Exhibit 10.15


Execution Copy


 


MXENERGY INC.


 


THIRD AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT


 


This
Third Amended and Restated Stockholders’ Agreement is made and entered into as
of June 25, 2004, by and among MxEnergy Inc., a Delaware corporation (the “Company”),
Charter Mx LLC, a Delaware limited liability company (“Charter Mx”), the
parties listed on Exhibit A annexed hereto (the “Investors,” and
together with the Charter Mx, the “Series A Investors”), Lathi LLC, a
Delaware limited liability company (“Lathi”), Jeffrey A. Mayer, Carol R.
Artman-Hodge and Daniel P. Burke, Sr. (each an “Original Stockholder”
and collectively, the “Original Stockholders”) and the individuals and
entities listed on Exhibit B annexed hereto (collectively the “Other
Stockholders” and individually an “Other Stockholder”). The Series A
Investors, Lathi, the Original Stockholders and the Other Stockholders are
referred to herein collectively as the “Stockholders” and individually
as a “Stockholder.”


 


WITNESSETH:


 


WHEREAS,
following the execution and delivery of this Agreement, the Company will issue
and sell to the Series A Investors, and the Series A Investors will purchase
from the Company, shares of Series A Convertible Preferred Stock, par value
$0.01 of the Company (the “Series A Stock”), pursuant to the terms and
conditions set forth in that certain Series A Convertible Preferred Stock
Purchase Agreement, dated June 25, 2004 (the “Purchase Agreement”), by
and among the Company and the Series A Investors; and


 


WHEREAS,
it is a condition precedent to the obligations of the Series A Investors under
the Purchase Agreement that parties to that certain Second Amended and Restated
Shareholders Agreement dated as of March 5, 2001 by and among the Company,
Lathi, the Original Stockholders and the Other Stockholders, as amended on May
31, 2002 and November 14, 2003 (the “Existing Shareholders Agreement”)
terminate such agreement as of the date hereof; and


 


WHEREAS,
it is a condition precedent to the obligations of the Series A Investors under
the Purchase Agreement that the Company, Lathi, the Original Stockholders, the
Other Stockholders and the Series A Investors enter into this Agreement; and


 


WHEREAS,
the Company, Lathi, the Original Stockholders, the Other Stockholders and the
Series A Investors desire to enter into this Agreement for the purpose of
regulating certain aspects of the relationship of the Original Stockholders,
the Other Stockholders, Lathi and the Series A Investors as stockholders of the
Company; and


 


WHEREAS,
it is in the best interests of the Company and the Stockholders that such
aspects of their relationship be so regulated.


 

















 


NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.             Definitions. As used in this
Agreement, the following terms shall have the following respective meaning
(such meanings being equally applicable to both the singular and plural form of
the terms defined):


 


“10%
Owner” means any Person who, immediately prior to the contemplated
transaction, owns in excess of 10% of the Stock on a Fully Diluted Basis, such
percentage subject to appropriate adjustment for stock splits, reverse stock
splits, combinations and other recapitalizations.


 


“15%
Owner” means any Person who, immediately prior to the contemplated
transaction, owns in excess of 15% of the Stock on a Fully Diluted Basis, such
percentage subject to appropriate adjustment for stock splits, reverse stock
splits, combinations and other recapitalizations.


 


“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
through one or more intermediaries Controls, is controlled by or is under
common control with such Person and, as to any Person that is an individual,
such individual’s Family Members and any trust for the benefit of any such
Persons.


 


“Agreement”
means this Third Amended and Restated Stockholders’ Agreement, including all
amendments, modifications and supplements hereto and any exhibits or schedules
to any of the foregoing, and shall refer to this Agreement as the same may be
in effect at the time such reference becomes operative.


 


“Approved
Sale” has the meaning ascribed thereto in Section 3.7 hereof.


 


“Auction”
has the meaning ascribed thereto in Section 3.5(c) hereof.


 


“Auction
Offeree(s)” has the meaning ascribed thereto in Section 3.5(c)(i)
hereof.


 


“Audit
Committee” means the Audit Committee of the Board of Directors.


 


“Bankruptcy
Code” has the meaning ascribed thereto in Section 9.7 hereof.


 


“Bid
Price” has the meaning ascribed thereto in Section 3.5(c)(i) hereof.


 


“Board
of Directors” means the Board of Directors of the Company.


 


“Business
Day” has the meaning ascribed thereto in Section 3.5(c)(i) hereof.


 


“Bylaws”
means the Amended and Restated Bylaws of the Company in the form attached as Exhibit
D to the Purchase Agreement.


 


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“Certificate
of Incorporation” means the Certificate of Incorporation of the Company, as
amended.


 


“Charter
Mx” has the meaning ascribed thereto in the introduction hereof.


 


“Claims”
has the meaning ascribed thereto in Section 8.2 hereof.


 


“Committees”
has the meaning ascribed thereto in Section 2.2 hereof.


 


“Common
Share Equivalents,” at any time, means Common Stock at the time outstanding
or issuable upon conversion or exercise of the Series A Stock or any other
securities convertible into or exercisable for Common Stock.


 


“Common
Stock” means the shares of Common Stock, par value $0.01, of the Company.


 


“Company”
has the meaning ascribed thereto in the introduction hereof.


 


“Company
Notice” has the meaning ascribed thereto in Section 3.5(c)(ii) hereof.


 


“Company
Securities” means (i) any shares of its Common Stock, (ii) any other
capital stock or other equity securities of the Company or equity-linked
securities, including, without limitation, shares of Series A Stock, (iii) any
option, warrant or other right to subscribe for, purchase or otherwise acquire
any capital stock or other equity securities of the Company, or (iv) any debt
or other securities directly or indirectly convertible into capital stock or
other equity securities of the Company. “Company Securities” shall not include
(x) those options, warrants, convertible securities or shares of Common Stock
excluded from the definition of Additional Common Stock pursuant to
Section (B)4(d)(i)(4) of the Series A Certificate of Designation; or (y)
any securities issued upon exercise or conversion of any other securities, provided
that the preemptive rights provided herein applied with respect to the
initial sale or issuance of such other securities or such other securities are
specifically excluded from the definition of Company Securities pursuant to
this clause (x) of this sentence.


 


“Compensation
Committee” means the Compensation Committee of the Board of Directors.


 


“Consent
Right Holders” has the meaning ascribed thereto in Section 6.1 hereof.


 


“Controls”
including, with correlative meanings, the terms “controlled by” and “under
common control with,” means, as to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.


 


“Conversion
Price” has the meaning set forth in the Series A Certificate of
Designation.


 


“Equivalent
Price” shall be determined as follows: 
with respect to (A) any share of Series A Stock proposed to be sold, the
Equivalent Price for a share of Common Stock shall be the lesser of (i) the
amount determined by dividing the amount payable in respect of such share of


 


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Series A Stock by the number of Common Share
Equivalents represented by such share of Series A Stock and (ii) the fair
market value of a share of Common Stock (as determined in good faith by the
Board of Directors, taking into account the liquidation preference of the
Series A Stock) and (B) any share of Common Stock proposed to be sold, the
Equivalent Price for a share of Series A Stock shall be equal to the product of
(x) the amount payable in respect of such share of Common Stock and (y) the
number of Common Share Equivalents represented by such share of Series A Stock.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Executive
Committee” means the Executive Committee of the Board of Directors.


 


“Existing
Other Stockholders” has the meaning ascribed thereto in Section 5.1.


 


“Existing
Shareholders Agreement” has the meaning ascribed thereto in the recitals
hereof.


 


“Family
Member” means a spouse (or domestic partner), lineal descendant (by birth
or adoption), father, mother, brother, sister, niece, nephew or lineal descendant
of father or mother (by birth or adoption) of a Stockholder.


 


“Follow-up
Offer” has the meaning ascribed thereto in Section 4.3 hereof.


