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As filed with the Securities and Exchange Commission on July 22, 2022

Registration No. 333-265709

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

INTERCONTINENTAL EXCHANGE, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   6200   46-2286804

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(IRS Employer

Identification No.)

5660 New Northside Drive

Atlanta, GA 30328

(770) 857-4700

(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)

Andrew J. Surdykowski, Esq.

General Counsel

Intercontinental Exchange, Inc.

5660 New Northside Drive

Atlanta, GA 30328

(770) 857-4700

(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)

 

 

With copies to:

 

Rory B. O’Halloran, Esq.

Cody L. Wright, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000

  Catherine M. Clarkin, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
 

Michael L. Gravelle, Esq.
Executive Vice President and

General Counsel
Black Knight, Inc.
601 Riverside Avenue
Jacksonville, Florida 32204
(904) 854-5100

   Edward D. Herlihy, Esq.
Jacob A. Kling, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000

 

 

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and upon completion of the merger.

If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.   ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.   ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the SEC, acting pursuant to said section 8(a), may determine.

 

 

 


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The information in the accompanying proxy statement/prospectus is not complete and may be changed. A registration statement relating to the shares of Intercontinental Exchange, Inc. common stock to be issued in the merger has been filed with the Securities and Exchange Commission. These securities may not be issued until the registration statement filed with the Securities and Exchange Commission is effective. The accompanying proxy statement/prospectus is not an offer to sell these securities and does not constitute the solicitation of an offer to buy these securities in any jurisdiction where the offer or sale of these securities is not permitted.

 

PRELIMINARY PROXY STATEMENT/PROSPECTUS

SUBJECT TO COMPLETION, DATED JULY 22, 2022

 

LOGO

MERGER PROPOSED—YOUR VOTE IS VERY IMPORTANT

 

Dear Stockholder of Black Knight, Inc.:   [                    ], 2022

On behalf of the board of directors of Black Knight, Inc., which we refer to as “Black Knight,” we are pleased to enclose the accompanying proxy statement/prospectus relating to the proposed transaction between Black Knight and Intercontinental Exchange, Inc., which we refer to as “ICE.” We are requesting that you take certain actions as a holder of Black Knight common stock.

The boards of directors of Black Knight and ICE have each unanimously approved an agreement that provides for the acquisition by ICE of Black Knight in a cash and stock transaction. Pursuant to the Agreement and Plan of Merger, dated as of May 4, 2022, among ICE, Sand Merger Sub Corporation, a wholly owned subsidiary of ICE, which we refer to as “Sub,” and Black Knight, which (as the same may be amended from time to time) we refer to as the “merger agreement,” Sub will merge with and into Black Knight, which we refer to as the “merger,” with Black Knight surviving as a wholly owned subsidiary of ICE.

The proposed merger is expected to leverage the strengths of both organizations and create a life-of-the-loan platform that should benefit consumers, lenders, servicers and all other participants in the mortgage ecosystem. We believe the addition of Black Knight’s technology solutions, real estate and mortgage-related data assets, analytics, and its team of mortgage and technology professionals will complement and strengthen ICE’s rapidly growing mortgage technology business. In addition, we believe that the combination of ICE’s and Black Knight’s complementary platforms will result in improvements in the mortgage lending process for borrowers and lenders by increasing automation and efficiencies that lower the cost of obtaining a mortgage, while harnessing data that can help current homeowners lower their monthly payments and lessen the likelihood of default.

In the merger, each outstanding share of common stock, par value $0.0001 per share, of Black Knight, which we refer to as the “Black Knight common stock” (except for shares held by Black Knight as treasury stock, by any of Black Knight’s subsidiaries (other than with respect to Black Knight’s Employee Stock Purchase Plan) or by ICE or any of ICE’s subsidiaries (including Sub), which we refer to collectively as “Excluded Shares,” or by any holder who has properly exercised and perfected such holder’s demand for appraisal rights under Section 262 of the General Corporation Law of the State of Delaware and not effectively withdrawn or lost such holder’s rights to appraisal, which we refer to collectively as “Appraisal Shares”) will, subject to the proration provisions of the merger agreement, be converted into, at the election of the holder thereof, the right to receive the following consideration, which we refer to as the “merger consideration”:

 

   

an amount in cash, which we refer to as the “Per Share Cash Consideration,” equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of 0.1440 multiplied by the average of the volume weighted averages of the trading prices of the common stock, par value $0.01 per share, of ICE, which we refer to as the “ICE common stock,” on the New York Stock Exchange, which we refer to as the “NYSE,” on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the effective time of the merger, which we refer to as the “merger effective time,” occurs, which we refer to as the “Closing 10-Day Average ICE VWAP”;

 

   

a number of validly issued, fully paid and nonassessable shares of ICE common stock, which we refer to as the “Per Share Stock Consideration,” as is equal to the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP; or

 

   

if no election is made by such holder, such Per Share Stock Consideration or Per Share Cash Consideration as is determined in accordance with the proration mechanism described below.

The election right for the holders of shares of Black Knight common stock will be subject to proration in accordance with the terms of the merger agreement, which is applicable in the event one form of merger


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consideration (i.e., cash or shares of ICE common stock) is undersubscribed or oversubscribed. The merger agreement provides that the aggregate amount of cash consideration will equal $10,505,000,000, which we refer to as the “Cash Component.” The total number of shares of Black Knight common stock that will convert into the right to receive the Per Share Cash Consideration will equal the quotient, rounded down to the nearest whole share, of (i) the Cash Component divided by (ii) the Per Share Cash Consideration. All the remaining shares of Black Knight common stock not receiving the Per Share Cash Consideration (other than Excluded Shares and Appraisal Shares) will be converted into the right to receive the Per Share Stock Consideration. If no election is made by a Black Knight stockholder, the merger consideration that stockholder will receive will be determined in accordance with the proration mechanism described above.

Based on the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) May 2, 2022, two trading days before the public announcement of the merger, of $118.34, the merger consideration represented approximately $85.04 in value for each share of Black Knight common stock. Based on the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) July 15, 2022, the last practicable trading day before the date of the accompanying proxy statement/prospectus, of $94.98, the merger consideration represented approximately $81.68 in value for each share of Black Knight common stock. The value of the merger consideration will fluctuate with the market price of ICE common stock and will be determined based on the Closing 10-Day Average ICE VWAP. Accordingly, the value of the merger consideration at the time of completion of the merger could be greater than, less than or the same as the value of the merger consideration on the date of the accompanying proxy statement/prospectus. We urge you to obtain current market quotations of ICE common stock (trading symbol “ICE”) and Black Knight common stock (trading symbol “BKI”).

Based on the current number of shares of Black Knight common stock and ICE common stock outstanding (excluding unvested Black Knight restricted stock awards held by Black Knight employees), ICE is expected to issue approximately 22.2 million shares of ICE common stock in the aggregate in the merger, with former holders of Black Knight common stock owning, in the aggregate, approximately four percent (4%) of the ICE common stock immediately following the merger (without giving effect to any shares of ICE common stock held by Black Knight stockholders prior to the merger).

The special meeting of holders of Black Knight common stock will be held on [            ] virtually via the Internet, at [            ], at [            ] eastern time. At the special meeting, we will ask the holders of Black Knight common stock to approve the merger and other related business. Information about the special meeting and the merger is contained in the accompanying proxy statement/prospectus. In particular, see “Risk Factors” beginning on page [        ]. We urge you to read the accompanying proxy statement/prospectus carefully and in its entirety.

Whether or not you plan to attend the special meeting, please vote as soon as possible to make sure that your shares are represented at the meeting. If you do not vote, it will have the same effect as voting “AGAINST” the merger.

Our board of directors unanimously recommends that holders of Black Knight common stock vote “FOR” each of the proposals to be considered at the special meeting.

 

LOGO

     

LOGO .

Joseph M. Nackashi

Chief Executive Officer

Black Knight, Inc.

     

Anthony M. Jabbour

Executive Chairman

Black Knight, Inc


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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE MERGER OR OTHER TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS OR THE SECURITIES TO BE ISSUED PURSUANT TO THE MERGER AGREEMENT UNDER THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS, NOR HAVE THEY DETERMINED IF THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

The accompanying proxy statement/prospectus is dated [                    ], 2022 and is first being mailed to Black Knight stockholders on or about [                    ], 2022.


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LOGO

Black Knight, Inc.

601 Riverside Avenue

Jacksonville, FL 32204

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON [                    ], 2022

To the Stockholders of Black Knight, Inc.:

On May 4, 2022, Black Knight, Inc., which we refer to as “Black Knight,” Intercontinental Exchange, Inc., which we refer to as “ICE,” and Sand Merger Sub Corporation, which we refer to as “Sub,” entered into an Agreement and Plan of Merger, which (as the same may be amended from time to time) we refer to as the “merger agreement,” a copy of which is attached as Annex A to the accompanying proxy statement/prospectus.

NOTICE IS HEREBY GIVEN that a special meeting of holders of Black Knight common stock, which we refer to as the “special meeting,” will be held virtually, solely by means of remote communication, on [            ], at [            ] eastern time. You will be able to attend the special meeting by visiting www.virtualshareholdermeeting.com/BKI2022SM, which we refer to as the “special meeting website,” and inserting the 16-digit control number included in your proxy card or voting instruction form provided by your bank, broker, trustee, nominee or other holder of record if you hold your shares of Black Knight common stock in “street name.” You will be able to vote your shares electronically over the Internet and submit questions online during the meeting by logging in to the special meeting website and using the control number. We are pleased to notify you of and invite you to the special meeting.

At the special meeting, you will be asked to consider and vote on the following matters:

 

   

Proposal to approve and adopt the merger agreement, which we refer to as the “merger proposal”;

 

   

Proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to Black Knight’s named executive officers that is based on or otherwise relates to the merger, which we refer to as the “compensation proposal”; and

 

   

Proposal to adjourn or postpone the special meeting, if necessary or appropriate, to solicit additional proxies if, immediately prior to such adjournment or postponement, there are not sufficient votes to approve the merger proposal or to ensure that any supplement or amendment to the accompanying proxy statement/prospectus is timely provided to holders of Black Knight common stock, which we refer to as the “adjournment proposal.”

The Black Knight board of directors has fixed the close of business on [            ] as the record date for the special meeting. Only holders of record of Black Knight common stock as of the close of business on the record date for the special meeting are entitled to notice of, and to vote at, the special meeting or any adjournment or postponement thereof.

The Black Knight board of directors unanimously recommends that holders of Black Knight common stock vote “FOR” the merger proposal, “FOR” the compensation proposal and “FOR” the adjournment proposal.

Under Delaware law, holders of Black Knight common stock who do not vote in favor of the merger proposal will have the right to seek appraisal and obtain payment in cash for the fair value of their shares of Black Knight common stock, as determined by the Court of Chancery of the State of Delaware, which we refer to as the “Court of Chancery,” if the merger is completed, but only if they strictly comply with the procedures prescribed by Delaware law. These procedures are summarized in “Appraisal Rights” beginning on page [        ] of the accompanying proxy statement/prospectus. In addition, the text of the applicable provisions of Delaware law is attached as Annex C to the accompanying proxy statement/prospectus.


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Your vote is important. We cannot complete the transactions contemplated by the merger agreement unless holders of Black Knight common stock approve the merger proposal. The affirmative vote of the holders of a majority of the outstanding shares of Black Knight common stock entitled to vote on the merger agreement is required to approve the merger proposal.

Each copy of the proxy statement/prospectus mailed to holders of Black Knight common stock is accompanied by a form of proxy card with instructions for voting.

Whether or not you plan to attend the special meeting, we urge you to please promptly complete, sign, date and return the accompanying proxy card in the enclosed postage-paid envelope or authorize the individuals named on the accompanying proxy card to vote your shares by calling the toll-free telephone number or by using the Internet as described in the instructions included with the accompanying proxy card. If your shares are held in the name of a bank, broker, trustee or other nominee, please follow the instructions on the voting instruction card furnished by such bank, broker, trustee or other nominee.

If you have any questions regarding the accompanying proxy statement/prospectus, you may contact Innisfree, Black Knight’s proxy solicitor, at:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Shareholders may call toll free: (877) 456-3402

Banks and Brokers may call collect: (212) 750-5833

By Order of the Board of Directors,

 

LOGO

Anthony M. Jabbour

Executive Chairman

Black Knight, Inc.


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REFERENCES TO ADDITIONAL INFORMATION

This proxy statement/prospectus incorporates important business and financial information about Intercontinental Exchange, Inc., which we refer to as “ICE,” and Black Knight, Inc., which we refer to as “Black Knight,” from other documents that ICE and Black Knight have filed with the U.S. Securities and Exchange Commission, which we refer to as the “SEC,” and that are contained in or incorporated by reference into this proxy statement/prospectus. For a listing of documents incorporated by reference into this proxy statement/prospectus, please see “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus. This information is available for you to review through the SEC’s website at www.sec.gov.

You may request copies of this proxy statement/prospectus and any of the documents incorporated by reference into this proxy statement/prospectus or other information concerning Black Knight, without charge, by telephone or written request directed to:

Attention: Investor Relations

Black Knight, Inc.

601 Riverside Avenue

Jacksonville, FL 32204

(904) 854-5100

You may also request a copy of this proxy statement/prospectus and any of the documents incorporated by reference into this proxy statement/prospectus or other information concerning ICE, without charge, by telephone or written request directed to:

Attention: Investor Relations

Intercontinental Exchange, Inc.

5660 New Northside Drive

Atlanta, GA 30328

(770) 857-4700

In order for you to receive timely delivery of the documents in advance of the special meeting of Black Knight stockholders to be held on [                    ], 2022, your request for such information must be received no later than five business days prior to the date of the special meeting, by [                    ], 2022.

The proxy statement/prospectus is also available in the Investor Relations section of Black Knight’s website at https://www.blackknightinc.com. The information on Black Knight’s website is not part of this proxy statement/prospectus. References to Black Knight’s website in this proxy statement/prospectus are intended to serve as textual references only.

 

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ABOUT THIS PROXY STATEMENT/PROSPECTUS

This document, which forms part of a registration statement on Form S-4 filed with the SEC by ICE (File No. 333-265709), constitutes a prospectus of ICE under Section 5 of the Securities Act of 1933, as amended, which we refer to as the “Securities Act,” with respect to the shares of common stock, par value $0.01 per share, of ICE, which we refer to as “ICE common stock,” to be issued to Black Knight stockholders pursuant to the Agreement and Plan of Merger, dated as of May 4, 2022, among ICE, Sand Merger Sub Corporation, a wholly owned subsidiary of ICE, and Black Knight (which, as it may be amended from time to time, we refer to as the “merger agreement”). This document also constitutes a proxy statement of Black Knight under Section 14(a) of the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act.” It also constitutes a notice of meeting with respect to the special meeting at which Black Knight stockholders will be asked to consider and vote upon a proposal to adopt the merger agreement.

ICE has supplied all information contained or incorporated by reference into this proxy statement/prospectus relating to ICE, and Black Knight has supplied all information contained or incorporated by reference into this proxy statement/prospectus relating to Black Knight.

ICE and Black Knight have not authorized anyone to provide you with information that is different from or in addition to that contained in or incorporated by reference into this proxy statement/prospectus. ICE and Black Knight do not take any responsibility for, or provide any assurance as to the reliability of, any other information others may give you. This proxy statement/prospectus is dated [                    ], 2022, and you should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than such date. Further, you should not assume that the information incorporated by reference into this proxy statement/prospectus is accurate as of any date other than the date of the incorporated document. Neither the mailing of this proxy statement/prospectus to Black Knight stockholders nor the issuance by ICE of shares of its common stock pursuant to the merger agreement will create any implication to the contrary.

 

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TABLE OF CONTENTS

 

QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING

     1  

SUMMARY

     16  

The Parties To The Merger

     16  

The Merger and the Merger Agreement

     17  

The Merger

     17  

Merger Consideration

     17  

Election Form

     19  

Treatment of Black Knight Equity Awards and the Black Knight ESPP

     20  

Financing of the Merger and Treatment of Existing Debt

     20  

Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors

     21  

Opinion of Black Knight’s Financial Advisor

     22  

Information About the Special Meeting

     22  

Interests of Black Knight’s Directors and Executive Officers in the Merger

     23  

Regulatory Approvals

     24  

Conditions to the Merger

     24  

Timing of the Merger

     25  

No Solicitation

     25  

Termination of the Merger Agreement

     25  

Termination Fees and Expense Reimbursement

     27  

Appraisal Rights

     28  

Accounting Treatment

     28  

Material United States Federal Income Tax Consequences

     29  

Comparison of Stockholder Rights

     29  

Listing of ICE Common Stock; Delisting and Deregistration of Black Knight Common Stock

     29  

Litigation Relating to the Merger

     30  

Risk Factors

     30  

COMPARATIVE MARKET PRICE DATA

     31  

FORWARD-LOOKING STATEMENTS

     32  

RISK FACTORS

     34  

Risks Related to the Merger

     34  

Risks Related to ICE after Completion of the Merger

     42  

INFORMATION ABOUT THE SPECIAL MEETING

     47  

Date, Time and Place of the Meeting

     47  

Matters to Be Considered

     47  

Recommendation of the Black Knight Board of Directors

     47  

Record Date and Quorum

     47  

Broker Non-Votes

     48  

Vote Required; Treatment of Abstentions and Failure to Vote

     48  

Attending the Special Meeting

     49  

Proxies

     49  

Shares Held in Street Name

     50  

Revocability of Proxies

     50  

Delivery of Proxy Materials

     51  

Solicitation of Proxies

     51  

Assistance

     52  

BLACK KNIGHT PROPOSALS

     53  

Proposal 1: Merger Proposal

     53  

Proposal 2: Compensation Proposal

     53  

 

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Proposal 3: Adjournment Proposal

     54  

THE PARTIES TO THE MERGER

     55  

ICE

     55  

Black Knight

     55  

Sand Merger Sub Corporation

     55  

THE MERGER

     56  

Terms of the Merger

     56  

Background of the Merger

     56  

Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors

     60  

Opinion of Black Knight’s Financial Advisor

     64  

Certain Unaudited Prospective Financial Information

     70  

Interests of Black Knight’s Directors and Executive Officers in the Merger

     73  

Director and Officer Indemnification

     79  

Financing of the Merger and Treatment of Existing Debt

     79  

Regulatory Approvals

     79  

Timing of the Merger

     80  

Accounting Treatment

     80  

Listing of ICE Common Stock; Delisting and Deregistration of Black Knight Common Stock

     80  

Litigation Relating to the Merger

     80  

ICE’s Dividend Policy

     81  

THE MERGER AGREEMENT

     82  

Explanatory Note Regarding the Merger Agreement

     82  

Structure of the Merger

     82  

Consideration to be Received in the Merger

     82  

Treatment of Black Knight Equity Awards

     87  

Closing and Effectiveness of the Merger

     89  

Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration

     89  

Representations and Warranties; Material Adverse Effect

     91  

Covenants and Agreements

     94  

Stockholder Meeting and Board Recommendation

     97  

Appropriate Action; Filings

     98  

No Solicitation

     99  

Adverse Recommendation Change; Certain Prohibited Actions

     100  

Employee Benefits Matters

     102  

Financing and Financing Cooperation

     103  

Directors’ and Officers’ Indemnification and Insurance

     103  

Other Covenants and Agreements

     104  

Conditions to the Merger

     104  

Termination of the Merger Agreement

     106  

Effect of Termination

     107  

Termination Fees and Expense Reimbursement

     107  

Expenses

     109  

Amendments, Extensions and Waivers

     109  

No Third-Party Beneficiaries

     109  

Governing Law; Jurisdiction; Waiver of Jury Trial

     110  

Specific Enforcement

     110  

MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES

     111  

UNAUDITED PRO FORMA CONDENSED COMBINED CONSOLIDATED FINANCIAL INFORMATION

     116  

 

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QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING

The following questions and answers are intended to briefly address some commonly asked questions regarding the merger, the merger agreement and the special meeting. We urge you to read carefully the remainder of this document because the information in this section may not provide all the information that might be important to you in determining how to vote. Additional important information is also contained in the annexes to, and the documents incorporated by reference in, this document. See “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

In this proxy statement/prospectus, unless the context otherwise requires:

 

   

“Black Knight” refers to Black Knight, Inc., a Delaware corporation;

 

   

“Black Knight board” refers to the board of directors of Black Knight;

 

   

“Black Knight bylaws” refers to the amended and restated bylaws of Black Knight, Inc. adopted on October 30, 2019;

 

   

“Black Knight charter” refers to the second amended and restated certificate of incorporation of Black Knight, Inc. dated June 13, 2019;

 

   

“Black Knight common stock” refers to the common stock of Black Knight, par value $0.0001 per share;

 

   

“ICE” refers to Intercontinental Exchange, Inc., a Delaware corporation;

 

   

“ICE board” refers to the board of directors of ICE;

 

   

“ICE bylaws” refers to the eighth amended and restated bylaws of Intercontinental Exchange, Inc. effective May 25, 2017;

 

   

“ICE charter” refers to the fifth amended and restated certificate of incorporation of Intercontinental Exchange, Inc. effective October 30, 2019;

 

   

“ICE common stock” refers to the common stock of ICE, par value $0.01 per share; and

 

   

“Sub” refers to Sand Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of ICE.

 

Q:

Why am I receiving this proxy statement/prospectus and proxy card?

 

A:

On May 4, 2022, Black Knight, ICE and Sub entered into an Agreement and Plan of Merger, which (as the same may be amended from time to time) we refer to as the “merger agreement.” Upon the terms and subject to the conditions set forth in the merger agreement, Sub will merge with and into Black Knight, which we refer to as the “merger,” with Black Knight surviving as a wholly owned subsidiary of ICE.

To complete the merger, among other things, the merger agreement must be adopted by the affirmative vote of the holders of a majority of the outstanding shares of Black Knight common stock entitled to vote thereon, which we refer to as the “Black Knight stockholder approval.” Black Knight is holding a special meeting of its stockholders, which we refer to as the “special meeting,” to obtain the Black Knight stockholder approval. Information about the special meeting, the merger, the merger agreement and the other business to be considered by stockholders at the special meeting is contained in this proxy statement/prospectus.

This proxy statement/prospectus constitutes both a proxy statement of Black Knight and a prospectus of ICE. It is a proxy statement because the Black Knight board is soliciting proxies from Black Knight’s stockholders. It is a prospectus because ICE will issue shares of ICE common stock in the merger.

This proxy statement/prospectus includes important information about the merger, the merger agreement, a copy of which is attached as Annex A to this proxy statement/prospectus, and the special meeting. Black

 

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Knight stockholders should read this information carefully and in its entirety. The enclosed voting materials allow stockholders to vote their shares without attending the special meeting.

 

Q:

What am I being asked to vote on at the special meeting?

 

A:

At the special meeting, holders of Black Knight common stock will be asked to consider and vote on the following proposals:

 

   

The merger proposal: Adoption of the merger agreement;

 

   

The compensation proposal: Approval, by an advisory (non-binding) vote, of the compensation that may be paid or become payable to Black Knight’s named executive officers that is based on or otherwise relates to the merger; and

 

   

The adjournment proposal: Approval of the adjournment or postponement of the special meeting, if necessary or appropriate, to solicit additional proxies if, immediately prior to such adjournment or postponement, there are insufficient votes at the time of the special meeting to approve the merger proposal, or to ensure that any supplement or amendment to this proxy statement/prospectus is timely provided to holders of Black Knight common stock.

In order to complete the merger, among other things, holders of Black Knight common stock must approve the merger proposal. None of the approvals of the compensation proposal or the adjournment proposal are conditions to the obligations of Black Knight or ICE to complete the merger.

 

Q:

Does my vote matter?

 

A:

Yes. The merger cannot be completed unless the merger agreement is adopted by Black Knight stockholders holding a majority of the outstanding shares of Black Knight common stock entitled to vote thereon at the special meeting. If you do not vote, it will be more difficult for Black Knight to obtain the necessary quorum to hold its special meeting. In addition, if you fail to submit a proxy or vote at the special meeting via the special meeting website, or vote to abstain, or you do not provide your bank, brokerage firm or other nominee with voting instructions, as applicable, this will have the same effect as a vote “AGAINST” the merger proposal. The Black Knight board unanimously recommends that stockholders vote “FOR” the merger proposal.

 

Q:

What is the vote required to approve each proposal at the Black Knight special meeting?

 

A:

Proposal 1: Merger proposal: Approval of the merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of Black Knight common stock entitled to vote on the merger agreement. If you mark “ABSTAIN” on your proxy, fail to submit a proxy or to vote at the special meeting or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the merger proposal, it will have the same effect as a vote “AGAINST” the merger proposal.

Proposal 2: Compensation proposal: Approval of the compensation proposal requires the affirmative vote of the holders of a majority of the shares of Black Knight common stock present or represented by proxy and entitled to vote at the special meeting. If you mark “ABSTAIN” on your proxy, it will have the same effect as a vote “AGAINST” the compensation proposal. If you fail to submit a proxy or to vote at the special meeting or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the compensation proposal, it will have no effect on the compensation proposal.

Proposal 3: Adjournment proposal: Approval of the adjournment proposal requires the affirmative vote of the holders of a majority of the shares of Black Knight common stock present or represented by proxy and entitled to vote at the special meeting. If you mark “ABSTAIN” on your proxy, it will have the same effect as a vote “AGAINST” the adjournment proposal. If you fail to submit a proxy or to vote at the special meeting or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the adjournment proposal, it will have no effect on the adjournment proposal.

 

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See “Information About the Special Meeting—Record Date and Quorum” and “Information About the Special Meeting—Vote Required; Treatment of Abstentions and Failure to Vote” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

 

Q:

How does the Black Knight board recommend that I vote at the special meeting?

 

A:

The Black Knight board unanimously recommends that Black Knight stockholders vote “FOR” the merger proposal, “FOR” the compensation proposal and “FOR” the adjournment proposal. In considering the recommendations of the Black Knight board, holders of Black Knight common stock should be aware that Black Knight directors and executive officers may have interests in the merger that are different from, or in addition to, the interests of holders of Black Knight common stock generally. For a more complete description of these interests, see the information provided in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

What factors did the Black Knight board consider in connection with the merger?

 

A:

In reaching its decision to adopt and approve the merger agreement, the merger and the other transactions contemplated by the merger agreement, and to recommend that its stockholders adopt the merger agreement, the Black Knight board evaluated the merger agreement, the merger and the other transactions contemplated by the merger agreement in consultation with Black Knight’s management, as well as Black Knight’s financial and legal advisors, and considered a number of factors, including positive factors and anticipated benefits of the merger as well as potential risks and potentially negative factors concerning the merger. Please see “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors,” beginning on page [        ] of this proxy statement/prospectus for a discussion of the factors considered by the Black Knight board.

 

Q:

Will the Black Knight board be required to submit the merger proposal to Black Knight stockholders even if the Black Knight board has withdrawn, modified or qualified its recommendation?

 

A:

Yes. Unless the merger agreement is terminated before the special meeting, Black Knight is required to submit the merger proposal to its stockholders even if the Black Knight board has withdrawn or modified its recommendation. For more information, please see “The Merger Agreement—Termination of the Merger Agreement” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

What will I receive if the merger is completed?

 

A:

If the merger is completed, at the effective time of the merger, which we refer to as the “merger effective time,” each outstanding share of Black Knight common stock (except for shares held by Black Knight as treasury stock, by any of Black Knight’s subsidiaries (other than with respect to Black Knight’s Employee Stock Purchase Plan, which we refer to as the “Black Knight ESPP”), or by ICE or any of ICE’s subsidiaries (including Sub), which we refer to collectively as “Excluded Shares,” or by any holder who has properly exercised and perfected such holder’s demand for appraisal rights under Section 262 of the General Corporation Law of the State of Delaware, which we refer to as the “DGCL,” and not effectively withdrawn or lost such holder’s rights to appraisal, which we refer to collectively as “Appraisal Shares”) will, subject to the proration provisions of the merger agreement, be converted into, at the election of the holder thereof, the right to receive the following consideration, which we refer to as the “merger consideration”:

 

   

an amount in cash, which we refer to as the “Per Share Cash Consideration,” equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of 0.1440, which we refer to as the “Share Ratio,” multiplied by the average of the volume weighted averages of the trading prices of ICE common stock on the New York Stock Exchange, which we refer to as the “NYSE,” on each of the ten consecutive trading

 

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days ending on (and including) the trading day that is three trading days prior to the date on which the merger effective time occurs, which we refer to as the “Closing 10-Day Average ICE VWAP”;

 

   

a number of shares of ICE common stock, which we refer to as the “Per Share Stock Consideration,” as is equal to the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP, which quotient we refer to as the “Exchange Ratio”; or

 

   

if no election is made by the holder, such Per Share Stock Consideration or Per Share Cash Consideration as is determined in accordance with the proration mechanism described below.

The election right for the holders of shares of Black Knight common stock will be subject to proration in accordance with the terms of the merger agreement, which is applicable in the event one form of merger consideration (i.e., cash or shares of ICE common stock) is undersubscribed or oversubscribed. The merger agreement provides that the aggregate amount of cash consideration will equal $10,505,000,000, which we refer to as the “Cash Component.” The total number of shares of Black Knight common stock that will convert into the right to receive the Per Share Cash Consideration will equal the quotient, rounded down to the nearest whole share, of (i) the Cash Component divided by (ii) the Per Share Cash Consideration. All the remaining shares of Black Knight common stock not receiving the Per Share Cash Consideration (other than Excluded Shares and Appraisal Shares) will be converted into the right to receive the Per Share Stock Consideration.

As of the execution of the merger agreement, the cash consideration comprised 80% of the value of the aggregate merger consideration and the stock consideration comprised 20% of the value of the aggregate merger consideration. The respective shares of the value of the aggregate merger consideration comprising cash and stock at the closing of the merger may be different based on the Closing 10-Day Average ICE VWAP and the number of shares of Black Knight common stock outstanding at that time.

No fractional shares of ICE common stock will be issued in the merger, and holders of Black Knight common stock will receive cash in lieu of any fractional shares of ICE common stock to which they otherwise would have been entitled, based on the Closing 10-Day Average ICE VWAP.

See “What happens if I am eligible to receive a fraction of a share of ICE common stock as part of the merger consideration?” below and “The Merger Agreement—Consideration to be Received in the Merger” and “The Merger Agreement—Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

 

Q:

What is the value of the merger consideration?

 

A:

Based on the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) May 2, 2022, two trading days before the public announcement of the merger, of $118.34, the merger consideration represented approximately $85.04 in value for each share of Black Knight common stock. Based on the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) July 15, 2022, the last practicable trading day before the date of this proxy statement/prospectus, of $94.98, the merger consideration represented approximately $81.68 in value for each share of Black Knight common stock.

Although the Cash Component is fixed, the value of the merger consideration will fluctuate with the market price of ICE common stock and will be determined based on the Closing 10-Day Average ICE VWAP. Accordingly, the value of the merger consideration at the time of completion of the merger could be greater than, less than or the same as the value of the merger consideration on the date of this proxy statement/prospectus. Neither ICE nor Black Knight is permitted to terminate the merger agreement as a result of any increase or decrease, in and of itself, in the market price of ICE common stock or Black Knight common stock. We urge you to obtain current market quotations of ICE common stock (trading symbol “ICE”) and Black Knight common stock (trading symbol “BKI”).

 

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In addition, although the Per Share Cash Consideration is intended to equal the value of the Per Share Stock Consideration, because the calculations are based on an average of the volume weighted averages of the trading prices of ICE common stock for the ten trading days ending on the trading day that is three trading days prior to the date on which the merger effective time occurs, the values of the two forms of consideration at the completion of the merger may not be the same.

 

Q:

What happens if I am entitled to receive a fraction of a share of ICE common stock as part of the merger consideration?

 

A:

If the aggregate number of shares of ICE common stock that you are entitled to receive as part of the merger consideration includes a fraction of a share of ICE common stock, you will receive cash in lieu of that fractional share. See “The Merger Agreement—Consideration to be Received in the Merger” and “The Merger Agreement—Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

 

Q:

How do I make an election to receive cash or ICE common stock for my Black Knight common stock?

 

A:

An election form will be mailed to each holder of record of Black Knight common stock as of the close of business on the fifth business day prior to the mailing date, which we refer to as the “election form record date.” The “election form mailing date” will be the date that is thirty (30) days prior to the anticipated closing date or such other date as Black Knight and ICE may agree. The election deadline is expected to be 5:00 p.m. eastern time on the date that ICE and Black Knight agree is as near as practicable to two (2) business days prior to the anticipated closing date. ICE and Black Knight will issue a joint press release announcing the date of the election deadline at least five (5), and no more than fifteen (15), business days prior to the election deadline. ICE will also make an election form available to any person that becomes a holder of Black Knight common stock between the election form record date and the election deadline upon request by that person. Each Black Knight stockholder should complete and return the election form (accompanied by duly executed transmittal materials included in the election form), along with the Black Knight stock certificate(s) to which the election form relates (or a properly completed notice of guaranteed delivery) unless the shares are held in book entry form, according to the instructions included with the form. The election form will be provided to Black Knight stockholders in a separate mailing and is not being provided with this proxy statement/prospectus.

If you own shares of Black Knight common stock in “street name” through a bank, brokerage firm or other nominee, you should follow the instructions of the bank, brokerage firm or other nominee for making an election with respect to your shares.

If you do not send in a properly completed election form (accompanied by duly executed transmittal materials included in the election form) with your stock certificate(s) or notice of guaranteed delivery (if applicable) by the election deadline (or deliver your stock certificate(s) within five (5) business days of your execution of a notice of guaranteed delivery), you will be treated as though you had not made an election.

 

Q:

Can I change my election as to the form of merger consideration?

 

A:

Yes. You can change your election as to the form of merger consideration you wish to receive by submitting a new election form to the exchange agent or, if applicable, by withdrawing your stock certificate(s), or the guarantee of delivery of such stock certificate(s), previously deposited with the exchange agent. For a new election form to be effective, the exchange agent must receive your new election form before the election deadline.

 

Q:

What happens if I fail to make a valid election as to whether to receive cash or stock?

 

A:

If you do not return a properly completed election form by the election deadline (accompanied by duly executed transmittal materials included in the election form), together with, if applicable, stock certificate(s)

 

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  to which the election form relates or an appropriate guarantee of delivery of the stock certificate(s), your shares of Black Knight common stock will be considered “non-election shares” and will be converted into the right to receive the Per Share Cash Consideration or the Per Share Stock Consideration according to the proration procedures set forth in the merger agreement.

 

Q:

Will I receive the form of consideration I elect?

 

A:

You may not receive the form of consideration that you elect in the merger with respect to some or all of your shares of Black Knight common stock. The election right for the holders of shares of Black Knight common stock will be subject to proration in accordance with the terms of the merger agreement, which is applicable in the event one form of merger consideration (i.e., cash or shares of ICE common stock) is undersubscribed or oversubscribed. Generally, in the event one form of merger consideration is undersubscribed, shares of Black Knight common stock for which no election was validly made will be allocated to that form of merger consideration before shares of Black Knight common stock electing the oversubscribed form of merger consideration will be allocated to the undersubscribed form of merger consideration pursuant to the proration procedures. Accordingly, although electing one form of merger consideration will not guarantee you will receive that form of merger consideration for all of your shares of Black Knight common stock, in the event proration is necessary, electing shares will be allocated the undersubscribed form of consideration only after such consideration is allocated to “non-election” shares.

 

Q:

Can I sell my shares of Black Knight common stock after I make my election to receive cash or stock?

 

A:

Yes, but after an election is validly made with respect to your shares of Black Knight common stock, you will not be able to transfer the shares unless you revoke your election before the election deadline by providing written notice to the exchange agent. In the time between the election deadline and the closing of the merger, the trading price of Black Knight common stock or ICE common stock may change, and you might otherwise want to sell your shares of Black Knight common stock to gain access to cash, make other investments, or reduce the potential for a decrease in the value of your investment. The date that you will receive your merger consideration depends on the completion date of the merger, which is uncertain. The completion date of the merger might be later than expected due to events not within the control of ICE or Black Knight, such as delays in obtaining regulatory approvals.

 

Q:

What will holders of Black Knight equity awards receive in the merger?

 

A:

At the merger effective time, each Black Knight restricted stock award that was granted (i) prior to the date of the merger agreement and that is subject to an award agreement that provides for full accelerated vesting upon a change in control or (ii) to a non-employee director will accelerate and vest in full (with any applicable “performance restriction” deemed satisfied) and be entitled to receive the merger consideration. Each other Black Knight restricted stock award will be assumed and converted into a restricted share award of ICE common stock with the same terms and conditions previously applicable to such Black Knight restricted stock award (except that each applicable “performance restriction” will be deemed satisfied), relating to the number of shares of ICE common stock subject to the Black Knight restricted stock award multiplied by the Exchange Ratio.

At the merger effective time, each then outstanding time-based Black Knight RSU award will accelerate and vest in full and be deemed settled for a number of shares of Black Knight common stock equal to the number of shares underlying the Black Knight RSU award, which will be converted into the right to receive the merger consideration.

See “The Merger Agreement—Treatment of Black Knight Equity Awards” beginning on page [        ] of this proxy statement/prospectus.

 

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Q:

What will happen to Black Knight as a result of the merger?

 

A:

If the merger is completed, Sub will be merged with and into Black Knight, with Black Knight surviving as a wholly owned subsidiary of ICE. As a result of the merger, Black Knight will no longer be a publicly held company. Following the merger, Black Knight common stock will be delisted from the NYSE and deregistered under the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act.”

 

Q:

What equity stake will Black Knight stockholders hold in ICE immediately following the merger?

 

A:

Based on the number of issued and outstanding shares of ICE common stock and Black Knight common stock as of the date of this proxy statement/prospectus, holders of shares of Black Knight common stock immediately prior to the closing of the merger are expected to hold, in the aggregate, approximately 4% of the issued and outstanding shares of ICE common stock immediately following the closing of the merger (including shares received in respect of equity awards and without giving effect to any shares of ICE common stock held by Black Knight stockholders prior to the merger).

 

Q:

What is and will be the ownership structure of the organization of ICE and Black Knight prior to the merger and following the merger?

 

A

The following diagrams illustrate in simplified terms the organization structure of ICE and Black Knight prior to and following the merger.

 

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Simplified Pre-Merger Structure:

The following diagram illustrates in simplified terms the organization structure of ICE and Black Knight prior to the merger. A list of the significant subsidiaries of ICE as of December 31, 2021 can be found in Exhibit 21.1 to the ICE Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and a list of the significant subsidiaries of Black Knight as of December 31, 2021 can be found in Exhibit 21.1 to the Black Knight Annual Report on Form 10-K for the fiscal year ended December 31, 2021, which are incorporated by reference into this proxy statement/prospectus.

LOGO

 

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Simplified Post-Merger Structure:

Based on the number of issued and outstanding shares of ICE common stock and Black Knight common stock as of the date of this proxy statement/prospectus, immediately after the merger, it is expected that current ICE stockholders will own approximately 96% of the ICE common stock and current Black Knight stockholders will own approximately 4% of the ICE common stock (without giving effect to any shares of ICE common stock held by Black Knight stockholders prior to the merger). The following diagram illustrates in simplified terms the post-closing structure.

 

LOGO

 

Q:

When do you expect the merger to be completed?

 

A:

ICE and Black Knight currently expect the merger to close in the first half of 2023. However, neither ICE nor Black Knight can predict the actual date on which the merger will be completed, or if the merger will be completed at all, because completion is subject to conditions and factors outside the control of both companies. Black Knight must first obtain the approval of holders of Black Knight common stock for the merger, and the parties must also obtain necessary regulatory approvals and satisfy certain other closing conditions.

 

Q:

What are the material United States federal income tax consequences of the merger to Black Knight stockholders?

 

A:

The exchange of shares of Black Knight common stock for the merger consideration pursuant to the merger will be a taxable transaction for United States federal income tax purposes. In general, for United States federal income tax purposes, a U.S. holder (as defined in “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus) who receives the merger

 

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  consideration in exchange for that U.S. holder’s shares of Black Knight common stock will generally recognize gain or loss equal to the difference, if any, between (i) the sum of the cash (including cash in lieu of any fractional share of ICE common stock) and the fair market value of the ICE common stock received by that U.S. holder in the merger and (ii) that U.S. holder’s adjusted tax basis in the Black Knight common stock exchanged therefor. With respect to a Black Knight stockholder that is a non-U.S. holder (as defined in “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus), subject to the discussion below regarding potential withholding, the exchange of shares of Black Knight common stock for the merger consideration pursuant to the merger generally will not result in tax to that non-U.S. holder under United States federal income tax laws unless that non-U.S. holder has certain connections with the United States.

In certain circumstances, a holder of shares of Black Knight common stock could be treated as receiving a dividend in an amount up to the cash consideration received by that holder in the merger. As a result of the possibility of that deemed dividend treatment, a non-U.S. holder of Black Knight common stock may be subject to United States withholding tax at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty) with respect to the cash consideration received in the merger.

For a more detailed description of the United States federal income tax consequences of the merger, please see “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus.

The United States federal income tax consequences of the merger to a particular holder of Black Knight common stock will depend on that holder’s individual situation. Holders of Black Knight common stock should consult their own tax advisors for a full understanding of the particular United States federal, state, local and non-United States tax consequences of the merger to them.

 

Q:

Who can vote at the special meeting?

 

A:

All holders of record of Black Knight common stock as of the close of business on [                    ], 2022, the record date for the special meeting, which we refer to as the “record date,” are entitled to receive notice of, and to vote at, the special meeting, or any postponement or adjournment of the special meeting scheduled in accordance with Delaware law. Attendance at the special meeting is not required to vote. See below and “Information About The Special Meeting—Proxies” beginning on page [        ] of this proxy statement/prospectus for instructions on how to vote your shares without attending the special meeting.

 

Q:

When and where is the special meeting?

 

A:

The special meeting will be held virtually at www.virtualshareholdermeeting.com/BKI2022SM, which we refer to as the “special meeting website,” on [                ], at [                ] eastern time.

Even if you plan to attend the special meeting, Black Knight recommends that you vote your shares in advance so that your vote will be counted if you later decide not to or become unable to attend the special meeting. For additional information about the special meeting, see “Information About the Special Meeting” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

Will my shares of ICE common stock acquired in the merger receive a dividend?

