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INTERCONTINENTIALEXCHANGE,
INC.
EXECUTIVE BONUS PLAN
Section 1. Purpose. The purpose of the ICE, Inc.
Executive Bonus Plan (the “ Plan ”) is
provide an incentive to attract, retain and reward selected
executive officers of IntercontinentalExchange, Inc. (“
ICE ”) and its subsidiaries and affiliates
(together with ICE, and their and its successors and assigns, the
“ Company ”) to contribute to the
Company’s growth and profitability. It is intended that any
Bonus (as defined in Section 5(b) ) payable under this Plan
be considered “performance-based compensation” within
the meaning of Section 162(m)(4)(C) of the Internal Revenue
Code of 1986, as amended (the “ Code ”),
and the regulations thereunder, and this Plan shall be limited,
construed and interpreted accordingly.
Section 2. Administration.
(a)
General. Subject to Section 2(d) , this Plan
shall be administered by a committee (the “
Committee ”) appointed by the Board of
Directors of ICE (the “ Board ”), whose
members shall serve at the pleasure of the Board. The Committee at
all times shall be composed of at least two directors of ICE, each
of whom is an “outside director” within the meaning of
Section 162(m) of the Code and Treasury Regulation Section
1.162-27(e)(3). Unless otherwise determined by the Board, the
Committee shall be the Compensation Committee of the
Board.
(b) Role
of the Committee. The Committee shall have complete control
over the administration of this Plan, and shall have the authority
in its sole and absolute discretion to: (i) exercise all of
the powers granted to it under this Plan, including designating
individuals as participants in this Plan in accordance with
Section 4 and allocating a percentage of the Incentive
Pool (as defined in Section 5(a) ) to each Participant
in accordance with Section 5(a) ; (ii) construe,
interpret and implement this Plan; (iii) prescribe, amend and
rescind rules and regulations relating to this Plan, including
rules and regulations governing its own operations; (iv) make
all determinations and take all actions necessary or advisable in
administering this Plan (including, without limitation, calculating
the size of the Bonus payable to each Participant (as defined in
Section 4(a) ) and certifying the size of the Incentive
Pool; (v) correct any defect, supply any omission and
reconcile any inconsistency in this Plan; and (vi) amend this
Plan to reflect changes in or interpretations of applicable law,
rules or regulations.
(c)
Procedures; Decisions Final. Actions of the Committee shall
be made by the vote of a majority of its members. The determination
of the Committee on all matters relating to this Plan and any
amounts payable thereunder shall be final, binding and conclusive
on all parties.
(d)
Delegation. The Committee may allocate among its members and
may delegate some or all of its authority or administrative
responsibility to such individual or individuals who are not
members of the Committee as it shall deem necessary or appropriate;
provided , however , the Committee may not delegate
any of its authority or administrative responsibility hereunder if
such delegation would cause any Bonus payable under this Plan not
to be considered “performance-based compensation”
within the meaning of Section 162(m)(4)(C) of the Code and the
regulations thereunder, and any such attempted delegation shall not
be effective and shall be void ab initio .
(e) No
Liability. No member of the Board or the Committee or any
employee of the Company (each such person a “ Covered
Person ”) shall have any liability to any person
(including, without limitation, any Participant) for any action
taken or omitted to be taken or any determination made in good
faith with respect to this Plan, any Award or any Bonus. Each
Covered Person shall be indemnified and held harmless by ICE
against and from any loss, cost, liability or expense (including
attorneys’ fees) that may be imposed upon or incurred by such
Covered Person in connection with or resulting from any action,
suit or proceeding to which such Covered Person may be a party or
in which such Covered Person may be involved by reason of any
action taken or omitted to be taken under this Plan and against and
from any and all amounts paid by such Covered Person, with
ICE’s approval, in settlement thereof, or paid by such
Covered Person in satisfaction of any judgment in any such action,
suit or proceeding against such Covered Person, provided that ICE
shall have the right, at its own expense, to assume and defend any
such action, suit or proceeding and, once ICE gives notice of its
intent to assume the defense, ICE shall have sole control over such
defense with counsel of ICE’s choice. The foregoing right of
indemnification shall not be available to a Covered Person to the
extent that a court of competent jurisdiction in a final judgment
or other final
adjudication,
in either case, not subject to further appeal, determines that the
acts or omissions of such Covered Person giving rise to the
indemnification claim resulted from such Covered Person’s bad
faith, fraud or willful criminal act or omission. The foregoing
right of indemnification shall not be exclusive of, and shall not
be deemed to limit or modify, any other rights of indemnification
or the advancement of expenses to which Covered Persons may be
entitled under ICE’s Certificate of Incorporation or Bylaws,
as a matter of law, or otherwise, or any other power that ICE may
have to indemnify such persons or hold them harmless.
Section 3. Performance Period.
The Committee
shall designate the periods (each a “ Performance
Period ”) with respect to which a Participant may be
granted the opportunity to earn one or more payouts (his or her
“ Bonus ”) to the extent consistent with
Treasury Regulation Section 1.162-27(e)(2). The first
Performance Period shall commence no earlier than January 1,
2009. Unless otherwise determined by the Committee, the Performance
Period shall be ICE’s fiscal year. Performance Periods must
be consecutive and may not overlap.
Section 4. Eligibility and Participation.
(a)
Participants. Before the 90th day after the beginning of the
Performance Period, or otherwise in a manner not inconsistent with
Treasury Regulation Section 1.162-27(e)(2) (the “
Participation Date ”), the Committee shall
designate those executive officers of the Company who shall
participate in this Plan for each Performance Period (the “
Participants ”).
(b)
Changes During a Performance Period. Except as provided
below, the Committee shall have the authority at any time
(i) during the Performance Period to remove Participants from
this Plan for that Performance Period and (ii) before the
Participation Date (or otherwise in a manner not inconsistent with
Treasury Regulation Section 1.162-27(e)(2)) to add
Participants to this Plan for a particular Performance
Period.
Section 5. Bonus Amounts.
(a) Bonus
Pool. For each Performance Period, a bonus pool (the “
Incentive Pool ”) shall be established equal to
3.0% of ICE’s EBITDA (as defined below). By the Participation
Date (or otherwise in a manner not inconsistent with Treasury
Regulation Section 1.162-27(e)(2)), the Committee shall
allocate, in its sole discretion, a percentage of the Incentive
Pool to each Participant for the Performance Period (the
Participant’s “ Award ”);
provided , however , that the Award for any
Participant may not exceed 60% of the total Incentive Pool and the
sum of the Awards for the Incentive Pool for all Participants
cannot exceed 100% of the total Incentive Pool. For purposes of
this Plan, the term “ EBITDA ” means, for
the applicable Performance Period, ICE’s earnings before
interest, taxes, depreciation and amortization, the components of
which are reported in ICE’s annual report to stockholders or
as otherwise publicly reported.
(b)
Committee Discretion to Determine Bonus. The Committee has
the sole discretion to determine whether all or any portion of a
Participant’s Award will be paid, and the specific amount, if
any, to be paid to each Participant, subject in all cases to the
terms, conditions and limits of this Plan. The Committee may, at
any time, establish (and, once established, rescind, waive or
amend) additional conditions and terms of payment of Awards
(including, but not limited to, the achievement of other financial,
strategic or individual goals, which may be objective or
subjective) as it may deem desirable in carrying out the purposes
of this Plan. Notwithstanding anything to the contrary in this
Plan, the Committee may, in its sole discretion, reduce the Award
amount for any Participant for a particul
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