 


“Fully
Diluted Basis” means the amount of Common Stock outstanding calculated as
if all securities convertible into or exchangeable for Common Stock at such
time has been fully converted into or exchanged for shares of Common Stock, and
any outstanding vested warrants, options or other rights for the purchase of
Common Stock or securities convertible into Common Stock had been fully
exercised as of such time, in each case, without regard to whether such
instruments are then exercisable or convertible.


 


“Future
Issuance” has the meaning ascribed thereto in Section 5.1 hereof.


 


“Greenhill
Funds” means Greenhill Capital Partners, L.P., a Delaware limited
partnership, Greenhill Capital Partners (Cayman), L.P., a Cayman Islands
limited partnership, Greenhill Capital Partners (Executives), L.P., a Delaware
limited partnership and Greenhill Capital, L.P., a Delaware limited
partnership.


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof and any Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.


 


“Independent
Third Party” means any Person who is not a 15% Owner, who is not
controlling, controlled by or under common control with any such 15% Owner and
who is not a Family Member of any such 15% Owner or a trust for the benefit of
such 15% Owner or such other Person.


 


“Investors”
has the meaning ascribed thereto in the introduction hereof.


 


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“Joining
Price” has the meaning ascribed thereto in Section 3.6(b) hereof.


 


“Joining
Terms” has the meaning ascribed thereto in Section 3.6(b) hereof.


 


“Key
Employees” has the meaning ascribed thereto in Section 7.3 hereof.


 


“Knowledge”
of a particular fact or other matter means, in the case of an individual that a
prudent individual could be expected to discover or otherwise become aware of
such fact or other matter in the course of conducting a reasonably
comprehensive investigation concerning the existence of such fact or other
matter and, in the case of a Person other than an individual, that any
individual who is serving, or who has at any time served, as a director,
officer, partner, member, manager, executor, or trustee of such Person (or in
any similar capacity) has, or at any time had, Knowledge of such fact or other
matter.


 


“Lathi”
has the meaning ascribed thereto in the introduction hereof.


 


“Lathi
Dilutive Sale” has the meaning ascribed thereto in Section 5.1 hereof.


 


“Lathi
Loan Agreement” means that certain Loan Agreement dated as of September 1,
2001 between Lathi and the Company, as amended on July 2, 2002, as amended and
restated by that certain Amended and Restated Loan Agreement dated as of
November 14, 2003 between Lathi and the Company, as amended on March 25, 2004
and as the same may be amended from time to time.


 


“Liquidation
Event” has the meaning set forth in the Series A Certificate of
Designation.


 


“Lowest-Bid-Price
Offeree” has the meaning ascribed thereto in Section 3.5(c)(iii)(2)
hereof.


 


“Minimum
Acceptable Price” has the meaning ascribed thereto in Section 3.5(c)
hereof.


 


“Notice
of Acceptance” has the meaning ascribed thereto in Section 4.2 hereof.


 


“Notice
of Auction Commencement” has the meaning ascribed thereto in
Section 3.5(c)(ii)(2) hereof.


 


“Notice
of Offer” has the meaning ascribed thereto in Section 3.5(b) hereof.


 


“Offer”
has the meaning ascribed thereto in Section 4.1 hereof.


 


“Offer
Price” has the meaning ascribed thereto in Section 3.5(b) hereof.


 


“Offered
Shares” has the meaning ascribed thereto in Section 3.5(b) hereof.


 


“Original
Issue Date” means the date on which the Series A Stock was first issued.


 


“Original
Series A Stock Issue Price” has the meaning set forth in the Series A
Certificate of Designation.


 


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“Original
Stockholder(s)” has the meaning ascribed thereto in the introduction
hereof.


 


“Other
Stockholder(s)” has the meaning ascribed thereto in the introduction
hereof.


 


“Other
Stockholders Dilutive Sale” has the meaning ascribed thereto in
Section 5.1 hereof.


 


“Permitted
Transferees” has the meaning ascribed thereto in Section 3.4 hereof.


 


“Person”
means an individual or a corporation, limited liability company, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, Governmental Authority or other entity of any kind.


 


“Preemptive
Right Holder(s)” has the meaning ascribed thereto in Section 4.1
hereof.


 


“Proportionate
Percentage” has the meaning ascribed thereto in Section 4.1 hereof.


 


“Purchase
Agreement” has the meaning ascribed thereto in the recitals hereof.


 


“Purchase
Offer” has the meaning ascribed thereto in Section 3.6(b) hereof.


 


“Qualified
Public Offering” means the Company’s sale of shares of its Common Stock in
a bona fide firm commitment underwritten public offering pursuant to a
registration statement on Form S-1 (or a successor form) under the Securities
Act, which results in an aggregate offering price of not less than $75,000,000
and a per share offering price of not less than (x) one and one-half (1.5)
times the Conversion Price (appropriately adjusted to reflect the occurrence of
any stock split, dividend, combination or similar event) for offerings
occurring on or prior to the first anniversary of the Original Issue Date and
(y) two (2) times the Conversion Price (appropriately adjusted to reflect the
occurrence of any stock split, dividend, combination or similar event) for
offerings occurring after the first anniversary of the Original Issue Date.


 


“Qualifying
Bid” has the meaning ascribed thereto in Section 3.5(c)(i) hereof.


 


“Remaining
Company Securities” has the meaning ascribed thereto in Section 4.3
hereof.


 


“RFR
Acceptance Notice” has the meaning ascribed thereto in Section 3.5(c)
hereof.


 


“RFR
Option Period” has the meaning ascribed thereto in Section 3.5(c)
hereof.


 


“RFR
Participant(s)” has the meaning ascribed thereto in Section 3.5(c)
hereof.


 


“Rule
144 Sales” means open market sales pursuant to Rule 144 under the
Securities Act (or any successor rule or regulation) and in compliance with the
requirements of paragraphs (c), (e) and (f) of such Rule, without giving effect
to paragraph (k) of such Rule.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Selling
Party” has the meaning ascribed thereto in Section 3.6(a) hereof.


 


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“Selling
Stockholder” has the meaning ascribed thereto in Section 3.5(b)
hereof.


 


“Series
A Certificate of Designation” means the Certificate of Designation of
Series A Stock of the Company attached as Exhibit A to the Purchase Agreement,
as the same may be amended from time to time.


 


“Series
A Director” means the director(s) appointed by the Series A Investors.


 


“Series
A Investors” has the meaning ascribed thereto in the introduction hereof.


 


“Series
A Share Equivalents” means the Series A Stock and any Common Stock issued
and outstanding as a result of the conversion or exercise of the Series A
Stock.


 


“Series
A Stock” has the meaning ascribed thereto in the recitals hereof.


 


“Stock”
means, collectively, the Common Stock and the Series A Stock whenever or
however acquired.


 


“Stockholder(s)”
has the meaning ascribed thereto in the introduction hereof.


 


“Tag-Along
Right Holders” has the meaning ascribed thereto in Section 3.6 hereof.


 


“Third-Party
Transferee” has the meaning ascribed thereto in Section 3.5(e) hereof.


 


“Tier”
has the meaning ascribed thereto in Section 3.5(c)(i) hereof.


 


“Voting
Stock” means capital stock of any class or classes of the Company, the
holders of which are entitled to participate generally in the election of the
members of the Board of Directors, and shall include, without limitation, the
Common Stock and the Series A Stock.


