the Purchaser, the Surviving Company or any of their Affiliates pursuant to this Section 2.11 shall be the Deferred Revenue Escrow Fund held by the Escrow Agent under the terms of the Escrow Agreement.

          (b) If at any time within nine months following the Closing Date, a Deferred Revenue Resolution Event occurs, then the Purchaser and the Stockholders’ Representative shall cause the Escrow Agent, promptly following such occurrence, to pay from the Deferred Revenue Escrow Fund to each Surrendering Stockholder such Surrendering Stockholder’s Pro Rata Portion of the Deferred Revenue, plus all earnings thereon held in the Deferred Revenue Escrow Fund and less any disbursements made with respect to such Deferred Revenue Resolution Event

pursuant to Section 2.11(a) , by wire transfer in immediately available funds to such Surrendering Stockholder’s Bank Account. Amounts payable to any Non-Surrendering Stockholder shall be paid to the Paying Agent for distribution to such Non-Surrendering Stockholder at such time as such Stockholder becomes a Surrendering Stockholder or, in the case of a Dissenting Stockholder, pursuant to Section 2.06 hereof.

          (c) On the date which is nine months following the Closing Date and following any payments due to the Surrendering Stockholders for any Deferred Revenue Resolution Event which has occurred prior to such date, all funds remaining in the Deferred Revenue Escrow Fund (including all earnings thereon) shall be paid to the Purchaser by wire transfer in immediately available funds to such bank account as the Purchaser shall designate and the Stockholders shall have no further rights with respect to any such funds.

          SECTION 2.12.  Agreed Tax Treatment . For all federal and state Income Tax purposes, the parties hereto agree to treat the transactions contemplated by this Agreement in the following manner and not to take any position that is inconsistent with such agreed Income Tax treatment: pursuant to an integrated plan (a) the redemption by the Company of 356,975.88370543 Shares from the Stockholders in exchange for the Closing Cash Distribution and the License Fee; (b) the purchase by ICE of 279,857.48108645 Shares from the Stockholders in exchange for the Cash Consideration; (c) the contribution by ICE to the Purchaser of the 279,857.48108645 Shares deemed purchased by ICE from the Stockholders pursuant to clause (b) of this Section 2.12 in a tax-free transaction pursuant to Section 721(a) of the Code (and any corresponding provision of state Income Tax law); and (d) the contribution by the Stockholders to the Purchaser of 164,825.63520812 Shares in exchange for the Purchaser Class B Interests in a tax-free transaction pursuant to Section 721(a) of the Code (and any corresponding provision of state Income Tax law); provided , however , that the numbers of Shares set forth in this Section 2.12 shall be adjusted from time to time as set forth in Section 2.12 of the Company Disclosure Schedule.

ARTICLE III

REPRESENTATIONS AND WARRANTIES
OF THE COMPANY

          Except as specifically set forth in the Company Disclosure Schedule (which is organized