 

A:

After the closing of the merger, as a holder of ICE common stock (to the extent you receive any Per Share Stock Consideration) you will be entitled to receive the same dividends on shares of ICE common stock that all other holders of shares of ICE common stock will receive with any dividend record date that occurs after the merger is completed.

 

Q:

Why am I being asked to consider and vote on the compensation proposal?

 

A:

Under the rules of the Securities and Exchange Commission, which we refer to as the “SEC,” Black Knight is required to seek a non-binding, advisory vote with respect to the compensation that may be paid or become payable to Black Knight’s named executive officers that is based on or otherwise relates to the merger.

 

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Q:

What happens if holders of Black Knight common stock do not approve, by non-binding, advisory vote, the compensation proposal?

 

A:

The vote on the compensation proposal is separate and apart from the vote to approve the other proposals being presented at the special meeting. Because the vote on the compensation proposal is advisory only, it will not be binding upon Black Knight or ICE or affect their obligation to pay or provide the compensation contemplated by the compensation agreements and arrangements. Accordingly, the merger-related compensation will be paid to Black Knight’s named executive officers to the extent payable in accordance with the terms of their compensation agreements and arrangements even if the holders of Black Knight common stock do not approve the compensation proposal.

 

Q:

Do any of Black Knight’s directors or executive officers have interests in the merger that may differ from those of Black Knight stockholders?

 

A:

Black Knight’s directors and executive officers may have interests in the merger that are different from, or in addition to, those of Black Knight stockholders generally. The members of the Black Knight board were aware of and considered these interests, among other matters, in evaluating the merger agreement and the merger, and in recommending that Black Knight stockholders adopt the merger agreement. For a description of these interests, see “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

What is the difference between holding shares as a stockholder of record and as a beneficial owner?

 

A:

If your shares of Black Knight common stock are registered directly in your name with the transfer agent of Black Knight, Continental Stock Transfer & Trust Company, you are considered the stockholder of record with respect to those shares. As the stockholder of record, you have the right to vote or to grant a proxy for your vote directly to Black Knight or to a third party to vote at the special meeting.

If your shares are held by a bank, brokerage firm or other nominee, you are considered the beneficial owner of shares held in “street name,” and your bank, brokerage firm or other nominee is considered the stockholder of record with respect to those shares. Your bank, brokerage firm or other nominee will send you, as the beneficial owner, a package describing the procedure for voting your shares. You should follow the instructions provided by them to vote your shares.

 

Q:

If my shares of Black Knight common stock are held in “street name” by my bank, brokerage firm or other nominee, will my bank, brokerage firm or other nominee automatically vote those shares for me?

 

A:

If you hold your shares in a stock brokerage account or if your shares are held by a bank, broker, trustee or other nominee (that is, in “street name”), your bank, trustee, brokerage firm or other nominee will be permitted to vote your shares of Black Knight common stock only if you instruct your bank, trustee, brokerage firm or other nominee how to vote your shares. You should follow the procedures provided by your bank, trustee, brokerage firm or other nominee regarding the voting of your shares of Black Knight common stock. Please note that you may not vote shares held in “street name” by returning a proxy card directly to Black Knight or by voting at the special meeting unless you provide a “legal proxy,” which you must obtain from your bank, trustee, brokerage firm or other nominee. Brokers who hold shares of Black Knight common stock may not give a proxy to Black Knight to vote those shares on any of the proposals without specific instructions from their customers.

In accordance with the rules of NYSE, banks, trustees, brokerage firms and other nominees who hold shares of Black Knight common stock in “street name” for their customers have authority to vote on “routine” proposals when they have not received voting instructions from beneficial owners. However, banks, trustees, brokerage firms and other nominees are precluded from exercising their voting discretion with respect to non-routine matters. All proposals to be voted on at the special meeting will be “non-routine”

 

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matters. As a result, absent specific voting instructions from the beneficial owner of such shares, banks, brokerage firms and other nominees are not empowered to vote those shares of Black Knight common stock.

A so-called “broker non-vote” results when banks, brokerage firms, trustees and other nominees return a valid proxy but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting instructions from the beneficial owner of those shares. Broker non-votes count toward a quorum only if at least one proposal is presented with respect to which the bank, brokerage firm, trustee or other nominee has discretionary authority. All proposals to be voted on at the special meeting will be “non-routine” matters, and, therefore, broker non-votes, if any, will not be counted as present and entitled to vote for purposes of determining a quorum at the special meeting. The effect of not instructing your broker how you wish your shares to be voted will be the same as a vote “AGAINST” the merger proposal but will not have an effect on the adjournment proposal or the compensation proposal.

 

Q:

How many votes do I have?

 

A:

Each Black Knight stockholder is entitled to one vote for each share of Black Knight common stock held of record by that stockholder as of the record date. As of the close of business on the record date, there were [                ] outstanding shares of Black Knight common stock.

 

Q:

What constitutes a quorum for the special meeting?

 

A:

Holders of a majority of the total number of issued shares of Black Knight common stock as of the record date and entitled to vote at the special meeting must be present or represented by proxy at the special meeting to constitute a quorum for the transaction of business at the special meeting. If you fail to submit a proxy or to vote at the special meeting, or fail to instruct your bank, broker, trustee or other nominee how to vote, your shares of Black Knight common stock will not be counted towards a quorum. Marks to “ABSTAIN” on any proposal are considered present for purposes of establishing a quorum.

 

Q:

What do I need to do now?

 

A:

After carefully reading and considering the information contained in this proxy statement/prospectus, please vote as soon as possible. If you hold shares of Black Knight common stock, please respond by completing, signing and dating the accompanying proxy card and returning it in the enclosed postage-paid envelope, or by submitting your proxy by telephone or through the Internet, as soon as possible so that your shares may be represented at your meeting. If you hold shares beneficially in “street name,” you should follow the voting instructions provided by your bank, broker, trustee or other nominee.

 

Q:

How can I vote my shares while in attendance at the special meeting?

 

A:

Record holders: Shares held directly in your name as the holder of record of Black Knight common stock may be voted at the special meeting. If you choose to vote your shares of Black Knight common stock virtually at the special meeting via the special meeting website, please follow the instructions on your proxy card.

Shares in “street name”: If your shares of Black Knight common stock are held in “street name” and you wish to vote your shares at the special meeting via the special meeting website, you must have your specific 16-digit control number, which is included on your proxy card or the voting instruction form from your bank, broker, trustee or other nominee. Please contact your bank, broker, trustee or other nominee to obtain further instructions.

Even if you plan to attend the special meeting, Black Knight recommends that you vote your shares in advance as described below so that your vote will be counted if you later decide not to or become unable to attend the special meeting.

 

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Additional information on attending the special meeting can be found in “Information About The Special Meeting” on page [        ] of this proxy statement/prospectus.

 

Q:

How can I vote my shares without attending the special meeting?

 

A:

Whether you hold your shares directly as the holder of record of Black Knight common stock or beneficially in “street name,” you may direct your vote by proxy without attending the special meeting and we encourage you to do so.

If you are a record holder of Black Knight common stock, you can vote by proxy over the Internet, by telephone or by mail by following the instructions provided in the enclosed proxy card. Please note that if you hold shares beneficially in “street name,” you should follow the voting instructions provided by your bank, broker, trustee or other nominee.

If you intend to submit your proxy by telephone or via the Internet, you must do so by [                ] eastern time on the day before the special meeting. If you intend to submit your proxy by mail, your completed proxy card must be received prior to the special meeting.

Additional information on voting procedures can be found in “Information About The Special Meeting” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

How can I change or revoke my vote?

 

A:

If you are a holder of record of Black Knight common stock, you may revoke your proxy at any time before it is voted by:

 

   

submitting a written notice of revocation to Black Knight’s corporate secretary at c/o Corporate Secretary, Black Knight, Inc., 601 Riverside Avenue, Jacksonville, Florida 32204;

 

   

granting a subsequently dated proxy;

 

   

voting by telephone or the Internet at a later time, before [                ] eastern time on the day before the special meeting; or

 

   

attending virtually and voting at the special meeting via the special meeting website.

If you hold your shares of Black Knight common stock through a bank, broker, trustee or other nominee, you may change your vote by:

 

   

contacting your bank, broker, trustee or other nominee; or

 

   

attending and voting your shares at the special meeting virtually via the special meeting website if you have your specific 16-digit control number, which is included on your proxy card or the voting instruction form from your bank, broker, trustee or other nominee. Please contact your bank, broker, trustee or other nominee to obtain further instructions.

 

Q:

Are Black Knight stockholders entitled to appraisal rights?

 

A:

Yes, holders of Black Knight common stock who do not vote in favor of the merger proposal will have the right to seek appraisal and obtain payment in cash for the fair value of their shares of Black Knight common stock, as determined by the Court of Chancery, if the merger is completed, but only if they strictly comply with the procedures prescribed by Delaware law. These procedures are summarized in “Appraisal Rights” beginning on page [        ] of this proxy statement/prospectus.

A copy of Section 262 of the DGCL is attached as Annex C to this proxy statement/prospectus.

 

Q:

What should I do if I receive more than one set of voting materials?

 

A:

If you hold shares of Black Knight common stock in “street name” and also directly as a record holder or otherwise or if you hold shares of Black Knight common stock in more than one brokerage account, you may receive more than one set of voting materials relating to the special meeting.

 

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Record holders: For shares held directly, please complete, sign, date and return each proxy card you receive (or cast your vote by telephone or Internet as provided on your proxy card) or otherwise follow the voting instructions provided in this proxy statement/prospectus in order to ensure that all of your shares of Black Knight common stock are voted.

Shares in “street name”: If you hold your shares in “street name” through one or more banks, brokerage firms or other nominees, you should follow the procedures provided by each bank, brokerage firm or other nominee to vote your shares.

 

Q:

What happens if I sell my shares of Black Knight common stock before the special meeting?

 

A:

The record date is earlier than both the date of the special meeting and the merger effective time. If you transfer your shares of Black Knight common stock after the record date but before the special meeting, you will, unless you grant the transferee a proxy, retain your right to vote at the special meeting but will transfer the right to receive the merger consideration to the person to whom you transfer your shares. In order to receive the merger consideration, you must hold your shares immediately prior to the merger effective time.

 

Q:

Who will solicit and pay the cost of soliciting proxies?

 

A:

To assist in the solicitation of proxies, Black Knight has retained [        ], for a fee of $[        ] plus reimbursement of out-of-pocket expenses for their services. Black Knight may also request banks, brokers, trustees and other intermediaries holding shares of Black Knight common stock beneficially owned by others to send this proxy statement/prospectus to, and obtain proxies from, the beneficial owners and may reimburse those record holders for their reasonable out-of-pocket expenses in so doing. Solicitation of proxies by mail may be supplemented by telephone and other electronic means, advertisements and personal solicitation by the directors, officers or employees of Black Knight. No additional compensation will be paid to Black Knight’s directors, officers or employees for solicitation.

 

Q:

Should I send in my stock certificates now?

 

A:

No, please do NOT return your stock certificate(s) with your proxy. You should submit your Black Knight stock certificates with your election form, which will be sent to you at a future time. Any Black Knight stockholder who has not submitted their physical stock certificate(s) (or a properly completed notice of guaranteed delivery) with a form of election will be sent materials after the merger closes to effect the exchange of their Black Knight common stock for the merger consideration. See “The Merger Agreement—Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

Where can I find the voting results of the special meeting?

 

A:

The preliminary voting results are expected to be announced at the special meeting. In addition, within four (4) business days following the special meeting, Black Knight will file the voting results with the SEC on a Current Report on Form 8-K.

 

Q:

Are there any risks that I should consider in deciding whether to vote for the approval of the merger agreement?

 

A:

Yes. You should read and carefully consider the risk factors set forth in “Risk Factors” beginning on page [        ] of this proxy statement/prospectus. You also should read and carefully consider the risk factors of ICE and Black Knight contained in the documents that are incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

 

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Q:

What are the conditions to completion of the merger?

 

A:

The obligations of Black Knight and ICE to complete the merger are subject to the satisfaction or waiver of certain closing conditions contained in the merger agreement, including (i) the receipt of the Black Knight stockholder approval, (ii) the expiration or early termination of the waiting period applicable to the merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, which we refer to as the “HSR Act,” (iii) the absence of any law, injunction, order or other judgment, in each case whether temporary, preliminary or permanent, which we refer to collectively as a “Restraint,” that is in effect and restrains, enjoins or otherwise prohibits the consummation of the merger, (iv) the effectiveness of the registration statement on Form S-4 to register the shares of ICE common stock to be issued in the merger, (v) approval for listing on the NYSE of the shares of ICE common stock to be issued in the merger, (vi) compliance by the other party in all material respects with its obligations under the merger agreement and (vii) the accuracy of the other party’s representations and warranties in the merger agreement (subject to the materiality standards set forth in the merger agreement). The respective obligations of Black Knight and ICE to consummate the merger are also subject to there not having occurred since the date of the merger agreement an event that has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the other party (as defined in “The Merger Agreement—Representations and Warranties; Material Adverse Effect” beginning on page [        ] of this proxy statement/prospectus).

For a more complete summary of the conditions that must be satisfied or waived prior to completion of the merger, see “The Merger Agreement—Conditions to the Merger” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

What happens if the merger is not completed?

 

A:

If the merger is not completed, holders of Black Knight common stock will not receive any consideration for their shares of Black Knight common stock in connection with the merger. Instead, Black Knight will remain an independent public company, Black Knight common stock will continue to be listed on the NYSE, and ICE will not complete the issuance of shares of ICE common stock pursuant to the merger agreement. In addition, if the merger agreement is terminated in certain circumstances, a termination fee of $725 million may be payable by ICE to Black Knight or a termination fee of $398 million may be payable by Black Knight to ICE. In addition, if the merger agreement is terminated because Black Knight’s stockholders fail to approve the merger proposal at the special meeting, Black Knight will be required to reimburse ICE for its reasonable and documented out-of-pocket costs and expenses incurred in connection with the merger agreement and the merger in an amount not to exceed $40 million.

For additional information, see “The Merger Agreement—Termination Fees and Expense Reimbursement” beginning on page [        ] of this proxy statement/prospectus.

 

Q:

Who can help answer any other questions I have?

 

A:

If you have any questions about the merger or how to submit your proxy or voting instruction card, or if you need additional copies of this document or the enclosed proxy card or voting instruction card, you should contact Black Knight’s corporate secretary at c/o Corporate Secretary, Black Knight, Inc., 601 Riverside Avenue, Jacksonville, Florida 32204, or by telephone at (904) 854-5100, or Innisfree, Black Knight’s proxy solicitor, at:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Shareholders may call toll free: (877) 456-3402

Banks and Brokers may call collect: (212) 750-5833

 

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SUMMARY

The following summary highlights selected information in this proxy statement/prospectus and may not contain all the information that may be important to you. Accordingly, we encourage you to read carefully this entire proxy statement/prospectus, its annexes and the documents referred to in this proxy statement/prospectus. Each item in this summary includes a page reference directing you to a more complete description of that topic. You may obtain the information incorporated by reference into this proxy statement/prospectus without charge by following the instructions in “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

The Parties To The Merger (Page [        ])

Intercontinental Exchange, Inc.

ICE is a Delaware corporation headquartered in Atlanta, Georgia. ICE is a provider of market infrastructure, data services and technology solutions to a broad range of customers including financial institutions, corporations and government entities. ICE’s products, which span major asset classes, including futures, equities, fixed income and U.S. residential mortgages, provide its customers with access to mission critical tools that are designed to increase asset class transparency and workflow efficiency. While ICE reports its results in three reportable business segments, it operates as one business, leveraging the collective expertise, particularly in data services and technology, that exists across its platforms to inform and enhance its operations.

 

   

In its Exchanges segment, ICE operates regulated marketplaces for the listing, trading and clearing of a broad array of derivatives contracts and financial securities.

 

   

In its Fixed Income and Data Services segment, ICE provides fixed income pricing, reference data, indices, analytics and execution services as well as global credit default swap clearing and multi-asset class data delivery solutions.

 

   

In its Mortgage Technology segment, ICE provides a technology platform that offers customers comprehensive, digital workflow tools that aim to address the inefficiencies that exist in the U.S. residential mortgage market.

ICE’s principal executive offices are located at 5660 New Northside Drive, 3rd Floor, Atlanta, GA 30328. ICE’s main telephone number is (770) 857-4700, and its website is www.ice.com. Information contained on ICE’s website or that can be accessed through its website is not incorporated into and does not constitute a part of this proxy statement/prospectus. ICE has included its website address only as an inactive textual reference and does not intend it to be an active link to its website.

ICE common stock is listed on the NYSE under the symbol “ICE.”

Black Knight, Inc.

Black Knight is a Delaware corporation headquartered in Jacksonville, Florida. Black Knight is a premier provider of integrated, innovative, mission-critical, high-performance software solutions, data and analytics to the U.S. mortgage and real estate markets. Black Knight’s mission is to transform the markets it serves by delivering solutions that are integrated across the homeownership lifecycle and that result in realized efficiencies, reduced risk and new opportunities for clients to help them achieve greater levels of success. As of March 31, 2022, Black Knight had, on a consolidated basis, approximately $5.94 billion in total assets, total stockholders’ equity of approximately $2.45 billion and 160,040,598 shares of Black Knight common stock issued and 155,965,390 shares of Black Knight common stock outstanding.

Black Knight’s principal executive offices are located at 601 Riverside Avenue, Jacksonville, Florida 32204, and its telephone number at that address is (904) 854-5100. Black Knight’s website is www.blackknightinc.com.

 

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Information contained on Black Knight’s website or that can be accessed through its website is not incorporated into and does not constitute a part of this proxy statement/prospectus. Black Knight has included its website address only as an inactive textual reference and does not intend it to be an active link to its website.

Black Knight common stock is listed on the NYSE under the symbol “BKI.”

Sand Merger Sub Corporation

Sand Merger Sub Corporation, a wholly owned subsidiary of ICE, is a Delaware corporation incorporated on April 29, 2022 for the purpose of effecting the merger. Sand Merger Sub Corporation has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Sand Merger Sub Corporation are located at 5660 New Northside Drive Atlanta, Georgia 30328 and its telephone number is (770) 857-4700.

The Merger and the Merger Agreement (Pages [        ] and [        ])

The terms and conditions of the merger are contained in the merger agreement, a copy of which is attached as Annex A to this proxy statement/prospectus. We encourage you to read the merger agreement carefully and in its entirety, as it is the legal document that governs the merger.

The Merger (Page [        ]) On May 4, 2022, ICE, Black Knight and Sub entered into the merger agreement, which provides that, subject to the terms and conditions of the merger agreement and in accordance with the DGCL, Sub will merge with and into Black Knight, with Black Knight continuing as the surviving corporation and a wholly owned subsidiary of ICE.

Merger Consideration (Page [        ]) Black Knight stockholders will have the right to elect to receive merger consideration for each of their shares of Black Knight common stock in the form of either (i) the Per Share Cash Consideration, being cash in an amount equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of the Share Ratio, being 0.1440, multiplied by the Closing 10-Day Average ICE VWAP, or (ii) the Per Share Stock Consideration, being a number of shares of ICE common stock as is equal to the Exchange Ratio, being the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP, in each case, subject to proration in the circumstances described below. Black Knight stockholders may specify different elections with respect to different shares they hold. For example, if a Black Knight stockholder owns 100 shares of Black Knight common stock, that stockholder may make a cash election with respect to 50 shares and a stock election with respect to the other 50 shares. In the event of proration, a Black Knight stockholder may receive merger consideration in respect of some or all of the shares of Black Knight common stock held by that stockholder in a form other than the form which that stockholder elected.

The value of the merger consideration will fluctuate with the market price of ICE common stock and will be determined based on the Closing 10-Day Average ICE VWAP, being the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the merger effective time occurs. Although the Per Share Cash Consideration is intended to equal the value of the Per Share Stock Consideration, because the calculations are based on an average of the volume weighted averages of the trading prices of ICE common stock for the ten trading days ending on the trading day that is three trading days prior to the date on which the merger effective time occurs, the values of the two forms of consideration at the closing of the merger may not be the same.

The aggregate amount of cash to be paid to Black Knight stockholders is fixed in the merger agreement at $10,505,000,000. As a result, if the cash pool is oversubscribed or undersubscribed, then adjustments will be made to the merger consideration to proportionately reduce the number of shares of Black Knight common stock entitled to receive cash or shares of ICE common stock, respectively, in the manner described in “The Merger Agreement—Consideration to be Received in the Merger—Proration” beginning on page [        ] of this proxy

 

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statement/prospectus. To the extent that the number of outstanding shares of Black Knight common stock increases between the date of the merger agreement and the merger effective time, whether due to the vesting of stock-settled awards or as otherwise permitted by the merger agreement, the aggregate number of shares of ICE common stock to be issued as consideration in the merger will be increased accordingly, but the aggregate amount of cash to be paid as consideration will not change.

As an example, based on the average of the volume weighted averages of the trading prices of ICE common stock for the ten trading days ended May 2, 2022, two trading days prior to the public announcement of the merger, a Black Knight stockholder would be entitled to receive, for each share of Black Knight common stock held by that stockholder immediately prior to the merger effective time, either (a) $85.04 in cash or (b) 0.7186 shares of ICE common stock having a market value of $85.04 based on that average of the volume weighted averages of the trading prices of ICE common stock. As another example, based on the average of the volume weighted averages of the trading prices of ICE common stock for the ten trading days ended July 15, 2022, the last practicable trading day before filing of this proxy statement/prospectus, a Black Knight stockholder would be entitled to receive, for each share of Black Knight common stock held by that stockholder immediately prior to the merger effective time, either (a) $81.68 in cash or (b) 0.8599 shares of ICE common stock having a market value of $81.68 based on that average of the volume weighted averages of the trading prices of ICE common stock. We will compute the actual amount of cash or number of shares of ICE common stock that each Black Knight stockholder will be entitled to receive in the merger using the formula contained in the merger agreement. For a summary of the formula contained in the merger agreement, see “The Merger Agreement—Consideration to be Received in the Merger” beginning on page [        ] of this proxy statement/prospectus.

The following table illustrates the value of the merger consideration for different hypothetical Closing 10-Day Average ICE VWAPs and, for illustrative purposes only, the effects of proration assuming that 50% of the shares of Black Knight common stock elect cash consideration and 50% of the shares of Black Knight common stock elect stock consideration. For simplicity, the table assumes that there are 154,488,911 shares of Black Knight common stock outstanding (which represents the number of shares of Black Knight common stock outstanding, excluding unvested Black Knight restricted stock awards held by Black Knight employees (all of which are assumed to be converted into ICE restricted stock awards as described in “The Merger Agreement—Treatment of Black Knight Equity Awards—Treatment of Black Knight Restricted Stock Awards” beginning on page [        ] of this proxy statement/prospectus), on July 15, 2022), that all Black Knight stockholders make elections and that no Black Knight stockholders exercise appraisal rights.

 

          Illustrative Effect of Proration Assuming:
50% of shares of Black Knight common stock elect cash
50% of shares of Black Knight common stock elect stock
          A stockholder electing cash
consideration for 1,000 shares of
Black Knight common stock  would
be entitled to receive
approximately
   A stockholder electing stock
consideration for 1,000 shares of
Black Knight common stock  would
be entitled to receive
approximately

Hypothetical Closing 10-

Day Average ICE VWAP

   Value of
Merger Consideration*
   Cash**    Shares***    Cash**    Shares***
$80.00      $ 79.52      $ 79,520.00        0      $ 56,480.00        288
85.00        80.24        80,240.00        0        55,760.00        288
90.00        80.96        80,960.00        0        55,040.00        288
95.00        81.68        81,680.00        0        54,320.00        288
100.00        82.40        82,400.00        0        53,600.00        288
105.00        83.12        83,120.00        0        52,880.00        288
110.00        83.84        83,840.00        0        52,160.00        288
115.00        84.56        84,560.00        0        51,440.00        288
120.00        85.28        85,280.00        0        50,720.00        288
125.00        86.00        86,000.00        0        50,000.00        288
130.00        86.72        86,720.00        0        49,280.00        288

 

*

Market value per share of Black Knight common stock based on hypothetical Closing 10-Day Average ICE VWAP.

 

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**

Cash amount reflects cash in lieu of any fractional share.

***

Shares of ICE common stock.

The table above is illustrative only. The value of the merger consideration that a Black Knight stockholder becomes entitled to receive will be based on the actual Closing 10-Day Average ICE VWAP, as described above. The actual Closing 10-Day Average ICE VWAP may be outside the range of the amounts set forth above, and as a result, the actual value of the merger consideration per share of Black Knight common stock may not be shown in the above table.

Black Knight stockholders will not receive any fractional shares of ICE common stock in the merger. Instead, each Black Knight stockholder will be entitled to receive, in lieu of any fractional share of ICE common stock that the stockholder otherwise would have received pursuant to the merger, an amount in cash (without interest) equal to the product obtained by multiplying (A) the fractional share interest to which that stockholder would otherwise be entitled (taking into account all shares of Black Knight common stock held by that stockholder) by (B) the Closing 10-Day Average ICE VWAP.

Election Form (Page [        ])

ICE’s exchange agent for the merger will mail an election form on the date that is thirty days prior to the anticipated closing date of the merger or such other date as Black Knight and ICE may mutually agree, which we refer to as the “election form mailing date,” to holders of record of shares of Black Knight common stock as of the election form record date, being the close of business on the fifth business day prior to the election form mailing date, together with instructions for making cash and/or stock elections. The exchange agent will also make available an election form to all persons who become record or beneficial holders of shares of Black Knight common stock between the election form record date and the election deadline, upon the reasonable request of those persons.

The “election deadline” will be 5:00 p.m., New York City time, on a date that ICE and Black Knight agree is as near as practicable to two business days preceding the closing of the merger, which date will be publicly announced by joint press release at least five and no more than 15 business days prior to the election deadline.

Black Knight stockholders wishing to make an election must properly complete and deliver to the exchange agent an election form by the election deadline, accompanied by duly executed transmittal materials included in the election form, along with, if their shares are not held in book-entry form, their Black Knight stock certificates (or a properly completed notice of guaranteed delivery). The election form will also include delivery instructions with respect to book-entry shares. Black Knight stockholders should NOT send in their stock certificates with their proxy card.

Once Black Knight stockholders have tendered their Black Knight stock certificates to the exchange agent, they may not transfer their shares of Black Knight common stock represented by those stock certificates until the merger is completed, unless they revoke their election by written notice to the exchange agent that is received prior to the election deadline. If the merger is not completed and the merger agreement is terminated, stock certificates will be returned by the exchange agent.

If Black Knight stockholders fail to submit a properly completed election form, accompanied by duly executed transmittal materials included in the election form, together with their Black Knight stock certificates (or a properly completed notice of guaranteed delivery), if any, prior to the election deadline, they will be deemed not to have made an election. As non-electing holders, they will be paid merger consideration in an amount per share of Black Knight common stock that is approximately equivalent in value to the amount paid per share to holders making elections, but they may be paid all in cash, all in ICE common stock, or part in cash and

 

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part in ICE common stock, depending on the remaining pools of cash and ICE common stock available for paying merger consideration after honoring the cash elections and stock elections that other Black Knight stockholders have made, and without regard to the preferences of the non-electing holders.

For more information, see “The Merger—Terms of the Merger” beginning on page [        ] of this proxy statement/prospectus and “The Merger Agreement—Consideration to be Received in the Merger” beginning on page [        ] of this proxy statement/prospectus.

Treatment of Black Knight Equity Awards and the Black Knight ESPP (Page [        ])

Treatment of Black Knight Restricted Stock Awards

Each award of a share of Black Knight common stock subject to vesting, repurchase or other lapse restriction that was granted pursuant to Black Knight’s Amended and Restated 2015 Omnibus Incentive Plan, which we refer to as a “Black Knight restricted stock award,” that was granted (i) prior to the date of the merger agreement and under a form of award that provides for full accelerated vesting upon a change in control or (ii) to a non-employee director will accelerate and vest in full (with any applicable “performance restriction” deemed satisfied) and be entitled to receive the merger consideration. Each other outstanding Black Knight restricted stock award will be assumed and converted into a restricted share award of ICE common stock with the same terms and conditions previously applicable to such Black Knight restricted stock award (except that each “performance restriction” will be deemed satisfied), relating to the number of shares of ICE common stock subject to the Black Knight restricted stock award multiplied by the Exchange Ratio. In the event of a termination of the holder’s employment by the employer other than for cause or by the holder for good reason following the merger effective time, the converted restricted stock awards will vest in accordance with their terms.

Treatment of Black Knight Restricted Stock Unit Awards

Each time-based restricted stock unit award in respect of a share of Black Knight common stock that was granted pursuant to Black Knight’s Amended and Restated 2015 Omnibus Incentive Plan, which we refer to as a “Black Knight RSU award,” will accelerate and vest in full and be deemed settled for a number of shares of Black Knight common stock equal to the number of shares underlying the Black Knight RSU award, which will be converted into the right to receive the merger consideration.

Treatment of the Black Knight ESPP

No later than immediately prior to the merger effective time, all accumulated participant contributions under Black Knight’s Employee Stock Purchase Plan, which we refer to as the “Black Knight ESPP,” will be used to purchase shares of Black Knight common stock, with any such shares cancelled at the merger effective time and converted into the right to receive the merger consideration. Any participant contributions insufficient to purchase one whole share of Black Knight common stock immediately prior to the merger effective time, as well as any matching credits that would be allocated to each participant’s account assuming that the participant had remained an eligible person through each matching date without regard to the occurrence of the annual anniversary of each applicable quarter end for all participant contributions prior to the merger effective time, and disregarding the holding period requirement and any other restrictions or limitations, will be distributed to the participant in cash following the merger effective time. The Black Knight ESPP will terminate at the merger effective time.

Financing of the Merger and Treatment of Existing Debt (Page [        ])

In connection with the merger, ICE does not intend to maintain Black Knight’s existing term loan and revolving credit facilities. The merger agreement obligates Black Knight to use reasonable best efforts to arrange

 

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for a customary payoff letter and lien terminations to be delivered at the merger effective time providing for the payoff, discharge and termination of all indebtedness contemplated under Black Knight’s existing term loan and revolving credit facilities (subject to ICE or Sub providing funds to Black Knight as of the closing of the merger to pay all such amounts).

ICE’s obligation to complete the merger is not conditioned upon its obtaining financing. ICE anticipates that approximately $12.65 billion will be required to pay the aggregate cash portion of the merger consideration, to refinance all or a portion of the existing indebtedness of Black Knight and its subsidiaries and to pay fees and expenses relating to the merger and the related transactions. ICE intends to fund the cash consideration in the merger with a combination of available cash and permanent financing. In connection with entering into the merger agreement, ICE entered into a commitment letter, dated as of May 4, 2022, with Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC providing for a 364-day senior unsecured bridge facility in an aggregate principal amount not to exceed $14.0 billion consisting of a $8.225 billion tranche backstopping a combination of one or more series of unsecured notes or other debt securities in a public offering or in a Rule 144A offering or other private placement and operating internal cash generation prior to the merger effective time, a $3.775 billion tranche backstopping the existing revolving credit agreement, and a $2.0 billion tranche backstopping a new delayed draw term loan facility.

On May 11, 2022, ICE entered into an amendment to its existing revolving credit agreement and, as a result thereof and in accordance with the terms of the commitment letter, the $3.775 billion tranche of the bridge facility backstopping the existing revolving credit agreement was automatically and permanently terminated. On May 20, 2022, the net proceeds generated by certain asset sales (the gross proceeds of which were $749 million) were applied, together with a further voluntary commitment reduction, to reduce by $749 million the $8.225 billion tranche A of the bridge facility backstopping a combination of one or more series of unsecured notes or other debt securities in a public offering or in a Rule 144A offering or other private placement and operating internal cash generation in accordance with the terms of the commitment letter. On May 23, 2022, ICE completed the public offering and issuance of $8.0 billion of unsecured notes, of which $5.275 billion in gross cash proceeds were applied to further reduce tranche A of the bridge facility. In addition, on May 25, 2022, tranche A of the bridge facility was further reduced by $400 million in loan proceeds from the effectiveness of a new delayed draw term loan facility. As a result of the foregoing, on May 25, 2022, the $8.225 billion tranche A of the bridge facility was permanently reduced to $1.801 billion. On June 30, 2022, tranche A of the bridge facility was further voluntarily and permanently reduced by an additional $601 million to $1.2 billion.

Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors (Page [        ])

The Black Knight board has determined that the merger, the merger agreement and the transactions contemplated by the merger agreement are advisable, fair to and in the best interests of Black Knight and its stockholders and has unanimously adopted and approved the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Black Knight board unanimously recommends that holders of Black Knight common stock vote “FOR” the Black Knight merger proposal, “FOR” the Black Knight compensation proposal and “FOR” the Black Knight adjournment proposal.

For a more detailed discussion of the Black Knight board’s recommendation, see “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors” beginning on page [        ] of this proxy statement/prospectus.

 

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Opinion of Black Knight’s Financial Advisor (Page [        ])

On May 4, 2022, J.P. Morgan Securities LLC, which we refer to as “J.P. Morgan,” delivered its written opinion to the Black Knight board that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the aggregate merger consideration to be received by the holders of Black Knight common stock in the merger, which we refer to as the “Aggregate Consideration,” was fair, from a financial point of view, to the holders of Black Knight common stock.

The full text of the written opinion of J.P. Morgan, dated as of May 4, 2022, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex B to this proxy statement/prospectus and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this proxy statement/prospectus is qualified in its entirety by reference to the full text of such opinion. Black Knight’s stockholders are urged to read the opinion in its entirety. J.P. Morgan’s opinion was addressed to the Black Knight board (in its capacity as such) in connection with and for the purposes of its evaluation of the merger, was directed only to the Aggregate Consideration to be paid to the holders of Black Knight common stock in the merger and did not address any other aspect of the merger. J.P. Morgan expressed no opinion as to the fairness of any consideration to be paid in connection with the merger to the holders of any other class of securities, creditors or other constituencies of Black Knight, or as to the underlying decision by Black Knight to engage in the merger. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. J.P. Morgan’s opinion is not a recommendation to any stockholder of Black Knight as to how such stockholder should vote with respect to the merger proposal or any other matter. For a description of the opinion that the Black Knight board received from J.P. Morgan, see “The Merger—Opinion of Black Knight’s Financial Advisor” beginning on page [        ] of this proxy statement/prospectus.

Information About the Special Meeting (Page [        ])

The special meeting will be held virtually on [                ] at [                ], at [                ], eastern time. At the special meeting, holders of Black Knight common stock will be asked to vote on the following matters:

 

   

approval of the merger proposal;

 

   

approval of the compensation proposal; and

 

   

approval of the adjournment proposal.

You may vote at the special meeting if you owned shares of Black Knight common stock at the close of business on [                ]. On that date, there were [                ] shares of Black Knight common stock outstanding, approximately [                ]% of which were owned and entitled to be voted by Black Knight directors and executive officers and their affiliates. Black Knight currently expects that Black Knight’s directors and executive officers will vote their shares in favor of the merger and the other proposals to be considered at the special meeting, although none of them has entered into any agreements obligating them to do so.

The merger proposal will be approved if the holders of a majority of the outstanding shares of Black Knight common stock entitled to vote at the special meeting vote in favor of the merger proposal. The compensation proposal and the adjournment proposal will each be approved if a majority of the shares of Black Knight common stock present or represented by proxy and entitled to vote at the special meeting are voted in favor of that proposal. If you mark “ABSTAIN” on your proxy, fail to submit a proxy or vote at the special meeting via the special meeting website or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the merger proposal, it will have the same effect as a vote “AGAINST” the merger proposal. If you mark “ABSTAIN”

 

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on your proxy with respect to the compensation proposal or the adjournment proposal, it will have the same effect as a vote “AGAINST” such proposal. If you fail to submit a proxy or vote at the special meeting via the special meeting website or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the compensation proposal or the adjournment proposal, it will have no effect on that proposal.

Interests of Black Knight’s Directors and Executive Officers in the Merger (Page [        ])

In considering the recommendation of the Black Knight board with respect to the merger, Black Knight’s stockholders should be aware that the directors and executive officers of Black Knight may have certain interests in the merger that are different from, or in addition to, the interests of Black Knight stockholders generally. The Black Knight board was aware of these interests and considered them, among other matters, in making its recommendation that Black Knight’s stockholders vote to approve the merger proposal, the compensation proposal and the adjournment proposal. These interests include, among others, the following:

 

   

Each of Black Knight’s executive officers holds outstanding Black Knight restricted stock awards that will be converted into ICE restricted stock awards with any applicable “performance restriction” deemed satisfied. All such converted restricted stock awards will remain subject to “double-trigger” vesting upon a termination without cause or for good reason following the merger effective time. Using the assumptions described in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus, the aggregate amount that Black Knight’s executive officers may receive upon a qualifying termination in connection with the merger with respect to their outstanding Black Knight restricted stock awards is $35,188,640;

 

   

Outstanding Black Knight restricted stock awards and Black Knight RSU awards held by Black Knight’s non-employee directors and the Chairman Emeritus will vest at the merger effective time;

 

   

Messrs. Jabbour, Nackashi and Larsen hold unvested Class B units of Optimal Blue Holdco, LLC, which we refer to as “Optimal Blue,” a subsidiary of Black Knight. The merger will constitute a “Black Knight Change of Control” under Optimal Blue’s LLC agreement and give all holders the right to elect that Optimal Blue redeem their vested and unvested Class B units concurrently with the merger. Using the assumptions described in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus, the aggregate amount that Black Knight’s executive officers may receive if all such officers elected to redeem their unvested Class B units of Optimal Blue as of July 15, 2022 is $34,593,300;

 

   

All matching credits with respect to participant contributions made to the Black Knight ESPP prior to closing will accelerate (disregarding the holding period or any applicable restrictions or limitations) and become payable in cash to participants, including the executive officers, at the merger effective time. As of July 15, 2022, the aggregate amount of the executive officers’ matching credits that would be accelerated if the merger effective time occurred on that same date was $135,912;

 

   

Black Knight’s executive officers are party to employment agreements that provide for severance payments and benefits in connection with a qualifying termination of employment. Using the assumptions described in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus, the aggregate amount that Black Knight’s executive officers may receive if all such officers experienced a qualifying termination as of July 15, 2022 is $14,600,080;

 

   

Black Knight will determine pro-rated annual incentive payments to be made under the Black Knight annual bonus programs for the portion of the fiscal year that has elapsed as of the merger effective time, which will be paid in the first quarter of the following calendar year subject to an executive officer’s continued employment through the payment date (unless a severance qualifying termination occurs prior to such payment date);

 

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In accordance with the preexisting terms of his employment agreement and the terms of the merger agreement, the Compensation Committee may determine to pay Mr. Jabbour a discretionary bonus in the amount of $40 million in connection with the sale of Black Knight, subject to terms and conditions to be established by the Compensation Committee; and

 

   

Black Knight’s directors and executive officers are entitled to continued indemnification and directors’ and officers’ liability insurance and fiduciary liability insurance coverage pursuant to terms of the merger agreement.

For more information, see “The Merger—Background of the Merger” beginning on page [        ] of this proxy statement/prospectus and “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors” beginning on page [        ] of this proxy statement/prospectus. These interests are described in more detail below, and certain of them are quantified in the narrative and in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus.

Regulatory Approvals (Page [        ])

Under the HSR Act and related rules, certain transactions, including the merger, may not be completed until notifications have been given and information furnished to the Antitrust Division of the United States Department of Justice, which we refer to as the “Antitrust Division,” and the United States Federal Trade Commission, which we refer to as the “FTC,” and all statutory waiting period requirements have been satisfied. Completion of the merger is subject to the expiration or earlier termination of the applicable waiting period under the HSR Act. ICE and Black Knight each filed their respective HSR Act notification forms on May 18, 2022. On June 17, 2022, the parties each received a Request for Additional Information and Documentary Material, which we refer to as a “Second Request,” from the FTC with respect to the merger. Accordingly, the HSR waiting period will expire 30 days after ICE and Black Knight each certify their substantial compliance with the Second Request, unless earlier terminated by the FTC or extended by agreement of the parties or court order.

At any time before or after the completion of the merger, and notwithstanding the termination of applicable waiting periods, the applicable U.S. antitrust authorities or any state attorney general could take such action under the antitrust laws as any such party deems necessary or desirable in the public interest. In addition, in some circumstances, a third party could initiate a private action under antitrust laws challenging, seeking to enjoin, or seeking to impose conditions on the merger.

There can be no assurance that a challenge to the merger on antitrust grounds will not be made or, if such a challenge is made, that it would not be successful. ICE and Black Knight may not prevail and may incur significant costs in defending or settling any such action.

See “The Merger—Regulatory Approvals” beginning on page [        ] of this proxy statement/prospectus.

Conditions to the Merger (Page [        ])

In addition to the receipt of the Black Knight stockholder approval, and the expiration or early termination of the waiting period applicable to the consummation of the merger under the HSR Act, each party’s obligation to complete the merger is also subject to the satisfaction or waiver (to the extent permitted under applicable law) of certain other customary conditions, including the following: the effectiveness of the registration statement on Form S-4 of which this proxy statement/prospectus forms a part (and the absence of any stop order, or proceedings seeking a stop order, by the SEC); approval for listing on the NYSE of the shares of ICE common stock to be issued in the merger; the absence of any Restraint that is in effect and restrains, enjoins or otherwise prohibits the consummation of the merger; the accuracy of the other party’s representations and warranties in the merger agreement (subject to the materiality standards set forth in the merger agreement); compliance by the

 

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other party in all material respects with its obligations required to be performed or complied with under the merger agreement by the time of the merger closing; there not having occurred since the date of the merger agreement an event that has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the other party; and delivery of officer certificates by the other party certifying satisfaction of certain of the conditions described above.

Timing of the Merger (Page [        ])

The parties currently expect the transaction to be completed by the first half of calendar year 2023. Neither ICE nor Black Knight can predict, however, the actual date on which the transaction will be completed, or if the merger will be completed at all, because completion of the merger is subject to conditions beyond each company’s control, including obtaining regulatory clearance. See “The Merger Agreement—Conditions to the Merger” beginning on page [        ] of this proxy statement/prospectus.