 


2.             Voting Rights.


 


2.1           Board of Directors. Each
Stockholder shall vote (or shall cause to be voted) all shares of Voting Stock
owned or controlled by such Stockholder (including any shares of Voting Stock
hereafter acquired), at any regular or special meeting of stockholders of the
Company, shall take all action by written consent in lieu of such meeting of
stockholders, and shall take all other actions necessary, to ensure that:


 


(a)           the Board of Directors of the Company
and each of its subsidiaries shall consist of at least six (6) members but no
more than fifteen (15) members;


 


(b)           members of the Board of Directors of
the Company and each of its subsidiaries shall be elected as follows:


 


(i)            for so long as the outstanding
Series A Stock represents 10% or more of the Common Stock, on a Fully Diluted
Basis, the holders of the outstanding shares of Series A Stock, voting as a
separate class, shall be entitled, as provided in Section (B)5(b) of the Series
A Certificate of Designation, to elect a number of directors equal to the


 


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largest whole number that is less than or equal
to the number of directors comprising the entire Board of Directors divided by
five, but in no event less than one (1) director;


 


(ii)           for so long as Lathi holds 10% or
more of the Common Stock, on a Fully Diluted Basis, the holders of the Series A
Stock and the Common Stock, voting together as a single class, one (1) director
designated by Lathi; and


 


(iii)          the holders of the Series A Stock and
the Common Stock, voting together as a single class, shall elect the remaining
number of directors authorized; provided, however, that these
rights may be modified pursuant to Section (B)5(c) of the Series A
Certificate of Designation.


 


2.2           Committees of the Board. The
Company shall establish the following committees (collectively, the “Committees”)
of the Board of Directors:  an Executive
Committee, a Compensation Committee and an Audit Committee. Such Committees
shall have the powers and duties set forth in the resolutions of the Board of
Directors authorizing the establishment of such Committees. The Board of
Directors may establish any other committees if it determines that the creation
of any such committees is in the best interests of the Company. The Board of
Directors shall delegate to any such committees those duties and powers as are
customarily performed by committees of such type. No Committee shall have more
than three (3) members. At least one (1) director appointed by the holders of
the Series A Stock shall serve on each Committee.


 


2.3           Removal. The Bylaws shall
provide that: (a) a director designated and elected pursuant to
Section 2.1 may be removed from the Board of Directors during such
director’s term of office, either for or without cause by, and only by, the
affirmative vote of the holders of a majority of the shares of such class or
classes, as applicable, given at a special meeting of the stockholders duly
called or by an action by written consent for that purpose; and (b) any
director (regardless of how designated) may be removed for cause. Each holder
of shares of such Voting Stock hereby agrees to vote all such shares then owned
or held of record by him, or to take action by written consent, to effect the
removal described in clause (a) of this Section 2.3.


 


2.4           Vacancies. In the event that a
vacancy is created on the Board of Directors or the respective boards of
directors of the Company’s subsidiaries by the death, disability, retirement,
resignation or removal (with or without cause) of a director or otherwise there
shall exist or occur any vacancy on the Board of Directors or the respective
boards of directors of the Company’s subsidiaries, each Stockholder hereby
agrees to vote or take action by written consent, in each case, to the extent
such Stockholder shall be entitled to do so, to cause the vacancy to be filled
by a designee of the particular class or classes of stock who had designated or
was entitled to designate the director whose position has become vacant, provided
that such designee was not previously a director of the Company or any of
its subsidiaries who was removed for cause from the Board of Directors or the
respective boards of directors of the Company’s subsidiaries.


 


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2.5           Observer Rights. For so long
as the Greenhill Funds owns no less than all of the Series A Stock owned by the
Greenhill Funds on the Original Issue Date, the Company shall invite and permit
a representative of the Greenhill Funds to attend all meetings of the Board of
Directors (and all committees thereof) in a nonvoting observer capacity and, in
this respect, shall give such representative copies of all notices, minutes,
consents and other material that is provided to its directors; provided,
however, that the Company reserves the right to exclude such
representative from access to any material, meeting or portion thereof if the
Company believes upon advice of counsel that such exclusion is reasonably
necessary to preserve the attorney-client privilege. Such representative may
participate in discussion of matters brought to the Board of Directors and may
address the Board of Directors.


 


2.6           No Proxies. Each Stockholder
covenants and agrees that, except (i) as a result of transfers permitted by,
and pursuant to and in accordance with, this Agreement, (ii) as otherwise
provided in the last sentence of Section 2.8 hereof, or (iii) as provided
pursuant to a duly called stockholders meeting where such Stockholder grants
its proxy to a Board designated proxy holder for the purposes of such meeting
(which such proxy permits such designee to vote solely in accordance with the
terms of this Agreement), such Stockholder will have sole voting power with
respect to such Stockholder’s Voting Stock and will not grant any proxy with
respect to such Voting Stock, enter into any voting trust or other voting
agreement or arrangement with respect to such Voting Stock or grant any other
rights to vote such Voting Stock other than the agreement to vote such Voting
Stock set forth herein.


 


2.7           Director Expenses. The Company
shall bear all reasonable out-of-pocket travel and related expenses incurred in
accordance with the Company’s written policies regarding employees by each
non-employee member of the Board of Directors or the respective boards of
directors of any of the Company’s subsidiaries associated with attending board
meetings and any Committees thereof.


 


2.8           Further Assurances. In order
to effectuate the provisions of this Section 2, the Stockholders hereby
agree that when any action or vote is required to be taken by such Stockholders
pursuant to this Agreement, such Stockholders shall use their respective
commercially reasonable efforts to call, or cause the appropriate officers and
directors of the Company to call, a special or annual meeting of stockholders
of the Company, as the case may be, or execute or cause to be executed a
consent in writing in lieu of any such meetings pursuant to the Delaware
General Corporation Law, to effectuate such stockholder action. In addition, if
any Stockholder shall fail to vote as required by the specific terms of this
Section 2, such Stockholder shall be deemed to have irrevocably
constituted and appointed the other Stockholders as his proxy coupled with an
interest to vote such Stockholder’s Voting Stock on a pro rata basis in
accordance with the terms of this Section 2.


 


3.             Restrictions on Transfer.


 


3.1           General Restrictions.


 


(a)           In addition to each other restriction
on transfer contained in this Agreement, except for (i) Rule 144 Sales, (ii) a
sale of shares in a registered public offering and


 


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(iii) a transfer to the Company, no Stockholder
shall sell, assign, transfer, pledge, or otherwise encumber or dispose of any
Stock or any interest therein to any Person (regardless of the manner in which
such Stockholder initially acquired such Stock), unless (a) the certificates
representing the securities issued to the transferee bear appropriate legends
reflecting the restrictions on transfer contained in this Agreement
substantially to the following effect:


 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS’ AGREEMENT DATED AS OF JUNE 25, 2004 (A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY) AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
PROVISIONS OF SUCH STOCKHOLDERS’ AGREEMENT.


 


and (b) the transferee (if not already a party to
this Agreement) shall have executed and delivered to the Company, as a
condition to its acquisition of any such securities, an executed signature page
in the form of Exhibit C to this Agreement and such additional
documentation as reasonably requested by the Company, confirming that such
transferee takes such securities subject to all the terms and conditions of
this Agreement. During the term of this Agreement, each certificate
representing securities of the Company held by a Stockholder or any Permitted
Transferee shall bear the foregoing legend upon its face.


 


3.2           In addition to each other restriction
on transfer contained in this Agreement, no Stockholder shall sell, assign,
transfer, pledge or otherwise encumber or dispose of any shares of Stock, or
any interest therein, to any Person unless such sale, assignment, transfer,
pledge or other encumbrance or disposition is pursuant to an effective
registration statement under the Securities Act and under applicable state
securities laws or an exemption from such registration is available.


 


3.3                           (a)           The restrictions on transfer
contained in this Agreement are in addition to, and not in limitation of, each
other restriction on transfer contained in any other agreement between the
Company and any Stockholder.


 


(b)           Any transfer of any shares of Stock
pursuant to this Agreement shall be subject in all cases to the receipt of any
required regulatory approvals.


