This NonCompetition Agreement involves
Title: AGREEMENT RELATING TO NONCOMPETITION AND OTHER COVENANTS
Governing Law: Georgia Date: 5/17/2016
Industry: Investment Services Sector: Financial
NONCOMPETITION AND OTHER COVENANTS
AGREEMENT , dated as of _________, 20__ (this “ Agreement ”), by and between Intercontinental Exchange, Inc., a Delaware corporation (“ ICE ”), on its behalf and on behalf of each of its subsidiaries (each, a “ Subsidiary ” and, together with ICE, the “ Company ”), and the undersigned (“ You ”).
WHEREAS , You [have been appointed to] serve as a member of the board of directors of ICE and as a member of the board of directors of one or more Subsidiary; and
WHEREAS , in connection with the performance of Your duties as a director of ICE and/or a director of a Subsidiary, You have obtained or may obtain confidential information concerning the Company; and
WHEREAS , in connection with Your [appointment as a member of the board of directors of ICE and/or a member of the board of directors of a Subsidiary] [participation in ICE’s equity compensation plans and Your 20__ equity award], You have agreed to enter into an agreement with ICE, on its behalf and on behalf of each Subsidiary, in respect of certain obligations, inter alia , to keep information concerning the Company confidential, not to trade on material nonpublic information received from the Company, not enter into any arrangement that may give rise to a conflict of interest, not to engage in competitive activities as provided herein, and not to solicit the Company’s customers or employees.
NOW, THEREFORE , in consideration of the premises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You and the Company agree as follows:
1. Confidential Information . In the course of Your involvement in the Company’s activities or otherwise, You have obtained or may obtain confidential information concerning the Company’s businesses, strategies, operations, financial affairs, including, without limitation, details of customers and suppliers and their terms of business, technical processes, marketing plans, sales forecasts, results and forecasts (except to the extent that these are included in published audit reports), any proposal relating to acquisitions and divestments, any proposed expansions or contractions of activities, organizational and personnel matters (including information regarding any aspect of Your tenure as a director of ICE or a director of a Subsidiary), policies, procedures and other non-public matters, or concerning those of third parties and any other information which the Company or relevant Subsidiary could reasonably be expected to regard as confidential and any and all information which has been or may be derived or obtained from any such information. Such information (“ Confidential Information ”) may have been or be provided in written or electronic form or orally. In consideration of, and as a condition to, access or continued access to Confidential Information, and without prejudice to or limitation on any other confidentiality obligations imposed by agreement or by law, You hereby undertake to use and protect Confidential Information in accordance with any restrictions placed on its use or disclosure. Without limiting the foregoing, except as authorized by the Company or as required by law or by any regulatory authority to which You or the Company or a Subsidiary is subject, You may not disclose or allow disclosure of any Confidential Information, or of any information derived therefrom, in whatever form, to any person unless such person is a director, officer, employee, attorney or agent of the Company and, in Your reasonable good faith judgment, has a need to know the Confidential Information or information derived therefrom in furtherance of the business of the Company. The foregoing obligations will survive, and remain binding and enforceable notwithstanding Your resignation or earlier removal as a director of ICE or as a director of a Subsidiary. You acknowledge that all information relating to the Company is the property of the Company and you agree that to the extent that you hold that information at the time of your resignation or earlier removal as a director of the Company, You will return to ICE or the relevant Subsidiary the material that you hold (in whatever form) or, at the request of ICE or the relevant Subsidiary, destroy such information.
2. Trading on Material Nonpublic Information. During Your tenure as a director of ICE or as a director of a Subsidiary you will have access to material nonpublic information as defined in the “ICE Insider Trading Policy”, and you acknowledge that you have reviewed such policy and that you will not trade in the Company’s stock while you are in possession of material nonpublic information and that you will not use such information in trading in other companies’ stock.
3. Conflicts of Interest. During Your tenure as a director of ICE or as a director of a Subsidiary, You will not, without the consent of the board of directors thereof or the Chief Executive Officer of ICE, accept any other appointment or enter into any arrangement that conflicts or possibly may conflict with your position as a director of ICE or as a director of a Subsidiary, unless the appointment or arrangement cannot reasonably be regarded as likely to give rise to a conflict of interest or the matter has been authorized by the directors or the Chief Executive Officer of ICE. In event of any doubt, please consult the General Counsel of ICE in advance.
4. Noncompetition . During Your tenure as a director of ICE or as a director of a Subsidiary, and for a period of six (6) months following Your resignation, or earlier removal, as a director, You shall not engage in Restricted Activities anywhere in the world, without the prior written consent of the Chief Executive Officer or General Counsel of ICE. For purposes of this paragraph, “ Restricted Activities ” shall mean providing services in a sales, marketing, business development, consulting, advisory, fiduciary, managerial or supervisory capacity for (i) an exchange, clearing house or commodities or equities trading platform other than the Company (ii) an over-the-counter brokerage business, in each case where such services would relate to the trading of commodities, future contracts or financial derivatives or (iii) an entity that your board of directors discussed acquiring within the last six (6) months. You acknowledge and agree that the Restricted Activities would be competitive with the Company’s business, and that, in light of Your experience with the Company, the restrictions in this paragraph are a reasonable and narrow means of protecting the legitimate business interests of the Company. You further acknowledge and agree that a worldwide territory is necessary and appropriate because of the g