No Solicitation (Page [        ])

As more fully described in this proxy statement/prospectus and in the merger agreement, and subject to certain exceptions, Black Knight has agreed not to solicit alternative takeover proposals, engage in discussions with third parties regarding alternative takeover proposals or change its recommendation to its stockholders in favor of the merger.

In the event Black Knight receives an unsolicited takeover proposal from a third party prior to obtaining the Black Knight stockholder approval and Black Knight’s board determines in good faith that the takeover proposal constitutes, or would reasonably be expected to result in, a superior proposal (as defined in “The Merger Agreement—No Solicitation” beginning on page [        ] of this proxy statement/prospectus), Black Knight may provide information to, and engage in discussions and negotiations with, the person making the takeover proposal.

Prior to obtaining the Black Knight stockholder approval, the Black Knight board has the right, in connection with (i) the receipt of a superior proposal or (ii) an intervening event (as defined in “The Merger Agreement—Adverse Recommendation Change; Certain Prohibited Actions” beginning on page [        ] of this proxy statement/prospectus), to change its recommendation in favor of the merger or, in the case of a superior proposal, to terminate the merger agreement, in each case, subject to complying with notice requirements and other specified conditions (including giving ICE the opportunity to propose changes to the merger agreement in response to such superior proposal or intervening event, as applicable), if the Black Knight board determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under applicable law.

For more information, please see “The Merger Agreement—No Solicitation” beginning on page [         ] of this proxy statement/prospectus.

Termination of the Merger Agreement (Page [        ])

The merger agreement may be terminated by mutual written consent of ICE and Black Knight at any time prior to the completion of the merger. In addition, the merger agreement may be terminated as follows:

 

   

by either ICE or Black Knight if:

 

   

the merger has not been completed on or before May 4, 2023, subject to two automatic extensions of three months each, to August 4, 2023 and to November 4, 2023, respectively (which date, including as so extended, we refer to as the “outside date”), if clearance under the HSR Act (or a Restraint under U.S. antitrust laws) remains outstanding and all other conditions to the completion

 

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of the merger are satisfied (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on that date) or waived at each extension date; provided that this right to terminate the merger agreement will not be available to a party if the failure of that party (and in the case of ICE, Sub) to perform any of its obligations under the merger agreement has been a principal cause of or resulted in the failure of the merger to be consummated on or before that date;

 

   

any Restraint that restrains, enjoins or otherwise prohibits the consummation of the merger has become final and nonappealable, so long as (i) the party seeking to terminate the merger agreement has provided the other parties with three business days’ prior written notice of its intent to terminate the merger agreement and (ii) the Restraint was not principally due to a failure by the terminating party to perform any of its obligations under the merger agreement;

 

   

the Black Knight stockholder approval has not been obtained at the special meeting or at any adjournment or postponement of the special meeting at which a vote on the merger agreement is taken; or

 

   

the other party has breached any of its representations or warranties or failed to perform any of its covenants or agreements set forth in the merger agreement, which breach or failure to perform would result in the failure of a condition related to the accuracy of the other party’s representations and warranties or performance of covenants or agreements in the merger agreement, and the breach cannot be cured prior to the outside date or has not been cured within 30 days after notice to the other party of the breach; provided that this right to terminate the merger agreement will not be available to a party if that terminating party (and, in the case of ICE, Sub) is then in breach of any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach would give rise to the failure of a condition related to the accuracy of such party’s representations and warranties or performance of covenants or agreements in the merger agreement;

 

   

by Black Knight, prior to the receipt of the Black Knight stockholder approval, if Black Knight enters into a definitive agreement with respect to a superior proposal, as described further in “The Merger Agreement—Covenants and Agreements” and “The Merger Agreement—No Solicitation” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus, provided that Black Knight pays to ICE a termination fee prior to or concurrently with the termination; or

 

   

by ICE, prior to the receipt of the Black Knight stockholder approval, if (1) the Black Knight board fails to include in the proxy statement the recommendation of the Black Knight board that Black Knight stockholders adopt the merger agreement, which we refer to as the “Black Knight board recommendation,” or otherwise makes an adverse recommendation change (as defined in “The Merger Agreement—Stockholder Meeting and Board Recommendation” beginning on page [        ] of this proxy statement/prospectus), or (2) Black Knight fails to hold a meeting of its stockholders to adopt the merger agreement in material breach of its obligations under the merger agreement.

If the merger agreement is terminated as described above, the merger agreement will be void and of no effect, without liability on the part of any party, and each party’s rights and obligations will cease, subject to certain exceptions, including that:

 

   

no termination will relieve any party of any liability or damages resulting from fraud or any willful breach (as defined in “The Merger Agreement—Effect of Termination” beginning on page [        ] of this proxy statement/prospectus) of any of its representations, warranties, covenants or agreements set forth in the merger agreement, in which case the aggrieved party will be entitled to all rights and remedies available at law or in equity, including liability for damages (taking into account all relevant factors, including the loss of benefit of the merger to the aggrieved party, the lost stockholder premium (if the aggrieved party is Black Knight) and any benefit to the breaching party or its stockholders

 

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arising from the fraud or breach); provided that, without limiting the parties’ rights to pursue specific performance in accordance with the terms of the merger agreement, in the event that the merger agreement is terminated in circumstances where a termination fee is payable and the termination fee is actually paid, the payment to the party entitled to receive the applicable termination fee (together with any collection expenses) will be the sole and exclusive remedy of that party; and

 

   

the confidentiality letter agreement entered into by ICE and Black Knight in connection with entering into the merger, and the provisions of the merger agreement with respect to certain indemnification and reimbursement obligations, will survive any termination of the merger agreement.

Termination Fees and Expense Reimbursement (Page [        ])

The merger agreement provides for the payment of a termination fee of $398,000,000 by Black Knight to ICE under the following circumstances:

 

   

a Black Knight termination to enter into an alternative acquisition agreement providing for a superior proposal has occurred;

 

   

(A) after the date of the merger agreement, a takeover proposal is publicly made to Black Knight or directly made to Black Knight stockholders generally or otherwise becomes publicly known; (B) thereafter, the merger agreement is terminated (1) by either Black Knight or ICE because Black Knight stockholders failed to approve the merger proposal, (2) by either Black Knight or ICE if the merger is not consummated by the outside date and the Black Knight stockholders’ meeting has not been held by that date, or (3) by ICE if an ICE termination for a Black Knight breach of the merger agreement has occurred (and at the time of termination, the Black Knight stockholder approval has not yet been obtained); and (C) within 12 months after the termination, Black Knight enters into a definitive agreement to consummate or consummates the transactions contemplated by any takeover proposal (with the term “takeover proposal” for purposes of this bullet having the meaning described in “The Merger Agreement—No Solicitation” beginning on page [        ] of this proxy statement/prospectus, except that all references to 15% therein will instead be deemed to be references to 50%); or

 

   

ICE terminates the merger agreement prior to the receipt of the Black Knight stockholder approval because (i) the Black Knight board failed to include the Black Knight board recommendation in this proxy statement/prospectus or an adverse recommendation change has otherwise occurred or (ii) Black Knight failed to hold the Black Knight stockholders’ meeting in material breach of its obligations under the merger agreement.

The merger agreement provides for the payment of a termination fee of $725,000,000 by ICE to Black Knight under the following circumstances:

 

   

the merger agreement is terminated by Black Knight or ICE following the occurrence of the outside date, a willful breach by Black Knight of its obligations under the merger agreement relating to obtaining antitrust clearance for the merger has not been the primary cause of one or more of the conditions to closing relating to the receipt of clearance under the HSR Act or the absence of any Restraint (to the extent the Restraint relates to a U.S. antitrust law) to not be satisfied, and at the time of termination the conditions to closing in favor of ICE (other than those relating to the receipt of clearance under the HSR Act, and the absence of any Restraint relating to a U.S. antitrust law prohibiting or enjoining the closing) have been satisfied or waived (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on that date), other than those conditions the failure of which to be satisfied is primarily attributable to a breach by ICE or Sub of their representations, warranties, covenants or agreements contained in the merger agreement; or

 

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the merger agreement is terminated by Black Knight or ICE because a Restraint relating to a U.S. antitrust law prohibiting or enjoining the closing has become final and non-appealable, and, at the time of the termination, a willful breach by Black Knight of its obligations under the merger agreement relating to obtaining antitrust clearance for the merger has not been the primary cause of the Restraint or its imposition.

The merger agreement provides that in no event will a party be required to pay a termination fee on more than one occasion.

In addition to the termination fees described above, the merger agreement provides that if the merger agreement is terminated by ICE or Black Knight due to failure of Black Knight to obtain the Black Knight stockholder approval, Black Knight will pay ICE the reasonable and documented out-of-pocket costs and expenses incurred by ICE and Sub in connection with the merger in an amount not to exceed $40 million. Payment of the expense reimbursements by Black Knight will not affect ICE’s right to receive any applicable termination fee, but will reduce on a dollar-for-dollar basis any termination fee that becomes payable by Black Knight.

For more information, please see “The Merger Agreement—Termination of the Merger Agreement” and “The Merger Agreement—Termination Fees and Expense Reimbursement” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

Appraisal Rights (Page [        ])

Under the DGCL, if the merger is completed, record holders of Black Knight common stock who do not vote in favor of the merger proposal and who otherwise properly exercise and perfect their appraisal rights will be entitled to seek appraisal for, and obtain payment in cash for the judicially determined fair value of, their shares of Black Knight common stock, in lieu of receiving the merger consideration. The “fair value” could be higher or lower than, or the same as, the merger consideration. The relevant provisions of the DGCL are included as Annex C to this proxy statement/prospectus. Black Knight stockholders are encouraged to read these provisions carefully and in their entirety. Moreover, due to the complexity of the procedures for exercising and perfecting the right to seek appraisal, Black Knight stockholders who are considering exercising and perfecting that right are encouraged to seek the advice of legal counsel. Failure to comply strictly with these provisions may result in loss of the right of appraisal. The stockholders of ICE are not entitled to appraisal of their shares or dissenters’ rights with respect to the merger in connection with the merger under Delaware law. For a more complete description of Black Knight stockholders’ appraisal rights, see “Appraisal Rights” beginning on page [        ] of this proxy statement/prospectus.

Accounting Treatment (Page [        ])

ICE prepares its financial statements in accordance with accounting principles generally accepted in the United States of America, which we refer to as “GAAP.” The merger will be accounted for using the acquisition method of accounting. ICE will be treated as the acquirer for accounting purposes.

Material United States Federal Income Tax Consequences (Page [        ])

The exchange of shares of Black Knight common stock for the merger consideration pursuant to the merger will be a taxable transaction for United States federal income tax purposes. In general, for United States federal income tax purposes, a U.S. holder (as defined in “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus) who receives the merger consideration in exchange for that U.S. holder’s shares of Black Knight common stock will generally recognize gain or loss equal to the

 

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difference, if any, between (i) the sum of the cash (including cash in lieu of any fractional share of ICE common stock) and the fair market value of the ICE common stock received by that U.S. holder in the merger and (ii) that U.S. holder’s adjusted tax basis in the Black Knight common stock exchanged therefor. With respect to a Black Knight stockholder that is a non-U.S. holder (as defined in “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus), subject to the discussion below regarding potential withholding, the exchange of Black Knight common stock for the merger consideration pursuant to the merger generally will not result in tax to that non-U.S. holder under United States federal income tax laws unless that non-U.S. holder has certain connections with the United States.

In certain circumstances, a holder of shares of Black Knight common stock could be treated as receiving a dividend in an amount up to the cash consideration received by that holder in the merger. As a result of the possibility of that deemed dividend treatment, a non-U.S. holder of shares of Black Knight common stock may be subject to United States withholding tax at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty) with respect to the cash consideration received in the merger.

For a more detailed description of the United States federal income tax consequences of the merger, please see “Material United States Federal Income Tax Consequences” beginning on page [        ] of this proxy statement/prospectus.

The United States federal income tax consequences of the merger to a particular holder of Black Knight common stock will depend on that holder’s individual situation. Holders of Black Knight common stock should consult their own tax advisors for a full understanding of the particular United States federal, state, local and non-United States tax consequences of the merger to them.

Comparison of Stockholder Rights (Page [        ])

The rights of Black Knight stockholders are governed by the Black Knight charter, the Black Knight bylaws and Delaware corporate law. To the extent you receive any stock consideration in the merger, your rights as a stockholder of ICE will be governed by the ICE charter, the ICE bylaws and Delaware corporate law. Your rights under the ICE charter and the ICE bylaws will differ in some respects from your rights under the Black Knight charter and the Black Knight bylaws. For more detailed information regarding a comparison of your rights as a stockholder of Black Knight and ICE, see “Comparison of Stockholder Rights” beginning on page [        ] of this proxy statement/prospectus.

Listing of ICE Common Stock; Delisting and Deregistration of Black Knight Common Stock (Page [        ])

The shares of ICE common stock to be issued in the merger will be listed for trading on the NYSE. Following the merger, Black Knight common stock will be delisted from the NYSE and deregistered under the Exchange Act.

Litigation Relating to the Merger (Page [        ])

In connection with the merger, one complaint has been filed in federal court by a purported Black Knight stockholder against Black Knight and the members of the Black Knight board. The complaint asserts federal securities claims under Sections 14(a) and 20(a) of the Exchange Act, alleging that certain disclosures regarding the merger in the preliminary proxy statement/prospectus are materially false and misleading. The complaint seeks an injunction barring the merger, rescissory damages in the event the merger has been consummated, other unspecified damages and payment of the plaintiff’s costs and disbursements, including attorneys’ fees and expenses. Black Knight and ICE believe that the claims asserted in the complaint are meritless. For a more detailed description of litigation in connection with the merger, see “The Merger—Litigation Relating to the Merger” beginning on page [        ] of this proxy statement/prospectus.

 

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Risk Factors (Page [        ])

You should consider all the information contained in or incorporated by reference into this proxy statement/prospectus in deciding how to vote for the proposals presented in this proxy statement/prospectus. In particular, you should consider the factors described in “Risk Factors” beginning on page [        ] of this proxy statement/prospectus.

 

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COMPARATIVE MARKET PRICE DATA

The following table presents the closing prices of Black Knight common stock and ICE common stock on May 2, 2022, two trading days before the date of the public announcement of the merger agreement, and July 15, 2022, the last practicable trading day prior to the date of this proxy statement/prospectus. The table also presents the prices of ICE common stock on each of May 2, 2022 and July 15, 2022, each calculated based on the average of the volume weighted averages of the trading prices of ICE common stock on each of the ten consecutive trading days ending on (and including) such date. The table also shows the estimated implied value of the merger consideration for each share of Black Knight common stock on the relevant date, calculated by multiplying the average of the volume weighted averages of the trading prices of ICE common stock on each of the ten consecutive trading days ending on (and including) those dates by 0.1440 and adding $68.00, representing the approximate value that Black Knight stockholders will be entitled to receive in exchange for each share of Black Knight common stock they hold at the merger effective time.

 

     ICE
Closing
Price
     10-Day
Average ICE
VWAP
     Black
Knight
Closing
Price
     Implied Value of
Merger
Consideration
 

May 2, 2022

   $ 113.48      $ 118.34      $ 63.83      $ 85.04  

July 15, 2022

     95.83        94.98        62.60        81.68  

The above table shows only historical comparisons. These comparisons may not provide meaningful information to Black Knight stockholders in determining whether to approve the merger agreement because the value of the merger consideration will fluctuate with the market price of ICE common stock and will be determined based on the average of the volume weighted averages of the trading prices of ICE common stock on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the merger effective time occurs. As a result, Black Knight stockholders are urged to obtain current market quotations for shares of ICE common stock and Black Knight common stock and to review carefully the other information contained in this proxy statement/prospectus or incorporated by reference into this proxy statement/prospectus in considering whether to approve the merger proposal. The market prices of ICE common stock and Black Knight common stock will fluctuate between the date of this proxy statement/prospectus and the date of completion of the merger. No assurance can be given concerning the market prices of Black Knight common stock or ICE common stock before or after the merger effective time.

 

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FORWARD-LOOKING STATEMENTS

This proxy statement/prospectus, including information included or incorporated by reference into this proxy statement/prospectus, contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including but not limited to ICE’s and/or Black Knight’s expectations or predictions of future financial or business performance or conditions. Forward-looking statements may be introduced by or contain terminology such as “may,” “will,” “should,” “could,” “would,” “targets,” “goal,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “continue,” or the antonyms of these terms or other comparable terminology. These forward-looking statements are subject to numerous assumptions, risks and uncertainties, which change over time. Forward-looking statements speak only as of the date they are made and neither ICE nor Black Knight assumes any duty to update forward-looking statements except as may be required by law. Actual results may differ materially from forward-looking statements or historical performance. In addition to factors previously disclosed in ICE’s and Black Knight’s reports filed with the SEC and those identified elsewhere in this proxy statement/prospectus, the following factors, among others, could cause actual results to differ materially from forward-looking statements or historical performance:

 

   

the ability to obtain regulatory approvals (and the timing of such approvals and the risk that such approvals may result in the imposition of conditions that could adversely affect Black Knight or ICE or the expected benefits of the merger) and meet other closing conditions to the merger, including approval by Black Knight stockholders, and the possibility that the merger does not close when expected or at all because such conditions to closing are not satisfied on a timely basis or at all;

 

   

any delay in closing the merger;

 

   

an inability to complete the merger, or changes in the current anticipated timeframe, terms or manner of the proposed merger;

 

   

the outcome of any legal proceedings that may be instituted against ICE or Black Knight;

 

   

the occurrence of any event, change or other circumstance that could give rise to the right of one or both parties to terminate the merger agreement;

 

   

the ability to complete the merger, realize the anticipated cost savings and synergies of the merger, and successfully integrate Black Knight with the ICE Mortgage Technology business without material delay, higher than anticipated costs or difficulty or loss of key personnel;

 

   

the estimate of the total addressable market for mortgage technology, including the estimate of the increase in ICE’s total addressable market as a result of the merger, and other industry projections;

 

   

the risk that any announcements relating to the proposed transaction could have adverse effects on the market price of the common stock of either or both parties to the proposed transaction;

 

   

the possibility that the transaction may be more expensive to complete than anticipated, including as a result of unexpected factors or events;

 

   

the risks relating to diversion of management’s attention from ongoing business operations and opportunities;

 

   

the restrictions during the pendency of the proposed transaction that may impact the ability of Black Knight or ICE to pursue certain business opportunities or strategic transactions;

 

   

the risk of business disruption following the merger;

 

   

the ability to execute growth strategies, identify and effectively pursue, implement and integrate acquisitions and strategic alliances and realize the synergies and benefits of such transactions within the expected time frame;

 

   

the inability to retain existing Black Knight or ICE customers and employees prior to or following the closing of the merger;

 

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any actual or anticipated increase in inflation;

 

   

the impacts of the COVID-19 pandemic on ICE’s and Black Knight’s businesses, results of operations and financial condition as well as the broader business environment;

 

   

conditions in global financial markets, domestic and international economic and social conditions, inflation, political uncertainty and discord, geopolitical events or conflicts, international trade policies and sanctions laws; and

 

   

management’s ability to identify and manage these and other risks.

For any forward-looking statements made in this proxy statement/prospectus or in any documents incorporated by reference into this proxy statement/prospectus, ICE and Black Knight claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, which we refer to as the “Securities Act,” and Section 21E of the Exchange Act. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this proxy statement/prospectus or the date of the applicable document incorporated by reference into this proxy statement/prospectus. ICE and Black Knight undertake no obligation to update or revise any forward-looking statements, even if experience or future changes make it clear that projected results expressed or implied in such statements will not be realized, except as may be required by law. As a result of these risks and others, actual results could vary significantly from those anticipated in forward-looking statements, and the financial condition and results of operations of ICE and/or Black Knight could be materially adversely affected. Annualized, pro forma, projected, hypothetical and estimated numbers are used for illustrative purposes only, are not forecasts and may not reflect actual results.

Consequently, all of the forward-looking statements made by ICE or Black Knight contained or incorporated by reference in this proxy statement/prospectus are qualified by factors, risks and uncertainties, including, but not limited to, those set forth in “Risk Factors” beginning on page [        ] of this proxy statement/prospectus and those set forth under the headings “Forward-Looking Statements” and “Risk Factors” in ICE’s annual and quarterly reports and the headings “Statement Regarding Forward-Looking Information,” and “Risk Factors” in Black Knight’s annual and quarterly reports and other filings with the SEC that are incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

ICE and Black Knight expressly qualify in their entirety all forward-looking statements attributable to either of them or any person acting on their behalf by the cautionary statements contained or referred to in this proxy statement/prospectus.

 

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RISK FACTORS

In addition to the other information included and incorporated by reference into this proxy statement/prospectus, including, among other things, the matters addressed in “Cautionary Note Regarding Forward-Looking Statements” beginning on page [        ] of this proxy statement/prospectus, Black Knight stockholders should carefully consider the following risk factors before deciding whether to vote in favor of the merger proposal. In addition, you should read and consider the risks associated with each of the businesses of ICE and Black Knight because these risks will relate to the combined company following the completion of the merger. Descriptions of some of these risks can be found in the ICE Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and the Black Knight Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as such risks may be updated or supplemented in each company’s subsequently filed Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, which are incorporated by reference into this proxy statement/prospectus. You should also consider the other information in this document and the other documents incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

Risks Related to the Merger

The merger will not be completed unless important conditions are satisfied or waived, including approval of the merger agreement by Black Knight’s stockholders.

Specified conditions set forth in the merger agreement must be satisfied or waived to complete the merger. If the conditions are not satisfied or, to the extent permitted by law, waived, the merger will not occur or will be delayed, and Black Knight and ICE may lose some or all of the intended benefits of the merger. The following conditions must be satisfied or, to the extent permitted by law, waived before Black Knight and ICE are obligated to complete the merger: (i) the adoption of the merger agreement by the affirmative vote of holders of a majority of the outstanding shares of Black Knight common stock entitled to vote thereon at the special meeting, (ii) the expiration or early termination of the waiting period applicable to the consummation of the merger under the HSR Act, (iii) the absence of any Restraint that is in effect and restrains, enjoins or otherwise prohibits the consummation of the merger, (iv) the effectiveness of the registration statement on Form S-4 filed by ICE to register the shares of ICE common stock to be issued in the merger, (v) approval for listing on the NYSE of the shares of ICE common stock to be issued in the merger, (vi) compliance by ICE and Black Knight in all material respects with their respective obligations under the merger agreement that are required to be performed or complied with by the time of the closing and (vii) subject in most cases to exceptions that do not rise to the level of a Material Adverse Effect or a Parent Material Adverse Effect (each as defined in the merger agreement), the accuracy of representations and warranties made by Black Knight and ICE, respectively, in the merger agreement. The respective obligations of Black Knight and ICE to consummate the merger are also subject to there not having occurred since the date of the merger agreement an event that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect or a Material Adverse Effect, respectively.

The failure to satisfy all of the required conditions could delay the completion of the merger for a significant period of time or prevent it from occurring at all. Any delay in completing the merger could cause ICE not to realize some or all of the benefits, or realize them on a different timeline than expected, that ICE expects to achieve if the merger is successfully completed within the expected timeframe. There can be no assurance that the conditions to the closing of the merger will be satisfied or waived or that the merger will be completed. Also, subject to limited exceptions, either ICE or Black Knight may terminate the merger agreement, if the merger has not been consummated on or before May 4, 2023, subject to two automatic extensions of three months each, to August 4, 2023 and to November 4, 2023, respectively, if clearance under the HSR Act (or a Restraint under U.S. antitrust laws) remains outstanding and all other conditions to closing are satisfied (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on such date) at each extension date.

 

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If the merger is not completed, each of Black Knight’s and ICE’s ongoing businesses, financial condition, financial results and stock price may be materially and adversely affected and, without realizing any of the benefits of having completed the merger, Black Knight and ICE will be subject to a number of risks, including the following:

 

   

the market price of Black Knight common stock or ICE common stock could decline to the extent the current market price reflects an assumption that the merger will be completed;

 

   

Black Knight or ICE could owe a termination fee to the other party under certain circumstances;

 

   

if the Black Knight board seeks another business combination, Black Knight stockholders cannot be certain that Black Knight will be able to find a party willing to enter into a transaction on terms equivalent to or more attractive than the terms that ICE has agreed to in the merger agreement;

 

   

time and financial and other resources committed by Black Knight’s and ICE’s management to matters relating to the merger could otherwise have been devoted to pursuing other beneficial opportunities;

 

   

Black Knight or ICE may experience negative reactions from the financial markets or from their customers, suppliers or employees;

 

   

current and prospective employees of Black Knight and ICE may experience uncertainty about their roles following the completion of the merger, which may have an adverse effect on the ability of each of Black Knight and ICE to attract or retain key management and other key personnel;

 

   

Black Knight and ICE will be required to pay costs relating to the merger, such as legal, accounting, financial advisory, financing (including the redemption by ICE of $5 billion of bonds at 101% of par value) and printing fees; and

 

   

Black Knight or ICE could be subject to litigation related to any failure to complete the merger or related to any enforcement proceeding commenced against Black Knight or ICE to perform its obligations under the merger agreement.

Similarly, delays in the completion of the merger could, among other things, result in additional transaction costs, loss of revenue or other negative effects associated with uncertainty about completion of the merger and could materially and adversely impact each of Black Knight’s and ICE’s ongoing businesses, financial condition, financial results and stock price following the completion of the merger.

Regulatory approvals may not be received, may take longer than expected or may impose conditions that are not presently anticipated, that could have an adverse effect on ICE following the merger or that are otherwise unacceptable to ICE.

Completion of the merger is conditioned on, among other things, the expiration or early termination of the waiting period applicable to the consummation of the merger under the HSR Act. There can be no assurance that this condition to the completion of the merger will be satisfied on a timely basis or at all and there can be no assurance that, if regulatory approvals are granted, they will not result in the imposition of conditions, limitations, obligations or restrictions that have the effect of preventing the completion of any of the transactions contemplated by the merger agreement, imposing additional material costs on or materially limiting the revenues of ICE following the merger or otherwise reducing the anticipated benefits of the merger, or result in the delay or abandonment of the merger.

Under the merger agreement, Black Knight and ICE have agreed to use their respective reasonable best efforts to cause the transactions contemplated by the merger agreement to be consummated as soon as practicable and to obtain all approvals from any governmental entity or third party that are necessary, proper or advisable to consummate the merger. In particular, each party has agreed to use its reasonable best efforts to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under U.S. antitrust laws so as to enable the parties to close the merger as soon as practicable.

 

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Under the merger agreement, ICE is not obligated to agree to any structural or behavioral remedy that any government entity may seek to impose. There can be no assurance that regulators will not seek to impose any terms, conditions, limitations, obligations or costs, or restrictions (including a duty to agree to structural or behavioral relief) on the conduct of ICE’s business following the completion of the merger (which would include Black Knight’s business) or otherwise require changes to the terms of the transactions contemplated by the merger agreement, or that such conditions, limitations, obligations or restrictions would not have the effect of preventing or delaying the completion of any of the transactions contemplated by the merger agreement, imposing additional material costs on or materially limiting the revenues of ICE following the merger or otherwise reduce the anticipated benefits of the merger if the merger were consummated successfully within the expected timeframe.

In addition, at any time before or after the completion of the merger, and notwithstanding the termination of applicable waiting periods, the applicable U.S. antitrust authorities or any state attorney general could take such action under the antitrust laws as any such party deems necessary or desirable in the public interest. Such action could include, among other things, seeking to enjoin the completion of the merger or seeking divestiture of substantial assets of the parties. In addition, in some circumstances, a third party could initiate a private action under antitrust laws challenging, seeking to enjoin, or seeking to impose conditions on the merger. Although ICE is not obligated under the merger agreement to litigate to defeat such efforts to enjoin the transaction contemplated by the merger agreement under U.S. antitrust laws, the parties, at ICE’s option, may engage in litigation to obtain the clearances, consents, approvals and waivers under U.S. antitrust laws so as to enable the parties to close the merger. ICE and Black Knight may not prevail and may incur significant costs in defending or settling any such action.

For a more detailed description of the regulatory review process, see “The Merger—Regulatory Approvals” beginning on page [        ] of this proxy statement/prospectus.

Because the Share Ratio is fixed and the market price of ICE common stock will fluctuate prior to the closing of the merger, holders of Black Knight common stock cannot be certain of the market value of the consideration they will receive in the merger.

At the merger effective time, each share of Black Knight common stock issued and outstanding immediately prior to the effective time (other than Excluded Shares and Appraisal Shares) will be converted into the right to receive, at the election of the holder thereof, the following consideration (subject to proration in accordance with the terms of the merger agreement):

 

   

the Per Share Cash Consideration, being an amount in cash equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of the Share Ratio, being 0.1440, multiplied by the Closing 10-Day Average ICE VWAP, being the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the merger effective time occurs;

 

   

the Per Share Stock Consideration, being a number of validly issued, fully paid and nonassessable shares of ICE common stock as is equal to the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP; or

 

   

if no election is made by such holder, such Per Share Stock Consideration or Per Share Cash Consideration as is determined in accordance with the proration mechanism described in “The Merger Agreement—Consideration to be Received in the Merger” beginning on page [        ] of this proxy statement/prospectus.

The Share Ratio is fixed and will not be adjusted for changes in the market price of either ICE common stock or Black Knight common stock prior to completion of the merger, but the market price of ICE common

 

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stock will fluctuate prior to the closing of the merger. Accordingly, because the amount of the Per Share Cash Consideration is dependent on the Share Ratio multiplied by the Closing 10-Day Average ICE VWAP, and because the amount of the Per Share Stock Consideration is dependent on the amount of the Per Share Cash Consideration, changes in the price of ICE common stock prior to completion of the merger will affect the value of the consideration (whether the Per Share Cash Consideration or the Per Share Stock Consideration) that holders of Black Knight common stock will receive in the merger. Black Knight and ICE are not permitted to terminate the merger agreement as a result of any increase or decrease, in and of itself, in the market price of ICE common stock or Black Knight common stock.

There will be a lapse of time between the date on which Black Knight stockholders vote to adopt the merger agreement at the special meeting and the date on which Black Knight stockholders entitled to receive the merger consideration actually receive such consideration. The market value of ICE common stock will fluctuate during this period as a result of a variety of factors, including general market and economic conditions, regulatory considerations, including changes in U.S. monetary policy and its effect on global financial markets and on interest rates, changes in ICE’s or Black Knight’s businesses, operations and prospects, the global coronavirus pandemic and the related disruption to local, regional and global economic activity and financial markets, and the impact that any of the foregoing may have on ICE, Black Knight, or the customers or other constituencies of ICE or Black Knight, many of which factors are beyond ICE’s or Black Knight’s control. Therefore, at the time that Black Knight’s stockholders must decide whether to adopt the merger agreement at the special meeting, and at all times prior to the closing of the merger, they will not know the market value of the consideration to be received by holders of Black Knight common stock at the merger effective time.

Black Knight stockholders may receive a form of consideration different from what they elect.

The aggregate amount of cash to be paid to Black Knight stockholders is fixed at $10,505,000,000. As a result, if the cash elections are oversubscribed or undersubscribed, then adjustments will be made to the merger consideration to be paid to Black Knight stockholders to proportionately reduce the cash or stock amounts received by such holders, in the manner described in “The Merger Agreement—Consideration to be Received in the Merger” beginning on page [        ] of this proxy statement/prospectus. To the extent that the number of outstanding shares of Black Knight common stock increases between the date of the merger agreement and the merger effective time, due to the vesting of stock-settled equity awards or as otherwise permitted by the merger agreement, the aggregate number of shares of ICE common stock to be issued as consideration in the merger will be increased accordingly, but the aggregate amount of cash to be paid as consideration will not change. Thus, Black Knight stockholders might receive a portion of their consideration in the form they did not elect. In addition, if the aggregate consideration to be paid to any holder of Black Knight common stock would result in such holder receiving a fractional share of ICE common stock, cash will be paid in lieu of the fractional share.

If you are a Black Knight stockholder and you tender your shares of Black Knight common stock to make an election, you will not be able to sell those shares, unless you revoke your election prior to the election deadline.

If you are a Black Knight stockholder and want to make a valid cash or stock election, you will be required to deliver your stock certificates or follow the procedures for guaranteed delivery (unless your shares are held in book-entry form, in which case you should follow the instructions set forth in the election form), and a properly completed and signed election form, accompanied by duly executed transmittal materials included in the election form, to the exchange agent. Because the actual election deadline is not currently known, ICE and Black Knight will issue a press release announcing the date of the election deadline at least five business days, but no more than 15 business days, before that deadline. For further details on the determination of the election deadline, see “The Merger Agreement—Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration” beginning on page [        ] of this proxy statement/prospectus. The election deadline will be intended to be as near as practicable to two business days in advance of the closing date of the merger. You will not be able to sell any shares of Black Knight common stock that you have delivered as part of your election

 

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unless you revoke your election before the deadline by providing written notice to the exchange agent. If you do not revoke your election, you will not be able to liquidate your investment in Black Knight common stock for any reason until you receive cash and/or ICE common stock in the merger. In the time between the election deadline and the closing of the merger, the trading price of Black Knight common stock or ICE common stock may decrease, and you might otherwise want to sell your shares of Black Knight common stock to gain access to cash, make other investments, or reduce the potential for a decrease in the value of your investment. The date that you will receive your merger consideration will depend on the completion date of the merger, which is uncertain. The completion date of the merger might be later than expected due to unforeseen events.

The merger agreement limits Black Knight’s ability to pursue alternatives to the merger and may discourage other companies from trying to acquire Black Knight.

The merger agreement contains covenants that restrict Black Knight’s ability to, directly or indirectly, solicit, initiate, knowingly facilitate, knowingly encourage or knowingly induce any acquisition proposal, engage in any discussions or negotiations with any person relating to any takeover proposal, or provide any confidential or nonpublic information or data to any person relating to any takeover proposal, subject to certain exceptions. In addition, subject to certain exceptions, the Black Knight board is required to recommend that Black Knight stockholders adopt the merger agreement.

Further, even if the Black Knight board withdraws or qualifies its recommendation with respect to the adoption of the merger agreement, unless the merger agreement is terminated in accordance with its terms, Black Knight will still be required to submit the merger proposal to a vote at the special meeting. In addition, following receipt by Black Knight of any superior proposal, ICE will have an opportunity to offer to modify the terms of the merger agreement before the Black Knight board may withdraw or qualify its recommendation with respect to the merger agreement in favor of such superior proposal or terminate the merger agreement to enter into a definitive agreement providing for the superior proposal, as described further in “The Merger Agreement—Covenants and Agreements” and “The Merger Agreement—No Solicitation” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

If the merger agreement is terminated under certain circumstances, Black Knight may be required to pay a termination fee of $398 million to ICE or Black Knight may be required to reimburse ICE for its reasonable and documented out-of-pocket costs and expenses incurred in connection with the merger agreement and the merger in an amount not to exceed $40 million.

While the parties believe these provisions are reasonable and customary and not preclusive of other offers, these provisions could discourage a potential third-party acquiror or merger partner that might have an interest in acquiring all or a significant portion of Black Knight or pursuing an alternative transaction from considering or proposing such a transaction, even if it were prepared to pay consideration with a higher per share value than the value proposed to be received in the merger.

If the merger agreement is terminated and Black Knight determines to seek another business combination, Black Knight may not be able to negotiate a transaction with another party on terms comparable to, or better than, the terms of the merger agreement.

The merger agreement may be terminated in accordance with its terms and the merger may not be completed, which could negatively affect ICE or Black Knight.

The merger agreement is subject to a number of conditions which must be satisfied or waived in order to complete the merger. For a summary of the conditions that must be satisfied or waived prior to completion of the merger, see “The Merger Agreement—Conditions to the Merger” beginning on page [        ] of this proxy statement/prospectus. These conditions to the closing of the merger may not be satisfied in a timely manner or at all, and, accordingly, the merger may be delayed or may not be completed. In addition, if the merger is not

 

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completed by the outside date, either ICE or Black Knight may choose not to proceed with the merger, and the parties can mutually decide to terminate the merger agreement at any time, before or after receipt of the Black Knight stockholder approval. In addition, ICE and Black Knight may elect to terminate the merger agreement in certain other circumstances as set forth in the merger agreement.

If the merger agreement is terminated, there may be various consequences. For example, ICE’s or Black Knight’s businesses may have been impacted adversely by the failure to pursue other beneficial opportunities due to the focus of management on the merger, without realizing any of the anticipated benefits of completing the merger. Additionally, if the merger agreement is terminated, the market price of ICE’s or Black Knight’s common stock could decline to the extent that the current market prices reflect a market assumption that the merger will be completed. If the merger agreement is terminated under certain circumstances, ICE may be required to pay a termination fee of $725 million to Black Knight or Black Knight may be required to pay a termination fee of $398 million to ICE. In addition, if the merger agreement is terminated because Black Knight’s stockholders fail to approve the merger proposal at a duly convened meeting of Black Knight’s stockholders held for that purpose, Black Knight will be required to reimburse ICE for its reasonable and documented out-of-pocket costs and expenses incurred in connection with the merger agreement and the merger in an amount not to exceed $40 million. For further details on the payment of the termination fees, see “The Merger Agreement—Termination of the Merger Agreement” and “The Merger Agreement—Termination Fees” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

ICE’s obligation to consummate the merger is not conditioned on the availability of financing to pay the cash portion of the merger consideration.

ICE intends to finance a portion of the merger consideration with a combination of available cash and permanent financing. To this end, on May 4, 2022, ICE entered into a financing commitment letter, which we refer to as the “debt commitment letter,” with Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC, for a 364-day senior unsecured bridge facility in an aggregate principal amount not to exceed $14.0 billion, consisting of a $8.225 billion tranche backstopping a combination of unsecured notes and operating internal cash generation prior to the effective time of the merger, a $3.775 billion tranche backstopping ICE’s existing revolving credit agreement and a $2.0 billion tranche backstopping a new delayed draw term loan facility. As of the date of this proxy statement/prospectus and in connection with the acquisition, ICE (i) has received net proceeds of approximately $7.91 billion from the offering of senior notes, of which approximately $4.96 billion will fund a portion of the merger consideration, (ii) has entered into a delayed draw term loan facility in an aggregate principal amount of $2.4 billion in committed financing pursuant to a new delayed draw term loan facility, (iii) has entered into an amendment to its existing revolving credit facility to backstop the ability to issue commercial paper under its commercial paper program and (iv) has $1.8 billion of remaining committed financing available under the debt commitment letter. The funding of the bridge facility and the ability to receive funds under ICE’s revolving credit facility and new delayed draw term loan facility are subject to its compliance with customary terms and conditions precedent for such borrowing as set forth in the debt commitment letter, including, among others, (i) the execution and delivery by ICE of definitive documentation consistent with the debt commitment letter, (ii) that the merger shall have been consummated substantially concurrently with the funding under such facilities substantially in accordance with the terms of the merger agreement, (iii) the absence of a material adverse effect on Black Knight since the date of the merger agreement and (iv) the absence of certain events of default. There is a risk that these conditions will not be satisfied and the debt financing may not be available when required.

In the event that the debt financing contemplated by the debt commitment letter and the other debt facilities described above is not available, there is a risk that alternative financing may not be available on acceptable terms, in a timely manner or at all. ICE’s obligation to consummate the merger is not conditioned upon the availability of financing. See “The Merger—Financing of the Merger and Treatment of Existing Debt” beginning on page [        ] of this proxy statement/prospectus for more information.

 

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The fairness opinion delivered by J.P. Morgan will not reflect changes in circumstances between the date of the merger agreement and the completion of the merger.

The opinion delivered by J.P. Morgan, Black Knight’s financial advisor, addresses the fairness of the aggregate merger consideration to be received by the holders of Black Knight common stock, from a financial point of view, to such holders only as of the date that the merger agreement was executed. The Black Knight board has not obtained an updated fairness opinion as of the date of this proxy statement/prospectus and Black Knight does not anticipate asking its financial advisor to update its opinion prior to the closing. Changes in the operations and prospects of ICE or Black Knight, general market and economic conditions and other factors that may be beyond their control, and on which the fairness opinion was based, may alter the value of ICE or Black Knight or the prices of shares of ICE common stock or Black Knight common stock by the time the merger is completed.

The opinion delivered by J.P. Morgan is included as Annex B to this proxy statement/prospectus. For a description of the opinion and a summary of the material financial analysis performed in connection with rendering such opinion, please refer to “The Merger—Opinion of Black Knight’s Financial Advisor” beginning on page [        ] of this proxy statement/prospectus.

Each party is subject to business uncertainties and contractual restrictions while the merger is pending, which could adversely affect each party’s business and operations.

In connection with the pendency of the merger, it is possible that some customers, suppliers and other persons with whom ICE and/or Black Knight has a business relationship may delay or defer certain business decisions or decide to seek to terminate, change or renegotiate their relationships with ICE or Black Knight, as the case may be, as a result of the pending merger or otherwise, which could negatively affect ICE’s or Black Knight’s respective revenues, earnings and/or cash flows, as well as the market price of ICE common stock or Black Knight common stock, regardless of whether the merger is completed.

Under the terms of the merger agreement, Black Knight is subject to certain restrictions on the conduct of its business prior to completing the merger which may adversely affect its ability to execute certain of its business strategies, including the ability in certain cases to enter into or amend contracts, acquire or dispose of assets, incur indebtedness or incur capital expenditures. Such limitations could adversely affect Black Knight’s business and operations prior to the completion of the merger.

Under the terms of the merger agreement, ICE is subject to a more limited set of restrictions on the conduct of its business prior to completing the merger which may adversely affect its ability to execute certain of its business strategies, including the ability in certain cases to amend its organizational documents, pay dividends or distributions (subject to certain exceptions, including for regular quarterly cash dividends in the ordinary course consistent with past practice), or split, combine, or reclassify shares of ICE common stock. Such limitations could adversely affect ICE’s business and operations prior to the completion of the merger.

Each of the risks described above may be exacerbated by delays or other adverse developments with respect to the completion of the merger.

In addition, subject to certain exceptions, Black Knight has agreed to use reasonable best efforts to carry on its business in the ordinary course and, to the extent consistent therewith, to use reasonable best efforts to preserve substantially intact Black Knight’s current business organizations, to keep available the services of Black Knight’s current officers and employees and to preserve Black Knight’s relationships with significant customers, suppliers, licensors, licensees, distributors, lessors and others having significant business dealings with Black Knight, in each case, during the period between the date of the merger agreement and the closing of the merger.