 


3.4           Certain Permitted Transfers. Notwithstanding
anything in this Agreement to the contrary, the restrictions contained in
Sections 3.5 through 3.7 of this Agreement with respect to transfers of Stock
shall not apply to any one or more transfers:


 


(a)           pursuant to a registered public
offering;


 


(b)           without consideration by a
Stockholder who is a natural person to a Family Member of such Stockholder or
to a trust, corporation, partnership, limited liability


 


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company or other entity of which there are no
principal beneficiaries, shareholders, partners or equity holders other than
the Family Members of such Stockholder;


 


(c)           to a legal representative in the
event any Stockholder who is a natural person becomes mentally incompetent;


 


(d)           by a Stockholder to an Affiliate of
such Stockholder (including, without limitation, any transfer by Charter Mx or
any of the Greenhill Funds to any of their respective members or partners or to
the partners of their Affiliates and by Lathi to Sowood Commodity Partners LP
or any of its Affiliates); and


 


(e)           by a Stockholder to the Company
pursuant to any agreement between the Company and that Stockholder.


 


provided that in each of cases (b),
(c) and (d), it shall be a condition to any such transfer that each transferee execute
the signature page attached as Exhibit C hereto and any other agreement
in form and substance reasonably satisfactory to the Company pursuant to which
such transferee agrees in writing to take such Stock subject to, and to comply
with, all terms and conditions contained in this Agreement. In addition, none
of the restrictions on transfers of Stock contained in this Agreement shall
apply to a transfer by a Stockholder who is a natural person upon his or her
death, by will, by the laws of descent or by operation of law, except that it
shall be a condition to any such transfer that each transferee execute the
signature page attached as Exhibit C hereto and any other agreement in
form and substance reasonably satisfactory to the Company pursuant to which
such transferee agrees in writing to take such Stock subject to, and to comply
with, all terms and conditions contained in this Agreement. Any transfer of
Stock, or any interest therein, pursuant to and in compliance with this
Section 3.4 shall be a permitted transfer under this Agreement, any
transferee of Stock, or any interest therein, pursuant to and in compliance
with this Section 3.4 (other than the Company) is herein referred to as a “Permitted
Transferee,” and if not previously a Stockholder, shall, upon consummation
of the transfer, be deemed a Stockholder and shall be included in the class of
Stockholders in which the transferring Stockholder was included under this
Agreement (for example, the Series A Investors).


 


3.5           Right of First Refusal. Except
as otherwise permitted under Section 3.4 of this Agreement, and except for
Rule 144 Sales and sales of shares in registered public offerings, a
Stockholder may sell or otherwise transfer shares of Stock, or any interest
therein, only in compliance with the provisions of this Section 3.5.


 


(a)           No Stock, or any interest therein
(including, without limitation, any equity-linked security), shall be sold,
assigned, transferred, pledged or otherwise encumbered or disposed of, directly
or indirectly, by any Stockholder except in accordance with the provisions of
this Agreement, the Bylaws, the Certificate of Incorporation and the Series A
Certificate of Designation, as applicable. The Company shall not transfer upon
its books and records any Stock purported to be transferred to any Person in
violation of this Section 3.5.


 


(b)           If any one or more Stockholders
(each, a “Selling Stockholder”) wishes to transfer any of its Stock in
compliance with this Section 3.5, the Selling Stockholder


 


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shall first deliver written notice to the Company
(the “Notice of Offer”), which Notice of Offer shall specify (i) the
number of shares of Stock owned by the Selling Stockholder which it wishes to
sell (the “Offered Shares”); (ii) the proposed consideration per share
for the Offered Shares (the “Offer Price”); and (iii) all other terms
and conditions of the offer.


 


(c)           If a Selling Stockholder desires to
sell Offered Shares pursuant to Section 3.5 hereof, it may, in its sole
discretion, elect in its Notice of Offer delivered pursuant to
Section 3.5(b) hereof to authorize the Company to conduct a
declining-clock Dutch auction in accordance with the procedures set forth in
this Section 3.5(c) (an “Auction”). Any Selling Stockholder making
such an election shall be deemed irrevocably to have agreed, for the benefit of
the Auction Offerees (as defined below) to whom Offered Shares are allocated
pursuant to the Auction procedures set forth in this Section 3.5(c), to
sell the Offered Shares that are so allocated to such Auction Offerees at the
prices (which shall not be less than the Minimum Acceptable Price (as defined
below)) determined by the Auction procedures. The Offer Price indicated in the
Notice of Offer shall be considered the “Minimum Acceptable Price” for
purposes of this Section 3.5(c). Notwithstanding the Selling Stockholder’s
election, the Board of Directors (with the consent of the Series A Director)
may in its sole discretion determine that the Company should decline to conduct
an Auction, in which case the provisions of Section 3.5(d) through (g)
hereof shall apply to the sale of such Selling Stockholder’s Offered Shares. No
Auction Offeree shall be precluded from communicating with any other potential
Auction Offeree concerning an Auction conducted pursuant to this
Section 3.5(c).


 


(i)            Certain defined terms:


 


(1)           “Qualifying Bid” within any
Tier (as defined below) means a bid submitted by an Auction Offeree in that
Tier that:


 


a.     is timely submitted under the provisions of
this Section 3.5(c).


 


b.     offers a bid price (the “Bid Price”)
at or above the Minimum Acceptable Price.


 


c.     states a number of Offered Shares that such
Auction Offeree wishes to purchase, which shall not be in excess of the total
number of Offered Shares offered to Auction Offerees in that Tier.


 


d.     irrevocably offers to purchase all Offered
Shares allocated to such Auction Offeree in accordance with the Auction
procedures set forth in this Section 3.5(c).


 


(2)           “Tier” refers to any of the
successive stages of an Auction conducted in accordance with this
Section 3.5(c) involving offers to successive groups of Auction Offerees
as provided under the definition of Auction Offeree (as defined below).


 


(3)           “Auction Offeree” means any of
the holders of capital stock of the Company who may be offered the opportunity
to purchase Offered Shares


 


12

















 


under the provisions of this Section 3.5(c)
who, if offered the opportunity to purchase Offered Shares under the provisions
of this Section 3.5(c), will be offered such opportunity in the following
order (in all cases, other than the Selling Stockholders):


 


a.     if the Offered Shares are shares of Common
Stock:


 


i.          First-Tier Auction Offeree:  the Company.


 


ii.         Second-Tier Auction Offerees:  the holders of shares of Series A Stock and
Lathi.


 


iii.        Third-Tier Auction Offerees:  the Original Stockholders.


 


iv.        Fourth-Tier Auction Offerees:  the Other Stockholders.


 


b.     if the Offered Shares are shares of Series
A Stock:


 


i.          First-Tier Auction Offeree:  the Company.


 


ii.         Second-Tier Auction Offerees:  the holders of shares of Series A Stock.


 


iii.        Third-Tier Auction Offerees:  Lathi.


 


iv.        Fourth-Tier Auction Offerees:  the Original Stockholders.


 


v.         Fifth -Tier Auction Offerees:  the Other Stockholders.


 


(4)           “Business Day” means any day
other than a Saturday, Sunday or day on which national banks in New York City
are authorized to close.


 


(ii)           Within five Business Days of receipt
by the Company of a Notice of Offer from a Selling Stockholder pursuant to
Section 3.5(b) hereof containing an election to authorize the Company to
conduct an Auction, the Company shall provide written notice (the “Company
Notice”) to the Selling Stockholder to the effect that the Board of
Directors (with the consent of the Series A Director) has determined that the
Company either (a) elects to proceed with an Auction pursuant to this
Section 3.5(c), or (b) declines to proceed with an Auction pursuant to
this Section 3.5(c). If the Board of Directors determines that the Company
elects to proceed with an Auction:


 


(1)           If the Company, as the First Tier
Auction Offeree, wishes to purchase any Offered Shares (as determined by the
Board of Directors, with the consent of the Series A Director), it shall
allocate to itself the number of Offered Shares it wishes


 


13

















 


to purchase and shall provide written notice to
the Selling Stockholder within five Business Days of the date of the Company
Notice. Such notice shall set forth the number of Offered Shares the Company
has allocated to itself and the price per share that the Company will pay for
such Offered Shares, which shall not be less than the Minimum Acceptable Price.


