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 Restated
Stockholders’ Agreement dated June 25, 2004 (the “Stockholders’
Agreement”; terms not otherwise defined herein are used herein as therein
defined), 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 limited
partnership (“Denham”), and Stockholders holding a majority of the
outstanding shares of Voting Stock as of the Effective Date.


 


PRELIMINARY STATEMENTS


 


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


 


B.            The Stockholders party
hereto, constituting the
Company, Charter Mx, Denham and Stockholders holding a majority of the
outstanding shares of Voting Stock as of the Effective Date, are willing to
amend the Stockholders’ Agreement on the terms and conditions set forth herein.


 


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


 


AGREEMENT


 


Section 1.               Amendments to Stockholders’ Agreement.


 


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


 


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


 


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


 


(iii)          inserting a new clause (f) to read
as follows:  “without consideration by a
Stockholder who is a natural person to a university or college, trust,
foundation, unincorporated association or other not-for-profit entity
established for charitable purposes that is exempt from federal income taxes
pursuant to Section 501(c)(3) of the United States Internal Revenue
Code (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 of
clause (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 of
the proviso following the end of clause (f) to read as follows:  “provided further, however, that in the case
of clause (f) above, it shall be a condition to such transfer that the
Board of Directors shall have approved such transfer (such approval to be
within the complete discretion of the Board of Directors).


 


Section 2.               Amendment Binding. 
This Amendment shall be binding upon each holder of any securities
outstanding (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 in
accordance with, the laws of the State of Delaware as applied to agreements
among New York residents entered into and to be performed entirely within New
York.


 


Section 4.               Entire Agreement. 
This Amendment and the Stockholders’ Agreement constitute the entire
agreement and understanding among the parties and supersede all prior
agreements and understandings, whether written or oral, among the parties
hereto concerning the transactions provided herein and therein.


 


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


 


Section 6.               Headings.  The headings
set forth in this Amendment are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.


 


Section 7.               Severability. 
In case any provision in or obligation under this Amendment shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.


 


[Signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the 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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