 

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For further discussion, see “The Merger Agreement—Covenants and Agreements—Conduct of Business of Black Knight” and “The Merger Agreement—Covenants and Agreements—Conduct of Business of ICE” beginning on pages [        ] and [        ], respectively, of this proxy statement/prospectus.

Completion of the merger will trigger change in control or other provisions in certain customer and other agreements to which Black Knight is a party, which may have an adverse impact on ICE’s business and results of operations following completion of the merger.

The completion of the merger will trigger change in control and other provisions in certain customer and other agreements to which Black Knight is a party. If ICE or Black Knight is unable to negotiate waivers of or consents under those provisions, customers or other counterparties may exercise their rights and remedies under the agreements, potentially terminating the agreements or seeking monetary damages or equitable remedies. Even if ICE and Black Knight are able to negotiate consents or waivers, the customers or other counterparties may require a fee for such waivers or seek to renegotiate the agreements on terms less favorable to Black Knight or the combined company. Any of the foregoing or similar developments may have an adverse impact on ICE’s business and results of operations following completion of the merger.

Uncertainties associated with the merger may cause a loss of management personnel and other key employees, which could adversely affect the future business and operations of ICE following completion of the merger.

Black Knight and ICE are dependent on the experience and industry knowledge of their officers and other key employees to execute their business plans. ICE’s success after the completion of the merger will depend in part upon the ability of ICE to retain certain key management personnel and employees of Black Knight and ICE. Prior to completion of the merger, current and prospective employees of Black Knight and ICE may experience uncertainty about their roles within ICE following the completion of the merger, which may have an adverse effect on the ability of each of Black Knight and ICE to attract or retain key management and other key personnel. In addition, no assurance can be given that ICE, after the completion of the merger, will be able to attract or retain key management personnel and other key employees to the same extent that Black Knight and ICE have previously been able to attract or retain their own employees.

Litigation filed or that may be filed in connection with the merger could prevent or delay completion of the merger or otherwise negatively affect Black Knight’s and ICE’s businesses and operations.

Black Knight and ICE may incur costs in connection with the defense or settlement of stockholder or other lawsuits that have been filed or that may in the future be filed in connection with the merger. Such litigation could have an adverse effect on Black Knight’s and ICE’s financial condition and results of operations and could prevent or delay the completion of the merger.

In connection with the merger, one complaint has been filed in federal court by a purported Black Knight stockholder against Black Knight and the members of the Black Knight board. The defendants have not yet been served as of the date of this proxy statement/prospectus. The complaint alleges that certain disclosures made in the preliminary proxy are inadequate and purports to seek an injunction barring the merger, rescissory damages in the event the merger is consummated, other unspecified damages and payment of the plaintiff’s costs and disbursements, including attorneys’ fees and expenses. For a more detailed description of litigation in connection with the merger, see “The Merger—Litigation Relating to the Merger” beginning on page [        ] of this proxy statement/prospectus.

Neither ICE nor Black Knight can provide assurance that additional litigation or other legal proceedings will not be brought. ICE and Black Knight will defend against all such lawsuits filed but might not be successful in doing so. An adverse outcome in such matters, as well as the costs and efforts of a defense even if successful, could have a material adverse effect on the business, results of operation or financial position of ICE and/or Black Knight, including through the possible diversion of either company’s resources or distraction of key

 

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personnel. Furthermore, one of the conditions to the completion of the merger is the absence of any Restraint issued by a court or other governmental entity that is in effect and restrains, enjoins or otherwise prohibits the closing of the merger. As such, if any plaintiff is successful in obtaining a Restraint preventing the consummation of the merger, that Restraint may prevent the merger from becoming effective or from becoming effective within the expected time frame.

Black Knight’s executive officers and directors may have interests in the merger that are different from, or in addition to, the interests of Black Knight stockholders.

In considering the recommendation of the Black Knight board with respect to the merger, Black Knight’s stockholders should be aware that the directors and executive officers of Black Knight may have certain interests in the merger that are different from, or in addition to, the interests of Black Knight stockholders generally. These interests and arrangements may create potential conflicts of interest. The Black Knight board was aware of these interests and considered them, among other matters, in making its recommendation that Black Knight’s stockholders vote to approve the merger proposal, the compensation proposal and the adjournment proposal. See “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus for a more detailed description of these interests.

Risks Related to ICE after Completion of the Merger

ICE may be unable to successfully integrate Black Knight’s business and realize the anticipated benefits of the merger.

The success of the merger will depend on, among other things, ICE’s ability to successfully integrate the business of Black Knight into its ICE Mortgage Technology business in a manner that facilitates growth opportunities, realizes anticipated synergies, and achieves the projected cost savings, revenue growth and profitability targets of the combined businesses without adversely affecting current revenues and investments in future growth. If ICE is not able to successfully achieve these objectives within the anticipated time frame, or at all, the anticipated benefits of the merger may not be realized fully or at all, or may take longer to realize than expected.

There is a significant degree of difficulty and management distraction inherent in the process of integrating an acquisition, including challenges consolidating certain operations and functions (including regulatory functions), eliminating duplicative operations, integrating technologies, organizations, procedures, policies and operations, addressing differences in the business cultures of the two companies and retaining key management and other employees. The integration may be complex and time consuming and involve delays or additional and unforeseen expenses. The integration process and other disruptions resulting from the merger may also disrupt ICE’s ongoing businesses or cause inconsistencies in standards, controls, procedures and policies that adversely affect ICE’s relationships with market participants, employees, regulators and others with whom ICE and Black Knight have business or other dealings.

Any failure to successfully or cost-effectively integrate Black Knight following the acquisition could have a material adverse effect on ICE’s business and cause reputational harm.

The integration of Black Knight into the ICE Mortgage Technology business may result in additional material challenges, such as:

 

   

the diversion of management’s attention from ongoing business concerns and performance shortfalls as a result of the devotion of management’s attention to the merger;

 

   

retaining certain of the existing business and operational relationships, including customers, suppliers and employees and other counterparties, which may be impacted by contracts containing consent and/or other provisions that are triggered by the merger, and attracting new business and operational relationships; and

 

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the possibility of faulty assumptions underlying expectations regarding the integration process.

Many of these factors will be outside of ICE’s control, and any one of them could result in delays, increased costs, decreases in the amount of expected revenues and diversion of management’s time and energy, which could affect ICE’s financial position, results of operations and cash flows.

Due to legal restrictions, ICE and Black Knight are currently permitted to conduct only limited planning for the integration of the business of Black Knight into the ICE Mortgage Technology business. The actual integration may result in additional and unforeseen expenses, and the anticipated benefits of the integration plan may not be realized on a timely basis, if at all.

Black Knight stockholders who receive stock consideration in the merger will have a reduced ownership and voting interest after the merger and will exercise significantly less influence over the policies of ICE following the merger than they now have on the policies of Black Knight.

Black Knight stockholders presently have the right to vote in the election of the Black Knight board and on other matters affecting Black Knight. Upon the completion of the merger, each Black Knight stockholder who receives stock consideration in the merger will become a stockholder of ICE with a percentage ownership of ICE that is substantially smaller than such stockholder’s current percentage ownership of Black Knight. ICE stockholders will also have a somewhat reduced ownership and voting interest after the merger. Immediately after the merger, it is expected that current ICE stockholders will own approximately 96% of the ICE common stock and current Black Knight stockholders will own approximately 4% of the ICE common stock outstanding. As a result, current Black Knight stockholders will have significantly less influence on the management and policies of ICE than they now have on the management and policies of Black Knight.

The ICE common stock to be received by Black Knight stockholders upon completion of the merger will have different rights from shares of Black Knight common stock.

Upon completion of the merger, Black Knight stockholders will no longer be stockholders of Black Knight and Black Knight stockholders who receive stock consideration in the merger will become stockholders of ICE and their rights as ICE stockholders will be governed by the terms of the ICE charter (including with respect to provisions providing for ownership and voting limitations) and the ICE bylaws. The terms of the ICE charter and the ICE bylaws are in some respects materially different than the terms of the Black Knight charter and the Black Knight bylaws, which currently govern the rights of Black Knight stockholders. For further details on these differences and a more complete description of the different rights associated with shares of Black Knight common stock and shares of ICE common stock, see “Comparison of Stockholder Rights” beginning on page [        ] of this proxy statement/prospectus.

The market price of ICE common stock may decline as a result of the merger, including as a result of some Black Knight stockholders adjusting their portfolios.

The market price of ICE common stock may decline as a result of the merger if, among other things, the operational cost savings estimated in connection with the integration of ICE’s and Black Knight’s businesses are not realized, or if the transaction costs related to the merger are greater than expected, or if the financing related to the merger is on unfavorable terms. The market price also may decline if ICE does not achieve the perceived benefits of the merger as rapidly or to the extent anticipated by financial or industry analysts or if the effect of the merger on ICE’s financial position, results of operations or cash flows is not consistent with the expectations of financial or industry analysts. In addition, sales of ICE common stock after the completion of the merger may cause the market price of ICE common stock to decrease.

Many Black Knight stockholders may decide not to hold the shares of ICE common stock they will receive in the merger. Other Black Knight stockholders, such as funds with limitations on their permitted holdings of

 

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stock in individual issuers, may be required to sell the shares of ICE common stock that they receive in the merger. Such sales of ICE common stock could have the effect of depressing the market price for ICE common stock and may take place promptly following the merger.

The future results of ICE may be adversely impacted if ICE does not effectively manage its expanded operations following the completion of the merger.

Following the completion of the merger, the size of the ICE Mortgage Technology business will be significantly larger than the current size of either Black Knight’s business or the ICE Mortgage Technology business. ICE’s ability to successfully manage this expanded business will depend, in part, upon management’s ability to design and implement strategic initiatives that address the integration of Black Knight’s business, including the increased scale and scope of the combined business with its associated increased costs and complexity. There can be no assurances that ICE will be successful in integrating the businesses or that it will realize the expected operating efficiencies, cost savings and other benefits currently anticipated from the merger.

The merger may not be accretive, and may be dilutive, to ICE’s earnings per share, which may negatively affect the market price of shares of ICE common stock.

ICE currently projects that the merger will result in a number of benefits, including a platform from which to accelerate growth, and that it will be accretive to earnings per share in the first full year after the close of the transaction. This projection is based on preliminary estimates that may materially change. In addition, future events and conditions could decrease or delay the accretion that is currently projected or could result in dilution, including adverse changes in market conditions, additional transaction and integration-related costs and other factors such as the failure to realize some or all of the anticipated benefits of the merger. Any dilution of, decrease in or delay of any accretion to, ICE’s earnings per share could cause the price of shares of ICE common stock to decline or grow at a reduced rate.

As a result of the merger, ICE will be subject to risks relating to the business conducted by Black Knight.

Following the consummation of the merger, ICE will be subject to a variety of risks relating to the business conducted by Black Knight, many of which ICE, and more specifically, ICE Mortgage Technology, already faces in its business, as described in “Risk Factors” of ICE’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and the other documents incorporated by reference herein. Some of the specific risks facing Black Knight include risks relating to the mortgage lending industry, including general conditions in the industry; changes in inflation rates and interest rates; changes in current or new regulations and legislation and potential structural changes in the mortgage lending industry; technology risks, including cyber security and data privacy risks relating to Black Knight’s services; risks relating to intellectual property held or used by Black Knight; the ability of Black Knight to adequately compete with products or other companies, including through attracting new customers and retaining or selling additional service offerings to existing customers; risks relating to Black Knight’s use of international third-party service providers and Black Knight’s international operations; risks relating to Black Knight’s indebtedness; risks relating to Black Knight’s investment in Dun & Bradstreet Holdings, Inc.; and risks relating to current and future legal proceedings involving Black Knight.

ICE will also be subject to risks relating to legal proceedings or other disputes involving Black Knight, including any such litigation or disputes pending as of the consummation of the merger. It is not possible to predict the outcome of any such proceedings or disputes. ICE could incur significant expenses in connection with any proceedings or disputes. An adverse resolution of any such proceeding or dispute may require ICE to pay substantial damages or impose restrictions on how ICE conducts business, either of which could adversely affect ICE’s business, financial condition and operating results. For more information concerning legal proceedings and disputes currently affecting Black Knight, see the “Legal and Regulatory Matters” section of Note 13 in the Notes to Consolidated Financial Statements in Black Knight’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021.

 

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In addition, Black Knight is and will continue to be subject to business uncertainties and contractual restrictions while the merger is pending. The occurrence of any of such risks could have a material adverse impact on the financial condition, business or results of operations of Black Knight, which could impair or eliminate ICE’s ability to achieve the expected cost savings and synergies from the merger on a timely basis, if ever, or could impair ICE’s ability to achieve such cost savings and synergies without adversely affecting ICE’s current revenues or investments in future growth. Additionally, such risks could impair ICE’s ability to integrate the business of Black Knight with ICE’s businesses in an efficient and timely manner, if at all.

Black Knight and ICE expect to incur significant costs related to the merger and integration.

ICE will incur substantial expenses in connection with the completion of the merger and to integrate a large number of processes, policies, procedures, operations, technologies and systems of Black Knight in connection with the merger. The substantial majority of these costs will be non-recurring expenses related to the merger (including investment banking fees, legal fees and costs associated with financing the merger) and facilities and systems consolidation costs. ICE may incur additional costs or suffer loss of business under third-party contracts that are terminated or that contain change in control or other provisions that may be triggered by the completion of the merger, and/or losses of, or decreases in orders by, customers, and may also incur costs to maintain employee morale and to retain certain key management personnel and employees. ICE and Black Knight will also incur transaction fees and costs related to formulating integration plans for their combined mortgage services businesses, and the execution of these plans may lead to additional unanticipated costs and time delays. These incremental transaction-related costs may exceed the savings ICE expects to achieve from the elimination of duplicative costs and the realization of other efficiencies related to the integration of the businesses, particularly in the near term and in the event there are material unanticipated costs. Factors beyond ICE’s control could affect the total amount or timing of these expenses, many of which, by their nature, are difficult to estimate accurately.

The unaudited pro forma condensed combined consolidated financial information in this proxy statement/prospectus is presented for illustrative purposes only and may not be reflective of the operating results and financial condition of ICE following completion of the merger.

The unaudited pro forma condensed combined consolidated financial information in this proxy statement/prospectus is presented for illustrative purposes only and is not necessarily indicative of what ICE’s actual financial position or results of operations would have been had the merger been completed on the dates indicated. The unaudited pro forma condensed combined consolidated financial information is subject to a number of assumptions and does not take into account any synergies related to the proposed transaction. Further, ICE’s actual results and financial position after the merger may differ materially and adversely from the unaudited pro forma condensed combined financial data that is included in this proxy statement/prospectus. For further discussion, see “Unaudited Pro Forma Condensed Combined Consolidated Financial Information” beginning on page [        ] of this proxy statement/prospectus.

After the completion of the merger, ICE will be more leveraged than it is currently and the financing arrangements that ICE will enter into may, under certain circumstances, contain restrictions and limitations that could impact its ability to operate its business.

In connection with the merger, ICE has incurred approximately $5 billion of additional indebtedness in the form of senior unsecured notes and, assuming that the closing of the merger occurs in the first half of 2023, intends to incur approximately $4 billion in additional indebtedness consisting of commercial paper and term loans, in order to finance a portion of the cash consideration in the merger and related transactions including, without limitation, the refinancing of certain existing indebtedness of Black Knight, and ICE will assume approximately $1 billion of Black Knight’s outstanding indebtedness. After the completion of the merger, ICE is expected to have consolidated indebtedness of approximately $24.2 billion. The increased indebtedness of ICE after the completion of the merger may have the effect, among other things, of reducing the flexibility of ICE to respond to changing business and economic conditions, requiring ICE to use increased amounts of cash flow to service indebtedness and increasing ICE’s borrowing costs.

 

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In addition, ICE’s credit ratings impact the cost and availability of future borrowings, and, as a result, ICE’s cost of capital. ICE’s ratings reflect each rating organization’s opinion of ICE’s financial strength, operating performance and ability to meet its debt obligations. Each of the ratings organizations reviews ICE’s ratings periodically, and there can be no assurance that ICE’s current ratings will be maintained in the future. Downgrades in ICE’s credit ratings could adversely affect ICE’s businesses, cash flows, financial condition and operating results. In addition, if the merger is completed and Black Knight’s senior notes are downgraded and rated below investment grade by two out of three of Moody’s, S&P and Fitch within 60 days following the change of control or the announcement thereof, this may constitute a change of control triggering event under the indenture governing those notes. Upon the occurrence of a change of control triggering event, the issuer of such debt securities (or ICE on its behalf) would be required to offer to repurchase those outstanding notes at 101% of the principal amount thereof plus accrued and unpaid interest if any, to, but not including, the date of repurchase. However, it is possible that the issuer of such debt securities or ICE would not have sufficient funds at the time of the change of control triggering event to make the required repurchase of notes or that restrictions in other debt instruments would not allow such repurchases.

ICE also expects that the agreements governing the indebtedness that it will incur will contain covenants that may, under certain circumstances, place limitations on certain actions that ICE could seek to undertake. Various risks, uncertainties and events beyond ICE’s control could affect its ability to comply with the covenants contained in its debt agreements. Failure to comply with any of the covenants in its existing or future financing agreements could result in a default under those agreements and under other agreements containing cross-default provisions. A default would permit lenders to accelerate the maturity of the indebtedness under these agreements. In addition, the limitations imposed by financing agreements on ICE’s ability to incur additional indebtedness and to take other actions might impair its ability to obtain other financing on terms acceptable to ICE.

The market price of ICE common stock after the merger is completed may be affected by factors different from those affecting the price of ICE common stock or Black Knight common stock before the merger is completed.

Upon completion of the merger, holders of Black Knight common stock who receive stock consideration in the merger will become holders of ICE common stock. ICE’s business differs from that of Black Knight, and the results of operations as well as the price of ICE common stock may, in the future, be affected by factors different from those factors affecting Black Knight as an independent stand-alone company. ICE will face additional risks and uncertainties that Black Knight is not currently exposed to. As a result, the market price of ICE’s shares may fluctuate significantly following completion of the merger. For a discussion of the businesses of ICE and Black Knight and of some important factors to consider in connection with those businesses, see the documents incorporated by reference into this proxy statement/prospectus and referred to in “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

 

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INFORMATION ABOUT THE SPECIAL MEETING

This section contains information for Black Knight stockholders about the special meeting that Black Knight has called for Black Knight stockholders to consider and vote on the merger proposal and other related matters. This proxy statement/prospectus is accompanied by a notice of the Black Knight special meeting, and a form of proxy card that the Black Knight board is soliciting for use by Black Knight stockholders at the special meeting and at any adjournments or postponements of the special meeting.

Date, Time and Place of the Meeting

The special meeting will be held virtually via the Internet on [                ], at [                ] eastern time. The special meeting will be held solely via live webcast and there will not be a physical meeting location.

Only holders of Black Knight common stock as of the close of business on the record date are entitled to receive notice of, and vote at, the special meeting via the special meeting website or any adjournment or postponement thereof. Black Knight stockholders will be able to attend the special meeting via the special meeting website or by proxy, submit questions and vote their shares electronically during the meeting by visiting the special meeting website at www.virtualshareholdermeeting.com/BKI2022SM. Black Knight stockholders will need the control number found on their proxy card or voting instruction form in order to access the special meeting website.

Matters to Be Considered

At the special meeting, holders of Black Knight common stock will be asked to consider and vote on the following proposals:

 

   

the merger proposal;

 

   

the compensation proposal; and

 

   

the adjournment proposal.

Recommendation of the Black Knight Board of Directors

The Black Knight board recommends that you vote “FOR” the Black Knight merger proposal and “FOR” the compensation proposal and “FOR” the adjournment proposal. See “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors” beginning on page [         ] for a more detailed discussion of the Black Knight board’s recommendation.

Record Date and Quorum

The Black Knight board has fixed the close of business on [                ], 2022 as the record date for determination of Black Knight stockholders entitled to notice of and to vote at the Black Knight special meeting. As of the record date, there were [                ] shares of Black Knight common stock outstanding.

Holders of a majority of the total number of issued shares of Black Knight common stock as of the record date and entitled to vote at the special meeting must be present or represented by proxy at the special meeting to constitute a quorum for the transaction of business at the special meeting. If you fail to submit a proxy or to vote at the special meeting, or fail to instruct your bank, broker, trustee or other nominee how to vote, your shares of Black Knight common stock will not be counted towards a quorum. Marks to “ABSTAIN” on any proposal are considered present for purposes of establishing a quorum.

In the event that a quorum is not present at the special meeting, it is expected that the special meeting will be adjourned or postponed. If the special meeting is postponed or adjourned, it will not affect the ability of

 

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holders of record of Black Knight common stock as of the record date to exercise their voting rights or to revoke any previously granted proxy using the methods described below; however, if a new record date is set for an adjourned meeting, a new quorum will be required to be established.

At the special meeting, each share of Black Knight common stock is entitled to one (1) vote on all matters properly submitted to holders of Black Knight common stock.

As of the record date, Black Knight directors and executive officers and their affiliates owned and were entitled to vote approximately [                ] shares of Black Knight common stock, representing approximately [                ]% of the outstanding shares of Black Knight common stock. We currently expect that Black Knight’s directors and executive officers will vote their shares in favor of the merger proposal and the other proposals to be considered at the special meeting, although none of them has entered into any agreements obligating them to do so.

Broker Non-Votes

A broker non-vote occurs when a bank, broker, trustee or other nominee is not permitted to vote on a “non-routine” matter without instructions from the beneficial owner of the shares and the beneficial owner fails to provide the bank, broker, trustee or other nominee with such instructions. Broker non-votes only count toward a quorum if at least one proposal is presented with respect to which the bank, broker, trustee or other nominee has discretionary authority. All proposals to be voted on at the special meeting will be “non-routine” matters, and, as such, broker non-votes, if any, will not be counted as present and entitled to vote for purposes of determining a quorum at the special meeting. If your bank, broker, trustee or other nominee holds your shares of Black Knight common stock in “street name,” such entity will vote your shares of Black Knight common stock only if you provide instructions on how to vote by complying with the voter instruction form sent to you by your bank, broker, trustee or other nominee with this proxy statement/prospectus.

Vote Required; Treatment of Abstentions and Failure to Vote

Proposal 1: Merger proposal:

 

   

Vote required: Approval of the merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of Black Knight common stock entitled to vote on the merger agreement.

 

   

Effect of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy, fail to submit a proxy or vote at the special meeting via the special meeting website or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the merger proposal, it will have the same effect as a vote “AGAINST” the merger proposal.

Proposal 2: Compensation proposal:

 

   

Vote required: Approval of the compensation proposal requires the affirmative vote of the holders of a majority of the shares of Black Knight common stock present or represented by proxy and entitled to vote at the special meeting.

 

   

Effect of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy, it will have the same effect as a vote “AGAINST” the compensation proposal. If you fail to submit a proxy or vote at the special meeting via the special meeting website or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the compensation proposal, it will have no effect on the compensation proposal.

 

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Proposal 3: Adjournment proposal:

 

   

Vote required: Approval of the adjournment proposal requires the affirmative vote of the holders of a majority of the shares of Black Knight common stock present or represented by proxy and entitled to vote at the special meeting.

 

   

Effect of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy, it will have the same effect as a vote “AGAINST” the adjournment proposal. If you fail to submit a proxy or vote at the special meeting via the special meeting website or fail to instruct your bank, broker, trustee or other nominee how to vote with respect to the adjournment proposal, it will have no effect on the adjournment proposal.

Attending the Special Meeting

The special meeting may be accessed via the special meeting website, where Black Knight stockholders will be able to listen to the special meeting, submit questions and vote online.

You are entitled to attend the special meeting via the special meeting website only if you were a stockholder of record as of the close of business on the record date, or you held your shares beneficially in the name of a bank, broker, trustee or other nominee as of the record date, or you hold a valid proxy for the special meeting. If you were a stockholder of record at the close of business on the record date and wish to attend the special meeting via the special meeting website, you will need the control number on your proxy card. If a bank, broker, trustee or other nominee is the record owner of your shares of Black Knight common stock, you will need to obtain your specific control number and further instructions from your bank, broker, trustee or other nominee.

You may submit questions during the live audio webcast of the special meeting via the special meeting website. To ensure the special meeting is conducted in a manner that is fair to all stockholders, Black Knight may exercise discretion in determining the order in which questions are answered and the amount of time devoted to any one question. Black Knight reserves the right to edit or reject questions it deems inappropriate or not relevant to the special meeting’s limited purpose. Pursuant to the Black Knight bylaws, the chairperson of the Black Knight board will have the right and authority to prescribe such rules and regulations for the conduct of the special meeting.

Technical assistance will be available for stockholders who experience an issue accessing the special meeting. Contact information for technical support will appear on the special meeting website prior to the start of the special meeting.

Proxies

A holder of Black Knight common stock may vote by proxy or at the special meeting via the special meeting website. If you hold your shares of Black Knight common stock in your name as a holder of record, to submit a proxy, you, as a holder of Black Knight common stock, may use one of the following methods:

 

   

By telephone: by calling the toll-free number indicated on the accompanying proxy card and following the recorded instructions.

 

   

Through the Internet: by visiting the website indicated on the accompanying proxy card and following the instructions.

 

   

By mail: by completing and returning the accompanying proxy card in the enclosed postage-paid envelope. The envelope requires no additional postage if mailed in the United States.

If you intend to submit your proxy by telephone or via the Internet, you must do so by [                ], eastern time on the day before the special meeting. If you intend to submit your proxy by mail, your completed proxy card must be received prior to the special meeting.

 

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Black Knight requests that holders of Black Knight common stock vote by telephone, over the Internet or by completing and signing the accompanying proxy card and returning it to Black Knight as soon as possible in the enclosed postage-paid envelope. When the accompanying proxy card is returned properly executed, the shares of Black Knight common stock represented by it will be voted at the special meeting in accordance with the instructions contained on the proxy card. If you make no specification on your proxy card as to how you want your shares voted before signing and returning it, your proxy will be voted “FOR” the merger proposal, “FOR” the compensation proposal and “FOR” the adjournment proposal.

If a holder’s shares are held in “street name” by a bank, broker, trustee or other nominee, the holder should check the voting form used by that firm to determine whether the holder may vote by telephone or the Internet.

Every vote is important. Accordingly, you should sign, date and return the enclosed proxy card, or vote via the Internet or by telephone, whether or not you plan to attend the special meeting via the special meeting website. Sending in your proxy card or voting by telephone or on the Internet will not prevent you from voting your shares via the special meeting website at the meeting because you may subsequently revoke your proxy.

Shares Held in Street Name

If your shares are held in “street name” through a bank, broker, trustee or other nominee, you must instruct the bank, broker, trustee or other nominee on how to vote your shares. Your broker, bank, trustee or other nominee will vote your shares only if you provide specific instructions on how to vote by following the instructions provided to you by your bank, broker, trustee or other nominee.

You may not vote shares held in a brokerage or other account in “street name” by returning a proxy card directly to Black Knight.

Further, banks, brokers, trustees or other nominees who hold shares of Black Knight common stock on behalf of their customers may not give a proxy to Black Knight to vote those shares with respect to any non-routine matters without specific instructions from you, as banks, brokers, trustees and other nominees do not have discretionary voting power on any non-routine matters that will be voted upon at the special meeting, including the merger proposal, the compensation proposal and the adjournment proposal.

Revocability of Proxies

If you are a holder of record of Black Knight common stock, you may revoke your proxy at any time before it is voted by:

 

   

submitting a written notice of revocation to Black Knight’s corporate secretary at c/o Corporate Secretary, Black Knight, Inc., 601 Riverside Avenue, Jacksonville, Florida 32204;

 

   

granting a subsequently dated proxy;

 

   

voting by telephone or the Internet at a later time, before [                ], eastern time on the day before the special meeting; or

 

   

attending virtually and voting at the special meeting via the special meeting website.

If you hold your shares of Black Knight common stock through a bank, broker, trustee or other nominee, you may change your vote by:

 

   

contacting your bank, broker, trustee or other nominee; or

 

   

attending and voting your shares at the special meeting virtually via the special meeting website if you have your specific 16-digit control number, which is included on your proxy card or the voting instruction form from your bank, broker, trustee or other nominee. Please contact your bank, broker, trustee or other nominee to obtain further instructions.

 

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Attendance virtually at the special meeting will not in and of itself constitute revocation of a proxy. A revocation or later-dated proxy received by Black Knight after the vote will not affect the vote. If the special meeting is postponed or adjourned, it will not affect the ability of holders of record of Black Knight common stock as of the record date to exercise their voting rights or to revoke any previously granted proxy using the methods described above; however, if a new record date is set for an adjourned meeting, a new quorum will be required to be established.

Delivery of Proxy Materials

As permitted by applicable law, only one (1) copy of this proxy statement/prospectus is being delivered to holders of Black Knight common stock residing at the same address, unless such holders of Black Knight common stock have notified Black Knight of their desire to receive multiple copies of the proxy statement/prospectus.

Black Knight will promptly deliver, upon oral or written request, a separate copy of the proxy statement/prospectus to any holder of Black Knight common stock residing at an address to which only one (1) copy of such document was mailed. Requests for additional copies should be directed to Black Knight’s Investor Relations at (904) 854-5100 or Innisfree, Black Knight’s proxy solicitor, at:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Shareholders may call toll free: (877) 456-3402

Banks and Brokers may call collect: (212) 750-5833

Solicitation of Proxies

To assist in the solicitation of proxies, Black Knight has retained [                ], for a fee of $[                ] plus reimbursement of out-of-pocket expenses for their services. Black Knight may also request banks, brokers, trustees and other intermediaries holding shares of Black Knight common stock beneficially owned by others to send this proxy statement/prospectus to, and obtain proxies from, the beneficial owners and may reimburse such record holders for their reasonable out-of-pocket expenses in so doing. Solicitation of proxies by mail may be supplemented by telephone and other electronic means, advertisements and personal solicitation by the directors, officers or employees of Black Knight. No additional compensation will be paid to Black Knight’s directors, officers or employees for solicitation.

 

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Assistance

If you need assistance in completing your proxy card, have questions regarding the special meeting or would like additional copies of this proxy statement/prospectus, please contact Black Knight’s Investor Relations at (904) 854-5100 or Innisfree, Black Knight’s proxy solicitor, at:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Shareholders may call toll free: (877) 456-3402

Banks and Brokers may call collect: (212) 750-5833

 

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BLACK KNIGHT PROPOSALS

Proposal 1: Merger Proposal

Black Knight is asking holders of Black Knight common stock to approve and adopt the merger agreement and the transactions contemplated thereby, including the merger. Holders of Black Knight common stock should read this proxy statement/prospectus carefully and in its entirety, including the annexes, for more detailed information concerning the merger agreement and the merger. A copy of the merger agreement is attached to this proxy statement/prospectus as Annex A.

After careful consideration, the Black Knight board unanimously determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement are advisable, fair to and in the best interests of Black Knight and its stockholders and unanimously adopted and approved the merger agreement, the merger and the other transactions contemplated by the merger agreement. See “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors” beginning on page [        ] of this proxy statement/prospectus for a more detailed discussion of the Black Knight board’s recommendation.

The Black Knight board unanimously recommends a vote “FOR” the merger proposal.

Proposal 2: Compensation Proposal

Pursuant to Section 14A of the Exchange Act and Rule 14a-21(c) thereunder, Black Knight is seeking a non-binding, advisory stockholder approval of the compensation of Black Knight’s named executive officers that is based on or otherwise relates to the merger as disclosed in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus. The proposal gives holders of Black Knight common stock the opportunity to vote, on a non-binding, advisory basis, on the merger-related compensation that may be paid or become payable to Black Knight’s named executive officers.

The Black Knight board encourages you to review carefully the named executive officer merger-related compensation information disclosed in this proxy statement/prospectus, and is asking holders of Black Knight common stock to vote “FOR” the adoption of the following resolution, on a non-binding advisory basis:

“RESOLVED, that the compensation that will or may be paid or become payable to the Black Knight named executive officers, in connection with the merger, and the agreements or understandings pursuant to which such compensation will or may be paid or become payable, in each case as disclosed pursuant to Item 402(t) of Regulation S-K in “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” are hereby APPROVED.”

The vote on the compensation proposal is a vote separate and apart from the votes on the merger proposal and the adjournment proposal. Accordingly, if you are a holder of Black Knight common stock, you may vote to approve the merger proposal and/or the adjournment proposal and vote not to approve the compensation proposal, and vice versa. The approval of the compensation proposal by holders of Black Knight common stock is not a condition to the completion of the merger. Because the vote on the compensation proposal is advisory only, it will not affect the obligation of Black Knight or ICE to pay or provide the compensation contemplated by the compensation agreements and arrangements. Accordingly, if the merger is completed, the merger-related compensation will be paid to Black Knight’s named executive officers to the extent payable in accordance with the terms of the compensation agreements and arrangements even if holders of Black Knight common stock fail to approve the advisory vote regarding merger-related compensation.

The Black Knight board unanimously recommends a vote “FOR” the compensation proposal.

 

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Proposal 3: Adjournment Proposal

The special meeting may be adjourned or postponed to another time or place, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger proposal or to ensure that any supplement or amendment to this proxy statement/prospectus is timely provided to holders of Black Knight common stock.

If, at the special meeting, the number of shares of Black Knight common stock present or represented and voting in favor of the merger proposal is insufficient to approve the merger proposal, Black Knight intends to move to adjourn or postpone the special meeting in order to enable the Black Knight board to solicit additional proxies for approval of the merger proposal. In that event, Black Knight will ask holders of Black Knight common stock to vote on the adjournment proposal, but not the merger proposal or the compensation proposal.

In this proposal, Black Knight is asking holders of Black Knight common stock to authorize the holder of any proxy solicited by the Black Knight board on a discretionary basis to vote in favor of adjourning the special meeting to another time and place for the purpose of soliciting additional proxies, including the solicitation of proxies from holders of Black Knight common stock who have previously voted. Pursuant to the DGCL, the special meeting may be adjourned without new notice being given, so long as the new date, time and place of the reconvened special meeting are announced at the special meeting at which the adjournment is taken, and any business may be transacted at the reconvened special meeting that might have been transacted on the original date of the special meeting. Pursuant to the DGCL, if, however, the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting must be given to each stockholder of record entitled to vote at the meeting. The approval of the adjournment proposal by holders of Black Knight common stock is not a condition to the completion of the merger.

The Black Knight board unanimously recommends a vote “FOR” the adjournment proposal.

 

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THE PARTIES TO THE MERGER

ICE

ICE is a Delaware corporation headquartered in Atlanta, Georgia. ICE is a provider of market infrastructure, data services and technology solutions to a broad range of customers including financial institutions, corporations and government entities. ICE’s products, which span major asset classes, including futures, equities, fixed income and U.S. residential mortgages, provide its customers with access to mission critical tools that are designed to increase asset class transparency and workflow efficiency. While ICE reports its results in three reportable business segments, it operates as one business, leveraging the collective expertise, particularly in data services and technology, that exists across its platforms to inform and enhance its operations.

 

   

In its Exchanges segment, ICE operates regulated marketplaces for the listing, trading and clearing of a broad array of derivatives contracts and financial securities.

 

   

In its Fixed Income and Data Services segment, ICE provides fixed income pricing, reference data, indices, analytics and execution services as well as global credit default swap clearing and multi-asset class data delivery solutions.

 

   

In its Mortgage Technology segment, ICE provides a technology platform that offers customers comprehensive, digital workflow tools that aim to address the inefficiencies that exist in the U.S. residential mortgage market.

ICE’s principal executive offices are located at 5660 New Northside Drive, 3rd Floor, Atlanta, GA 30328. ICE’s main telephone number is (770) 857-4700, and its website is www.ice.com. Information contained on ICE’s website or that can be accessed through its website is not incorporated into and does not constitute a part of this proxy statement/prospectus. ICE has included its website address only as an inactive textual reference and does not intend it to be an active link to its website.

ICE common stock is listed on the NYSE under the symbol “ICE.”

Black Knight

Black Knight is a Delaware corporation headquartered in Jacksonville, Florida. Black Knight is a premier provider of integrated, innovative, mission-critical, high-performance software solutions, data and analytics to the U.S. mortgage and real estate markets. Black Knight’s mission is to transform the markets it serves by delivering solutions that are integrated across the homeownership lifecycle and that result in realized efficiencies, reduced risk and new opportunities for clients to help them achieve greater levels of success. As of March 31, 2022, Black Knight had, on a consolidated basis, approximately $5.94 billion in total assets, total stockholders’ equity of approximately $2.45 billion and 160,040,598 shares of Black Knight common stock issued and 155,965,390 shares of Black Knight common stock outstanding.

Black Knight’s principal executive offices are located at 601 Riverside Avenue, Jacksonville, Florida 32204, and its telephone number at that address is (904) 854-5100. Black Knight’s website is www.blackknightinc.com. Information contained on Black Knight’s website or that can be accessed through its website is not incorporated into and does not constitute a part of this proxy statement/prospectus. Black Knight has included its website address only as an inactive textual reference and does not intend it to be an active link to its website.

Black Knight common stock is listed on the NYSE under the symbol “BKI.”

Sand Merger Sub Corporation

Sand Merger Sub Corporation, a wholly owned subsidiary of ICE, is a Delaware corporation incorporated on April 29, 2022 for the purpose of effecting the merger. Sand Merger Sub Corporation has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Sand Merger Sub Corporation are located at 5660 New Northside Drive Atlanta, Georgia 30328 and its telephone number is (770) 857-4700.

 

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THE MERGER

This section describes the merger. The description in this section and elsewhere in this proxy statement/prospectus is qualified in its entirety by reference to the complete text of the merger agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement/prospectus. This summary does not purport to be complete and may not contain all of the information about the merger that is important to you. You are encouraged to read the merger agreement carefully and in its entirety. This section is not intended to provide you with any factual information about Black Knight or ICE. Such information can be found elsewhere in this proxy statement/prospectus and in the public filings Black Knight and ICE make with the SEC that are incorporated by reference into this document, as described in “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus.

Terms of the Merger

See “The Merger Agreement” beginning on page [        ] of this proxy statement/prospectus for additional and more detailed information regarding the legal documents that govern the merger, including the conditions to completion of the merger and the provisions for terminating or amending the merger agreement.

Background of the Merger

The management of Black Knight and the Black Knight board regularly review and assess the performance, strategy, competitive position, opportunities and prospects of Black Knight in light of the then-current business, economic and regulatory environments, as well as developments in its industries and the opportunities and challenges facing participants in those industries (including, in recent years, the impact of the COVID-19 pandemic), in each case, with the goal of enhancing value for Black Knight’s stockholders and delivering the best possible products and services to Black Knight’s clients. These reviews have included periodic consideration of, and discussions with other companies from time to time regarding, potential strategic alternatives, including business combinations, acquisitions and dispositions to further Black Knight’s strategic objectives, as well as assessments that have resulted in business expansion through organic growth initiatives.

In the summer of 2021, Black Knight received preliminary inquiries regarding a potential business combination transaction from a technology company, which we refer to as “Company A,” and, separately, from a consortium of three private equity firms, following which members of Black Knight senior management and representatives of J.P. Morgan, Black Knight’s financial advisor, engaged in preliminary exploratory discussions with these parties.

On July 27, 2021, the Black Knight board held a regularly scheduled meeting, which members of Black Knight management and representatives of J.P. Morgan also attended. At the meeting, Anthony Jabbour, Black Knight’s Chief Executive Officer, and representatives of J.P. Morgan provided an update to the Black Knight board on the preliminary exploratory discussions with these parties regarding their potential interest in pursuing a business combination transaction with Black Knight, and the Black Knight board discussed with representatives of J.P. Morgan and members of Black Knight management the potential benefits and risks of pursuing a strategic business combination with either party. Following discussion, the Black Knight board instructed J.P. Morgan to proceed with soliciting non-binding indications of interest from Company A and the private equity firms.

On August 20, 2021, representatives of Company A informed representatives of J.P. Morgan that Company A would not proceed further with exploring a business combination transaction with Black Knight.

On August 24, 2021, two of the three private equity firms, which we refer to as the “the Sponsor Group,” together submitted a non-binding indication of interest, which we refer to as the “2021 Sponsor Proposal,” to acquire Black Knight at a price of $87.50 per share in a cash transaction, corresponding to an implied market premium of approximately 15% based on the closing price of Black Knight common stock of $76.23 on August 24, 2021.

 

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On August 25, 2021, the Black Knight board held a special meeting to discuss the 2021 Sponsor Proposal, which members of Black Knight management and representatives of J.P. Morgan also attended. At the meeting, representatives of J.P. Morgan reviewed the terms of the 2021 Sponsor Proposal with the Black Knight directors, as well as certain financial metrics based on the terms reflected in the 2021 Sponsor Proposal. After discussion of the terms of the 2021 Sponsor Proposal in relation to Black Knight’s stand-alone plan and available opportunities, and taking into account the prevailing market and economic environment at that time and the modest market premium reflected in the 2021 Sponsor Proposal, the Black Knight board determined that the premium and implied valuation offered in the 2021 Sponsor Proposal was not sufficient at that time relative to Black Knight’s market price at that time and based on the then-existing market conditions and economic environment, and directed J.P. Morgan to communicate to the Sponsor Group that any premium for a business combination transaction with the Sponsor Group would need to be higher to warrant further engagement.

J.P. Morgan conveyed the Black Knight board’s position to the Sponsor Group, and, in response, the Sponsor Group indicated that it was not willing to increase the per share consideration. Following the Sponsor Group’s response, discussions with the Sponsor Group ceased and Black Knight continued to focus on executing on its stand-alone plan as an independent company.

From the end of August 2021 through February 2022, Black Knight management and the Black Knight board continued to periodically review and monitor the company’s stand-alone plan and strategy as well as developments in the economic environment and the financial technology sector in particular. This included a review of the challenges facing Black Knight as an independent company, including with respect to the lack of correlation between Black Knight’s strong financial performance and organic growth and the trading price of Black Knight’s common stock, as well as increasing economic uncertainty and market volatility during this period, including a general decline in equity market valuations in the first quarter of 2022.