 


(2)           If the Company, as the First Tier
Auction Offeree, does not wish to purchase any or all of the Offered Shares,
the Company shall provide written notice to each Second Tier Auction Offeree of
the commencement of the Auction for such Tier (“Notice of Auction
Commencement”) within five Business Days of the date of the Company Notice.
The Notice of Auction Commencement delivered to each Second Tier Auction
Offeree (and to the Auction Offerees of each subsequent Tier) shall set forth
the number and class of Offered Shares being offered to Auction Offerees in
such Tier, the amount of the Minimum Acceptable Price and the deadline for
submission of a Qualifying Bid. Any Second Tier Auction Offeree who wishes to
purchase Offered Shares must submit a Qualifying Bid to the Company within five
Business Days of the date of the Notice of Auction Commencement. In the event
all Offered Shares are not allocated to Second Tier Auction Offerees who have
submitted Qualifying Bids within three Business Days of the conclusion of the
five Business-Day period referred to above for Second Tier Auction Offerees
(and within three Business Days of the conclusion of a similar five
Business-Day period for successive Auction Tiers), the Company shall send
successive Notices of Auction Commencement to Auction Offerees in each
successive Tier, provided that no further Notices shall be sent
following the allocation hereunder of all of the Offered Shares.


 


(iii)          Offered Shares shall be allocated
among each Tier’s Auction Offerees 
submitting Qualified Bids in the following  manner:


 


(1)           If Qualifying Bids are submitted by
Auction Offerees in any Tier that offer to take up fewer than, or exactly, the
number of Offered Shares offered to the Auction Offerees in that Tier, such
Offered Shares will be allocated to the Auction Offerees who submitted such Qualifying
Bids. All Offered Shares allocated within a Tier shall be sold at the lowest
Bid Price submitted in such Tier.


 


(2)           If Qualifying Bids are submitted by
Auction Offerees in any Tier that offer to take up more than the number of
Offered Shares offered to the Auction Offerees in that Tier, such Offered
Shares will be allocated to the Auction Offerees who submitted such Qualifying
Bids beginning with those who submitted Qualifying Bids with the highest Bid
Prices and continuing with those who submitted Qualifying Bids with the next
highest Bid Prices and so on until all Offered Shares have been allocated to
Qualifying Bids. When the allocation process reaches the level of the lowest
Bid Prices to which Offered Shares will be allocated (the Auction Offerees
submitting such Qualifying Bids being hereinafter referred to as the “Lowest-Bid-Price
Offerees”), if there are two or more Lowest-Bid-Price Offerees who submit
Qualifying Bids having identical Bid Prices and the number of Offered Shares
remaining unallocated at that point in the allocation process exceeds the
number of Offered Shares offered to be purchased by such Lowest-Bid-Price
Offerees, such unallocated Offered Shares shall be allocated to each
Lowest-Bid-Price Offeree in proportion to the ratio of the number of shares
contained in its Qualifying Bid over the total number of shares in the


 


14

















 


Qualifying Bids of all Lowest-Bid-Price Offerees.
All Offered Shares allocated within a Tier pursuant to this subsection shall be
sold at the Lowest Bid Price submitted by Auction Offerees in that Tier to
which Offered Shares are allocated hereunder.


 


(3)           If the Qualifying Bids submitted by
all Auction Offerees in all Tiers offer to take up fewer than the total number
of Offered Shares, the Company shall provide written notice to the Selling
Stockholder and:


 


a.     If the Offered Shares are shares of Series
A Stock, then the Selling Stockholder may, within a period of one month
following receipt of written notice to that effect from the Company, sell the
remaining unallocated Offered Shares to a Third-Party Transferee at a price per
share not less than the Minimum Acceptable Price. Upon any such sale, the
Third-Party Transferee of such Offered Shares shall execute the signature page
attached as Exhibit C hereto and any other agreement in form and
substance reasonably satisfactory to the Company pursuant to which such
Third-Party Transferee agrees that the Offered Shares it acquired from the
Selling Stockholder are subject to the provisions of this Agreement. Any
Third-Party Transferee to whom Offered Shares are transferred pursuant to and
in compliance with Section 3.5 (c) shall, with respect to such Offered
Shares upon consummation of such transfer, be deemed a Stockholder and shall be
included in the class of Stockholders in which the transferring Stockholder was
included under this Agreement. If the Selling Stockholder does not complete the
sale of the portion of the Offered Shares not allocated to Auction Offerees as
provided above within such one-month period, no sale of such Offered Shares by
the Selling Stockholder shall be made otherwise than in accordance with the
terms of this Agreement.


 


b.     If the Offered Shares are not shares of
Series A Stock, the Company shall so advise the Selling Stockholder, who shall
in turn advise the Company whether it wishes to reduce its Minimum Offer Price.
If the Selling Stockholder advises the Company that it wishes to reduce its
Minimum Offer Price, it shall send the Company a Notice of Offer covering such
unallocated Offered Shares, which shall then be subject to another Auction
conducted as provided herein.


 


(iv)          Following conclusion of the Auction
process hereunder, the Company shall advise the Selling Stockholder of the
identities of the Auction Offerees to which Offered Shares were allocated, the
number and class of Offered Shares so allocated, the prices at which Offered
Shares will be sold and the proposed closing date established as provided in
Section 3.5(g).


 


(v)           When Offered Shares have been
allocated as provided above, the closing will take place on a date determined
by the Company in its discretion but no less than ten (10) Business Days and no
more than thirty (30) Business Days following delivery of the notice referred
to in subsection (c)(iv) hereof.


 


(vi)          The closing of all sales of Offered
Shares pursuant to the Auction procedure described in this Section 3.5(c)
shall be conducted as provided in Section 3.5(g) hereof.


 


15

















 


(d)           Within a period of ten (10) days
following (i) receipt of a Notice of Offer from the Selling Stockholders that
does not request that the Company to conduct an Auction or (ii) the delivery of
the Company Notice to the Selling Stockholders declining to proceed with an
Auction, as the case may be, the Company shall send the Notice of Offer to the
Series A Investors, Lathi, the Original Stockholders and the Other Stockholders
(each an “RFR Participant” and collectively, the “RFR Participants”)
offering to sell the Offered Shares to the RFR Participants in the manner set
forth in subsection (e) below. Within ten (10) days following the date of the
mailing of the Notice of Offer to the RFR Participants (the “RFR Option
Period”), each RFR Participant shall notify the Company as to the number of
Offered Shares, if any, it is electing to purchase (such notification is
hereinafter referred to as the “RFR Acceptance Notice”). If an RFR
Participant does not provide an RFR Acceptance Notice to the Company within the
RFR Option Period, such RFR Participant shall be deemed to have declined to
purchase any of the Offered Shares. An RFR Acceptance Notice shall be deemed to
be an irrevocable commitment to purchase from the Selling Stockholder the
number of Offered Shares which such RFR Participant has elected to purchase
pursuant to its RFR Acceptance Notice, subject to allocation of the Offered
Shares among the RFR Participants accepting the Notice of Offer, as hereinafter
provided.


