**Exhibit 10.23**

 

**FIRST AMENDMENT TO**

**THIRD AMENDED AND RESTATED STOCKHOLDERS’AGREEMENT**

 

This First Amendment (this “Amendment”), dated as of June 9,2008 (the “Amendment Effective Date”), to the Third Amended and RestatedStockholders’ Agreement dated June 25, 2004 (the “Stockholders’Agreement”; terms not otherwise defined herein are used herein as thereindefined), is by and among MXenergy Holdings Inc., a Delaware corporation (the “Company”),Charter Mx LLC, a Delaware limited liability company (“Charter Mx”),Denham Commodity Partners Fund L.P. f/k/a Lathi LLC, a Delaware limitedpartnership (“Denham”), and Stockholders holding a majority of theoutstanding shares of Voting Stock as of the Effective Date.

 

**PRELIMINARY STATEMENTS**

 

A.            Certain of the Stockholders desire to amend theStockholders’ Agreement as hereinafter provided; and

 

B.            The Stockholders partyhereto, constituting theCompany, Charter Mx, Denham and Stockholders holding a majority of theoutstanding shares of Voting Stock as of the Effective Date, are willing toamend the Stockholders’ Agreement on the terms and conditions set forth herein.

 

NOW THEREFORE, in consideration of the premises and the covenants andagreements contained herein, the parties hereto agree as follows:

 

**AGREEMENT**

 

Section 1.               Amendments to Stockholders’ Agreement.

 

(a)           Amendment to Section 3.4.  Section 3.4of the Stockholders’ Agreement is hereby amended by:

 

(i)            deleting the word “and” contained at theend of clause (d) thereof; and

 

(ii)           deleting the period contained at the endof clause (e) thereof and inserting in its place the following:  “and;”; and

 

(iii)          inserting a new clause (f) to readas follows:  “without consideration by aStockholder who is a natural person to a university or college, trust,foundation, unincorporated association or other not-for-profit entityestablished for charitable purposes that is exempt from federal income taxespursuant to Section 501(c)(3) of the United States Internal RevenueCode (26 U.S.C. §501(c)).”; and

 

(iv)          deleting in its entirety the reference to“cases (b), (c) and (d)” contained in the proviso following the end ofclause (f), and replacing it with the following reference:  “cases (b), (c), (d) and (f)”; and

 

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(v)           adding a further proviso to the end ofthe proviso following the end of clause (f) to read as follows:  “provided further, however, that in the caseof clause (f) above, it shall be a condition to such transfer that theBoard of Directors shall have approved such transfer (such approval to bewithin the complete discretion of the Board of Directors).

 

Section 2.               Amendment Binding. This Amendment shall be binding upon each holder of any securitiesoutstanding (including securities into which such securities are convertible),each future holder of all such securities, and the Company.

 

Section 3.               Governing Law. This Amendment shall be governed by, and construed and enforced inaccordance with, the laws of the State of Delaware as applied to agreementsamong New York residents entered into and to be performed entirely within NewYork.

 

Section 4.               Entire Agreement. This Amendment and the Stockholders’ Agreement constitute the entireagreement and understanding among the parties and supersede all prioragreements and understandings, whether written or oral, among the partieshereto concerning the transactions provided herein and therein.

 

Section 5.               Execution in Counterparts. This Amendment may be executed in any number of counterparts and bydifferent parties hereto in separate counterparts, each of which when soexecuted shall be deemed to be an original and all of which taken togethershall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to thisAmendment by facsimile shall be as effective as delivery of a manually executedcounterpart of this Amendment.

 

Section 6.               Headings.  The headingsset forth in this Amendment are and shall be without substantive meaning orcontent of any kind whatsoever and are not a part of the agreement between theparties hereto.

 

Section 7.               Severability. In case any provision in or obligation under this Amendment shall beinvalid, illegal or unenforceable in any jurisdiction, the validity, legalityand enforceability of the remaining provisions or obligations, or of suchprovision or obligation in any other jurisdiction, shall not in any way beaffected or impaired thereby.

 

[Signature page follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to beduly executed and delivered by their respective duly authorized officers as ofthe Amendment Effective Date.

 
|   |   | MXENERGY HOLDINGS INC.                                                              |
|--------|--------|-------------------------------------------------------------------------------------|
|   |   |                                                                                |
|   |   | By:                                                                                 | /s/ CHAITU PARIKH |
|   |   |                                                                                | Name: Chaitu Parikh |
|   |   |                                                                                | Title: Vice President and CFO |
|   |   |                                                                                |
|   |   |                                                                                |
|   |   | CHARTER MX LLC                                                                      |
|   |   |                                                                                |
|   |   |                                                                                | By: | Charterhouse Equity Partners IV, |
|   |   |                                                                                |   | L.P., its Managing Member |
|   |   |                                                                                |   |   |
|   |   |                                                                                | By: | CHUSA Equity Investors IV, L.P., |
|   |   |                                                                                |   | its General Partner |
|   |   |                                                                                |   |   |
|   |   |                                                                                | By: | Charterhouse Equity IV, LLC, |
|   |   |                                                                                |   | its General Partner |
|   |   |                                                                                |
|   |   | By:                                                                                 | /s/ WILLIAM M. LANDUYT |
|   |   |                                                                                | Name: William M Landuyt |
|   |   |                                                                                | Title: Senior Partner |
|   |   |                                                                                |
|   |   |                                                                                |
|   |   | STOCKHOLDERS HOLDING A MAJORITY OF  THE OUTSTANDING STOCK AS OF THE  EFFECTIVE DATE |
|   |   |                                                                                |
|   |   | By:                                                                                 | /s/ JEFFREY A. MAYER |
|   |   |                                                                                | Name: Jeffrey A. Mayer |
|   |   |                                                                                |
|   |   |                                                                                |
|   |   | DENHAM COMMODITY PARTNERS FUND L.P.                                                 |
|   |   |                                                                                |
|   |   |                                                                                | By: | Denham Commodity Partners GP |
|   |   |                                                                                |   | LP, its General Partner |
|   |   |                                                                                |   |   |
|   |   |                                                                                | By: | Denham GP LLC, |
|   |   |                                                                                |   | its General Partner |
|   |   |                                                                                |   |   |
|   |   | By:                                                                                 | /s/ STUART D. PORTER |
|   |   |                                                                                | Name: Stuart D. Porter |
|   |   |                                                                                | Title: Managing Member |
|        |        |                                                                                     |  |  |  |

 

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