In January 2022, an investment bank introduced Benjamin Jackson, President of ICE, and Mr. Jabbour, and on February 24, 2022 Messrs. Jackson and Jabbour met to discuss potential business opportunities. During that conversation, the topic of a potential business combination transaction between ICE and Black Knight was discussed. In addition, in February and March 2022, the members of the Sponsor Group reached out to Black Knight to seek to re-engage in potential exploratory discussions regarding a business combination transaction. Several additional private equity firms also made preliminary inquiries to J.P. Morgan during this period. Black Knight entered into mutual non-disclosure agreements with two of these private equity firms and ICE, and thereafter provided limited due diligence to these parties and to the Sponsor Group.

On April 4, 2022, the Sponsor Group submitted a revised non-binding indication of interest, which we refer to as the “2022 Sponsor Proposal,” to acquire Black Knight at a price in the range of $73 to $75 per share in a cash transaction, corresponding to an implied market premium of 26% to 30% based on the closing price of Black Knight common stock of $57.78 on April 1, 2022.

On April 5, 2022, Bloomberg L.P. published an article, citing unnamed sources, reporting that Black Knight was exploring a potential sale of the company after receiving interest from private equity firms. The trading price of Black Knight common stock closed at $66.27 per share that day, an 11.8% increase from the closing price the prior trading day. Following this media report, Black Knight received informal inbound inquiries from several additional private equity firms and technology companies. These inquiries were preliminary in nature and did not reference any specific proposed transaction terms. Preliminary discussions with these parties, and with the other private equity firms that had made preliminary inquiries regarding a potential transaction in March, did not (other than with respect to the 2022 Sponsor Proposal) result in the submission to Black Knight of any proposal for a business combination transaction.

On April 6, 2022, ICE submitted a non-binding proposal, which we refer to as the “ICE Proposal,” to acquire Black Knight at a price in the range of $85 to $90 per share in a cash and stock transaction, corresponding to an implied market premium of 47% to 56% based on the closing price of Black Knight common stock of $57.78 on April 1, 2022, with shares of ICE common stock comprising up to 25% of the aggregate merger consideration. The ICE Proposal also required that Black Knight enter into an exclusivity agreement with

 

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ICE to provide for a limited period during which the parties would engage in discussions regarding the terms of a potential business combination transaction and conduct due diligence.

On April 8, 2022, the Black Knight board held a special meeting to discuss the 2022 Sponsor Proposal and the ICE Proposal, which Messrs. Foley (Chairman Emeritus of Black Knight), Nackashi (then President and, as of May 16, 2022, Chief Executive Officer of Black Knight), Larsen (Chief Financial Officer and, as of May 16, 2022, President of Black Knight) and Gravelle (Executive Vice President and General Counsel of Black Knight), Ms. Haley (Corporate Secretary of Black Knight) and representatives of J.P. Morgan also attended. At the meeting, representatives of J.P. Morgan reviewed the terms of both proposals with the Black Knight directors, including a comparison of certain financial metrics and a preliminary valuation analysis based on the terms reflected in the two proposals. Black Knight’s General Counsel also reviewed with Black Knight board legal matters related to the proposals and the Black Knight board’s evaluation of a potential business combination transaction. The Black Knight board discussed the relative merits of the two potential transactions, including the execution risks associated with each potential transaction and the potential value each transaction could generate for Black Knight’s stockholders in comparison to Black Knight’s stand-alone plan. Following discussion, the Black Knight board authorized management to continue negotiations and discussions with ICE, but determined that the 2022 Sponsor Proposal was not likely to generate comparable value for Black Knight and its stockholders, and authorized entry into an exclusivity agreement with ICE.

Thereafter, at the direction of the Black Knight board, representatives of Black Knight informed representatives of the Sponsor Group that Black Knight would not be moving forward with further discussions with the Sponsor Group at that time.

On April 11, 2022, Black Knight and ICE entered into an exclusivity agreement requiring Black Knight to conduct transaction negotiations with ICE on an exclusive basis until April 30, 2022. Thereafter and continuing until the merger agreement was executed, ICE performed due diligence reviews, including through documents provided in an electronic data room and through a series of virtual and telephonic due diligence meetings covering relevant topics, and in-person meetings took place between the respective management teams of Black Knight and ICE to discuss due diligence matters and the integration of the companies’ businesses if a strategic transaction between Black Knight and ICE were agreed upon. Also during this period, J.P. Morgan and Wachtell, Lipton, Rosen & Katz, which we refer to as “Wachtell Lipton,” legal advisor to Black Knight, assisted Black Knight with Black Knight’s evaluation of ICE and the potential transaction, and Goldman Sachs and Co., LLC and Wells Fargo Securities, LLC, lead financial advisors to ICE, and Shearman & Sterling LLP, which we refer to as “Shearman,” and Morgan Lewis & Bockius LLP, legal advisors to ICE, assisted ICE with ICE’s evaluation of Black Knight and the potential transaction.

Also on April 11, 2022, Wachtell Lipton delivered to Shearman a term sheet identifying Black Knight’s position on certain key issues to be negotiated in the merger agreement, including, among other matters, the mix of cash and stock in the merger consideration, exchange ratio methodology to be used to calculate the merger consideration, the treatment of Black Knight equity awards in the merger and certain employee-related provisions of the merger agreement, the actions that ICE would be required to undertake to obtain antitrust clearance for the merger, the outside date, and the size of the termination fees to be paid by each party under certain applicable circumstances. Shearman reviewed the term sheet with ICE and its other advisors and provided ICE’s comments on the term sheet to Wachtell Lipton on April 13, 2022.

On April 15, 2022, Wachtell Lipton provided an initial draft of a proposed merger agreement to Shearman. Thereafter and continuing until the merger agreement was executed, the parties and their counsel negotiated the terms of the merger agreement. During this period, Wachtell Lipton and Shearman exchanged several revised versions of the draft merger agreement reflecting discussions between the parties regarding transaction terms.

On April 21, 2022, the Black Knight board held a regular meeting, which Messrs. Foley, Nackashi, Larsen and Gravelle, Ms. Haley and representatives of J.P. Morgan also attended. At the meeting, members of Black Knight management discussed with the Black Knight board Black Knight’s financial results for the first fiscal

 

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quarter and provided a general business update. Members of Black Knight management then updated the Black Knight board on the status of discussions with ICE, including the terms of the proposed transaction under discussion and the regulatory approvals required in connection with a transaction, and representatives of J.P. Morgan updated the Black Knight board on the current economic and geopolitical environment and its impact on the equity markets and mergers and acquisitions activity. Following discussion, the Black Knight board authorized management to continue negotiations and discussions with ICE regarding a potential transaction.

On April 26, 2022, Mr. Jabbour had a telephone conversation with Mr. Jackson to discuss the proposed terms of the potential transaction between Black Knight and ICE. During the call, Mr. Jackson confirmed that ICE would proceed with a transaction valued at $85 per share of Black Knight common stock but would not increase its offer above that level, and Mr. Jackson indicated that ICE was willing to increase the percentage of the aggregate merger consideration to be comprised of cash to more than 75%, with the exact methodology for calculating the fixed share ratio to be agreed by the parties prior to signing any definitive merger agreement.

On April 27, 2022, the Black Knight board held a special meeting, which Messrs. Foley, Nackashi, Larsen and Gravelle, Ms. Haley and representatives of J.P. Morgan also attended. At the meeting, Black Knight management provided an update on the proposed terms of the potential transaction with ICE. A representative of J.P. Morgan reviewed J.P. Morgan’s preliminary financial analyses of the proposed transaction with ICE and reviewed with the Black Knight board J.P. Morgan’s preliminary valuation analyses of Black Knight based on management’s projections. Representatives of J.P. Morgan then reviewed with the Black Knight board certain disclosures which had previously been provided to the Black Knight board regarding certain services performed by J.P. Morgan for and fees received by J.P. Morgan from each of Black Knight and ICE. During the meeting, the Black Knight board engaged in further discussions regarding the benefits of the proposed transaction with ICE relative to Black Knight’s available alternatives, including its stand-alone plan and the benefits, risks and uncertainties associated with the stand-alone plan in the current economic environment, as compared to the potential benefits, risks and uncertainties of a potential transaction with ICE. Black Knight’s General Counsel also reviewed with the Black Knight board certain legal matters relating to the proposed transaction, including the principal terms of the draft merger agreement. At the conclusion of the meeting, after careful review and discussion by the Black Knight board, the Black Knight board unanimously determined that the proposed transaction with ICE offered greater benefits to Black Knight and its stockholders as compared to Black Knight’s available alternatives, and unanimously approved moving forward with the transaction on the terms described to the Black Knight board and authorized Black Knight management to finalize negotiations with ICE.

On April 28, 2022, Black Knight and ICE entered into an amendment to the exclusivity agreement to extend the exclusivity period until May 5, 2022 as the parties continued to work to finalize the transaction terms.

Over the following days, members of management of ICE, including Mr. Jackson, Warren Gardiner (Chief Financial Officer) and David Clifton (VP, M&A and Integration), members of management of Black Knight, including Messrs. Larsen and Gravelle, and representatives of Shearman and Wachtell Lipton negotiated the final terms of the merger agreement and related transaction documentation. On April 30, 2022, Shearman circulated to Wachtell Lipton a further revised draft of the merger agreement proposing a total mix of cash and stock consideration, with cash comprising 80% of the aggregate merger consideration and stock comprising 20% of the aggregate merger consideration. Thereafter, the parties reached agreement on such proposed mix of cash and stock consideration and a fixed share ratio of 0.1440, corresponding to a value of $85 per share of Black Knight common stock based on the volume weighted average of the trading prices of ICE common stock on the NYSE on the ten consecutive trading days ended on (and including) May 2, 2022 of approximately $118.09. During the pendency of the negotiations and as of the date of this proxy statement/prospectus, none of the Black Knight directors or members of management of Black Knight who engaged in negotiations with ICE regarding the final terms of the merger agreement and related transaction documentation was offered or accepted any position or remuneration from any party in connection with the merger, including any payments for managing ICE or its subsidiaries following the merger effective time.

On May 4, 2022, the Black Knight directors reviewed the proposed final terms of the merger agreement, J.P. Morgan’s financial analyses with respect to the proposed transaction and the written opinion, dated May 4, 2022, of

 

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J.P. Morgan to the Black Knight board as to the fairness, from a financial point of view and as of the date of the

opinion, to the holders of Black Knight common stock of the merger consideration, taken in the aggregate. After careful consideration by the Black Knight board over the course of a number of meetings and following review of the proposed final terms of the merger agreement, J.P. Morgan’s financial analyses with respect to the proposed transaction and J.P. Morgan’s written opinion as described above, and considering the factors described below under “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors,” the Black Knight board adopted and approved resolutions by unanimous written consent determining that the merger agreement and the transactions contemplated by the merger agreement, including the merger, are advisable and in the best interests of Black Knight and its stockholders, and unanimously adopted and approved the merger agreement, the merger, and the other transactions contemplated by the merger agreement.

During the afternoon of May 4, 2022, Black Knight and ICE executed the merger agreement and announced the transaction in a press release jointly issued by Black Knight and ICE.

Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors

In reaching its decision to adopt and approve the merger agreement, the merger and the other transactions contemplated by the merger agreement, and to recommend that its stockholders adopt the merger agreement, the Black Knight board evaluated the merger agreement, the merger and the other transactions contemplated by the merger agreement in consultation with Black Knight’s management, as well as Black Knight’s financial and legal advisors, and considered a number of factors, including the following:

 

   

the fact that the implied value of the merger consideration based on the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) May 2, 2022 represented a 33% premium to the closing price of Black Knight common stock on May 2, 2022, and a 43% premium to the unaffected closing price of Black Knight common stock on April 4, 2022, the last full trading day before the publication of news reports relating to a potential acquisition of Black Knight;

 

   

the cash/stock election mechanism of the merger agreement, which offers Black Knight stockholders the opportunity to elect to receive the merger consideration in cash or ICE common stock, subject to proration as provided in the merger agreement (with the cash consideration comprising 80% of the total value of the merger consideration as of the execution of the merger agreement and the stock consideration comprising 20% of the total value of the merger consideration as of the execution of the merger agreement);

 

   

the fact that a substantial portion of the merger consideration consists of cash, which offers Black Knight stockholders the opportunity to realize cash for the value of their shares with immediate certainty of value upon closing, while the merger consideration also includes a meaningful stock component with a fixed share ratio under the merger agreement, which would allow Black Knight stockholders the opportunity to participate in the future growth and opportunities of the combined mortgage business and the anticipated pro forma impact of the merger and otherwise benefit from the financial performance of ICE and potential appreciation in the value of ICE common stock;

 

   

each of Black Knight’s and ICE’s business, operations, financial condition, competitive position, earnings, and prospects, and the Black Knight board’s assessment, in reviewing these factors, that Black Knight’s technology solutions, real estate and mortgage-related data assets, analytics solutions, and its team of mortgage and technology professionals complement and will strengthen ICE’s mortgage technology business, and that the merger and the other transactions contemplated by the merger agreement would result in improvements in the mortgage lending process for lenders and borrowers by increasing automation and efficiencies that lower the cost of obtaining a mortgage, while harnessing data that can help current homeowners lower their monthly payments and lessen the likelihood of default;

 

   

the strategic rationale for the merger, including the opportunity to combine Black Knight’s and ICE’s complementary solutions into an end-to-end solution for the mortgage manufacturing and servicing ecosystem;

 

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the Black Knight board’s belief that the merger will create, and entitle Black Knight stockholders to become stockholders of, a leading global provider of data services and technology solutions with an enhanced platform for future growth;

 

   

the Black Knight board’s belief that ICE’s earnings and prospects, and the synergies potentially available in the proposed merger, would result in the combined mortgage business having the opportunity to have superior future earnings and prospects compared to Black Knight’s earnings and prospects on a stand-alone basis;

 

   

the Black Knight board’s belief that Black Knight and ICE share a common vision and commitment to deliver a better experience for clients and stakeholders, and to ultimately streamline the homeownership process, and that by combining their expertise, the combined mortgage business will deliver significant benefits to clients and consumers by improving and streamlining the process of finding a home, as well as obtaining and managing a mortgage;

 

   

the complementary nature of the products and services of the two companies, which the Black Knight board believed should provide the opportunity to mitigate risks and increase potential returns;

 

   

the Black Knight board’s belief that Black Knight’s highly recurring and predictable revenue stream will add a more durable revenue stream to the ICE mortgage technology business’ current origination-based revenue streams, while the strength of ICE’s balance sheet, ICE’s diversified businesses and revenue streams and the companies’ combined cash flows, will result in a strong financial outlook for the combined company;

 

   

the ability of the combined mortgage business to leverage ICE’s technology expertise in order to modernize and enhance the client and customer experience;

 

   

the anticipated pro forma financial impact of the merger on the combined company, including that the transaction is expected to be accretive to adjusted earnings per share in the first full year following completion of the merger and the expected positive impact on certain other financial metrics;

 

   

the expectation of cost savings and revenue synergies resulting from the transaction, and the ability of Black Knight stockholders who receive stock consideration in the merger to benefit from these expected savings and synergies;

 

   

the Black Knight board’s review of the challenges facing Black Knight as an independent company, including with respect to the increasing economic uncertainty and market volatility, and the Black Knight board’s belief that, taking into account these challenges, the merger consideration represents an attractive value with greater certainty for Black Knight stockholders relative to the prospects for Black Knight on a stand-alone basis;

 

   

the Black Knight board’s familiarity with and understanding of ICE’s and Black Knight’s businesses, results of operations, and financial positions and expectations concerning Black Knight’s future earnings and prospects;

 

   

the Black Knight board’s evaluation, with the assistance of management and Black Knight’s advisors, of other strategic alternatives available to Black Knight for enhancing value over the long term and the potential risks, rewards and uncertainties associated with such other alternatives, and the Black Knight board’s belief that the proposed transaction with ICE offered greater benefits, with reduced risks, as compared to the value that would reasonably be expected to be obtained from other alternatives available to Black Knight;

 

   

the process through which the Black Knight board, with the assistance of management and Black Knight’s advisors, analyzed and considered the available alternatives for Black Knight over an extended period of time, including consideration of inbound inquiries, a review of other potential strategic partners and the likelihood of any other party offering financial and other terms that would be superior to the proposed merger, and the Black Knight board’s determination that no such alternative was as strategically and financially compelling as the transaction with ICE;

 

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the Black Knight board’s view of the availability of alternative transactions, as well as the attractiveness and strategic fit of ICE as a potential merger partner, the Black Knight board’s view of the likelihood of an actionable alternative transaction emerging on terms and conditions as beneficial to Black Knight and its stockholders as those proposed by ICE, the fact that no party other than ICE and the Sponsor Group submitted a proposal to Black Knight regarding a potential strategic business combination transaction notwithstanding media speculation that Black Knight was considering a potential transaction, the Black Knight board’s determination that the proposed transaction with ICE offered greater value to Black Knight’s stockholders than the 2022 Sponsor Proposal, and the terms of the merger agreement that give Black Knight the right, subject to certain conditions, to provide nonpublic information in response to, and to discuss and negotiate, certain bona fide unsolicited acquisition proposals made before Black Knight’s stockholders approve the merger agreement, and, ultimately, to terminate the merger agreement in order to accept a superior proposal under specified circumstances before Black Knight’s stockholders approve the merger agreement;

 

   

the written opinion, dated May 4, 2022, to the Black Knight board of J.P. Morgan to the effect that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Aggregate Consideration to be received by the holders of Black Knight common stock in merger pursuant to the merger agreement was fair, from a financial point of view, to such holders, as more fully described in “—Opinion of Black Knight’s Financial Advisor” beginning on page [        ] of this proxy statement/prospectus;

 

   

the Black Knight board’s review of the terms of the merger agreement, including the representations, covenants, deal protection and termination provisions, and closing conditions;

 

   

Black Knight’s right to terminate the merger agreement under certain circumstances, including in order to accept and enter into a definitive agreement with respect to an unsolicited superior offer in certain circumstances before Black Knight’s stockholders approve the merger agreement, subject to providing ICE an opportunity to match such proposal prior to taking such action, and payment to ICE of a termination fee of $398 million if the merger agreement is so terminated, which amount the Black Knight board believed to be reasonable under the circumstances;

 

   

the condition to completing the merger that the Black Knight stockholder approval must be obtained, so that stockholders will have the right to approve or disapprove of the merger;

 

   

the availability of appraisal rights to Black Knight stockholders who comply with specified procedures under Delaware law;

 

   

the fact that ICE’s obligation to complete the transaction is not subject to any financing condition or similar contingency; and

 

   

ICE’s past record of integrating acquired businesses and of realizing projected financial goals and benefits of acquisitions and the perceived strength of ICE’s management and infrastructure to successfully complete the integration process following the completion of the merger.

The Black Knight board also considered potential risks related to the merger but concluded that the anticipated benefits of the merger were likely to substantially outweigh these risks. These potential risks include the following:

 

   

the possibility that the transaction may not be completed or may be unduly delayed for reasons beyond the control of Black Knight and/or ICE, including the potential length of the regulatory review process and the risk that applicable regulatory authorities may seek to enjoin the transaction or otherwise impose conditions on Black Knight and/or ICE in order to obtain clearance for the transaction that could jeopardize or delay the completion of, or reduce or delay the anticipated benefits of, the transaction;

 

   

certain anticipated merger-related costs that Black Knight expects to incur, including a number of non-recurring costs in connection with the merger even if the merger is not ultimately consummated;

 

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the possibility of ICE encountering difficulties in achieving anticipated synergies and cost savings in the amounts estimated or in the time frames contemplated;

 

   

the possibility of encountering difficulties in successfully maintaining existing customer and employee relationships and growing revenues and profits;

 

   

the possibility of ICE encountering difficulties in successfully integrating Black Knight’s and ICE’s businesses, operations and workforce;

 

   

the possible diversion of management attention and resources from the operation of Black Knight’s business or other strategic opportunities towards the completion of the merger;

 

   

the fact that receipt of the merger consideration would be taxable to Black Knight stockholders that are treated as U.S. holders for U.S. federal income tax purposes;

 

   

the fact that the value of the merger consideration will fluctuate depending on the performance of ICE common stock prior to closing of the merger, and that the merger agreement does not provide termination or walk-away rights to Black Knight in the event of a decline in the price of ICE common stock in and of itself;

 

   

the potential effects of the COVID-19 pandemic or other similar occurrences on the completion, timing or benefits of the merger;

 

   

the fact that the merger agreement places certain restrictions on the conduct of Black Knight’s business prior to the completion of the merger, which are customary for public company merger agreements, but which, subject to specific exceptions, could delay or prevent Black Knight from undertaking business opportunities that might arise or other actions it might otherwise take with respect to the operations of Black Knight absent the pending completion of the merger;

 

   

the potential for legal claims challenging the merger; and

 

   

the other risks described in “Risk Factors” beginning on page [        ] and “Cautionary Statement Regarding Forward-Looking Statements” beginning on page [        ] of this proxy statement/prospectus.

The foregoing discussion of the information and factors considered by the Black Knight board is not intended to be exhaustive, but includes the material factors considered by the Black Knight board. In reaching its decision to approve the merger agreement, the merger, and the other transactions contemplated by the merger agreement, the Black Knight board did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The Black Knight board considered all these factors as a whole, including through its discussions with Black Knight’s management and financial and legal advisors, in evaluating the merger agreement, the merger, and the other transactions contemplated by the merger agreement.

For the reasons set forth above, the Black Knight board determined that the merger, the merger agreement and the transactions contemplated by the merger agreement are advisable and in the best interests of Black Knight and its stockholders, and adopted and approved the merger agreement and the transactions contemplated thereby, including the merger.

In considering the recommendation of the Black Knight board, you should be aware that certain directors and executive officers of Black Knight may have interests in the merger that are different from, or in addition to, interests of stockholders of Black Knight generally and may create potential conflicts of interest. The Black Knight board was aware of these interests and considered them when evaluating and negotiating the merger agreement, the merger and the other transactions contemplated by the merger agreement, and in recommending to Black Knight’s stockholders that they vote in favor of the merger proposal, the compensation proposal and the adjournment proposal. See “The Merger—Interests of Black Knight’s Directors and Executive Officers in the Merger” beginning on page [        ] of this proxy statement/prospectus.

 

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It should be noted that this explanation of the reasoning of the Black Knight board and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed in “Cautionary Statement Regarding Forward-Looking Statements” on page [        ] of this proxy statement/prospectus.

For the reasons set forth above, the Black Knight board unanimously recommends that the holders of Black Knight common stock vote “FOR” the merger proposal and “FOR” the other proposals to be considered at the special meeting.

Opinion of Black Knight’s Financial Advisor

Pursuant to an engagement letter, Black Knight retained J.P. Morgan as its financial advisor in connection with the merger.

On May 4, 2022, J.P. Morgan delivered its written opinion to the Black Knight board that, as of such date, the Aggregate Consideration to be paid to the holders of Black Knight common stock in the merger was fair, from a financial point of view, to such holders.    

The full text of the written opinion of J.P. Morgan dated as of May 4, 2022, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex B to this proxy statement/prospectus and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this proxy statement/prospectus is qualified in its entirety by reference to the full text of such opinion. Black Knight’s stockholders are urged to read the opinion in its entirety. J.P. Morgan’s opinion was addressed to the Black Knight board (in its capacity as such) in connection with and for the purposes of its evaluation of the merger, was directed only to the Aggregate Consideration to be paid to the holders of Black Knight common stock in the merger and did not address any other aspect of the merger. J.P. Morgan expressed no opinion as to the fairness of any consideration to be paid in connection with the merger to the holders of any other class of securities, creditors or other constituencies of Black Knight or as to the underlying decision by Black Knight to engage in the merger. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The opinion does not constitute a recommendation to any stockholder of Black Knight as to how such stockholder should vote with respect to the merger proposal or any other matter, including whether any stockholder should elect to receive Per Share Cash Consideration or Per Share Stock Consideration or to make no election with respect to the merger consideration.

In arriving at its opinion, J.P. Morgan, among other things:

 

   

reviewed the merger agreement;

 

   

reviewed certain publicly available business and financial information concerning Black Knight and the industries in which it operates;

 

   

compared the proposed financial terms of the merger with the publicly available financial terms of certain transactions involving companies J.P. Morgan deemed relevant and the consideration paid for such companies;

 

   

compared the financial and operating performance of Black Knight with publicly available information concerning certain other companies J.P. Morgan deemed relevant and reviewed the current and historical market prices of the Black Knight common stock and certain publicly traded securities of such other companies;

 

   

reviewed certain internal financial analyses and forecasts prepared by the management of Black Knight relating to its business; and

 

   

performed such other financial studies and analyses and considered such other information as J.P. Morgan deemed appropriate for the purposes of its opinion.

 

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In addition, J.P. Morgan held discussions with certain members of the management of Black Knight with respect to certain aspects of the merger, and the past and current business operations of Black Knight, the financial condition and future prospects and operations of Black Knight, the effects of the merger on the financial condition and future prospects of Black Knight, and certain other matters J.P. Morgan believed necessary or appropriate to its inquiry.

In giving its opinion, J.P. Morgan relied upon and assumed the accuracy and completeness of all information that was publicly available or was furnished to or discussed with J.P. Morgan by Black Knight or otherwise reviewed by or for J.P. Morgan. J.P. Morgan did not independently verify any such information or its accuracy or completeness and, pursuant to J.P. Morgan’s engagement letter with Black Knight, J.P. Morgan did not assume any obligation to undertake any such independent verification. J.P. Morgan did not conduct and was not provided with any valuation or appraisal of any assets or liabilities, nor did J.P. Morgan evaluate the solvency of Black Knight or ICE under any state or federal laws relating to bankruptcy, insolvency or similar matters. In relying on financial analyses and forecasts provided to J.P. Morgan or derived therefrom, J.P. Morgan assumed that they were reasonably prepared based on assumptions reflecting the best currently available estimates and judgments by Black Knight’s management as to the expected future results of operations and financial condition of Black Knight to which such analyses or forecasts relate. J.P. Morgan expressed no view as to such analyses or forecasts or the assumptions on which they were based. J.P. Morgan also assumed that the merger and the other transactions contemplated by the merger agreement will have the tax consequences described in discussions with, and materials furnished to J.P. Morgan by, representatives of Black Knight, and will be consummated as described in the merger agreement. J.P. Morgan also assumed that the representations and warranties made by Black Knight, ICE and Sub in the merger agreement and the related agreements were and will be true and correct in all respects material to its analysis. J.P. Morgan is not a legal, regulatory or tax expert and relied on the assessments made by advisors to Black Knight with respect to such issues. J.P. Morgan further assumed that all material governmental, regulatory or other consents and approvals necessary for the consummation of the merger will be obtained without any adverse effect on Black Knight or ICE or on the contemplated benefits of the merger.

The projections furnished to J.P. Morgan were prepared by Black Knight’s management, as discussed more fully under “—Certain Unaudited Prospective Financial Information” beginning on page [        ] of this proxy statement/prospectus. Black Knight does not publicly disclose internal management projections of the type provided to J.P. Morgan in connection with J.P. Morgan’s analysis of the merger, and such projections were not prepared with a view toward public disclosure. These projections were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of Black Knight’s management, including, without limitation, factors related to general economic and competitive conditions and prevailing interest rates. Accordingly, actual results could vary significantly from those set forth in such projections. For more information regarding the use of projections and other forward-looking statements, please see “—Certain Unaudited Prospective Financial Information” beginning on page [        ] of this proxy statement/prospectus.

J.P. Morgan’s opinion was necessarily based on economic, market and other conditions as in effect on, and the information made available to J.P. Morgan as of, the date of such opinion. J.P. Morgan’s opinion noted that subsequent developments may affect J.P. Morgan’s opinion, and that J.P. Morgan does not have any obligation to update, revise or reaffirm such opinion. J.P. Morgan’s opinion is limited to the fairness, from a financial point of view, of the Aggregate Consideration to be paid to the holders of Black Knight common stock in the merger, and J.P. Morgan has expressed no opinion as to the fairness of any consideration to be paid in connection with the merger to the holders of any other class of securities, creditors or other constituencies of Black Knight or as to the underlying decision by Black Knight to engage in the merger. Furthermore, J.P. Morgan expressed no opinion with respect to the amount or nature of any compensation to any officers, directors, or employees of any party to the merger, or any class of such persons relative to the Aggregate Consideration to be paid to the holders of Black Knight common stock in the merger or with respect to the fairness of any such compensation. J.P. Morgan expressed no opinion as to the price at which Black Knight common stock or ICE common stock will trade at any future time.

The terms of the merger agreement, including the Aggregate Consideration to be paid to the holders of Black Knight common stock, were determined through arm’s length negotiations between Black Knight and ICE,

 

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and the decision to enter into the merger agreement was solely that of the Black Knight board. J.P. Morgan’s opinion and financial analyses were only one of the many factors considered by the Black Knight board in its evaluation of the merger and should not be viewed as determinative of the views of the Black Knight board or Black Knight’s management with respect to the merger or the merger consideration.

In accordance with customary investment banking practice, J.P. Morgan employed generally accepted valuation methodologies in rendering its opinion to the Black Knight board on May 4, 2022, and in the financial analysis presented to the Black Knight board in connection with the rendering of such opinion. The following is a summary of the material financial analyses utilized by J.P. Morgan in connection with rendering its opinion to the Black Knight board and does not purport to be a complete description of the analyses or data presented by J.P. Morgan. Some of the summaries of the financial analyses include information presented in tabular format. The tables are not intended to stand alone, and in order to more fully understand the financial analyses used by J.P. Morgan, the tables must be read together with the full text of each summary. Considering the data set forth below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of J.P. Morgan’s analyses.

Public Trading Multiples. Using publicly available information, J.P. Morgan compared selected financial data of Black Knight with similar data for selected publicly traded companies engaged in businesses which J.P. Morgan judged to be sufficiently analogous to those engaged in by Black Knight. The companies selected by J.P. Morgan were as follows:

Processors

 

   

Fiserv, Inc.

 

   

Fidelity National Information Services, Inc.

 

   

Global Payments Inc.

 

   

SS&C Technologies Holdings, Inc.

 

   

Broadridge Financial Solutions, Inc.

 

   

Jack Henry & Associates, Inc.

Information Services

 

   

S&P Global Inc.

 

   

Moody’s Corporation

 

   

Verisk Analytics, Inc.

 

   

Experian PLC

 

   

Equifax Inc.

 

   

TransUnion

 

   

FactSet Research Systems, Inc.

 

   

Fair Isaac Corporation

These companies were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for the purposes of J.P. Morgan’s analysis, may be considered similar to those of Black Knight based on (i) operations providing transaction processing or information services to the financial services industry and (ii) financial profile similar to that of Black Knight. However, certain of these companies

 

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may have characteristics that are materially different from those of Black Knight. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the selected companies differently than they would affect Black Knight.

Using publicly available information, J.P. Morgan calculated, for each selected company, (a) the ratio of firm value to the consensus equity research analyst estimates for the company’s adjusted earnings before interest, taxes, depreciation, amortization and stock-based compensation expense, which we refer to as “Adjusted EBITDA,” for the year ending December 31, 2022, which we refer to as “FV/2022E Adj. EBITDA,” and (b) the ratio of the company’s closing price as of May 2, 2022 to the consensus equity research analyst estimates for the company’s earnings per share for the year ending December 31, 2022, which we refer to as “P/2022E Earnings”. Based on the results of this analysis, J.P. Morgan selected multiple reference ranges of 15.0x – 17.0x for FV/2022E Adj. EBITDA and 20.0x – 22.0x for P/2022E Earnings. After applying such ranges to the projected Adjusted EBITDA for Black Knight for the year ending December 31, 2022 as provided in the Black Knight management estimates (as defined in “—Certain Unaudited Prospective Financial Information” beginning on page [        ] of this proxy statement/prospectus) and the projected Adjusted EPS (as defined in “—Certain Unaudited Prospective Financial Information” beginning on page [        ] of this proxy statement/prospectus) for Black Knight for the year ending December 31, 2022, as provided in the Black Knight management estimates, respectively, the analysis indicated the following ranges of implied per share equity value (rounded to the nearest $0.25) for Black Knight common stock:

 

     Implied Per Share
Equity Value
 
     Low      High  

Black Knight FV/2022E Adj. EBITDA

   $ 60.25      $ 70.50  

Black Knight P/2022E Earnings

   $ 55.00      $ 60.25  

The ranges of implied per share equity value for Black Knight common stock were compared to (i) the unaffected closing price of Black Knight common stock of $59.27 on April 4, 2022, the last full trading day before the publication of news reports relating to a potential acquisition of Black Knight, and (ii) the offer price of $85.00 per share of Black Knight common stock.

Transaction Multiples Analysis. Using publicly available information, J.P. Morgan examined selected transactions involving businesses which J.P. Morgan judged to be sufficiently analogous to the business of Black Knight or aspects thereof. The transactions considered by J.P. Morgan were as follows:

Real Estate Technology

 

Announcement

Date

  

Target

  

Acquiror

February 15, 2022

   Optimal Blue, LLC (40%)    Black Knight, Inc.

March 1, 2021 (revised proposal)

   CoreLogic, Inc.    Costar Group, Inc.

February 4, 2021

   CoreLogic, Inc.    Stone Point Capital LLC

December 21, 2020

   Realpage, Inc.    Thoma Bravo LP

August 6, 2020

   Ellie Mae, Inc.    Intercontinental Exchange, Inc.

July 27, 2020

   Optimal Blue, LLC (60%)    Black Knight, Inc.

February 19, 2019

   Ellie Mae, Inc.    Thoma Bravo LP

 

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Information Services

 

Announcement

Date

  

Target

  

Acquiror

November 30, 2020

   IHS Markit Ltd.    S&P Global Inc.

July 29, 2020

   CPA Global Limited and CPA Global Group Holdings Limited    Clarivate Plc

May 15, 2017

   Bureau van Dijk Electronic Publishing B.V.    Moody’s Corporation

Transaction Processing

 

Announcement

Date

  

Target

  

Acquiror

September 18, 2019

   Total Systems Services, Inc.    Global Payments Inc.

March 18, 2019

   Worldpay, Inc.    Fidelity National Information Services, Inc.

January 16, 2019

   First Data Corporation    Fiserv, Inc.

September 25, 2017

   Nets (A/S)    Hellman & Friedman LLC (Consortium)

July 4, 2017

   Worldpay Group plc    Vantiv, Inc.

Vertical Software

 

Announcement

Date

  

Target

  

Acquiror

April 7, 2022

   CDK Global Inc.    Brookfield Business Partners

August 13, 2020

   Vertafore, Inc.    Roper Technologies, Inc.

September 6, 2018

   Intralinks Holdings, Inc.    SS&C Technologies Holdings, Inc.

July 31, 2018

   Accruent, LLC    Fortive Corporation

None of the selected transactions reviewed was identical to the merger. However, the selected transactions were chosen because certain aspects of the transactions, for purposes of J.P. Morgan’s analysis, may be considered similar to the merger, based on (i) the target company’s operations in the real estate technology, information services, transaction processing or vertical software industries and (ii) the target company’s financial profile similar to that of Black Knight. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the transactions differently than they would affect the merger.

Using publicly available information, J.P. Morgan calculated, for each selected transaction, the ratio of the target company’s firm value implied in the relevant transaction to the target company’s Adjusted EBITDA for the twelve-month period immediately following the announcement of the applicable transaction, which we refer to as “FV/Adj. EBITDA”.

Based on the above analysis, J.P. Morgan selected a FV/Adj. EBITDA multiple reference range of 17.0x to 23.0x. After applying such range to Black Knight’s projected Adjusted EBITDA for the twelve-month period ending December 31, 2022 as provided in the Black Knight management estimates, the analysis indicated the following range of implied per share equity values (rounded to the nearest $0.25) for Black Knight common stock:

 

     Implied Per Share Equity Value  
                 Low                      High          

Black Knight FV/Adj. EBITDA

   $ 70.50      $ 101.00  

 

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The range of implied per share equity values for Black Knight common stock was compared to (i) the unaffected closing price of Black Knight common stock of $59.27 on April 4, 2022, the last full trading day before the publication of news reports relating to a potential acquisition of Black Knight, and (ii) the offer price of $85.00 per share of Black Knight common stock.

Discounted Cash Flow Analysis. J.P. Morgan conducted a discounted cash flow analysis for the purpose of determining an implied fully diluted equity value per share for Black Knight common stock. J.P. Morgan calculated the unlevered free cash flows that Black Knight is expected to generate during fiscal years 2022E through 2026E (derived from the Black Knight management estimates, which was discussed with, and approved by, the Black Knight board for use by J.P. Morgan in connection with its financial analyses). J.P. Morgan also calculated a range of terminal values for Black Knight at the end of this period by applying perpetual growth rates ranging from 2.75% to 3.25%, based on guidance provided by Black Knight’s management, to estimates of the unlevered terminal free cash flows for Black Knight at the end of fiscal-year 2026E, as derived from the Black Knight management estimates. J.P. Morgan then discounted the unlevered free cash flow estimates and the range of terminal values to present value as of December 31, 2021 using discount rates ranging from 7.25% to 8.25%, which range was chosen by J.P. Morgan based upon an analysis of the weighted average cost of capital of Black Knight. The present value of the unlevered free cash flow estimates and the range of terminal values were then adjusted by subtracting net debt and other adjustments for Black Knight as of December 31, 2021.

Based on the foregoing, this analysis indicated the following ranges of implied per share equity value (rounded to the nearest $0.25) for Black Knight common stock:

 

     Implied Per Share Equity Value  
                 Low                      High          

Black Knight Discounted Cash Flow

   $ 53.75      $ 78.50  

The range of implied per share equity values for Black Knight common stock was compared to (i) the unaffected closing price of Black Knight common stock of $59.27 on April 4, 2022, the last full trading day before the publication of news reports relating to a potential acquisition of Black Knight, and (ii) the offer price of $85.00 per share of Black Knight common stock.

Miscellaneous. The foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data presented by J.P. Morgan. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. J.P. Morgan believes that the foregoing summary and its analyses must be considered as a whole and that selecting portions of the foregoing summary and these analyses, without considering all of its analyses as a whole, could create an incomplete view of the processes underlying the analyses and its opinion. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above were merely utilized to create points of reference for analytical purposes and should not be taken to be the view of J.P. Morgan with respect to the actual value of Black Knight. The order of analyses described does not represent the relative importance or weight given to those analyses by J.P. Morgan. In arriving at its opinion, J.P. Morgan did not attribute any particular weight to any analyses or factors considered by it and did not form an opinion as to whether any individual analysis or factor (positive or negative), considered in isolation, supported or failed to support its opinion. Rather, J.P. Morgan considered the totality of the factors and analyses performed in determining its opinion.

Analyses based upon forecasts of future results are inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by J.P. Morgan are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, J.P. Morgan’s analyses are not and do not purport to be appraisals or otherwise reflective of the prices at which businesses actually could be acquired or sold. None of the selected companies reviewed as described in the above summary are identical to Black Knight, and none of

 

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the selected transactions reviewed was identical to the merger. However, the companies selected were chosen because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analysis, may be considered similar to those of Black Knight. The transactions selected were similarly chosen because their participants, size and other factors, for purposes of J.P. Morgan’s analysis, may be considered similar to the merger. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies compared to Black Knight and the transactions compared to the merger.

As a part of its investment banking business, J.P. Morgan and its affiliates are continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements, and valuations for corporate and other purposes. J.P. Morgan was selected to advise Black Knight with respect to the merger and deliver an opinion to the Black Knight board with respect to the merger on the basis of, among other things, such experience and its qualifications and reputation in connection with such matters and its familiarity with Black Knight and the industries in which it operates.

For financial advisory services rendered in connection with the merger, Black Knight has agreed to pay J.P. Morgan an estimated fee of $70 million, $3 million of which became payable to J.P. Morgan at the time J.P. Morgan delivered its opinion and the remainder of which is contingent and payable upon the consummation of the merger. In addition, Black Knight has agreed to reimburse J.P. Morgan for its reasonable costs and expenses incurred in connection with its services, including the reasonable fees and expenses of counsel, and will indemnify J.P. Morgan against certain liabilities arising out of J.P. Morgan’s engagement.

During the two years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its affiliates have had commercial or investment banking relationships with Black Knight and ICE, for which J.P. Morgan and such affiliates have received customary compensation. Such services during such period have included acting as joint lead arranger for Black Knight on a credit facility in March 2021; co-lead underwriter for Black Knight on an offering of debt securities in August 2020; co-lead underwriter for Black Knight on an offering of debt securities in June 2020; financial advisor to Black Knight in February 2022; joint bookrunner and joint lead arranger for ICE on a credit facility in September 2021; joint bookrunning manager for ICE on an offering of debt securities in May 2020; and co-lead underwriter for ICE on an offering of debt securities in August 2020. In addition, J.P. Morgan’s commercial banking affiliate is an agent bank and a lender under outstanding credit facilities of Black Knight, for which it receives customary compensation or other financial benefits. During the two year period preceding the date of J.P. Morgan’s opinion, the aggregate fees recognized by J.P. Morgan from Black Knight were approximately $11 million and from ICE were approximately $95 million (which includes fees recognized by J.P. Morgan in its capacity as financial advisor to Ellie Mae, Inc. in its acquisition by ICE in September 2020). In addition, J.P. Morgan and its affiliates hold, on a proprietary basis, less than 1% of the outstanding common stock of each of Black Knight and ICE. In the ordinary course of its businesses, J.P. Morgan and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Black Knight or ICE for their own account or for the accounts of customers and, accordingly, they may at any time hold long or short positions in such securities or other financial instruments.

Certain Unaudited Prospective Financial Information

Black Knight does not, as a matter of course, publicly disclose forecasts or internal projections as to its future performance, revenues, earnings, financial condition or other results given, among other reasons, the inherent uncertainty of the underlying assumptions and estimates, other than, from time to time, estimated ranges of certain financial measures for the current year in its earnings conference calls and investor conference presentations. However, Black Knight and ICE are including in this proxy statement/prospectus certain unaudited prospective financial information for Black Knight that was made available to Black Knight’s financial advisor as described below (which we collectively refer to as the “prospective financial information”). A summary of certain significant elements of this information is set forth below and is included in this proxy statement/prospectus solely for the purpose of providing Black Knight stockholders access to certain nonpublic information made available to Black Knight’s financial advisor and ICE.