 


(e)           The Offered Shares shall be allocated
for purchase among the accepting RFR Participants in the following priority:


 


(i)            if the Offered Shares are shares of
Common Stock:


 


(1)           first,
such number of Offered Shares requested to be purchased by the Company;


 


(2)           second,
such number of Offered Shares requested to be purchased by the Series A
Investors and Lathi, allocated (if necessary) pro rata on the basis of the
number of shares of Common Stock that the Series A Investors and Lathi hold on
a Fully Diluted Basis;


 


(3)           third,
such number of Offered Shares requested to be purchased by the Original
Stockholders, allocated (if necessary) pro rata on the basis of the number of
shares of Common Stock that the Original Stockholders hold on a Fully Diluted
Basis;


 


(4)           fourth,
such number of Offered Shares requested to be purchased by the Other
Stockholders, allocated (if necessary) pro rata on the basis of the number of
shares of Common Stock that the Other Stockholders hold on a Fully Diluted
Basis;


 


(ii)           if the Offered Shares are shares of
Series A Stock:


 


(1)           first,
such number of Offered Shares requested to be purchased by the Company;


 


(2)           second,
such number of Offered Shares requested to be purchased by the Series A
Investors, allocated (if necessary) pro rata on the basis of the number of shares
of Series A Stock that the Series A Investors hold on a Fully Diluted Basis;


 


16

















 


(3)           third,
such number of Offered Shares requested to be purchased by Lathi;


 


(4)           fourth,
such number of Offered Shares requested to be purchased by the Original
Stockholders, allocated (if necessary) pro rata on the basis of the number of
shares of Series A Stock that the Original Stockholders hold on a Fully Diluted
Basis; and


 


(5)           fifth,
such number of Offered Shares requested to be purchased by the Other
Stockholders, allocated (if necessary) pro rata on the basis of the number of
shares of Series A Stock that the Other Stockholders hold on a Fully Diluted
Basis;


 


(f)            If the RFR Participants have not, in
the aggregate, elected to purchase all of the Offered Shares that are available
for purchase under this Section 3.5, then the Selling Stockholder may,
within a period of  forty-five (45) days
following the RFR Option Period, subject to the provisions of Section 3.6,
sell the Offered Shares to one or more Persons (a “Third-Party Transferee”)
at a price per share not less than the Offer Price. Upon any such sale, the
Third-Party Transferee of such Offered Shares shall execute the signature page
attached as Exhibit C hereto and any other agreement in form and
substance reasonably satisfactory to the Company pursuant to which such
Third-Party Transferee agrees that the Offered Shares it acquired from the
Selling Stockholder are subject to the provisions of this Agreement. Any Third-Party
Transferee to whom Offered Shares are transferred pursuant to and in compliance
with Sections 3.5(d), (e) and (f) shall, with respect to such shares upon
consummation of such transfer, be deemed a Stockholder and shall be included in
the class of Stockholders in which the transferring Stockholder was included
under this Agreement. If the Selling Stockholder does not complete the sale of
the Offered Shares within such forty-five (45) day period, the provisions of
this Section 3.5 shall again apply, and no sale of such Offered Shares by
the Selling Stockholder shall be made otherwise than in accordance with the
terms of this Agreement.


 


(g)           The closing of purchases of Offered
Shares: (i) by the Auction Offerees pursuant to Section 3.5(c) shall take
place no later than one hundred (100) days after the date of the Notice of
Offer or (ii) by the Company and the RFR Participants pursuant to Sections
3.5(d) through (f) shall take place no later than sixty (60) days after the
date of the Notice of Offer, at 10:00 A.M. local time at the principal offices
of the Company, or at such other date, time or place as the parties to the sale
may agree. At least five (5) business days prior to such closing, the Company
shall notify the Selling Stockholder(s) in writing of the names of purchasers
and the portion of the Offered Shares to be purchased by each. At such closing,
the Selling Stockholder(s) shall sell, transfer and deliver to each purchaser
full right, title and interest in and to the Offered Shares so purchased by
such purchaser, free and clear of all liens, security interests, adverse claims
or restrictions of any kind and nature (except as otherwise set forth in this
Agreement), and shall deliver to each purchaser a certificate or certificates
representing the Offered Shares sold to such purchaser, in each case duly
endorsed for transfer or accompanied by appropriate stock transfer powers duly
endorsed with signatures guaranteed by a commercial bank, trust company or
registered broker dealer and any other documents necessary for transfer. Simultaneously
with delivery of such certificates, except as otherwise agreed to in writing
between the purchaser(s) of the Offered Shares and the Selling Stockholder,
each purchaser of


 


17

















 


the Offered Shares shall deliver to the Selling
Stockholder(s), by wire transfer of immediately available funds to such bank
account as the Selling Stockholder(s) shall designate, a cash amount equal to
the product of the Offer Price and the number of Offered Shares being acquired
by such purchaser, in full payment of the purchase price of the Offered Shares
purchased.


 


3.6           Tag Along Rights.


 


(a)           If, after complying with
Section 3.5 above (in the case of a Selling Stockholder), any one or more 15%
Owners, the Greenhill Funds or Jeffrey A. Mayer (each, a “Tag-Along Right
Holder”) (each, a “Selling Party”) proposes to transfer any Stock,
Common Share Equivalents or an interest therein (including, without limitation,
any equity-linked securities) to a Third-Party Transferee, then such Selling
Parties shall refrain from effecting such transfer unless, prior to the
consummation thereof, each Tag-Along Right Holder shall have been afforded the
opportunity to join in such transfer on a pro rata basis, as hereinafter
provided.


 


(b)           Prior to the consummation of any
transfer, the Selling Parties shall cause each Third-Party Transferee to offer
(the “Purchase Offer”) in writing to each Tag-Along Right Holder to
purchase that number of Stock or Common Share Equivalents (the type of which
shall be chosen by the Tag-Along Right Holder) from each such Tag-Along Right
Holder that constitutes the same percentage of the aggregate Common Stock and
Common Share Equivalents held by such Tag-Along Right Holder as the percentage
determined by dividing the number of Stock or Common Share Equivalents to be
purchased from the Selling Parties by the aggregate number of Common Stock and
Common Share Equivalents held by the Selling Parties, at the same price per
share of Common Stock (the “Joining Price”), and on such other terms and
conditions (the “Joining Terms”), as the Third-Party Transferee has
offered to purchase Offered Shares to be sold by the Selling Parties. Notwithstanding
the foregoing, if the Third-Party Transferees are acquiring Offered Shares in a
series of related transactions, or in a single transaction or series of related
transactions from multiple Selling Parties, (i) the Joining Price shall be the
highest of the prices offered by the Third-Party Transferees to any Selling
Party in any one of such transactions, and (ii) the Joining Terms shall be
those terms offered by any Third-Party Transferee to any Selling Party in any
one of such transactions which are most favorable to the offeree. Each
Tag-Along Right Holder shall have 10 days from the receipt of the Purchase
Offer in which to accept the Purchase Offer and, to the extent any such
Tag-Along Right Holder accepts such Purchase Offer in accordance with the terms
hereof and the Third-Party Transferees are unwilling to purchase all shares
requested to be purchased, the number of Offered Shares to be sold by the
Selling Parties shall be reduced pro rata based upon the number of shares each
Tag-Along Right Holder electing to sell is entitled to include in such sale
pursuant to this Section 3.6. If a Tag-Along Right Holder elects to sell
any class of Stock which is different from the class of Stock specified in the
Purchase Offer, then the Selling Party will use commercially reasonable efforts
to cause the Third-Party Transferee to permit the inclusion of such different
class of Stock on the terms specified herein (including the Equivalent Price). The
form of consideration paid in respect of such different classes of stock shall
be identical.


 


(c)           The provisions of Sections 3.5 and
3.6 shall not apply (A) to transfers to Permitted Transferees in accordance
with Section 3.4 or (B) to the repurchase of Common Stock or Common Share
Equivalents by the Company from a terminated employee or


 


18

















 


consultant which purchase has been approved by
the Board of Directors, including the approval of the Series A Director and
shall terminate (i) upon the closing of a registered public offering of
the Common Stock, (ii) in the event of a Liquidation Event or (iii) upon the
termination of this Agreement as provided in Section 9.7 below. In the
event that a transfer subject to Sections 3.5 and 3.6 is proposed to be made to
a Person other than a Stockholder or the Company, the Selling Stockholders or
Selling Parties, as the case may be, shall notify such Person that the transfer
is subject to this Agreement and shall ensure that no transfer is consummated
without compliance with this Section 3.