 

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Black Knight and ICE do not endorse the prospective financial information as necessarily predictive of actual future results. Furthermore, although presented with numerical specificity, the prospective financial information reflects numerous estimates and assumptions made by senior management of Black Knight at the time such prospective financial information was prepared or approved for the use of Black Knight’s financial advisor. In addition, because the prospective financial information covers multiple years, such information by its nature becomes subject to greater uncertainty with each successive year. These and the other estimates and assumptions underlying the prospective financial information involve judgments with respect to, among other things, economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, including, among other things, the inherent uncertainty of the business and economic conditions affecting the industries in which Black Knight operates and the risks and uncertainties described under “Risk Factors” beginning on page [        ] of this proxy statement/prospectus and “Forward-Looking Statements” beginning on page [        ] of this proxy statement/prospectus and in the reports that Black Knight files with the SEC from time to time, all of which are difficult to predict and many of which are outside the control of Black Knight and will be beyond the control of ICE following the completion of the merger.

There can be no assurance that the underlying assumptions or projected results will be realized, and actual results could differ materially from those reflected in the prospective financial information, whether or not the merger is completed. Further, these assumptions do not include all potential actions that the senior management of Black Knight could or might have taken during these time periods. The inclusion in this proxy statement/prospectus of the prospective financial information below should not be regarded as an indication that Black Knight or ICE or their respective boards of directors or advisors considered, or now consider, this prospective financial information to be material information to any Black Knight stockholders, particularly in light of the inherent risks and uncertainties associated with such prospective financial information, or that it should be construed as financial guidance, and it should not be relied on as such. This information was prepared solely for internal use and is subjective in many respects and thus is susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. The prospective financial information is not fact and should not be relied upon as necessarily indicative of actual future results. The prospective financial information also reflects numerous variables, expectations and assumptions available at the time it was prepared as to certain business decisions that are subject to change and does not take into account any circumstances or events occurring after the date it was prepared, including the transactions contemplated by the merger agreement or the possible financial and other effects on Black Knight or ICE of the merger, and does not attempt to predict or suggest actual future results of ICE following the completion of the merger or give effect to the merger, including the effect of negotiating or executing the merger agreement, the costs that may be incurred in connection with consummating the merger, the potential synergies that may be achieved by ICE as a result of the merger, the effect on Black Knight of any business or strategic decision or action that has been or will be taken as a result of the merger agreement having been executed, or the effect of any business or strategic decisions or actions which would likely have been taken if the merger agreement had not been executed, but which were instead altered, accelerated, postponed or not taken in anticipation of the merger. Further, the prospective financial information does not take into account the effect of any possible failure of the merger to occur. No assurances can be given that if the prospective financial information and the underlying assumptions had been prepared as of the date of this proxy statement/prospectus, similar assumptions would be used. In addition, the prospective financial information may not reflect the manner in which ICE would operate after the merger.

The accompanying prospective financial information was not prepared for the purpose of, or with a view toward, public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information, published guidelines of the SEC regarding forward-looking statements or generally accepted accounting principles.

Subject to the above, the prospective financial information included in this section has been provided by Black Knight’s management as described in this section. Neither KPMG LLP (Black Knight’s independent registered public accounting firm) nor Ernst & Young LLP (ICE’s independent registered public accounting

 

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firm), nor any other independent registered public accounting firm, has audited, reviewed, examined, compiled or applied agreed-upon procedures with respect to the accompanying prospective financial information and, accordingly, neither KPMG LLP nor Ernst & Young LLP expresses an opinion or any other form of assurance with respect thereto or its achievability and assumes no responsibility for the prospective financial information and disclaims any association with the prospective financial information. The report by each of KPMG LLP and Ernst & Young LLP incorporated by reference in this proxy statement/prospectus relates to Black Knight’s and ICE’s previously issued financial statements. They do not extend to the prospective financial information and should not be read to do so.

The following table presents unaudited prospective financial information for Black Knight prepared by Black Knight management for the years ending December 31, 2022 through December 31, 2026 (the “Black Knight management estimates”). The Black Knight management estimates, among other estimates, were provided by Black Knight management to and used by J.P. Morgan at the direction of Black Knight management in the financial analyses performed in connection with J.P. Morgan’s opinion:

 

Fiscal Year Ended December 31,
($ in millions except per share data)

   2022E      2023E      2024E      2025E      2026E  

Revenue

   $ 1,602      $ 1,745      $ 1,891      $ 2,045      $ 2,192  

Adjusted EBITDA1

   $ 794      $ 881      $ 970      $ 1,070      $ 1,163  

Adjusted EPS2

   $ 2.66      $ 2.97      $ 3.42      $ 3.87      $ 4.36  

 

(1)

Adjusted EBITDA is defined as net earnings attributable to Black Knight, with adjustments to reflect the addition or elimination of certain statement of earnings items including, but not limited to: depreciation and amortization; interest expense, net; income tax expense; other expenses, net; equity in losses (earnings) of unconsolidated affiliates, net of tax; (gains) losses related to investments in unconsolidated affiliate, net of tax; net earnings (losses) attributable to redeemable noncontrolling interests; equity-based compensation, including certain related payroll taxes; acquisition-related costs, including costs pursuant to purchase agreements; and costs associated with expense reduction initiatives.

(2)

Adjusted EPS is defined as (i) adjusted net earnings, which is defined as net earnings attributable to Black Knight with adjustments to reflect the addition or elimination of certain statement of earnings items including, but not limited to: equity in losses (earnings) of unconsolidated affiliates, net of tax; gains (losses) related to investments in unconsolidated affiliates, net of tax; the net incremental depreciation and amortization adjustments associated with the application of purchase accounting; equity-based compensation, including certain related payroll taxes; costs associated with debt and/or equity offerings; acquisition-related costs, including costs pursuant to purchase agreements; costs associated with expense reduction initiatives; costs and settlement (gains) losses associated with significant legal matters; adjustment for income tax expense primarily related to the tax effect of the non-GAAP adjustments and a discrete income tax benefit related to the establishment of a deferred tax asset as a result of our reorganization of certain wholly-owned subsidiaries; and adjustment for redeemable noncontrolling interests primarily related to the effect of the non-GAAP adjustments, divided by (ii) the diluted weighted average shares of Black Knight common stock outstanding.

By including in this proxy statement/prospectus a summary of the prospective financial information, none of Black Knight, ICE or any of their advisors or other representatives have made or makes any representation to any person regarding the ultimate performance of Black Knight compared to the information contained in the prospective financial information or that the results reflected in the prospective financial information will be achieved. Neither Black Knight nor ICE undertakes any obligation to update or otherwise revise the prospective financial information to reflect circumstances existing since their preparation or to reflect the occurrence of subsequent or unanticipated events, even in the event that any or all of the underlying assumptions are shown to be inappropriate, or to reflect changes in general economic or industry conditions. None of Black Knight, ICE or their advisors or other representatives has made, makes or is authorized in the future to make any representation to any stockholder of Black Knight or ICE or other person regarding Black Knight’s or ICE’s ultimate performance compared to the information contained in the prospective financial information or that the results

 

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reflected in the prospective financial information will be achieved. The prospective financial information included above is provided because it was made available to and considered by Black Knight and the Black Knight board and financial advisor in connection with the merger.

In light of the foregoing, and considering that the Black Knight special meeting will be held several months after the prospective financial information was prepared, as well as the uncertainties inherent in any forecasted information, Black Knight stockholders are cautioned not to place unwarranted reliance on such information, and are urged to review Black Knight’s and ICE’s most recent SEC filings for a description of their respective reported financial results and the financial statements of Black Knight and ICE incorporated by reference in this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus. The prospective financial information summarized in this section is not included in this proxy statement/prospectus in order to induce any holder of Black Knight common stock to vote in favor of the Black Knight merger proposal or any of the other proposals to be voted on at the Black Knight special meeting.

Interests of Black Knight’s Directors and Executive Officers in the Merger

In considering the recommendation of the Black Knight board with respect to the merger, Black Knight’s stockholders should be aware that the directors and executive officers of Black Knight may have certain interests in the merger that are different from, or in addition to, the interests of Black Knight stockholders generally. The Black Knight board was aware of these interests and considered them, among other matters, in making its recommendation that Black Knight’s stockholders vote to approve the merger proposal, the compensation proposal and the adjournment proposal. For more information, see the sections entitled “The Merger—Background of the Merger” beginning on page [        ] of this proxy statement/prospectus and “The Merger—Black Knight’s Reasons for the Merger; Recommendation of the Black Knight Board of Directors” beginning on page [        ] of this proxy statement/prospectus. Such interests are described in more detail below.

Treatment of Black Knight Equity Awards

The Black Knight equity awards held by Black Knight’s executive officers immediately prior to the merger effective time will be treated in the same manner as those Black Knight equity awards held by other employees generally. The Black Knight equity awards held by Black Knight’s non-employee directors and the Chairman Emeritus will fully vest at the merger effective time. As further described in “The Merger Agreement—Treatment of Black Knight Equity Awards” beginning on page [        ] of this proxy statement/prospectus, outstanding Black Knight equity awards held by Black Knight directors and executive officers will be treated as follows:

 

   

Black Knight Restricted Stock Awards.

 

   

Each Black Knight restricted stock award held by a non-employee member of the Black Knight board and the Chairman Emeritus will vest in full and be cancelled and converted into the right to receive the merger consideration.

 

   

Each Black Knight restricted stock award held by an executive officer will automatically be assumed and converted into a restricted share of ICE common stock based on the Exchange Ratio, which will be subject to the same terms and conditions as were applicable to such Black Knight restricted stock award immediately prior to the merger effective time (except that each applicable “performance restriction” will be deemed satisfied).

 

   

Black Knight RSU Awards. Each Black Knight RSU award held by a non-employee member of the Black Knight board and the Chairman Emeritus will vest in full and be deemed settled for a number of shares of Black Knight common stock equal to the number of shares underlying the Black Knight RSU award, which will be cancelled and converted into the right to receive the merger consideration.

 

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For an estimate of the amounts that would be realized by each of Black Knight’s named executive officers upon a termination without “cause” or for “good reason” at the merger effective time in respect of their unvested Black Knight restricted stock awards that are outstanding on July 15, 2022, see “—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus. The estimated aggregate amount that would be realized by the non-employee members of the Black Knight board and the Chairman Emeritus in respect of their unvested Black Knight equity awards if the merger was to be completed on July 15, 2022 is $4,848,255. The amounts in this paragraph were determined using equity awards outstanding as of July 15, 2022 and a price per share of Black Knight common stock of $70.34 (the average closing market price over the first five business days following the first public announcement of the merger on May 4, 2022). These amounts do not attempt to forecast any additional equity award grants, issuances or forfeitures that may occur prior to the merger effective time following the date of this proxy statement/prospectus. As a result of the foregoing assumptions, which may or may not actually occur or be accurate on the relevant date, the actual amounts to be received by the members of the Black Knight board may materially differ from the amounts set forth above.

Optimal Blue Class B Units

Each of Messrs. Jabbour, Nackashi and Larsen holds restricted and unvested Class B units of Optimal Blue, which we refer to as the “profits interests.” The profits interests will vest in full on November 24, 2023, generally subject to the named executive officer’s continued employment through such date. The merger effective time will constitute a “Black Knight Change of Control” under the Third Amended and Restated Limited Liability Company Agreement of Optimal Blue, which we refer to as the “LLC agreement.” While vesting of the profits interests will not be accelerated at the merger effective time, the occurrence of a Black Knight Change of Control will trigger certain redemption rights under the LLC agreement and give each holder the right to elect that Optimal Blue redeem all of the holder’s vested and unvested profits interests for a redemption price determined based on an appraisal process launched upon receipt of the redemption notice. The closing of the redemption process, to the extent elected, will occur immediately prior to or concurrently with the consummation of the merger.

For an estimate of the amounts that would be realized by Messrs. Jabbour, Nackashi and Larsen at the merger effective time if they elected to redeem their unvested profits interests that are outstanding on July 15, 2022 in accordance with the LLC agreement, see “—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus.

Treatment of the Black Knight ESPP

As further described in “The Merger Agreement—Treatment of Black Knight Equity Awards—Treatment of the Black Knight ESPP” beginning on page [        ] of this proxy statement/prospectus, all “matching credits” (as defined in the Black Knight ESPP) that would be allocated to each participant’s account under the Black Knight ESPP assuming that the participant remained an “eligible person” (as defined in the Black Knight ESPP) through each “matching date” (as defined in the Black Knight ESPP), without regard to the occurrence of the annual anniversary of each applicable “quarter end” (as defined in the Black Knight ESPP), for all of the participant’s contributions prior to the merger effective time, and disregarding the holding period and any other restrictions or limitations, will be credited to such participant’s account on an accelerated basis immediately prior to the closing and distributed in cash within ten business days after the merger effective time.

For an estimate of the amount of matching credits that would accelerate and be payable to each of Black Knight’s named executive officers at the merger effective time with respect to their participant contributions to the Black Knight ESPP as of July 15, 2022, see “—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus.

 

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Black Knight Employment Agreements

Black Knight is party to employment agreements with each of its executive officers, which we refer to as the “employment agreements,” which provide that if the executive officer’s employment with Black Knight is terminated (i) by Black Knight for any reason other than “cause,” death or disability or (ii) by the executive officer for “good reason,” in each case during the term of the employment agreement, the executive officer will receive the following severance payments and benefits:

 

   

Any accrued obligations (earned unpaid base salary, annual bonus payments relating to the prior year, and any unpaid expense reimbursements) will become payable;

 

   

A pro-rated annual bonus based upon the actual satisfaction of any applicable performance measures or other conditions applicable to the bonus, multiplied by the percentage of the calendar year completed before the date of termination;

 

   

A lump sum payment equal to 250% (200% for Mr. Gravelle) of the sum of (a) the executive officer’s annual base salary in effect immediately prior to the date of termination and (b) the target annual bonus in the year in which the date of termination occurs, paid as soon as practicable, but no later than the 65th day after the date of termination;

 

   

All stock options, restricted stock and other equity-based incentive awards granted by Black Knight or any of its subsidiaries or affiliates, including any Class B units of Optimal Blue, that were outstanding but not vested as of the date of termination, shall become immediately vested and/or payable;

 

   

A lump sum payment equal to 36 monthly life insurance premiums based on the monthly premiums that would be due assuming that the executive officer had converted the Black Knight life insurance coverage that was in effect on the date of the notice of termination into an individual policy; and

 

   

A lump sum payment equal to 36 monthly medical and dental COBRA premiums based on the level of coverage in effect for the executive officer (e.g., employee only or family coverage) on the date of termination; and so long as the executive officer pays the full monthly premiums for COBRA coverage to Black Knight, Black Knight will provide the executive officer and his eligible dependents with continued medical and dental coverage, on the same basis as provided to Black Knight’s active executives and their dependents until the earlier of: (i) 36 months after the date of termination; or (ii) the date the executive officer is first eligible for medical and dental coverage (without pre-existing condition limitations) with a subsequent employer.

Black Knight may require that the executive officer execute a release of claims in substantially the form attached to his employment agreement prior to the payment, distribution or other benefit described above.

Each employment agreement provides that in the event that the executive officer would receive any payments or benefits that are subject to the excise tax under Section 4999 of the Code, the executive officer may, in his discretion, elect for such payments to be reduced to one dollar less than the amount that would constitute a “parachute payment” under Section 280G of the Code. If the executive officer does not so elect, the executive officer will be responsible for the payment of any excise taxes.

For an estimate of the amounts that would be payable to each of Black Knight’s named executive officers upon a qualifying termination at the merger effective time under their employment agreements, see “—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus.

Pro-Rated Annual Incentive Payments

Under the merger agreement, at or shortly prior to the closing, the compensation committee of the Black Knight board, which we refer to as the “Compensation Committee,” will determine the level of achievement under Black Knight’s annual bonus programs for the portion of the fiscal year that has elapsed as of the closing. Black Knight will then determine the pro-rated annual incentive payments (based on the Compensation

 

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Committee’s determination of performance) to be made to each Black Knight employee under such annual bonus programs for the portion of the fiscal year that has elapsed as of the merger effective time, which will be paid in the first quarter of the following calendar year, subject to a Black Knight employee’s continued employment through the payment date (unless a severance qualifying termination occurs prior to such payment date).

Each Black Knight named executive officer is separately entitled to a pro-rated bonus upon a termination of his employment without “cause” or for “good reason” for the year in which the termination occurs under his employment agreement, as described above in “—Black Knight Employment Agreements” beginning on page [        ] of this proxy statement/prospectus, and for this purpose we have assumed that the named executive officers will receive the pro-rated bonus entitlement at target level under such agreements.

Executive Chairman Discretionary Bonus

The preexisting terms of Mr. Jabbour’s existing employment agreement, dated as of April 1, 2018, provide that if Black Knight is sold during the term of agreement, Mr. Jabbour will be eligible to receive a discretionary bonus in an amount determined by the Compensation Committee. The Compensation Committee may determine and pay such discretionary bonus to Mr. Jabbour in a lump sum in cash prior to the closing (or in calendar year 2022, subject to the after-tax proceeds being escrowed and subject to repayment if the merger is not consummated).

While, as of the date of this proxy statement/prospectus, the Compensation Committee has not determined if or when such discretionary bonus will be paid, the merger agreement permits the Compensation Committee to pay such a discretionary bonus to Mr. Jabbour in the amount of $40 million, which amount is included in the table in “—Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers” beginning on page [        ] of this proxy statement/prospectus.

Tax Planning Strategies

Under the merger agreement, Black Knight may implement tax planning strategies for the purpose of mitigating the impact of Sections 280G and 4999 of the Internal Revenue Code and thereby preserve certain compensation-related tax deductions that might otherwise be disallowed. Any such tax planning strategies will not include a gross-up of any excise taxes under Section 4999 of the Internal Revenue Code, but may include, for Messrs. Nackashi and Larsen, vesting certain equity awards in December 2022 that are scheduled to vest in 2023. As of the date of this proxy statement/prospectus, no such tax planning strategies have yet been finalized.

Indemnification; Directors’ and Officers’ Insurance

Under the merger agreement, each present and former director and officer of Black Knight or any of its subsidiaries is entitled to continued indemnification and insurance coverage following the merger effective time for acts or omissions occurring at or prior to the merger effective time.

For additional information, see “The Merger Agreement—Directors’ and Officers’ Indemnification and Insurance” beginning on page [        ] of this proxy statement/prospectus.

Quantification of Potential Payments and Benefits to Black Knight’s Named Executive Officers

The table below sets forth the information required by Item 402(t) of the Regulation S-K regarding certain compensation that will or may be paid or become payable to each of Black Knight’s “named executive officers” (as identified in accordance with SEC regulations) and that is based on, or otherwise relates to, the merger. The amounts listed below are estimates based on the following assumptions:

 

   

The merger effective time (which will constitute a change in control or term of similar import under each applicable Black Knight agreement or arrangement) will occur on July 15, 2022 (which is the

 

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assumed date solely for purposes of this golden parachute compensation disclosure) and each named executive officer experiences a qualifying termination of employment immediately following the merger effective time;

 

   

The named executive officer’s base salary and target annual bonus will remain unchanged from those applicable as of July 15, 2022;

 

   

Each named executive officer’s outstanding Black Knight equity awards and Optimal Blue profits interests are those that are outstanding and unvested as of July 15, 2022;

 

   

Each named executive officer’s participant contributions to the Black Knight ESPP are those as of July 15, 2022;

 

   

The price per share of Black Knight common stock at the merger effective time is $70.34 (the average closing market price over the first five business days following the first public announcement of the merger on May 4, 2022, as required by Item 402(t) of Regulation S-K);

 

   

The redemption price for each Optimal Blue profits interest is $14,450 per unit (based on a redemption value as of March 31, 2022 as determined using the fair value method of accounting under GAAP);

 

   

For purposes of the unvested restricted stock awards set forth in the tables, satisfaction of each applicable “performance restriction”;

 

   

The monthly life insurance premiums and medical and dental COBRA premiums in effect as of July 15, 2022; and

 

   

No reduction in payments or benefits will be necessary and/or elected to mitigate the impact of Sections 280G and 4999 of the Code.

The calculations in the tables below do not include amounts that Black Knight’s named executive officers were already entitled to receive or were vested in as of the date of this proxy statement/prospectus. The calculations in the tables also do not include compensation actions that may occur after the date of this proxy statement/prospectus but before the merger effective time (including any additional equity award grants, issuances or forfeitures that may occur, or future dividends or dividend equivalents that may be accrued, after the date of this proxy statement/prospectus but before the merger effective time). As a result of the foregoing assumptions, which may or may not actually occur or be accurate on the relevant date, including the assumptions described in the footnotes to the tables, the actual amounts, if any, to be received by a named executive officer may materially differ from the amounts set forth below.

For purposes of this disclosure, “single trigger” refers to payments and benefits that arise solely as a result of the completion of the merger and “double trigger” refers to payments and benefits that require two conditions, which are the completion of the merger and a qualifying termination of employment.

 

Named Executive Officers

   Cash(1)       Equity(2)       Total  

Anthony M. Jabbour

   $ 45,296,283      $ 35,419,772      $ 80,716,055  

Joseph M. Nackashi

   $ 6,589,239      $ 19,295,164      $ 25,884,403  

Kirk T. Larsen

   $ 4,159,957      $ 13,516,640      $ 17,676,597  

Michael L. Gravelle

   $ 683,001      $ 1,550,364      $ 2,233,365  

Michele M. Meyers(3)

                    

Shelley S. Leonard(3)

                    

 

(1)

Cash. The cash amount payable to the named executive officers consists of the following payments and benefits. The severance, pro-rated bonus, life insurance premiums and COBRA premiums are all payable on a “double-trigger” basis, while the Black Knight ESPP matching credits and Mr. Jabbour’s discretionary bonus (if and once paid) are “single-trigger.”

 

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(A) Severance. A lump sum equal to 250% (200% for Mr. Gravelle) of the sum of (a) the named executive officer’s annual base salary in effect immediately prior to the date of termination and (b) the target annual bonus in the year in which the date of termination occurs.

(B) Pro-Rated Bonus. A pro-rated annual bonus based on the achievement of performance measures (assuming, for this purpose, the target level of performance) multiplied by the percentage of the calendar year completed before the date of termination.

(C) Life Insurance Premiums. A lump sum equal to 36 monthly life insurance premiums based on the monthly premiums that would be due assuming that the named executive officer had converted the Black Knight life insurance coverage that was in effect on the date of the notice of termination into an individual policy.

(D) COBRA Premiums. A lump sum equal to 36 monthly medical and dental COBRA premiums, based on the level of coverage in effect for the named executive officer on the date of termination.

(E) ESPP Matching Credits. The amount of matching credits that would be credited to each named executive officer’s account under the Black Knight ESPP on accelerated basis (assuming that the named executive officer had remained an eligible person through each matching date for all of the named executive officer’s contributions prior to the merger effective time, and disregarding the holding period and any other restrictions or limitations) and distributed in cash shortly after the merger effective time.

(F) Discretionary Bonus. The maximum amount of the discretionary bonus that the Compensation Committee may determine to pay to Mr. Jabbour as described above in “—Executive Chairman Discretionary Bonus.”

 

Named Executive Officers

   Severance      Pro-Rated
Bonus
     Life
Insurance
Premiums
     COBRA
Premiums
     ESPP
Matching
Credits
     Discretionary
Bonus
 

Anthony M. Jabbour

   $ 4,500,000      $ 644,384      $ 26,136      $ 79,032      $ 46,731        $40,000,000  

Joseph M. Nackashi

   $ 5,625,000      $ 805,479      $ 31,266      $ 79,032      $ 48,462        —    

Kirk T. Larsen

   $ 3,593,750      $ 463,151      $ 20,556      $ 53,308      $ 29,192        —    

Michael L. Gravelle

   $ 592,000      $ 79,474      $ 0      $ 0      $ 11,527        —    

 

(2)

Equity. As described in “The Merger Agreement—Treatment of Black Knight Equity Awards” beginning on page [        ] of this proxy statement/prospectus and “—Optimal Blue Class B Units” beginning on page [        ] of this proxy statement/prospectus, represents the value of (i) the unvested Black Knight restricted stock awards that would “double-trigger” vest upon a qualifying termination after the merger effective time, and (ii) the “single-trigger” redemption, if elected, of all of the named executive officer’s unvested Optimal Blue profits interests. None of Black Knight’s named executive officers hold any unvested Black Knight RSU awards or unvested Black Knight restricted stock awards that would vest on a “single-trigger” basis pursuant to their terms solely due to the occurrence of the merger effective time.

 

Named Executive Officers

   Restricted
Stock Awards
     Accrued
Dividends
     Optimal Blue
Profits
Interests
 

Anthony M. Jabbour

   $ 16,201,272      $ 0      $ 19,218,500  

Joseph M. Nackashi

   $ 10,076,064      $ 0      $ 9,219,100  

Kirk T. Larsen

   $ 7,360,940      $ 0      $ 6,155,700  

Michael L. Gravelle

   $ 1,550,364      $ 0        —    

 

(3)

Former Executive Officers. Michele M. Meyers, Black Knight’s former Chief Accounting Officer and Treasurer, terminated employment with Black Knight on March 12, 2022. Shelley S. Leonard, Black Knight’s former Chief Product and Digital Officer, terminated employment with Black Knight on December 7, 2021. Neither Ms. Meyers nor Ms. Leonard is entitled to receive any compensation in connection with, or as a result of, the merger.

 

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Director and Officer Indemnification

Under the merger agreement, certain indemnification and insurance rights exist in favor of Black Knight’s current and former directors and officers. See “Interests of Directors and Executive Officers of Black Knight in the Merger—Indemnification and Insurance” beginning on page [        ] for information about these rights.

Financing of the Merger and Treatment of Existing Debt

In connection with the merger, ICE does not intend to maintain Black Knight’s existing term loan and revolving credit facilities. The merger agreement obligates Black Knight to use reasonable best efforts to arrange for a customary payoff letter and lien terminations to be delivered at the merger effective time providing for the payoff, discharge and termination of all indebtedness contemplated under Black Knight’s existing term loan and revolving credit facilities.

ICE’s obligation to complete the merger is not conditioned upon its obtaining financing. ICE anticipates that approximately $12.65 billion will be required to pay the aggregate cash portion of the merger consideration, to refinance all or a portion of the existing indebtedness of Black Knight and its subsidiaries and to pay fees and expenses relating to the merger and the related transactions. ICE intends to fund the cash consideration in the merger with a combination of available cash and permanent financing. In connection with entering into the merger agreement, ICE entered into a commitment letter, dated as of May 4, 2022, with Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC providing for a 364-day senior unsecured bridge facility in an aggregate principal amount not to exceed $14.0 billion consisting of a $8.225 billion tranche backstopping a combination of one or more series of unsecured notes or other debt securities in a public offering or in a Rule 144A offering or other private placement and operating internal cash generation prior to the merger effective time, a $3.775 billion tranche backstopping the existing revolving credit agreement, and a $2.0 billion tranche backstopping a new delayed draw term loan facility.

On May 11, 2022, ICE entered into an amendment to its existing revolving credit agreement and, as a result thereof and in accordance with the terms of the commitment letter, the $3.775 billion tranche of the bridge facility backstopping the existing revolving credit agreement was automatically and permanently terminated. On May 20, 2022, the net proceeds generated by certain asset sales (the gross proceeds of which were $749 million) were applied, together with a further voluntary commitment reduction, to reduce by $749 million the $8.225 billion tranche A of the bridge facility backstopping a combination of one or more series of unsecured notes or other debt securities in a public offering or in a Rule 144A offering or other private placement and operating internal cash generation in accordance with the terms of the commitment letter. On May 23, 2022, ICE completed the public offering and issuance of $8.0 billion of unsecured notes, of which $5.275 billion in gross cash proceeds were applied to further reduce tranche A of the bridge facility. In addition, on May 25, 2022, tranche A of the bridge facility was further reduced by $400 million in loan proceeds from the effectiveness of a new delayed draw term loan facility. As a result of the foregoing, on May 25, 2022, the $8.225 billion tranche A of the bridge facility was permanently reduced to $1.801 billion. On June 30, 2022, tranche A of the bridge facility was further voluntarily and permanently reduced by an additional $601 million to $1.2 billion.

Regulatory Approvals

Under the HSR Act and related rules, certain transactions, including the merger, may not be completed until notifications have been given and information furnished to the Antitrust Division and the FTC and all statutory waiting period requirements have been satisfied. Completion of the merger is subject to the expiration or earlier termination of the applicable waiting period under the HSR Act. ICE and Black Knight each filed their respective HSR Act notification forms on May 18, 2022. On June 17, 2022, the parties each received a Second Request from the FTC with respect to the merger. Accordingly, the HSR waiting period will expire 30 days after ICE and Black Knight each certify their substantial compliance with the Second Request, unless earlier terminated by the FTC or extended by agreement of the parties or court order.

 

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At any time before or after the completion of the merger, and notwithstanding the termination of applicable waiting periods, the applicable U.S. antitrust authorities or any state attorney general could take such action under the antitrust laws as any such party deems necessary or desirable in the public interest. Such action could include, among other things, seeking to enjoin the completion of the merger, to rescind the merger, to conditionally permit completion of the merger subject to regulatory conditions, or seeking divestiture of substantial assets of the parties or other remedies. In addition, in some circumstances, a third party could initiate a private action under antitrust laws challenging, seeking to enjoin, or seeking to impose conditions on the merger. There can be no assurance that a challenge to the merger on antitrust grounds will not be made or, if such a challenge is made, that it would not be successful. ICE and Black Knight may not prevail and may incur significant costs in defending or settling any such action.

Timing of the Merger

The transaction is currently expected to be completed by the first half of calendar year 2023. Neither ICE nor Black Knight can predict, however, the actual date on which the transaction will be completed, or if the merger will be completed at all, because completion of the merger is subject to conditions beyond each company’s control, including obtaining the necessary regulatory approvals.

See “The Merger Agreement—Conditions to the Merger” beginning on page [        ] of this proxy statement/prospectus.

Accounting Treatment

ICE prepares its financial statements in accordance with GAAP. The merger will be accounted for using the acquisition method of accounting. ICE will be treated as the acquirer for accounting purposes.

Listing of ICE Common Stock; Delisting and Deregistration of Black Knight Common Stock

Prior to the completion of the merger, ICE has agreed to use its reasonable best efforts to cause the shares of ICE common stock to be issued in connection with the merger to be approved for listing on the NYSE. The listing of the shares of ICE common stock on the NYSE, subject to official notice of issuance, is also a condition to completion of the merger.

If the merger is completed, Black Knight common stock will be delisted from the NYSE and deregistered under the Exchange Act, and Black Knight will no longer be required to file periodic reports with the SEC with respect to Black Knight common stock.

Litigation Relating to the Merger

On July 5, 2022, a complaint challenging the merger was filed on behalf of a purported stockholder of Black Knight against Black Knight and the members of the Black Knight board in the U.S. District Court for the Southern District of New York. The complaint is captioned Ryan O’Dell v. Black Knight, Inc., et al., Civil Action No. 22-cv-5715 (S.D.N.Y. 2022). The defendants have not yet been served as of the date of this proxy statement/prospectus. The complaint asserts federal securities claims under Sections 14(a) and 20(a) of the Exchange Act, alleging that certain disclosures regarding the merger in the preliminary proxy statement/prospectus are materially false and misleading. The complaint seeks an injunction barring the merger, rescissory damages in the event the merger has been consummated, other unspecified damages and payment of the plaintiff’s costs and disbursements, including attorneys’ fees and expenses. Black Knight and ICE believe that the claims asserted in this complaint are meritless.

The outcome of this lawsuit or any other lawsuit that may be filed challenging the merger is uncertain. One of the conditions to the closing of the merger is the absence of any Restraint by a court or other governmental entity that is in effect and restrains, enjoins or otherwise prohibits the closing of the merger, and this lawsuit

 

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seeks, and potential other lawsuits may seek an order enjoining consummation of the merger. Accordingly, if this lawsuit or any future lawsuit is successful in obtaining an order enjoining consummation of the merger, then such order may prevent the merger from being completed, or from being completed within the expected time frame, and could result in substantial costs to ICE and Black Knight including, but not limited to, costs associated with the indemnification of directors and officers. Any such injunction or delay in the merger being completed may adversely affect ICE’s and Black Knight’s business, financial condition, results of operations and cash flows.

Black Knight and/or ICE stockholders may file additional lawsuits challenging the merger, which may name ICE, Black Knight, members of their respective boards of directors and/or others as defendants. No assurance can be made as to the outcome of such lawsuits, including the amount of costs associated with defending, settling, or any other liabilities that may be incurred in connection with the litigation or settlement of such claims. If additional similar complaints are filed, absent new or different allegations that are material, neither Black Knight nor ICE will necessarily announce such additional filings.

ICE’s Dividend Policy

The declaration of future dividends will be at the discretion of the ICE board and will be determined after consideration of various factors, including earnings, cash requirements, the financial condition of ICE and other factors deemed relevant by the ICE board. While ICE cannot assure its future financial performance, it anticipates that it will continue to pay dividends on ICE stock in the foreseeable future. Most recently, ICE declared a quarterly dividend of $0.38 per ICE share, which was paid on March 31, 2022 to holders of record on March 17, 2022. Under the merger agreement, prior to the completion of the merger, ICE may continue to pay its regular quarterly cash dividends in the ordinary course consistent with past practice.

 

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THE MERGER AGREEMENT

This section describes the material terms of the merger agreement. The descriptions of the merger agreement in this section and elsewhere in this proxy statement/prospectus are qualified in their entirety by reference to the complete text of the merger agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement/prospectus. This summary does not purport to be complete and may not contain all of the information about the merger agreement that is important to you. You are encouraged to read carefully the entire merger agreement.

Explanatory Note Regarding the Merger Agreement

The merger agreement is included to provide you with information regarding its terms. Neither the merger agreement nor the summary of its material terms included in this section is intended to provide any factual information about ICE or Black Knight. Factual disclosures about Black Knight and ICE contained in this proxy statement/prospectus and/or in the public reports of Black Knight and ICE filed with the SEC (as described in “Where You Can Find More Information” beginning on page [        ] of this proxy statement/prospectus) may supplement, update or modify the disclosures about Black Knight and ICE contained in the merger agreement. The merger agreement contains representations and warranties and covenants of the parties customary for a transaction of this nature. The representations and warranties contained in the merger agreement were made only for purposes of the merger agreement as of the specific dates therein; were made solely for the benefit of the parties to the merger agreement; may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the merger agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the merger agreement except for the limited purposes expressly set forth therein and should not rely on the representations and warranties or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the merger agreement, which subsequent information may or may not be fully reflected in ICE’s or Black Knight’s public disclosures. Accordingly, the representations and warranties in the merger agreement should not be relied on by any persons as characterizations of the actual state of facts about Black Knight or ICE at the time they were made or otherwise.

Structure of the Merger

The merger agreement provides that, upon the terms and subject to the conditions set forth in the merger agreement, and in accordance with the DGCL, at the merger effective time, Sub will be merged with and into Black Knight. As a result of the merger, the separate corporate existence of Sub will cease, and Black Knight will continue as the surviving corporation and a wholly owned subsidiary of ICE. The certificate of incorporation and bylaws of the surviving corporation will be amended at the merger effective time to be the certificate of incorporation and bylaws, respectively, of Sub as in effect immediately prior to the completion of the merger (except (a) as to the name of the surviving corporation, which will be “Black Knight, Inc.,” (b) the provisions of the certificate of incorporation relating to the incorporator of Sub will be omitted, and (c) changes necessary to provide for continued indemnification and insurance coverage to each present and former director, officer, employee or agent of Black Knight or any of its subsidiaries for acts or omissions occurring at or prior to the merger effective time, as further described in “The Merger Agreement—Directors’ and Officers’ Indemnification and Insurance” beginning on page [        ] of this proxy statement/prospectus).

Consideration to be Received in the Merger

General

Black Knight stockholders will have the right to elect to receive merger consideration for each of their shares of Black Knight common stock in the form of either (i) the Per Share Cash Consideration, being cash in an

 

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amount equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of the Share Ratio, being 0.1440, multiplied by the Closing 10-Day Average ICE VWAP, or (ii) the Per Share Stock Consideration, being a number of shares of ICE common stock as is equal to the Exchange Ratio, being the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP, in each case, subject to proration in the circumstances described below. Black Knight stockholders may specify different elections with respect to different shares they hold. For example, if a Black Knight stockholder owns 100 shares of Black Knight common stock, that stockholder may make a cash election with respect to 50 shares and a stock election with respect to the other 50 shares. In the event of proration, a Black Knight stockholder may be entitled to receive merger consideration in respect of some or all of the Black Knight shares held by that stockholder in a form other than the form which that stockholder elected.

The value of the merger consideration will fluctuate with the market price of ICE common stock and will be determined based on the Closing 10-Day Average ICE VWAP, being the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the merger becomes effective. Although the Per Share Cash Consideration is intended to equal the value of the Per Share Stock Consideration, because the calculations are based on an average of the volume weighted averages of the trading prices of ICE common stock for the ten trading days ending on the trading day that is three trading days prior to the date on which the merger effective time occurs, the values of the two forms of consideration at the closing of the merger may not be the same. A chart showing the cash and stock merger consideration at various assumed Closing 10-Day Average ICE VWAPs is provided on page [        ] of this proxy statement/prospectus.

Black Knight stockholders will not receive any fractional shares of ICE common stock in the merger. Instead, each Black Knight stockholder will be entitled to receive, in lieu of any fractional share of ICE common stock that the stockholder otherwise would have received pursuant to the merger, an amount in cash (without interest) equal to the product obtained by multiplying (A) the fractional share interest to which that stockholder would otherwise be entitled (taking into account all shares of Black Knight common stock held by that stockholder) by (B) the Closing 10-Day Average ICE VWAP.

The merger consideration will be adjusted equitably to reflect proportionally the effect of any stock dividend, cash dividend not permitted under the terms of the merger agreement, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination, exchange of shares or other similar event with respect to the number of shares of ICE common stock or shares of Black Knight common stock with a record date occurring prior to the merger effective time.

Merger Consideration

At the merger effective time, each outstanding share of Black Knight common stock (except for Excluded Shares or Appraisal Shares), will be converted into, at the election of the holder thereof but subject to the proration mechanism described below, the right to receive the following consideration:

(i)    the Per Share Cash Consideration, being an amount in cash equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of the Share Ratio, being 0.1440, multiplied by the Closing 10-Day Average ICE VWAP, being the average of the volume weighted averages of the trading prices of ICE common stock on the NYSE on each of the ten consecutive trading days ending on (and including) the trading day that is three trading days prior to the date on which the merger becomes effective;

(ii)    the Per Share Stock Consideration, being a number of validly issued, fully paid and nonassessable shares of ICE common stock as is equal to the Exchange Ratio, being the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP; or

 

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(iii)    if no election is made by the holder, such Per Share Stock Consideration or Per Share Cash Consideration as is determined in accordance with the proration mechanism described below.

As further described below, the election right for the holders of shares of Black Knight common stock will be subject to proration in accordance with the terms of the merger agreement such that (a) the total number of shares of Black Knight common stock to be converted into the right to receive the Per Share Cash Consideration (including for these purposes any Appraisal Shares) will be equal to the Cash Conversion Number, being the quotient, rounded down to the nearest whole share, of the Cash Component, being $10,505,000,000, divided by the Per Share Cash Consideration and (b) all shares of Black Knight common stock not receiving the Per Share Cash Consideration (other than Excluded Shares and Appraisal Shares) will be converted into the right to receive the Per Share Stock Consideration.

Cash Election

As described above, the merger agreement provides that each Black Knight stockholder who makes a valid cash election will have the right to receive, in exchange for each share of Black Knight common stock for which that stockholder makes a valid cash election, the Per Share Cash Consideration, being an amount in cash equal to the sum, rounded to the nearest one tenth of a cent, of (x) $68.00 plus (y) the product, rounded to the nearest one tenth of a cent, of the Share Ratio, being 0.1440, multiplied by the Closing 10-Day Average ICE VWAP. However, because the aggregate amount of cash consideration to be paid to Black Knight stockholders is fixed in the merger agreement at $10,505,000,000, if Black Knight stockholders make valid elections to receive more cash consideration than is available as merger consideration under the merger agreement, Black Knight stockholders electing cash consideration may have their cash consideration proportionately reduced and may receive a portion of their consideration in ICE common stock, despite their elections, as more fully described below under “—Proration.”

Stock Election

As described above, the merger agreement provides that each Black Knight stockholder who makes a valid stock election will have the right to receive, in exchange for each share of Black Knight common stock for which that stockholder makes a valid stock election, the Per Share Stock Consideration, being a number of shares of ICE common stock equal to the Exchange Ratio, which will be the quotient, rounded to the nearest one ten thousandth, of (x) the Per Share Cash Consideration divided by (y) the Closing 10-Day Average ICE VWAP. However, because the aggregate amount of cash to be issued to Black Knight stockholders is fixed in the merger agreement at $10,505,000,000, if Black Knight stockholders make valid elections to receive less cash than is available as merger consideration under the merger agreement, Black Knight stockholders electing stock consideration may have their stock consideration proportionately reduced and may receive a portion of their consideration in cash, despite their elections, as more fully described below under “—Proration.”

Non-Election Shares

Any Black Knight stockholder who does not make an election to receive cash or ICE common stock in the merger, whose election is not received by the exchange agent by the election deadline, whose election is revoked prior to the election deadline, or whose election form is improperly completed and/or is not signed, will be deemed not to have made an election. We refer to shares as to which no election or an invalid election has been made as “non-election shares.” Non-election shares may be converted into the right to receive only cash, only shares of ICE common stock, or a mix of cash and shares of ICE common stock, depending on, and after giving effect to, the number of valid cash elections and stock elections that have been made by other Black Knight stockholders using the proration adjustments described below.

Proration

As described above, the merger agreement provides that the aggregate amount of cash to be paid to Black Knight stockholders is fixed at $10,505,000,000. The total number of shares of ICE common stock that will be

 

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issued in the merger is approximately 22.2 million, based on the number of shares of Black Knight common stock outstanding, excluding unvested Black Knight restricted stock awards held by Black Knight employees (all of which are assumed to be converted into ICE restricted stock awards as described in “The Merger Agreement—Treatment of Black Knight Equity Awards—Treatment of Black Knight Restricted Stock Awards” beginning on page [        ] of this proxy statement/prospectus), on July 15, 2022. If the cash consideration is either oversubscribed or undersubscribed, then certain adjustments will be made to the merger consideration to be paid to Black Knight stockholders, in the manner described below.

Adjustment if Cash Pool is Oversubscribed

Shares of ICE common stock may be issued to Black Knight stockholders who make cash elections if the available $10,505,000,000 cash pool is oversubscribed. The total number of shares of Black Knight common stock for which valid cash elections are made is referred to as the “Cash Election Number.” The cash consideration will be oversubscribed if the Cash Election Number exceeds the Cash Conversion Number. The “Cash Conversion Number” is equal to the quotient obtained by dividing (1) the Cash Component, being $10,505,000,000, by (2) the Per Share Cash Consideration. For example, if the Per Share Cash Consideration were $85.00, the Cash Conversion Number would be approximately 123,588,235 (i.e., $10,505,000,000 divided by $85.00).

If the cash consideration is oversubscribed, then:

 

   

a Black Knight stockholder making a valid stock election, no election or an invalid election will be entitled to receive the Per Share Stock Consideration for each share of Black Knight common stock as to which that stockholder made a valid stock election, no election or an invalid election; and

 

   

a Black Knight stockholder making a valid cash election will be entitled to receive:

 

   

cash consideration for a number of shares of Black Knight common stock equal to the product obtained by multiplying (1) the number of shares of Black Knight common stock for which that stockholder has made a valid cash election by (2) a fraction, the numerator of which is the Cash Conversion Number and the denominator of which is the Cash Election Number; and

 

   

stock consideration for the remaining shares of Black Knight common stock for which that stockholder made a cash election.

Example of Oversubscription of Cash Pool

Assuming that:

 

   

the Cash Conversion Number was 127,487,864 (which assumes that the Closing 10-Day Average ICE VWAP was equal to $100.00), and

 

   

the Cash Election Number was 140,000,000 (in other words, only 127,487,864 shares of Black Knight common stock can receive the Per Share Cash Consideration, but Black Knight stockholders have made cash elections with respect to 140,000,000 shares of Black Knight common stock),

then a Black Knight stockholder making a cash election with respect to 1,000 shares of Black Knight common stock would be entitled to receive the Per Share Cash Consideration with respect to approximately 911 shares of Black Knight common stock (i.e., 1,000 multiplied by 127,487,864 divided by 140,000,000) and the Per Share Stock Consideration with respect to the remaining 89 shares of Black Knight common stock. Therefore, assuming that the Closing 10-Day Average ICE VWAP was equal to $100.00, that Black Knight stockholder would be entitled to receive 73 shares of ICE common stock and approximately $75,100 in cash (including cash in lieu of any fractional share).

 

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Adjustment if the Cash Pool is Undersubscribed

Cash may be paid to Black Knight stockholders who make stock elections if the available $10,505,000,000 cash pool is undersubscribed. If the Cash Election Number is less than the Cash Conversion Number, the cash pool is undersubscribed, in which case cash may be issued to stockholders who make stock elections. The amount by which the Cash Election Number is less than the Cash Conversion Number is referred to as the “Shortfall Number.” If the cash pool is undersubscribed, then all Black Knight stockholders making a valid cash election will be entitled to receive the Per Share Cash Consideration for all shares of Black Knight common stock as to which they made a valid cash election. Black Knight stockholders making a valid stock election, Black Knight stockholders who make no election and Black Knight stockholders who failed to make a valid election will be entitled to receive cash and/or ICE common stock based in part on whether the Shortfall Number is lesser or greater than the number of non-election shares, as described below.

Scenario 1: Undersubscription of Cash Pool and Shortfall Number is Less than or Equal to Number of Non-Election Shares.

If the Shortfall Number is less than or equal to the number of non-election shares, then:

 

   

a Black Knight stockholder making a valid stock election will be entitled to receive the Per Share Stock Consideration for each share of Black Knight common stock as to which that stockholder made a valid stock election; and

 

   

a Black Knight stockholder who, with respect to some or all of that stockholder’s shares, made no election or who did not make a valid election will be entitled to receive:

 

   

the Per Share Cash Consideration with respect to the number of shares of Black Knight common stock equal to the product obtained by multiplying (1) the number of non-election shares held by that Black Knight stockholder by (2) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of non-election shares; and

 

   

the Per Share Stock Consideration with respect to the remaining non-election shares held by that stockholder.

Example of Scenario 1

Assuming that:

 

   

the Cash Conversion Number is 127,487,864 (which assumes that the Closing 10-Day Average ICE VWAP was equal to $100.00),

 

   

the Cash Election Number is 100,000,000 (in other words, 127,487,864 shares of Black Knight common stock must be converted into the right to receive the Per Share Cash Consideration but Black Knight stockholders have made a valid cash election with respect to only 100,000,000 shares of Black Knight common stock, so the Shortfall Number is 27,487,864), and

 

   

the total number of non-election shares is 40,000,000,

then a Black Knight stockholder that has not made an election with respect to 1,000 shares of Black Knight common stock would be entitled to receive the Per Share Cash Consideration with respect to approximately 687 shares of Black Knight common stock (i.e., 1,000 multiplied by 27,487,864 divided by 40,000,000) and the Per Share Stock Consideration with respect to the remaining 313 shares of Black Knight common stock. Therefore, assuming that the Closing 10-Day Average ICE VWAP was equal to $100.00, that Black Knight stockholder would be entitled to receive 257 shares of ICE common stock and approximately $56,700 in cash (including cash in lieu of any fractional share).

 

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Scenario 2: Undersubscription of Cash Pool and Shortfall Number Exceeds Number of Non-Election Shares.

If the Shortfall Number exceeds the number of non-election shares, then:

 

   

a Black Knight stockholder who made no election or who has not made a valid election will be entitled to receive the Per Share Cash Consideration for each share of Black Knight common stock for which that stockholder made no election or did not make a valid election; and

 

   

a Black Knight stockholder making a valid stock election will be entitled to receive:

 

   

the Per Share Cash Consideration with respect to the number of shares of Black Knight common stock equal to the product obtained by multiplying (1) the number of shares of Black Knight common stock with respect to which that stockholder made a valid stock election by (2) a fraction, the numerator of which is equal to the amount by which the Shortfall Number exceeds the number of non-election shares and the denominator of which is equal to the total number of shares of Black Knight common stock for which valid stock elections were made; and

 

   

the Per Share Stock Consideration with respect to the remaining shares of Black Knight common stock held by that stockholder as to which it made a valid stock election.

Example of Scenario 2

Assuming that:

 

   

the Cash Conversion Number is 127,487,864 (which assumes that the Closing 10-Day Average ICE VWAP was equal to $100.00),

 

   

the Cash Election Number is 100,000,000 (in other words, 127,487,864 shares of Black Knight common stock must be converted into the right to receive the Per Share Cash Consideration but Black Knight stockholders have made a valid cash election with respect to only 100,000,000 shares of Black Knight common stock, so the Shortfall Number is 27,487,864),

 

   

the number of non-election shares is 10,000,000 (so the Shortfall Number exceeds the number of non-election shares by 17,487,864), and

 

   

the total number of shares of Black Knight common stock for which valid stock elections were made is 44,488,911,

then a Black Knight stockholder that has made a stock election with respect to 1,000 shares of Black Knight common stock would be entitled to receive the Per Share Cash Consideration with respect to approximately 393 shares of Black Knight common stock (i.e., 1,000 multiplied by 17,487,864 divided by 44,488,911) and the Per Share Stock Consideration with respect to the remaining 607 shares of Black Knight common stock. Therefore, assuming that the Closing 10-Day Average ICE VWAP was equal to $100.00, that Black Knight stockholder would be entitled to receive 500 shares of ICE common stock, and approximately $32,400 in cash (including cash in lieu of any fractional share).

Treatment of Black Knight Equity Awards

Treatment of Black Knight Restricted Stock Awards

Immediately prior to the merger effective time, each Black Knight restricted stock award that is then outstanding and was granted (i) prior to the date of the merger agreement and under a form of award that provides for full accelerated vesting upon a change of control (or term of similar import) of Black Knight and not contingent on any other event pursuant to its current terms or (ii) to a non-employee member of the Black Knight board or the Chairman Emeritus will accelerate and vest in full and become free of restrictions as of the Effective Time and be deemed settled for a number of shares of Black Knight common stock equal to the number of shares of Black Knight common stock underlying such Black Knight restricted stock award (with, in the case of any such Black Knight restricted stock award that is subject to performance-based vesting, each applicable

 

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“performance restriction” deemed satisfied) less the number of shares (rounded to the nearest whole number of shares) with a value equal to the applicable tax withholding. At the merger effective time, such vested and settled Black Knight restricted stock awards will be canceled and converted into the right to receive the merger consideration. Any dividends accrued pursuant to the terms of any Black Knight restricted stock award that is outstanding immediately prior to the merger effective time and that are unpaid as of the merger effective time will be paid in cash, without interest, to the holder thereof as promptly as practicable following, but in no event later than ten business days after, the merger effective time in accordance with Black Knight’s payroll procedures.

At the merger effective time, each Black Knight restricted stock award that is outstanding and not covered by the above will, automatically and without any required action on the part of the holder thereof, be assumed and converted into a restricted share of ICE common stock with the same terms and conditions as were applicable to such Black Knight restricted stock award immediately prior to the Effective Time (except that, in the case of any such Black Knight restricted stock award that is subject to performance-based vesting, each applicable “performance restriction” will be deemed satisfied and such award will become a time-based award) and relating to the number of shares of ICE common stock equal to the product of (x) a number of shares of Black Knight common stock subject to such Black Knight restricted stock award multiplied by (y) the Exchange Ratio, with any fractional shares rounded to the nearest whole share of ICE common stock. In the event of a termination of the holder’s employment by the employer other than for cause or by the holder for good reason following the merger effective time, the converted restricted stock awards will vest in accordance with their terms.

Treatment of Black Knight RSU Awards

Immediately prior to the merger effective time, each Black Knight RSU award will, automatically and without any required action on the part of the holder thereof, accelerate and vest in full and be deemed settled for a number of shares of Black Knight common stock equal to the number of shares of Black Knight common stock underlying such Black Knight RSU award. At the merger effective time, such shares of Black Knight common stock that are deemed issued will be canceled and converted into the right to receive the merger consideration. Any dividend equivalents accrued pursuant to the terms of any Black Knight RSU award that is outstanding immediately prior to the merger effective time and that are unpaid as of the merger effective time will be paid in cash, without interest, to the holder thereof as promptly as practicable following, but in no event later than ten business days after, the Effective Time in accordance with Black Knight’s payroll procedures.

Treatment of the Black Knight ESPP

Each participant’s accumulated “participant contributions” (as defined in the Black Knight ESPP) will be used to purchase shares of Black Knight common stock no later than immediately prior to the merger effective time in accordance with the terms of the Black Knight ESPP; provided, that any participant contributions to a participant’s account as of immediately prior to the merger effective time that are insufficient to purchase one whole share of Black Knight common stock immediately prior to the merger effective time will be distributed in cash to such participant as promptly as practicable following, but in no event later than ten business days after, the merger effective time. The shares of Black Knight common stock purchased thereunder will be canceled at the merger effective time and converted into the right to receive the merger consideration, and all “matching credits” (as defined in the Black Knight ESPP) that would be allocated to each participant’s account assuming that the participant remained an “eligible person” (as defined in the Black Knight ESPP) through each “matching date” (as defined in the Black Knight ESPP), without regard to the occurrence of the annual anniversary of each applicable “quarter end” (as defined in the Black Knight ESPP), for all “participant contributions” (as defined in the Black Knight ESPP) prior to the merger effective time, and disregarding the “holding period requirement” (as defined in the Black Knight ESPP) and any other applicable restrictions or limitations, will be credited (or deemed credited) on an accelerated basis immediately prior to the closing date of the merger and distributed in

 

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cash to such participant as promptly as practicable following, but in no event later than ten (10) business days after, the merger effective time. Black Knight will cause the Black Knight ESPP to terminate as of the merger effective time.

Closing and Effectiveness of the Merger

Unless another time, date or place is agreed to in writing by Black Knight and ICE, the closing of the merger will take place by electronic exchange of documents at 8:00 a.m., New York City time, on the fifth business day after the satisfaction or waiver of the closing conditions set forth in the merger agreement (other than those conditions that by their terms are to be satisfied at the closing, but subject to the satisfaction or waiver of those conditions).

The merger will become effective at the time the certificate of merger has been duly filed with the Delaware Secretary of State or at such other date and time as is agreed between Black Knight and ICE and specified in the certificate of merger.

Conversion of Shares; Exchange of Certificates; Elections as to Form of Consideration

The conversion of Black Knight common stock into the right to receive the merger consideration will occur automatically at the merger effective time. As soon as reasonably practicable after the merger effective time, the exchange agent will exchange certificates representing shares of Black Knight common stock for merger consideration to be received in the merger pursuant to the terms of the merger agreement. [        ] will be the exchange agent in the merger and will receive the Black Knight stockholders’ election forms, exchange certificates for the merger consideration and perform other duties as explained in the merger agreement.

Election Form

ICE’s exchange agent for the merger will mail an election form on the election form mailing date, being the date that is thirty days prior to the anticipated closing date of the merger or such other date as Black Knight and ICE may mutually agree, to holders of record of shares of Black Knight common stock as of the election form record date, being the close of business on the fifth business day prior to the election form mailing date, together with instructions for making cash and/or stock elections. The exchange agent will also make available an election form to all persons who become record or beneficial holders of shares of Black Knight common stock between the election form record date and the election deadline, upon the reasonable request of those persons.

The election deadline will be 5:00 p.m., New York City time, on a date that ICE and Black Knight agree is as near as practicable to two business days preceding the closing of the merger, which date will be publicly announced by joint press release at least five and no more than 15 business days prior to the election deadline.

If a Black Knight stockholder wishes to elect the type of merger consideration that stockholder will receive in the merger, that stockholder should carefully review and follow the instructions that will be set forth in the election form. Stockholders who hold their shares of Black Knight common stock in “street name” or through a bank, broker or other nominee should follow the instructions of the bank, broker or other nominee for making an election with respect to those shares of Black Knight common stock. Shares of Black Knight common stock as to which the holder has not made a valid election prior to the election deadline will be treated as non-election shares.

To make a valid election, each Black Knight stockholder must submit a properly completed election form, accompanied by duly executed transmittal materials included in the election form, together with stock certificates or a properly completed guarantee of delivery (except with respect to book-entry shares, in which case you should follow the instructions set forth in the election form) to the exchange agent prior to the election deadline in accordance with the instructions on the election form.

 

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An election form will be properly completed only if accompanied by stock certificates for the shares to which such election form relates (or book-entry transfer of uncertificated shares) representing all shares of Black Knight common stock covered by the election form (or customary affidavits and indemnification regarding the loss or destruction of the certificates, as will be described in the election form). If a Black Knight stockholder cannot deliver the stock certificates to the exchange agent by the election deadline, that stockholder may deliver a notice of guaranteed delivery promising to deliver the stock certificates, as will be described in the election form, so long as the actual stock certificates are in fact delivered to the exchange agent within five business days after the execution of the guarantee of delivery.

Generally, an election may be changed, but only by written notice received by the exchange agent prior to the election deadline accompanied by a properly completed and signed revised election form. A Black Knight stockholder may also revoke that stockholder’s election by either submitting a written notice to the exchange agent or withdrawing the certificates representing the shares of Black Knight common stock covered by the election form, in each case, prior to the election deadline. If an election is revoked, or the merger agreement is terminated, and any certificates (or guarantees of delivery, as applicable) have been transmitted to the exchange agent, the exchange agent will promptly return those certificates (or guarantees of delivery, as applicable) to the stockholder who submitted those documents.

Once Black Knight stockholders have tendered their Black Knight stock certificates to the exchange agent, they may not transfer their shares of Black Knight common stock represented by those stock certificates until the merger is completed, unless they revoke their election by written notice to the exchange agent that is received prior to the election deadline.

Black Knight stockholders will not be entitled to revoke or change their elections following the election deadline. As a result, if a Black Knight stockholder has made one or more elections, that stockholder will be unable to revoke those elections or sell the applicable shares of Black Knight common stock during the interval between the election deadline and the date of completion of the merger.

Shares of Black Knight common stock as to which the holder has not made a valid election prior to the election deadline, including as a result of revocation, will be deemed non-election shares. The determination of the exchange agent will be binding as to whether an election has been properly made or revoked. If it is determined by the exchange agent that any purported cash election or stock election was not properly made, the purported election will be deemed to be of no force or effect and the holder making the purported election will be deemed not to have made an election for these purposes, unless a proper election is subsequently made on a timely basis.

The exchange agent will make all computations as to the allocation and the proration contemplated by the merger agreement and those computations will be conclusive and binding on the holders of Black Knight common stock.

Exchange of Certificates

Within two business days after the closing of the merger, the exchange agent will mail a letter of transmittal to only those persons who were Black Knight stockholders at the merger effective time and who have not previously submitted an election form and properly surrendered shares of Black Knight common stock to the exchange agent. This mailing will contain instructions on how to surrender certificated and book-entry shares of Black Knight common stock (if these shares have not already been surrendered) in exchange for the merger consideration the holder is entitled to receive under the merger agreement.

In the event of a transfer of ownership of shares of Black Knight common stock that is not registered in the transfer or stock records of Black Knight, any merger consideration payable with respect to those shares may be payable to the transferee if certificates or book-entry shares are presented to the exchange agent, accompanied by all documents evidencing the transfer and payment of any related transfer taxes.

 

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If a certificate for Black Knight common stock has been lost, stolen or destroyed, the exchange agent will issue the consideration properly payable under the merger agreement upon receipt of an affidavit as to that loss, theft or destruction and, if required by ICE, the posting of a bond or surety in such reasonable amount as ICE may direct as indemnity against any claim that may be made.

From and after the merger effective time, all holders of certificates representing shares of Black Knight common stock or book-entry shares will cease to have any rights as stockholders of Black Knight other than the right to receive the merger consideration, and the stock transfer books of Black Knight will be closed.

Withholding

The exchange agent will be entitled to deduct and withhold from the cash consideration or cash in lieu of fractional shares, cash dividends or distributions payable to any Black Knight stockholder the amounts it is required to deduct and withhold under any federal, state, local or foreign tax law. If the exchange agent withholds any amounts, those amounts will be treated for all purposes of the merger as having been paid to the stockholders from whom they were withheld.

Representations and Warranties; Material Adverse Effect

The merger agreement contains representations and warranties made by Black Knight to ICE and Sub and by ICE and Sub to Black Knight. Certain of the representations and warranties in the merger agreement are subject to materiality or material adverse effect qualifications (that is, they will not be deemed to be untrue or incorrect unless their failure to be true or correct is material or would result in a material adverse effect). In addition, certain of the representations and warranties in the merger agreement are subject to knowledge qualifications, which means that those representations and warranties would not be deemed untrue, inaccurate or incorrect as a result of matters of which certain officers of the party making the representation did not have actual knowledge.

The merger agreement provides that a “material adverse effect” means, with respect to a party, any change, effect, event, occurrence, circumstance or state of facts that, individually or in the aggregate with all other changes, effects, events, occurrences, circumstances and state of facts, has had or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of that party and its subsidiaries, taken as a whole. However, no change, effect, event, occurrence, circumstance or state of facts relating to the following will be taken into account in determining whether there has been a material adverse effect (except, with respect to the first, second, fifth and eighth bullet points, to the extent that any change, effect, event, occurrence, circumstance or state of facts has had or would reasonably be expected to have a disproportionate effect on that party and its subsidiaries relative to other companies in the same industry as that party):

 

   

the economy in general (including any changes arising out of the COVID-19 pandemic);

 

   

the economic, business, industry or financial environment generally affecting the industry in which that party operates, including the effects of the general economic environment, the state of the housing, mortgage and mortgage servicing markets and the COVID-19 pandemic;

 

   

the securities, credit, financial or other capital markets generally in the United States or elsewhere in the world, including changes in interest rates (including any changes arising out of the COVID-19 pandemic);

 

   

any change in that party’s stock price or trading volume or any failure, in and of itself, to meet internal or published projections, forecasts or estimates in respect of revenues, earnings, cash flow or other financial or operating metrics for any period (but the facts or causes underlying or contributing to the change or failure may be considered in determining whether a material adverse effect has occurred unless otherwise excluded under any other bullet point);

 

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changes following the date of the merger agreement in law, legislative or political conditions or policy or practices of any governmental entity (including any laws, directives, policies, guidelines or recommendations promulgated by any governmental entity in connection with or in response to the COVID-19 pandemic);

 

   

changes following the date of the merger agreement in applicable accounting regulations or principles or interpretations thereof;

 

   

any effects arising from any pending litigation, regulatory or enforcement proceeding, investigations or similar matters disclosed by that party in its confidential disclosure letter delivered to the other party in connection with the merger agreement, including the outcome or settlement of any of the foregoing that is not prohibited by the terms of the merger agreement (including judgments, orders, rulings, injunctions, monetary penalties, remedial action or any other action of any governmental entity arising from any of the foregoing or the allegations contained in any of the foregoing);

 

   

an act of terrorism or an outbreak or escalation of hostilities or war (whether declared or not declared) or any natural disasters or any national or international calamity or crisis or any outbreak of any disease or other public health event (including the COVID-19 pandemic);

 

   

the announcement or pendency of the merger agreement or the transactions contemplated by the merger agreement or the consummation of the transactions contemplated by the merger agreement (including any loss of customers, suppliers, employees or other commercial relationships or any action taken or requirements imposed by any governmental entity in connection with the merger); or

 

   

actions (or omissions) of that party and its subsidiaries taken (or not taken) with the consent of the other party or as required to comply with the merger agreement.

In the merger agreement, Black Knight has made representations and warranties regarding, among other things:

 

   

its due organization, valid existence, good standing and corporate power;

 

   

its ownership of subsidiaries;

 

   

its capitalization and indebtedness, including the number of shares of Black Knight common stock and shares issued in respect of the outstanding equity-based awards;

 

   

its corporate authority to execute and deliver, to perform its obligations under, and to consummate the transactions contemplated by, the merger agreement, and the enforceability of the merger agreement against it;

 

   

the declaration of advisability of the merger agreement by the Black Knight board, and the approval of the merger agreement and the merger by the Black Knight board;

 

   

the absence of violations of, or conflicts with, organizational documents, applicable law and certain contracts as a result of Black Knight entering into the merger agreement and consummating the merger and the other transactions contemplated by the merger agreement;

 

   

the governmental consents and approvals required in connection with the transactions contemplated by the merger agreement;

 

   

the required vote of Black Knight stockholders to adopt the merger agreement;

 

   

the proper filing by Black Knight of documents with the SEC since January 1, 2020 and the accuracy of the information contained in those documents;

 

   

the conformity with generally accepted accounting principles of Black Knight financial statements filed with the SEC since January 1, 2020 and the absence of undisclosed liabilities;

 

   

its internal controls over financial reporting and disclosure controls and procedures;

 

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the accuracy of information supplied or to be supplied for inclusion in this proxy statement/prospectus;

 

   

its conduct of business in all material respects in the ordinary course of business since December 31, 2021, and the absence of a material adverse effect on Black Knight or certain other changes since December 31, 2021;

 

   

the absence of certain litigation and governmental orders;

 

   

its compliance with certain material contracts;

 

   

its compliance with applicable laws and permits;

 

   

labor and employment matters;

 

   

employee benefit matters, including matters related to employee benefit plans;

 

   

tax matters;

 

   

title to its owned and leased real properties;

 

   

intellectual property;

 

   

data protection;

 

   

environmental matters;

 

   

insurance coverage;

 

   

the inapplicability of state takeover statutes to the merger agreement and the merger;

 

   

broker’s or similar fees payable in connection with the merger;

 

   

the receipt of an opinion from Black Knight’s financial advisor regarding the fairness, from a financial point of view, of the aggregate merger consideration to be received by the holders of Black Knight common stock to such holders; and

 

   

merger control and foreign direct investment matters.

In the merger agreement, ICE and Sub have made representations and warranties regarding, among other things:

 

   

their due organization, valid existence, good standing and corporate power;

 

   

their capitalization, including the number of shares of ICE common stock, stock options and other equity-based awards outstanding;

 

   

their corporate authority to execute and deliver, to perform their obligations under, and to consummate the transactions contemplated by, the merger agreement, and the enforceability of the merger agreement against them;

 

   

the declaration of advisability of the merger agreement by each of the ICE board and Sub’s board of directors, the approval of the merger agreement, the merger and the issuance of shares by the ICE board and the approval of the merger agreement, the merger and the submission of the merger agreement to a vote of Sub’s sole stockholder by the Sub board;

 

   

the absence of violations of, or conflicts with, organizational documents, applicable law and certain contracts as a result of ICE and Sub entering into the merger agreement and consummating the merger and the other transactions contemplated by the merger agreement;

 

   

the governmental consents and approvals required in connection with the transactions contemplated by the merger agreement;

 

   

the proper filing by ICE of documents with the SEC since January 1, 2020 and the accuracy of the information contained in those documents;

 

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the conformity with generally accepted accounting principles of ICE’s financial statements filed with the SEC since January 1, 2020 and the absence of undisclosed liabilities;

 

   

ICE’s internal controls over financial reporting and disclosure controls and procedures;

 

   

the accuracy of information supplied or to be supplied for inclusion in this proxy statement/prospectus;

 

   

their conduct of business in all material respects in the ordinary course of business since December 31, 2021, and the absence of a material adverse effect since December 31, 2021;

 

   

the sufficiency of funds to consummate the merger;

 

   

the ownership, operations and assets of Sub;

 

   

not having been an “interested stockholder” (as defined in Section 203 of the DGCL) of Black Knight;

 

   

the absence of certain litigation and governmental orders;

 

   

their compliance with applicable laws and permits;

 

   

the inapplicability of state takeover statutes to the merger agreement or merger;

 

   

broker’s or similar fees payable in connection with the merger; and

 

   

the solvency of ICE and Black Knight immediately after the closing of the merger.

Covenants and Agreements

Conduct of Business

Each of ICE and Black Knight has agreed to certain covenants in the merger agreement restricting the conduct of its respective business between May 4, 2022 and the earlier of the completion of the merger and the termination of the merger agreement.

Conduct of Business of Black Knight

Prior to the closing of the merger, subject to certain agreed upon exceptions or except as consented to in writing by ICE (which consent may not be unreasonably withheld or delayed), Black Knight has agreed to and has agreed to cause each of its subsidiaries to use its reasonable best efforts to conduct its business in the ordinary course and, to the extent consistent therewith, to use reasonable best efforts to (i) preserve its business organizations substantially intact, (ii) keep available the services of its current officers and employees and (iii) preserve its relationships with significant customers, suppliers, licensors, licensees, distributors, lessors and others having significant business dealings with it; provided that Black Knight and its subsidiaries will not be prevented from taking commercially reasonable actions that Black Knight reasonably determines are necessary or prudent for Black Knight or its subsidiaries to take or not take in response to the COVID-19 pandemic or any laws, directives, policies, guidelines or recommendations promulgated by any governmental entity in connection with or in response to the COVID-19 pandemic. Black Knight must, however, provide prior notice to and consult with ICE in good faith to the extent any applicable actions would require consent of ICE.

In addition, prior to the closing of the merger, subject to certain agreed upon exceptions or except as consented to in writing by ICE (which consent may not be unreasonably withheld or delayed), Black Knight has agreed not to and has agreed to cause each of its subsidiaries not to:

 

   

declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends or distributions of a wholly owned subsidiary in accordance with its organizational documents;

 

   

split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;

 

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purchase, redeem or otherwise acquire any shares of its or its subsidiaries’ capital stock or other securities or any rights, warrants or options to acquire any such shares or other securities, other than (i) the withholding of shares of Black Knight common stock to satisfy tax obligations with respect to awards granted pursuant to Black Knight stock plans, (ii) the acquisition by Black Knight of Black Knight restricted stock awards in connection with the forfeiture of those awards and (iii) the acquisition of shares of Black Knight common stock in connection with the exercise of rights under the Black Knight ESPP;

 

   

issue, deliver, sell, pledge, dispose of, encumber or subject to any lien any shares of its capital stock or other equity interests (or any securities convertible into, exercisable or exchangeable for equity interests), other than (x) rights under the Black Knight ESPP to cause Black Knight or participants thereunder to acquire or issue shares of Black Knight common stock and (y) pledges, encumbrances and liens constituting specified permitted liens;

 

   

amend the Black Knight charter, the Black Knight bylaws or the comparable organizational documents of any of its subsidiaries;

 

   

merge or consolidate with, or purchase an equity interest in or a substantial portion of the assets of, any person or any division or business thereof, if the aggregate amount of the consideration paid or transferred by Black Knight and its subsidiaries in connection with the applicable transactions would exceed $25 million;

 

   

sell, license, lease, transfer, assign or otherwise dispose of any of its properties, rights or assets (including capital stock of any subsidiary of Black Knight), other than (i) sales or other dispositions of inventory and other assets in the ordinary course of business consistent with past practice, (ii) the non-exclusive licensing or sublicensing of intellectual property in the ordinary course of business consistent with past practice, (iii) leases and subleases of owned and leased real property, and voluntary terminations or surrenders of real property leases, in each case, in the ordinary course of business consistent with past practice and (iv) the settlement of claims permitted under the merger agreement;

 

   

pledge, encumber or otherwise subject to a lien (other than specified permitted liens) any of its properties, rights or assets, other than in the ordinary course of business consistent with past practice under Black Knight’s existing credit facilities;

 

   

(i) incur, redeem, prepay, defease, cancel, or, in any material respect, modify the terms of any indebtedness of Black Knight or any of its subsidiaries for borrowed money in excess of $25 million (individually or in the aggregate), issue or sell any debt securities or warrants or other rights to acquire any of the debt securities of Black Knight or any of its subsidiaries, agree to pay deferred purchase price for any property (other than trade credit incurred in the ordinary course of business consistent with past practice), or guarantee, assume or otherwise become responsible for any indebtedness, debt securities or financial obligations of another person or enter into any “keep well” or other agreement to maintain any financial statement condition of another person (other than Black Knight or any of its subsidiaries), other than (x) borrowings in the ordinary course of business under Black Knight’s existing credit facilities and in respect of letters of credit and (y) prepayments of indebtedness in the ordinary course of business consistent with past practice without prepayment premium or penalty and prepayments and redemptions of indebtedness required in accordance with the terms thereof; or (ii) make any loans, advances or capital contributions to, or investments in, any other person, other than (x) to Black Knight or any of its subsidiaries or (y) advances of business and travel expenses to employees or advances to customers in the ordinary course of business consistent with past practice;

 

   

make any capital expenditures that, in any calendar year, exceed 110% of the aggregate amount of expenditures provided for in Black Knight’s 2022 capital expenditures plan provided to ICE in writing prior to the date of the merger agreement;

 

   

settle any claim, investigation, proceeding or litigation, in each case made or pending against Black Knight or any of its subsidiaries, other than settlements of claims, investigations, proceedings or

 

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litigation involving a monetary payment by Black Knight or any of its subsidiaries in an amount not to exceed $5 million individually or $15 million in the aggregate;

 

   

make any non-monetary settlement of claims, investigations, proceedings or litigation, other than settlements that (i) would not materially impair the operations of Black Knight and its subsidiaries, taken as a whole, and (ii) after the closing of the merger, would not reasonably be expected to materially impair the operations of Black Knight and its subsidiaries or the operations of ICE and its subsidiaries, taken as a whole;

 

   

except as required pursuant to the terms of any Black Knight benefit plan or Black Knight benefit agreement, in each case, in effect on the date of the merger agreement or entered into, amended or modified after the date of the merger agreement in a manner not in contravention of the merger agreement:

 

   

grant to any current or former director, officer, independent consultant or employee of Black Knight or any of its subsidiaries any increase in compensation, other than (i) increases in the ordinary course of business consistent with past practice to current independent consultants and employees (other than independent contractors and employees with annual target cash compensation in excess of $300,000) that are not material on an individual basis or (ii) the payment of earned but unpaid bonuses;

 

   

grant to any current or former director, officer, independent consultant or employee of Black Knight or any of its subsidiaries any increase in severance or termination pay or enter into any severance, termination or similar agreement with any director, officer, independent consultant or employee;

 

   

enter into any employment, consulting or similar agreement with any current or former director, officer, independent consultant or employee of Black Knight or any of its subsidiaries with annual target cash compensation in excess of $300,000;

 

   

establish, adopt, enter into or amend in any material respect any collective bargaining agreement, Black Knight benefit plan or Black Knight benefit agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Black Knight benefit plan or Black Knight benefit agreement if it were in existence as of the date of the merger agreement;

 

   

take any action to accelerate the time of payment or vesting of any compensation or benefits under any Black Knight benefit plan or Black Knight benefit agreement;

 

   

loan or advance any money or other property to any current or former director, officer, independent consultant or employee of Black Knight or any of its subsidiaries (other than advances of business and travel expenses); or

 

   

hire any new employee into or promote any current employee to, in either case, a position that would constitute an executive officer position at Black Knight or any of its subsidiaries (or would otherwise entitle the employee to a target cash compensation level in excess of $300,000);

 

   

make any material change in financial accounting methods, principles or practices affecting Black Knight’s consolidated assets, liabilities or results of operations, other than as required by GAAP or by law;

 

   

make any material tax election, file any material amended tax return, change any annual tax accounting period, enter into any closing agreement, settle or compromise any proceeding with respect to any material tax claim or assessment relating to Black Knight or any of its subsidiaries, or surrender any right to claim a material refund of taxes, in each case, other than in the ordinary course of business consistent with past practice;

 

   

enter into any material new line of business;

 

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materially amend or modify its risk management policies other than in the ordinary course of business consistent with past practice;

 

   

amend, cancel, terminate or waive any material provision of any contract specified in the merger agreement, other than in the ordinary course of business, or enter into or renew any agreement or binding obligation that (i) would be one of certain types of contracts specified in the merger agreement, other than in the ordinary course of business consistent with past practice, or (ii) is with any broker, investment banker, financial advisor or similar person;

 

   

agree or consent to any agreement or material modifications of any existing agreements with any governmental entity that materially impairs the operations of Black Knight and its subsidiaries taken as a whole;

 

   

adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;

 

   

let lapse, fail to maintain, abandon or cancel any material intellectual property; or

 

   

authorize, or commit or agree to take, any of the actions described above.

Conduct of Business of ICE

Prior to the closing of the merger, subject to certain agreed upon exceptions or except as consented to in writing by Black Knight (which consent may not be unreasonably withheld or delayed), ICE has agreed not to and has agreed to cause each of its subsidiaries not to:

 

   

declare, set aside or pay any dividends or make any other distributions in respect of its capital stock, other than (i) dividends or distributions by any wholly owned subsidiary of ICE to its parent and (ii) regular quarterly cash dividends on ICE common stock paid in the ordinary course consistent with past practice (for the avoidance of doubt, excluding any interim or special dividend);

 

   

split, combine or reclassify any of ICE’s capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;

 

   

amend the ICE charter, the ICE bylaws or the comparable organizational documents of Sub in a manner that would be materially or disproportionately adverse to the holders of shares of Black Knight common stock (relative to the other holders of ICE common stock) or would, or would reasonably be expected to, have the effect of delaying or preventing the consummation of the merger or the other transactions contemplated by the merger agreement;

 

   

adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of ICE or Sub; or

 

   

authorize, or commit or agree to take, any of the actions described above.

Stockholder Meeting and Board Recommendation

Black Knight must, as promptly as reasonably practicable following the effectiveness of the registration statement on Form S-4 of which this proxy statement/prospectus forms a part, establish a record date for, duly call, give notice of, convene and hold a meeting of Black Knight stockholders no later than 45 days following the effectiveness of the Form S-4 (unless otherwise agreed by ICE and Black Knight), and submit the merger agreement to its stockholders for adoption. The special meeting constitutes that required meeting of the Black Knight stockholders.

Subject to the ability of the Black Knight board to make an adverse recommendation change, as described in “The Merger Agreement—Adverse Recommendation Change; Certain Prohibited Actions” beginning on page [        ] of this proxy statement/prospectus, the Black Knight board is required to recommend to Black Knight

 

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stockholders the adoption of the merger agreement and Black Knight is required to include that recommendation in this proxy statement/prospectus and use reasonable best efforts to obtain from the Black Knight stockholders the approval of the merger proposal.

Under the terms of the merger agreement, Black Knight may adjourn or postpone the Black Knight stockholders’ meeting (i) after consultation with ICE, to the extent necessary to ensure that any required supplement or amendment to this proxy statement/prospectus is provided to the Black Knight stockholders within a reasonable amount of time in advance of the Black Knight stockholders’ meeting, or (ii) if, as of the date the special meeting is originally scheduled, there are insufficient shares of Black Knight common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the special meeting. However, any adjournment or postponement may be for a period of no more than ten business days each, and Black Knight is only permitted to effect up to two adjournments or postponements under this clause (ii). In addition, no postponement will be permitted under clause (ii) of the prior sentence if it would require a change to the record date for the special meeting.

Unless the merger agreement is validly terminated in accordance with its terms, Black Knight must submit the merger agreement to its stockholders for adoption at the special meeting even if the Black Knight board has made an adverse recommendation change.

For purposes of the merger agreement, an “adverse recommendation change” refers to (1) any withdrawal of (or modification or qualification in a manner adverse to ICE), or public proposal to withdraw (or qualify or modify in a manner adverse to ICE), the Black Knight board recommendation, (2) any approval, adoption, declaration of advisability or recommendation in favor of any takeover proposal, (3) any failure to include the Black Knight board recommendation in this proxy statement/prospectus, (4) any recommendation or public proposal to make any recommendation in connection with a tender offer or exchange offer other than a recommendation against that offer (subject to customary exceptions) or (5) the failure to recommend against a takeover proposal or failure to reaffirm the Black Knight board recommendation, in either case, within ten business days after a written request by ICE to do so following the public disclosure of a takeover proposal (subject to customary exceptions).

Appropriate Action; Filings

Each of Black Knight and ICE must use its respective reasonable best efforts to (i) cause the transactions contemplated by the merger agreement to be consummated as soon as practicable, (ii) obtain all actions or non-actions, approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any governmental entity or third party necessary, proper or advisable to consummate the transactions contemplated by the merger agreement as soon as practicable, (iii) make promptly any required submissions and filings under applicable U.S. antitrust laws, (iv) as soon as practicable furnish information required in connection with those submissions and filings under applicable U.S. antitrust laws, and (v) keep the other parties reasonably informed with respect to the status of any submissions and filings under applicable U.S. antitrust laws.

Each of Black Knight and ICE must (a) make appropriate filings pursuant to the HSR Act as soon as practicable (which filings were made by the parties on May 18, 2022), (b) cooperate with each other with respect to the preparation of those filings under the HSR Act, (c) supply as soon as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other U.S. antitrust law, (d) in the event that any applicable governmental entity issues a so-called “second request,” use best efforts to be ready to certify substantial compliance within four months after the date of receipt of that second request, and (e) use its reasonable best efforts to take, or cause to be taken, all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable. ICE is responsible for all filing fees under the HSR Act and other applicable antitrust laws.

 

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Each of ICE and Black Knight has also agreed to use its reasonable best efforts to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under U.S. antitrust laws applicable to the transactions contemplated by the merger agreement so as to enable the parties to close the transactions as soon as practicable, and in any event no later than five business days prior to the outside date. However, ICE is not required to agree to any structural or behavioral remedy required by any governmental entity to satisfy these obligations.

In the event that any litigation or other administrative or judicial action or proceeding by any governmental entity or private third party is commenced, threatened or is foreseeable challenging any of the transactions contemplated by the merger agreement under a U.S. antitrust law and that litigation, action or proceeding seeks, or would reasonably be expected to seek, to prevent, materially impede or materially delay the consummation of the transactions, ICE and Black Knight are required to, at the option of ICE, cooperate with each other and contest and resist any such litigation, action or proceeding and to have vacated, lifted, reversed or overturned any Restraint that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by the merger agreement.

Pursuant to the merger agreement, ICE may not acquire or agree to acquire any rights, assets, business, person or division thereof, if the acquisition could reasonably be expected to delay obtaining or increase the risk of not obtaining any clearance, consent, approval or waiver under the HSR Act and any other U.S. antitrust laws applicable to the transactions contemplated by the merger agreement.

No Solicitation

Under the terms of the merger agreement, Black Knight may not, and must cause its subsidiaries and its and their respective representatives not to, directly or indirectly, (A) solicit, initiate, knowingly facilitate, knowingly encourage, or knowingly induce any takeover proposal, (B) engage in any discussions or negotiations with any person (other than ICE or any of its representatives) for the purpose of encouraging or facilitating, any takeover proposal or grant any waiver, release or amendment under any standstill, confidentiality or other similar agreement (unless the Black Knight board determines in good faith that the failure to grant the waiver or release would be inconsistent with its fiduciary duties under applicable law, in which case Black Knight may, with prior written notice to ICE, waive any standstill provision or grant any release solely to the extent necessary to permit the applicable person to make, on a confidential basis to the Black Knight board, a takeover proposal, conditioned upon that person agreeing to disclosure of the takeover proposal to ICE), or (C) provide any confidential or nonpublic information or data to any person relating to, or otherwise for the purpose of encouraging or facilitating, any takeover proposal.

Black Knight is required to immediately cease and cause to be terminated any solicitation, knowing encouragement, discussion or negotiation of or with, or cooperation with, or assistance or participation in, or facilitation of (including by way of providing access to non-public information), any inquiries, proposals, discussions or negotiations with any person conducted prior to the date of the merger agreement by Black Knight, its subsidiaries or any of their respective representatives with respect to any takeover proposal and use commercially reasonable efforts to cause all confidential information provided by or on behalf of Black Knight to that person to be returned or destroyed. Within one business day following the date of the merger agreement, Black Knight was required to (i) request in writing that each person that has executed a confidentiality agreement in connection with its consideration of a takeover proposal promptly destroy or return to Black Knight all nonpublic information furnished to that person or any of its representatives and (ii) terminate access to any physical or electronic data rooms relating to a possible takeover proposal.