 


(d)           Any purported transfer subject to
this Section 3.6 not made in compliance with this Section 3.6 shall
be void and shall not be consummated upon the books and records of the Company.


 


3.7           Drag Along Rights. Subject to
the rights of the Series A Investors set forth in Section (B)6 of the
Series A Certificate of Designation, if at any time after the second
anniversary of the date hereof, (i) the Board of Directors, (ii) Stockholders
holding a majority of the then outstanding shares of Voting Stock (on a Fully
Diluted Basis) and (iii) Series A Investors holding a majority of the
outstanding Series A Share Equivalents approve a sale of all or substantially
all of the Company’s assets determined on a consolidated basis or a sale of all
or substantially all of the Company’s outstanding capital stock (whether by
merger, recapitalization, consolidation, reorganization, combination or
otherwise) to an Independent Third Party or group of Independent Third Parties
(collectively, an “Approved Sale”), each Stockholder will vote for,
consent to and raise no objections to and execute all necessary documentation
with respect to such Approved Sale. If the Approved Sale is structured as (i) a
merger or consolidation, each Stockholder will waive any dissenter’s rights,
appraisal rights or similar rights in connection with such merger or
consolidation, or (ii) a sale of Stock, each Stockholder will agree to sell all
of his, her or its shares of Stock and rights to acquire shares of stock on the
terms and conditions approved by the Board of Directors. Each Stockholder will
take all necessary or desirable actions in connection with the consummation of
the Approved Sale as reasonably requested by the Company. The obligations of
the Stockholders with respect to the Approved Sale of the Company are subject
to the satisfaction of the following conditions:  (i) upon the consummation of the Approved
Sale, each Stockholder will receive the same form of consideration and the same
portion of the aggregate consideration that such Stockholder would have
received if such aggregate consideration had been distributed by the Company in
complete liquidation pursuant to the rights and preferences set forth in the
Certificate of Incorporation as in effect immediately prior to such Approved
Sale; (ii) if any holders of Common Stock are given an option as to the form
and amount of consideration to be received, each holder of Common Share
Equivalents will be given the same option; and (iii) each 15% Owner will be
given an opportunity to convert any Series A Stock held by it into Common Stock
prior to the consummation of the Approved Sale and to include shares of Common
Stock so acquired in the Approved Sale.


 


4.             Preemptive Rights.


 


4.1           Before the Company shall issue, sell
or exchange, agree to issue, sell or exchange 
any Company Securities (other than the sale of Series A Stock pursuant
to the Purchase Agreement), the Company shall have first complied with this
Section 4. The Company


 


19

















 


shall offer to sell to each 15% Owner, Series A
Investor and Original Stockholder (each a “Preemptive Right Holder” and
collectively, the “Preemptive Right Holders”), Company Securities in an
amount equal to such Preemptive Right Holder’s Proportionate Percentage, at a
price and on such other material terms and conditions as shall have been
specified by the Company in writing and delivered to each Preemptive Right
Holder (the “Offer”), which Offer by its terms shall remain open and
irrevocable for a period of twenty (20) days from the date it is delivered by
the Company to each Preemptive Right Holder. “Proportionate Percentage”
means the percentage figure which expresses the ratio between the number of
shares of Common Stock and Common Share Equivalents owned by such Preemptive
Right Holder and the aggregate number of shares of Common Stock outstanding on
a Fully Diluted Basis, at the date of determination.


 


4.2           Notice of each Preemptive Right
Holder’s intention to accept, in whole or in part, an Offer shall not be
effective unless evidenced by a writing signed by such Preemptive Right Holder
and delivered to the Company prior to the end of the 20-day period of such
Offer, setting forth such portion of the Company Securities as such Preemptive
Right Holder elects to purchase (the “Notice of Acceptance”). Each
Preemptive Right Holder that shall have delivered a Notice of Acceptance to the
Company shall make full payment of the purchase price with respect to the
relevant Company Securities, in immediately available funds, simultaneously
with  the delivery of such Company Securities
to such Preemptive Right Holder.


 


4.3           In the event that a Preemptive Right
Holder does not provide a Notice of Acceptance for its entire Proportionate
Percentage of Company Securities (the “Remaining Company Securities”),
the Company shall notify the other Preemptive Right Holders and offer them
their Proportionate Percentage of the Remaining Company Securities (the “Follow-up
Offer”). The Follow-up Offer shall remain open and irrevocable for a period
of ten (10) days after the date on which notice is delivered by the Company to
such other Preemptive Right Holders. If the other Preemptive Right Holders have
elected to purchase a number of Remaining Company Securities that in the
aggregate exceeds the total number of such Preemptive Right Holder’s Proportionate
Percentage of Company Securities, the Remaining Company Securities shall be
allocated among the other Preemptive Right Holders as nearly as possible in
proportion to the number of Common Stock and Common Share Equivalents then held
by such other Preemptive Right Holders. This Section 4.3 shall be
construed and given effect in such manner that no Preemptive Right Holder shall
be required to purchase a number of Company Securities greater than such
Preemptive Right Holder’s Proportionate Percentage of Company Securities.


 


4.4           The Company shall promptly notify
each Preemptive Right Holder, if any, of the number of shares allocated to it,
and each such Preemptive Right Holder shall be obligated to purchase such
Company Securities upon the terms set forth in this Section 4.


 


4.5           Neither Lathi nor the Existing Other
Stockholders shall be entitled to receive an Offer if the issuance, sale or
exchange of Company Securities would entitle Lathi or the Existing Other
Stockholders to receive securities as a result of an Other Stockholders
Dilutive Sale or a Lathi Dilutive Sale, as the case may be, pursuant to Section
5 hereof. In addition, none of the Series A Investors shall be entitled to
receive an Offer if the issuance, sale or exchange of


 


20

















 


Company Securities would cause an adjustment in
the Conversion Price in the Series A Stock under the Series A Certificate of
Designation.


 


5.             Antidilution Protection.


 


5.1           If at any time after the date hereof
and prior to the effective date of a registration statement filed with the SEC
relating to an initial public offering of equity securities by the Company, the
Company issues or sells Common Stock (or securities convertible into Common
Stock) at a per share price which is less than (i) $3.60 per share (subject to
adjustment for stock splits, stock dividends, stock combinations,
recapitalizations and similar transactions) with respect to the Other
Stockholders listed on Exhibit D (the “Existing Other
Stockholders”) (any such sale being referred to herein as an “Other
Stockholders Dilutive Sale”) and (ii) $3.87 per share (subject to
adjustment for stock splits, stock dividends, stock combinations,
recapitalizations, and similar transactions) with respect to Lathi (any such sale
being referred to herein as an “Lathi Dilutive Sale”), then:


 


(a)           In the event of an Other Stockholders
Dilutive Sale, the Company shall offer to sell to each of the Existing Other
Stockholders a number of additional shares of Common Stock (or securities
convertible into Common Stock), for a purchase price per share equal to the par
value of the Common Stock, equal to the number obtained by subtracting (A) the
number of shares of Common Stock held by the Existing Other Stockholder
immediately prior to the Other Stockholders Dilutive Sale from (B) the number
obtained by dividing (x) the number of shares of Common Stock held by the
Existing Other Stockholder immediately prior to the Other Stockholders Dilutive
Sale by (y) a fraction, the numerator of which shall be the sum of (i) the
number of shares of Common Stock issued and outstanding, immediately prior to
the Other Stockholders Dilutive Sale, plus (ii) the number of shares of Common
Stock which the consideration actually received or receivable (assuming the
receipt of all consideration payable in connection with the exercise,
conversion or exchange of all Common Stock sold) by the Company pursuant to the
Other Stockholders Dilutive Sale would purchase at a price of $3.60 per share
(subject to equitable adjustment for stock splits, stock dividends,
recapitalizations, reclassifications, reorganizations and other similar
transactions); and the denominator of which shall be the sum of (a) the number
of shares of Common Stock issued and outstanding immediately prior to such
Other Stockholders Dilutive Sale, plus (b) the number of shares of Common Stock
issued pursuant to such Other Stockholders Dilutive Sale.