If at any time prior to obtaining the Black Knight stockholder approval, (i) Black Knight has received an unsolicited written takeover proposal from a third party that the Black Knight board determines in good faith to be bona fide, (ii) the Black Knight board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the takeover proposal constitutes or would reasonably be expected to result in a

 

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superior proposal (as defined below), (iii) after consultation with its outside legal counsel, the Black Knight board determines in good faith that failing to take action would be inconsistent with its fiduciary duties under applicable law and (iv) the takeover proposal did not arise out of or result from a breach of the non-solicitation provisions of the merger agreement, then Black Knight may (A) furnish information with respect to Black Knight and its subsidiaries to the person making the takeover proposal and its representatives and financing sources, and (B) engage in discussions or negotiations with the person making the takeover proposal and its representatives and financing sources; provided, that Black Knight (x) will not, and will not allow its subsidiaries or its or their representatives to, disclose any non-public information to that person without first entering into an acceptable confidentiality agreement with that person, and (y) will substantially concurrently with the time the information is provided to that person provide to ICE any material non-public information to be provided to that other person which was not previously provided to ICE.

For purposes of the merger agreement, “takeover proposal” means any inquiry, proposal or offer from any person or group of persons relating to (i) any direct or indirect acquisition or purchase in any manner of 15% or more of the consolidated total assets of Black Knight and its subsidiaries, taken as a whole, or 15% or more of outstanding shares of Black Knight common stock, (ii) any tender offer or exchange offer, that, if consummated, would result in any person or group or persons owning, directly or indirectly, 15% or more of outstanding shares of Black Knight common stock or (iii) any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution, share exchange or similar transaction involving Black Knight or any of its subsidiaries that would result in any person or group (or the stockholders of any person) owning, directly or indirectly, (a) 15% or more of any class of equity securities of Black Knight or of the surviving entity in a merger or the resulting direct or indirect parent of Black Knight or the surviving entity or (b) businesses or assets that constitute 15% or more of the consolidated revenues, net income or total assets of Black Knight and its subsidiaries.

For purposes of the merger agreement, “superior proposal” means any bona fide takeover proposal (with the percentages set forth in the definition thereof changed from 15% to 50%) made in writing that the Black Knight board determines in good faith is reasonably likely to be consummated and that is on terms which the Black Knight board determines in good faith (after consultation with Black Knight’s financial advisor and outside counsel) would be more favorable to the stockholders of Black Knight from a financial point of view than the merger, taking into account all financial, legal, regulatory, financing, certainty and timing of consummation and other aspects of the proposal and of the merger agreement (including any changes to the financial and other terms of the merger agreement proposed by ICE to Black Knight within five business days (or any additional period provided for in the merger agreement) of ICE’s receipt of notice from Black Knight of the proposal in response to that proposal or otherwise).

Adverse Recommendation Change; Certain Prohibited Actions

Black Knight must as promptly as practicable (but in any event within 24 hours) notify ICE, orally and in writing, in the event it receives (i) any takeover proposal or (ii) any inquiries, proposals or offers concerning a takeover proposal, and in each case must include in the notice an unredacted copy of the takeover proposal or request, including the identity of the person making the takeover proposal or other request. Black Knight must keep ICE reasonably informed on a prompt basis (and, in any case, within 24 hours of any significant development) of the status of the takeover proposal or other request and any material developments, and is required to promptly (but in any event within 24 hours) provide to ICE copies of any additional or revised written proposals, written indications of interest and/or draft agreements relating to the takeover proposal or other request.

 

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Neither the Black Knight board nor any of its committees may:

(i)    make an adverse recommendation or change; or

(ii)    approve or recommend, or publicly propose to approve or recommend, or cause or permit Black Knight or any of its subsidiaries to execute or enter into, any binding or non-binding letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement related to any takeover proposal, which we refer to collectively as an “Acquisition Agreement,” other than any acceptable confidentiality agreement.

Notwithstanding the foregoing, at any time prior to obtaining the Black Knight stockholder approval, the Black Knight board may, if it determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable law: (x) in response to a superior proposal or Intervening Event (as defined below), make an adverse recommendation change or, (y) in respect of a superior proposal, cause Black Knight to terminate the merger agreement and, concurrently with or immediately after the termination, cause Black Knight to enter into an Acquisition Agreement providing for the superior proposal; provided, however, that (1) no adverse recommendation change may be made and (2) no termination of the merger agreement may be made, until after the fifth business day following ICE’s receipt of written notice from Black Knight advising ICE that the Black Knight board intends to (x) in the case of clause (1) above, make an adverse recommendation change, which we refer to as a “Notice of Adverse Recommendation,” or (y) in the case of clause (2) above, terminate the merger agreement, which we refer to as a “Notice of Superior Proposal,” and specifying the reasons therefor, including, (i) if the basis of the proposed action is a superior proposal, the material terms and conditions of the superior proposal, or (ii) if the basis of the proposed action is an Intervening Event, a description of the Intervening Event, and unless Black Knight has:

(i)    (A) during the five business day period specified above (and any additional period described below), negotiated with ICE in good faith (to the extent ICE desires to negotiate) with respect to proposed adjustments to the terms and conditions of the merger agreement so that the superior proposal ceases to constitute a superior proposal (or, in the case of a Notice of Adverse Recommendation that is in response to an Intervening Event, so that the failure to make an adverse recommendation change is no longer inconsistent with the Black Knight board’s fiduciary duties under applicable law), and (B) no earlier than the end of such negotiation period, the Black Knight board has determined in good faith that (x) in the case of a Notice of Superior Proposal, the takeover proposal that is the subject of the Notice of Superior Proposal still constitutes a superior proposal, and (y) in the case of a Notice of Superior Proposal or Notice of Adverse Recommendation, that the failure to take the action specified in such notice would still be inconsistent with its fiduciary duties under applicable law; and

(ii)    prior to or concurrently with a termination of the merger agreement to enter into an alternative acquisition agreement providing for a superior proposal, paid the termination fee due by Black Knight.

In the event of any revisions to a superior proposal (or any material change to the facts and circumstances relevant to an Intervening Event) Black Knight will be required to deliver a new Notice of Superior Proposal or Notice of Adverse Recommendation, as applicable, and to again comply with the requirements set forth above with respect to the revised superior proposal or the modified Intervening Event (after giving effect to the changed facts and circumstances) (except that the new negotiation period will expire on the later to occur of (x) two business days following delivery of the new notice from Black Knight to ICE and (y) the expiration of the original five business day period).

“Intervening Event” means a material event or circumstance that was not known or reasonably foreseeable to the Black Knight board on the date of the merger agreement (or if known, the consequences of which were not known to or reasonably foreseeable), which event or circumstance, or any consequence thereof, becomes known to the Black Knight board prior to the time at which Black Knight receives the Black Knight stockholder

 

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approval. However, in no event will any of the following constitute an Intervening Event: (i) the receipt or existence of any inquiry, offer or proposal that constitutes or would reasonably be expected to lead to a takeover proposal or (ii) any change in stock price or trading volume of the Black Knight common stock or ICE common stock or the fact, in and of itself, that Black Knight meets or exceeds (or that ICE fails to meet or exceed) internal or published estimates, projections or forecasts for any period (provided, that the facts or causes underlying or contributing to the change, or to the meeting or exceeding (or failure to meet or exceed, as applicable) the estimates, projections or forecasts may not be excluded).

Nothing in the merger agreement prohibits Black Knight from (1) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (2) making any disclosure to its stockholders if the Black Knight board determines in good faith, after consultation with its outside legal counsel, that its failure to do so would be inconsistent with its fiduciary duties under applicable law. Nothing in this paragraph, however, will permit the Black Knight board to make an adverse recommendation change, or terminate the merger agreement in order to enter into an Acquisition Agreement, except to the extent permitted by the terms of the merger agreement described above. In any disclosure permitted by this paragraph (other than an adverse recommendation change permitted by the terms of the merger agreement), the Black Knight board must expressly reaffirm its recommendation in favor of the merger.

Employee Benefits Matters

Following the merger effective time and ending on the first anniversary of the closing date of the merger, ICE will provide, or will cause Black Knight to provide, each individual who is employed by Black Knight or any of its subsidiaries immediately prior to the merger effective time, whom we refer to as “Black Knight employees,” and who continues employment with Black Knight, with (i) annual base compensation (base salary or base wage, as applicable) that is no less favorable than the annual base compensation (base salary or base wage, as applicable) provided to such Black Knight employee immediately prior to the merger effective time; (ii) target cash incentive opportunities that are no less favorable than the target cash incentive opportunities provided to the Black Knight employee immediately prior to the merger effective time; (iii) target equity incentive opportunities that are no less favorable than those provided by ICE or its subsidiaries to similarly situated employees; and (iv) other employee benefits and compensation (excluding severance payments and severance benefits) that are no less favorable in the aggregate to the other employee benefits and compensation (excluding severance payments or severance benefits) provided by Black Knight or its subsidiaries to the Black Knight employee immediately prior to the merger effective time.

In addition, upon a termination of a Black Knight employee’s employment other than for cause prior to the first anniversary of the closing date of the merger, ICE will provide, or will cause Black Knight to provide, severance payments and benefits as follows: (i) following the merger effective time and through the date that is three months after the closing date of the merger, the severance payments and benefits as set forth in the Black Knight severance policy provided to Parent prior to the execution of the merger agreement, and (ii) from the date that is three months after the closing date of the merger until the first anniversary thereof, severance payments and benefits that are no less favorable than the severance payments and benefits provided by ICE or its subsidiaries to similarly situated employees under the ICE severance policy provided to Black Knight prior to the execution of the merger agreement.

Further, ICE will, or will cause Black Knight to, continue Black Knight’s annual bonus program for the remainder of the calendar year in which the merger effective time occurs and administer it in the ordinary course consistent with past practice and taking into account the determinations made prior to the merger effective time with respect to such annual bonus program or target amounts thereunder.

ICE has also agreed:

 

   

to honor all obligations under Black Knight benefit plans and Black Knight benefit agreements in accordance with their terms as in effect immediately prior to the effective time, including with respect

 

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to any payments, benefits or rights arising as a result of the transactions contemplated by the merger agreement (either alone or in combination with any other event), provided that ICE and its subsidiaries will not be prevented from terminating or amending those plans or agreements in accordance with their terms or applicable law;

 

   

that with respect to all plans maintained by ICE, Black Knight or their respective subsidiaries (including any vacation, paid time-off and severance plans), for all purposes, including eligibility to participate, level of benefits, and vesting (but excluding benefit accruals), each Black Knight employee’s service with Black Knight and its subsidiaries (as well as service with any predecessor employer of Black Knight or any subsidiary, to the extent service is recognized by Black Knight or such subsidiary) will be treated as service with ICE, Black Knight or any of their respective subsidiaries to the extent such service was recognized under the comparable Black Knight benefit plan immediately prior to the merger effective time, provided that such service need not be recognized to the extent such recognition would result in a duplication of benefits;

 

   

to use reasonable best efforts to cause to be waived any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by ICE, Black Knight or any of their respective subsidiaries in which Black Knight employees (and their eligible dependents) will be eligible to participate from and after the merger effective time, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Black Knight benefit plan immediately prior to the merger effective time; and

 

   

to use reasonable best efforts to recognize, or cause to be recognize, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Black Knight employee (and his or her eligible dependents) during the calendar year in which the merger effective time occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which those employees will be eligible to participate from and after the merger effective time.

Financing and Financing Cooperation

ICE’s obligation to complete the merger is not conditioned upon its obtaining financing to pay the cash portion of the merger consideration. ICE has agreed to keep Black Knight informed on a timely basis in reasonable detail of any material developments relating to ICE’s efforts to obtain third-party financing for the merger. Black Knight is obligated to use its reasonable best efforts to, upon the reasonable request of ICE, provide reasonable cooperation in connection with any third-party debt financing arranged by ICE or Sub for purposes of financing the merger and the other transactions contemplated by the merger agreement.

Directors’ and Officers’ Indemnification and Insurance

The indemnification and exculpation rights, and related rights to advancement of expenses, of any director, officer, employee or agent of Black Knight or any of its subsidiaries or predecessors, for acts or omissions occurring at or prior to the merger effective time, provided for in any organizational document or other agreement existing as of the date of the merger agreement will survive the merger. The merger agreement requires ICE to cause Black Knight and its subsidiaries to indemnify any person who is or was an officer or director of Black Knight or any of its subsidiaries or predecessors for a period of six years after the merger against losses arising from their service as a director or officer prior to the merger effective time.

Black Knight may (or at the request of ICE must use commercially reasonable efforts to) obtain, at or prior to the merger effective time, prepaid, or “tail,” directors’ and officers’ liability insurance policies with respect to acts or omissions occurring at or prior to the merger effective time for six years from the merger effective time, on terms with respect to coverage and amounts no less favorable than those of Black Knight’s policies in effect as of the date of the merger agreement; provided that, without ICE’s prior written consent, Black Knight may not

 

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expend therefor more than 300% of the annual premium paid by Black Knight as of the date of the merger agreement for such insurance coverage, which we refer to as the “premium cap.” If Black Knight does not obtain a “tail” insurance policy, the merger agreement requires ICE to maintain, for a period of six years from the merger effective time, Black Knight’s current directors’ and officers’ liability insurance policies, or policies with a reputable and financially sound insurance company on terms with respect to coverage and amounts no less favorable than those of the current policies, with respect to acts or omissions occurring at or prior to the merger effective time. However, ICE will not be required to spend annually more than the premium cap and if such premiums for such insurance would at any time exceed that amount, then ICE will maintain policies of insurance that provide the maximum coverage available at an annual premium equal to the premium cap.

Other Covenants and Agreements

The merger agreement contains additional covenants and agreements relating to, among other matters:

 

   

cooperation between the parties in the preparation of this proxy statement/prospectus;

 

   

confidentiality and access obligations by each party with respect to certain information about the other party during the period prior to the merger effective time;

 

   

the obligation, subject to certain exceptions, of each party to pay the fees and expenses incurred by that party in connection with the merger;

 

   

cooperation between the parties in the defense or settlement of any stockholder litigation relating to the merger;

 

   

consultation and consent requirements between the parties in connection with public announcements relating to the merger;

 

   

the approval for the listing on the NYSE of the shares of ICE common stock to be issued in the merger; and

 

   

the de-listing and de-registration of Black Knight common stock following the merger effective time.

Conditions to the Merger

Conditions to the Obligations of the Parties to Complete the Merger

The obligations of each of Black Knight, ICE and Sub to effect the merger are subject to the satisfaction or (to the extent permitted by law) waiver at or prior to the merger effective time of the following conditions:

 

   

the approval of the merger proposal by holders of a majority of the outstanding shares of Black Knight common stock entitled to vote thereon at the special meeting or any adjournment or postponement thereof;

 

   

the waiting period applicable to the consummation of the merger under the HSR Act having expired or been earlier terminated;

 

   

the absence of any Restraint by a court or other governmental entity that is in effect and restrains, enjoins or otherwise prohibits the closing of the merger;

 

   

the effectiveness of the registration statement of which this proxy statement/prospectus forms a part and the absence of a stop order or proceedings seeking a stop order; and

 

   

the shares of ICE common stock to be issued in the merger having been approved for listing on the NYSE, subject to official notice of issuance.

 

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Conditions to the Obligations of Each of ICE and Sub to Complete the Merger

The obligations of ICE and Sub to effect the merger are subject to the satisfaction or (to the extent permitted by law) waiver at or prior to the merger effective time of the following additional conditions:

 

   

certain of the representations and warranties of Black Knight set forth in the merger agreement relating to its capital structure and the absence of changes or events that have had or would reasonably be expected to have a material adverse effect on Black Knight being true and correct (other than de minimis failures in relation to its capital structure), in each case, as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct as of that earlier date);

 

   

certain of the representations and warranties of Black Knight set forth in the merger agreement relating to its organization, standing and corporate power, its capital structure, its authority to enter into and comply with its obligations under the merger agreement, the absence of any conflict between its obligations under the merger agreement and its governing documents, the inapplicability of state takeover statutes to the merger, and its brokers and other advisors being true and correct in all material respects as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct in all material respects as of that earlier date);

 

   

each of the other representations and warranties of Black Knight set forth in the merger agreement being true and correct in all respects (disregarding all qualifications or limitations as to “materiality,” “material adverse effect” and words of similar import set forth therein) as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct as of that earlier date), except where the failure of any of those representations and warranties to be so true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Black Knight;

 

   

Black Knight having performed or complied with, in all material respects, all of its obligations under the merger agreement to be performed or complied with by the closing of the merger;

 

   

since the date of the merger agreement, no event, circumstance, occurrence, effect, fact, development or change having occurred that has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on Black Knight; and

 

   

receipt by ICE of a certificate executed by the chief financial officer or the chief executive officer of Black Knight certifying as to the satisfaction of the conditions described in the preceding five bullets.

Conditions to the Obligation of Black Knight to Complete the Merger

The obligations of Black Knight to effect the merger are subject to the satisfaction or (to the extent permitted by law) waiver at or prior to the merger effective time of the following additional conditions:

 

   

certain of the representations and warranties of ICE and Sub set forth in the merger agreement relating to their capital structure and the absence of changes or events that have had or would reasonably be expected to have a material adverse effect on ICE being true and correct (other than de minimis failures in relation to their capital structure), in each case, as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct as of that earlier date);

 

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certain of the representations and warranties of ICE and Sub set forth in the merger agreement relating to its organization, standing and corporate power, their capital structure, their authority to enter into and comply with their obligations under the merger agreement, the absence of any conflict between their obligations under the merger agreement and their governing documents, the inapplicability of state takeover statutes to the merger, and their brokers and other advisors being true and correct in all material respects as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct in all material respects as of that earlier date);

 

   

each of the other representations and warranties of ICE and Sub set forth in the merger agreement being true and correct in all respects (disregarding all qualifications or limitations as to “materiality,” “material adverse effect” and words of similar import set forth therein) as of the date of the merger agreement and as of the date of the closing of the merger as though made on that date (except to the extent that any of those representations and warranties speak as of an earlier date, which representations and warranties must have been true and correct as of that earlier date), except where the failure of any of those representations and warranties to be so true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on ICE;

 

   

ICE and Sub having performed or complied with, in all material respects, all of their obligations under the merger agreement to be performed or complied with by the closing of the merger;

 

   

since the date of the merger agreement, no event, circumstance, occurrence, effect, fact, development or change having occurred that has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on ICE; and

 

   

receipt by Black Knight of a certificate executed by the chief financial officer or the chief executive officer of ICE certifying as to the satisfaction of the conditions described in the preceding five bullets.

Termination of the Merger Agreement

The merger agreement may be terminated by mutual written consent of ICE and Black Knight at any time prior to the completion of the merger. In addition, the merger agreement may be terminated as follows:

 

   

by either ICE or Black Knight if:

 

   

the merger has not been completed on or before the outside date, being May 4, 2023, subject to two automatic extensions of three months each, to August 4, 2023 and to November 4, 2023, respectively, if clearance under the HSR Act (or a Restraint under U.S. antitrust laws) remains outstanding and all other conditions to the completion of the merger are satisfied (or in the case of conditions that by their terms are to be satisfied at the closing, are then capable of being satisfied if the closing were to occur on that date) or waived at each extension date; provided that this right to terminate the merger agreement will not be available to a party if the failure of that party (and in the case of ICE, Sub) to perform any of its obligations under the merger agreement has been a principal cause of or resulted in the failure of the merger to be consummated on or before that date;

 

   

any Restraint that restrains, enjoins or otherwise prohibits the consummation of the merger has become final and nonappealable, so long as (i) the party seeking to terminate the merger agreement has provided the other parties with three business days’ prior written notice of its intent to terminate the merger agreement and (ii) the Restraint was not principally due to a failure by the terminating party to perform any of its obligations under the merger agreement;

 

   

the Black Knight stockholder approval has not been obtained at the special meeting or at any adjournment or postponement of the special meeting at which a vote on the merger agreement is taken; or

 

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the other party has breached any of its representations or warranties or failed to perform any of its covenants or agreements set forth in the merger agreement, which breach or failure to perform would result in the failure of a condition related to the accuracy of the other party’s representations and warranties or performance of covenants or agreements in the merger agreement, and the breach cannot be cured prior to the outside date or has not been cured within 30 days after notice to the other party of the breach; provided that this right to terminate the merger agreement will not be available to a party if that terminating party (and, in the case of ICE, Sub) is then in breach of any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach would give rise to the failure of a condition related to the accuracy of such party’s representations and warranties or performance of covenants or agreements in the merger agreement

 

   

by Black Knight, prior to the receipt of the Black Knight stockholder approval, if Black Knight enters into a definitive agreement with respect to a superior proposal, as described further in “The Merger Agreement—No Solicitation” beginning on page [        ] of this proxy statement/prospectus, provided that Black Knight pays to ICE a termination fee prior to or concurrently with the termination; or

 

   

by ICE, prior to the receipt of the Black Knight stockholder approval, if (1) the Black Knight board fails to include in the proxy statement the Black Knight board recommendation, or otherwise makes an adverse recommendation change, or (2) Black Knight fails to hold a meeting of its stockholders to adopt the merger agreement in material breach of its obligations under the merger agreement.

Effect of Termination

If the merger agreement is terminated as described above, the merger agreement will be void and of no effect, without liability on the part of any party, and each party’s rights and obligations will cease, subject to certain exceptions, including that:

 

   

no termination will relieve any party of any liability or damages resulting from fraud or any willful breach of any of its representations, warranties, covenants or agreements set forth in the merger agreement, in which case the aggrieved party will be entitled to all rights and remedies available at law or in equity, including liability for damages (taking into account all relevant factors, including the loss of benefit of the merger to the aggrieved party, the lost stockholder premium (if the aggrieved party is Black Knight) and any benefit to the breaching party or its stockholders arising from the fraud or breach); provided that, without limiting the parties’ rights to pursue specific performance in accordance with the terms of the merger agreement, in the event that the merger agreement is terminated in circumstances where a termination fee is payable and the termination fee is actually paid, the payment to the party entitled to receive the applicable termination fee (together with any collection expenses) will be the sole and exclusive remedy of that party; and

 

   

the confidentiality letter agreement entered into by ICE and Black Knight in connection with entering into the merger, and the provisions of the merger agreement with respect to certain indemnification and reimbursement obligations, will survive any termination of the merger agreement.

Under the merger agreement, “willful breach” means a material breach that is a consequence of an act undertaken or failure to act by the breaching party with knowledge that the taking of or failure to take that act would cause a material breach of the merger agreement.

Termination Fees and Expense Reimbursement

The merger agreement provides for the payment of a termination fee of $398,000,000 by Black Knight to ICE under the following circumstances:

 

   

a Black Knight termination to enter into an Acquisition Agreement providing for a superior proposal has occurred;

 

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(A) after the date of the merger agreement, a takeover proposal is publicly made to Black Knight or directly made to Black Knight stockholders generally or otherwise becomes publicly known; (B) thereafter, the merger agreement is terminated (1) by either Black Knight or ICE because Black Knight stockholders failed to approve the merger proposal, (2) by either Black Knight or ICE if the merger is not consummated by the outside date and the Black Knight stockholders’ meeting has not been held by that date, or (3) by ICE if an ICE termination for a Black Knight breach of the merger agreement has occurred (and at the time of termination, the Black Knight stockholder approval has not yet been obtained); and (C) within 12 months after the termination, Black Knight enters into a definitive agreement to consummate or consummates the transactions contemplated by any takeover proposal (with the term “takeover proposal” for purposes of this bullet having the meaning described in “The Merger Agreement—No Solicitation” beginning on page [    ] of this proxy statement/prospectus, except that all references to 15% therein will instead be deemed to be references to 50%); or

 

   

ICE terminates the merger agreement prior to the receipt of the Black Knight stockholder approval because (i) the Black Knight board failed to include the Black Knight board recommendation in this proxy statement/prospectus or an adverse recommendation change occurred or (ii) Black Knight failed to hold the Black Knight stockholders’ meeting in material breach of its obligations under the merger agreement.

If the merger agreement is terminated pursuant to the first bullet above, the termination fee must be paid on the date of termination. If the termination is made pursuant to the second bullet above, the termination fee must be paid on the earlier of (i) the date of entry into a definitive agreement with respect to a takeover proposal or (ii) the date of consummation of the definitive agreement that was entered into within 12 months after termination. If the termination is made pursuant to the third bullet above, the termination fee must be paid with two business days following termination.

The merger agreement provides for the payment of a termination fee of $725,000,000 by ICE to Black Knight under the following circumstances:

 

   

the merger agreement is terminated by Black Knight or ICE following the occurrence of the outside date, a willful breach by Black Knight of its obligations under the merger agreement relating to obtaining antitrust clearance for the merger has not been the primary cause of one or more of the conditions to closing relating to the receipt of clearance under the HSR Act or the absence of any Restraint (to the extent the Restraint relates to a U.S. antitrust law) to not be satisfied, and at the time of termination the conditions to closing in favor of ICE (other than those relating to the receipt of clearance under the HSR Act, and the absence of any Restraint relating to a U.S. antitrust law prohibiting or enjoining the closing) have been satisfied or waived (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on that date), other than those conditions the failure of which to be satisfied is primarily attributable to a breach by ICE or Sub of their representations, warranties, covenants or agreements contained in the merger agreement; or

 

   

the merger agreement is terminated by Black Knight or ICE because a Restraint relating to a U.S. antitrust law prohibiting or enjoining the closing has become final and non-appealable, and, at the time of the termination, a willful breach by Black Knight of its obligations under the merger agreement relating to obtaining antitrust clearance for the merger has not been the primary cause of the Restraint or its imposition.

If the merger agreement is terminated in these circumstances, the termination fee must be paid by ICE within two business days following termination.

Each party to the merger agreement may pursue both a grant of specific performance and the payment of the termination fee or damages for any willful breach of the merger agreement, as applicable. However, under no

 

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circumstance will any party be entitled to receive both (i) a grant of specific performance of the other parties’ obligations to consummate the closing of the merger which results in such consummation and (ii) the payment of damages or all or any portion of the applicable termination fee. Without limiting the parties’ rights to pursue specific performance, in the event that the merger agreement is terminated under circumstances where a termination fee is payable and is so paid, the payment of the applicable termination fee to the party entitled to receive that payment (together with any collection expenses) will be the sole and exclusive remedy of that party and its subsidiaries and its former, current or further partners, stockholders, managers, members, affiliates and representatives. The merger agreement provides that no party will be required to pay a termination fee on more than one occasion.

In addition to the termination fees described above, the merger agreement provides that if the merger agreement is terminated by ICE or Black Knight due to failure of Black Knight to obtain the Black Knight stockholder approval, Black Knight will pay ICE the reasonable and documented out-of-pocket costs and expenses incurred by ICE and Sub in connection with the merger (including all such fees and expenses incurred in connection with financing of the transactions contemplated by the merger agreement and fees and expenses of counsel, accountants, investment bankers, experts and consultants incurred in connection with the merger agreement) in an amount not to exceed $40 million. Payment of the expense reimbursements by Black Knight will not affect ICE’s right to receive any applicable termination fee, but will reduce on a dollar-for-dollar basis any termination fee that becomes payable by Black Knight.

Expenses

Except as otherwise described under “—Termination Fees and Expense Reimbursement” above and except for filing fees required under any U.S. antitrust law, all expenses incurred in connection with the merger agreement and the transactions contemplated by the merger agreement will be paid by the party incurring those expenses, whether or not the merger is completed.

Amendments, Extensions and Waivers

The merger agreement may be amended by the parties at any time before or after the receipt of the Black Knight stockholder approval. However, after the Black Knight stockholder approval has been obtained, there may not be, without further approval of Black Knight stockholders, any amendment of the merger agreement for which applicable law requires further stockholder approval.

At any time prior to the merger effective time, ICE, on behalf of itself and Sub, and Black Knight may (i) extend the time for performance of any obligations or other acts of the other party, (ii) to the extent permitted by appliable law, waive any inaccuracies in the representations and warranties of the other party contained in the merger agreement and (iii) to the extent permitted by appliable law, waive compliance by the other party with any of the agreements or conditions contained in the merger agreement.

No Third-Party Beneficiaries

The merger agreement is not intended to and does not confer upon any person other than the parties thereto any legal or equitable remedies, except for the indemnification rights of the directors and officers of Black Knight and, following the merger effective time, certain provisions relating to the payment and financing of the merger consideration and the treatment of Black Knight restricted stock awards and Black Knight RSU awards will be enforceable by the holders of Black Knight common stock, Black Knight restricted stock awards and Black Knight RSU awards.

 

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Governing Law; Jurisdiction; Waiver of Jury Trial

Governing Law; Jurisdiction

The merger agreement will be governed by the laws and judicial decisions of the State of Delaware. Each of Black Knight and ICE agreed that it will bring any suit, action or other proceeding relating to the merger agreement or the transactions contemplated thereby exclusively in (i) the Court of Chancery or (ii) only if the Court of Chancery declines to accept jurisdiction over a particular matter, the United States District Court located in the State of Delaware or, only if the Court of Chancery declines to accept jurisdiction over a particular matter, any state court of competent jurisdiction located in the State of Delaware. However, the provisions of any other agreement (including any commitment letter or definitive agreement relating to any financing) between any of ICE’s financing sources and ICE, Sub or Black Knight, all matters relating to any action or claim against any of ICE’s financing sources, and all matters relating to the interpretation, construction, validity and enforcement (whether at law or in equity, in contract or in tort, or otherwise) against any of ICE’s financing sources relating to the financing will be exclusively governed by, and construed in accordance with, the laws of the State of New York.

Black Knight, on behalf of itself and its affiliates, has agreed that ICE’s financing sources will have no liability to Black Knight or its affiliates (other than ICE or its subsidiaries under any debt commitment letter or definitive agreements executed and delivered in connection with any debt financing) relating to or arising out of the merger agreement or the transactions contemplated thereby, including the financing of the transactions contemplated by the merger agreement, whether at law or equity, in contract, tort or otherwise.

Waiver of Jury Trial

The parties have agreed to waive all rights to trial by jury in any action, proceeding or counterclaim arising out of or relating to the merger agreement.

Specific Enforcement

The parties have agreed in the merger agreement that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of the merger agreement were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy. The parties have agreed that they will be entitled to an injunction or injunctions to prevent breaches of the merger agreement and to enforce specifically the performance of terms and provisions of the merger agreement without proof of actual damages. The parties have further agreed not to assert that a remedy of specific enforcement is unenforceable or contrary to law, and not to assert that a remedy of monetary damages would provide an adequate remedy or that there is otherwise an adequate remedy at law.

 

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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES

General

The following summary discusses the material United States federal income tax consequences to U.S. holders and non-U.S. holders (each, as defined below) of the receipt of the merger consideration in exchange for shares of Black Knight common stock pursuant to the merger. This discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), the U.S. Treasury regulations promulgated under the Code, administrative interpretations and judicial decisions, all as in effect as of the date of this proxy statement/prospectus, and all of which may change or be subject to differing interpretations, possibly with retroactive effect. Any such change or interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion is not binding on the Internal Revenue Service (the “IRS”) or the courts and, therefore, could be subject to challenge, which could be sustained.

For purposes of this discussion, a “U.S. holder” is a beneficial owner of Black Knight common stock that is, for United States federal income tax purposes:

 

   

an individual who is a citizen or resident of the United States, as determined for United States federal income tax purposes;

 

   

a corporation, or other entity taxable as a corporation for United States federal income tax purposes, created or organized under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to United States federal income taxation regardless of its source; or

 

   

a trust (i) that is subject to the primary supervision of a court within the United States and all the substantial decisions of which are controlled by one or more United States persons (within the meaning of the Code) or (ii) that has a valid election in effect under applicable Treasury regulations to be treated as a United States person.

A “non-U.S. holder” is a beneficial owner of Black Knight common stock that is neither a U.S. holder nor an entity or arrangement treated as a partnership for United States federal income tax purposes.

This discussion applies only to holders of Black Knight common stock who hold their shares as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). It does not address all aspects of United States federal income taxation that may be relevant to a holder in light of such holder’s particular circumstances, or to a holder that is subject to special treatment under United States federal income tax laws, such as, but not limited to:

 

   

a financial institution or insurance company;

 

   

a tax-exempt or governmental organization;

 

   

a dealer or broker in securities, stocks, commodities or currencies;

 

   

a trader in securities who elects the mark-to-market method of accounting for securities;

 

   

a regulated investment company or real estate investment trust;

 

   

a controlled foreign corporation or passive foreign investment company;

 

   

a mutual fund;

 

   

a U.S. expatriate or former citizen or long-term resident of the United States;

 

   

a holder that exercises appraisal rights in connection with the merger;

 

   

a holder that holds its Black Knight common stock through individual retirement or other tax-deferred accounts;

 

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a holder that holds Black Knight common stock as part of a hedge, appreciated financial position, straddle, or conversion or integrated transaction;

 

   

a holder that acquired Black Knight common stock through the exercise of compensatory options or stock purchase plans or otherwise as compensation; or

 

   

a partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes) or other pass-through entity or any investor therein.

If a partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes) holds Black Knight common stock, the United States federal income tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the partnership. Such a partnership or partner in such a partnership should consult its tax advisors regarding the tax consequences of the merger to its specific circumstances.

This discussion of material United States federal income tax consequences is not a complete description of all potential United States federal income tax consequences of the merger. This discussion does not address tax consequences that may vary with, or are contingent on, individual circumstances. In addition, it does not address any alternative minimum tax, any non-income tax or any state, local or non-United States tax consequences of the merger, any withholding considerations under the Foreign Account Tax Compliance Act of 2010 (including the Treasury regulations issued thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith), or the potential application of the Medicare contribution tax on net investment income. Accordingly, each Black Knight stockholder should consult its tax advisor to determine the particular United States federal, state or local or non-United States income or other tax consequences to it of the merger.

U.S. Holders

The receipt of the merger consideration by U.S. holders pursuant to the merger will be a taxable transaction for United States federal income tax purposes. In general, for United States federal income tax purposes, a U.S. holder who receives the merger consideration in exchange for its shares of Black Knight common stock pursuant to the merger will recognize gain or loss in an amount equal to the difference, if any, between (i) the sum of the cash (including cash received in lieu of any fractional share of ICE common stock) and the fair market value of the ICE common stock received in the merger and (ii) such U.S. holder’s adjusted tax basis in its Black Knight common stock exchanged therefor.

Such gain or loss generally will be capital gain or loss. If a U.S. holder’s holding period in the Black Knight common stock surrendered in the merger is greater than one year as of the date of the merger, the gain or loss will be long-term capital gain or loss. Long-term capital gains of certain non-corporate holders, including individuals, are generally subject to United States federal income tax at preferential rates. The deductibility of a capital loss recognized in connection with the merger is subject to limitations. If a U.S. holder acquired different blocks of Black Knight common stock at different times or different prices, such U.S. holder must determine its adjusted tax basis and holding period separately with respect to each block of Black Knight common stock that it holds.

A U.S. holder’s aggregate tax basis in ICE common stock received in the merger generally will equal the fair market value of the ICE common stock as of the effective time. The holding period of the ICE common stock received in the merger will begin on the day after the merger.

Notwithstanding the above, in certain circumstances, the receipt of the cash consideration by U.S. holders that also actually or constructively own ICE common stock may be subject to Section 304 of the Code if holders who own (including by attribution) 50% or more of the Black Knight common stock before the merger own (including by attribution), immediately after the merger, 50% or more of the ICE common stock. If Section 304

 

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of the Code applies to the cash consideration received in the merger, to the extent a U.S. holder would otherwise be treated for United States federal income tax purposes as selling Black Knight common stock to ICE for cash, such holder will instead be treated as receiving the cash consideration from ICE in a deemed redemption of shares of ICE common stock deemed issued to such holder. If such deemed redemption is treated as having the effect of a distribution of a dividend under the tests set forth in Section 302 of the Code (discussed below under “—Non-U.S. Holders”), then a U.S. holder generally would recognize dividend income up to the amount of the cash received. For U.S. holders, dividends are generally taxable as ordinary income. However, non-corporate U.S. holders may be eligible for a reduced rate of taxation on dividends, including dividends arising by operation of Section 304 of the Code. For corporate U.S. holders, dividends (a) may be eligible for a dividends-received deduction and (b) may be subject to the “extraordinary dividend” provisions of the Code, subject in each case to certain requirements and limitations. It is not certain whether Section 304 of the Code will apply to the merger, because it may not be known at closing, and it may not be possible to determine following the closing, whether stockholders who own (including by attribution) 50% or more of the Black Knight common stock before the merger will own (including by attribution) 50% or more of the ICE common stock immediately after the merger. If Section 304 of the Code applies to the merger, because the possibility of dividend treatment depends upon each holder’s particular circumstances, including the application of the constructive ownership rules described below under “—Non-U.S. Holders,” U.S. holders that also actually or constructively own ICE common stock should consult their tax advisors regarding the application of the foregoing rules to their particular circumstances, and any actions that may be taken to mitigate the potential application of such rules.

Non-U.S. Holders

In general, subject to the discussion below regarding potential withholding, the receipt of the merger consideration by a non-U.S. holder in exchange for shares of Black Knight common stock pursuant to the merger will not be subject to United States federal income tax unless:

 

   

the gain, if any, recognized by the non-U.S. holder on such shares is effectively connected with a trade or business of the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to the non-U.S. holder’s permanent establishment in the United States);

 

   

the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of the exchange of shares of Black Knight common stock for the merger consideration pursuant to the merger and certain other conditions are met; or

 

   

the non-U.S. holder owned, directly or under certain constructive ownership rules of the Code, more than 5% of the Black Knight common stock at any time during the five-year period preceding the merger, and Black Knight is or has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any time during the shorter or the five-year period preceding the merger or the period that the non-U.S. holder held the Black Knight common stock.

Gain described in the first bullet point above generally will be subject to United States federal income tax on a net income basis in substantially the same manner as if the non-U.S. holder were a U.S. holder (unless an applicable income tax treaty provides otherwise), and if the non-U.S. holder is a corporation, it may also be subject to an additional “branch profits tax” at a 30% rate (or such lower rate as may be provided by an applicable income tax treaty). A non-U.S. holder described in the second bullet point above will be subject to tax at a rate of 30% (or such lower rate as may be provided by an applicable income tax treaty) on any gain recognized, which may be offset by U.S.-source capital losses recognized in the same taxable year (if any). If the third bullet point above applies to a non-U.S. holder, gain recognized by such holder will be subject to tax at generally applicable United States federal income tax rates. Black Knight believes that it has not been, is not, and will not be a “United States real property holding corporation” for United States federal income tax purposes at any time during the five-year period preceding the merger.

 

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As discussed above under “—U.S. Holders,” if Section 304 of the Code applies to the merger, the cash consideration received in the merger would be treated as having been received in a deemed redemption of shares of ICE common stock deemed issued. Such deemed redemption generally would be treated as having the effect of a distribution of a dividend if the receipt of the cash consideration by a holder is not “substantially disproportionate” with respect to such holder, is “essentially equivalent to a dividend” or is not in termination of such holder’s interest, in each case under the tests set forth in Section 302 of the Code. The determination of whether a holder’s receipt of the cash consideration is not “substantially disproportionate” generally requires a comparison of (x) the percentage of the outstanding stock of Black Knight that the holder is deemed actually and constructively to have owned immediately before the merger and (y) the percentage of the outstanding stock of Black Knight that is actually and constructively owned by such holder immediately after the merger (including indirectly as a result of owning stock in ICE and taking into account any shares of ICE actually and constructively owned by such holder prior to the merger, or otherwise acquired in connection with the transaction). The deemed redemption will generally result in a “substantially disproportionate” exchange with respect to a holder if the percentage described in clause (y) above is less than 80% of the percentage described in clause (x) above. Whether the deemed redemption results in an exchange that is “not essentially equivalent to a dividend” with respect to a holder will depend on such holder’s particular circumstances. Generally, if such deemed redemption results in a “meaningful reduction” in the holder’s percentage stock ownership of Black Knight, as determined by comparing the percentage described in clause (y) above to the percentage described in clause (x) above, such deemed redemption will be considered “not essentially equivalent to a dividend.” The IRS has indicated in a revenue ruling that a minority shareholder in a publicly traded corporation will experience a “meaningful reduction” if the minority shareholder (i) has a minimal percentage stock interest, (ii) exercises no control over corporate affairs, and (iii) experiences any reduction in its percentage stock interest. In applying the above tests, a holder may, under constructive ownership rules, be deemed to own stock that is owned by other persons or stock underlying a holder’s option to purchase stock, in addition to the stock actually owned by the holder. In addition, as noted above, in applying the tests set forth in Section 302 of the Code to a holder, sales (or purchases) of ICE common stock made by such holder (or by persons whose shares are attributed to such holder) in connection with the transaction will be taken into account.

Any amount treated under these rules as a dividend paid to a non-U.S. holder generally would be subject to United States withholding tax at a rate of 30% (or such lower rate as may be provided by an applicable income tax treaty) unless such dividend is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, is attributable to the non-U.S. holder’s permanent establishment in the United States). Because it may not be certain at the time of closing whether Section 304 of the Code applies to the merger, and because the application of Section 304 of the Code depends on a non-U.S. holder’s particular circumstances, withholding agents may not be able to determine whether (or to what extent) a non-U.S. holder is treated as receiving a dividend for United States federal income tax purposes. Therefore, withholding agents may withhold tax at a rate of 30% (or such lower rate as may be provided by an applicable income tax treaty) on the gross amount of any cash consideration payable to a non-U.S. holder, unless (i) the withholding agent has established special procedures allowing non-U.S. holders to certify that they are exempt from such withholding tax and (ii) such non-U.S. holders are able to certify that they meet the requirements of such exemption (e.g., because such non-U.S. holders are not treated as receiving a dividend under the Section 302 tests described above). However, there can be no assurance that any withholding agent will establish such special certification procedures. If a withholding agent withholds excess amounts from the cash consideration payable to a non-U.S. holder, such non-U.S. holder may obtain a refund of any such excess amounts by timely filing an appropriate claim with the IRS.

Non-U.S. holders should consult their own tax advisors regarding the application of the foregoing rules in light of their particular facts and circumstances, including the procedures for claiming a reduced rate of United States federal income tax withholding under an applicable income tax treaty, the procedures for claiming a refund of United States federal income tax withheld, and any actions that may be taken to mitigate the potential appli