 


(b)           In the event of a Lathi Dilutive
Sale, the Company shall offer to sell to Lathi a number of additional shares of
Common Stock (or securities convertible into Common Stock), for a purchase
price per share equal to the par value of the Common Stock, equal to the number
obtained by subtracting (A) the number of shares of Common Stock held by Lathi
immediately prior to the Lathi Dilutive Sale from (B) the number obtained by
dividing (x) the number of shares of Common Stock held by  Lathi immediately prior to the Lathi Dilutive
Sale by (y) a fraction, the numerator of which shall be the sum of (i) the number
of shares of Common Stock issued and outstanding, immediately prior to the
Lathi Dilutive Sale, plus (ii) the number of shares of Common Stock which the
consideration actually received or receivable (assuming the receipt of all
consideration payable in connection with the exercise, conversion or exchange
of all Common Stock sold) by the Company pursuant to the Lathi Dilutive Sale
would


 


21

















 


purchase at a price of $3.87 per share (subject
to adjustment for stock splits, stock dividends, stock combinations,
recapitalizations and similar transactions); and the denominator of which shall
be the sum of (a) the number of shares of Common Stock issued and outstanding
immediately prior to such Lathi Dilutive Sale, plus (b) the number of shares of
Common Stock issued pursuant to such Lathi Dilutive Sale.


 


(i)            All calculations under this
Section 5.1 shall be made by the Company in good faith and shall be
binding upon Lathi and the Other Stockholders provided that the Company shall
make such calculations in a manner consistent with the treatment of all other
investors who are given the foregoing antidilution protection.


 


(c)           For purposes of this
Section 5.1, the consideration received by the Company for the issue of
any Common Stock or convertible securities shall be computed as follows:


 


(i)            Cash and Property. Such
consideration shall:


 


(1)           insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Company;


 


(2)           insofar as it consists of property
other than cash, be computed at the fair market value thereof at the time of
such issue, as reasonably determined in good faith by the Board of Directors;
and


 


(3)           in the event Common Stock and/or
convertible securities are issued together with other shares or securities or
other assets of the Company for consideration which covers both, be the
proportion of such consideration so received for the Common Stock and/or
convertible securities, computed as provided in clauses (A) and (B) above, as
reasonably determined in good faith by the Board of Directors.


 


(ii)           Options and Convertible Securities.
The consideration per share received by the Company, relating to options and
convertible securities, shall be determined by dividing:


 


(1)           the total amount, if any, received or
receivable by the Company as consideration for the issue of such options or
convertible securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein designed to protect against dilution)
payable to the Company upon the exercise in full of such options or the
conversion or exchange of all such convertible securities, or in the case of
options for convertible securities, the exercise in full of such options for
convertible securities and the conversion or exchange of all such convertible
securities, by


 


(2)           the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard
to any provision contained therein designed to protect against dilution)
issuable upon the exercise of such options or conversion or exchange of such
convertible securities.


 


22

















 


(d)           The provisions of this
Section 5.1 shall not apply to the issuance of (x) those options,
warrants, convertible securities or shares of Common Stock excluded from the
definition of Additional Common Stock pursuant to Section (B)4(d)(i)(4) of
the Series A Certificate of Designation or (y) any securities issued
upon the exercise or conversion of any other securities, provided that
the antidilution rights provided herein applied with respect to the initial
sale or issuance of such other securities or such other securities are
specifically excluded pursuant to clause (x) of this subsection (d).


 


(e)           Notwithstanding anything contained in
this Section 5.1 to the contrary, in the event of any issuance or sale of
Common Stock (or securities convertible into Common Stock) by the Company to
Lathi after the date hereof (a “Future Issuance”), the antidilution
protection set forth in this Section 5.1 for the benefit of Lathi shall
apply to the shares issued pursuant to such Future Issuance; provided, however,
that in the event that Lathi is granted antidilution protection with respect to
the shares issued pursuant to a Future Issuance that is (i) more favorable than
the antidilution protection set forth in Section 5.1 hereof, then the
antidilution protection granted with respect to the Future Issuance shall apply,
and the antidilution protection contained in this Section 5.1 shall be of
no effect with respect to such Future Issuance, (ii) less favorable than the
antidilution protection set forth in Section 5.1 hereof, then the
antidilution protection contained in this Section 5.1 shall apply, and the
antidilution protection granted with respect to the Future Issuance shall be of
no effect with respect to such Future Issuance or (iii) the same as the
antidilution protection set forth in Section 5.1 hereof, then the
antidilution protection granted with respect to the Future Issuance shall
apply, and the antidilution protection contained in this Section 5.1 shall
be of no effect with respect to such Future Issuance.


 


(f)            Notwithstanding the foregoing, no
adjustments shall be made pursuant to this Section 5.1 in connection with
the sale of options, warrants or other securities convertible into Common Stock
(other than any shares of capital stock, including, without limitation,
preferred stock) until such time as such option, warrant or convertible
security (other than any shares of capital stock, including, without
limitation, preferred stock) is exercised or converted into Common Stock


 


6.             Consent Requirements.


 


6.1           Consent of 10% Owners and Jeffrey
A. Mayer. Notwithstanding any other provision of this Agreement, for the
period of time during which a 10% Owner continues to own at least ten percent
(10%) of the Common Stock calculated on a Fully Diluted Basis and (y) Jeffrey
A. Mayer continues to own at least 5% of the Common Stock on a Fully Diluted
Basis (the persons described in (x) and (y) hereof shall be referred to as the “Consent
Right Holders”), the Company shall not take any of the following actions
without the prior written consent of each of the Consent Right Holders:


 


(a)           Any liquidation or dissolution of the
Company;


 


(b)           Any merger or consolidation of the
Company with any other entity;


 


23

















 


(c)           Any sale of all or substantially all
of the assets of the Company;


 


(d)           Any reclassification or
recapitalization of any securities of the Company except for stock splits and
stock dividends, which shall not be subject to this Section 5.1;


 


(e)           Any amendment of the Company’s
charter or Bylaws if such amendment would materially adversely affect the
rights of the Consent Right Holders;


 


(f)            Any redemption or repurchase of
Common Stock issued or issuable to officers, directors or employees of, or
consultants to, the Corporation pursuant to (i) stock options or warrants
outstanding on the Original Issue Date, or (ii) stock agreements, purchase
plans, employee incentive programs or stock options granted after the Original
Issue Date on terms approved by the Board of Directors, except the repurchase
of Common Stock or Common Share Equivalents by the Company from a terminated
employee or consultant which purchase has been approved by the Board of
Directors and the holders of a majority of the Series A Stock; and


 


(g)           Any issuance of securities by the
Company or any Affiliate of the Company (i) in connection with the acquisitions
by the Company or any Affiliate of the Company of stock or assets of any other
entity after which, in the case of the acquisition of stock, the Company or
such Affiliate owns more than 50% of the voting power of the issuer of such
stock or (ii) in connection with a strategic joint venture or alliance between
the Company and the party to which the securities are being issued or an
Affiliate of such party thereof.


 


6.2           Consent of Board of Directors.
Subject to the rights of the Series A Investors set forth in Section (B)6
of the Series A Certificate of Designation and notwithstanding any other
provision of this Agreement, the Company may not take any of the following
actions without the prior written consent of the Board of Directors, which
consent shall include the consent of the Series A Director: 


 


(a)           Any sale by the Company or any
subsidiary of the Company of any of the securities of any subsidiary of the
Company to any entity other than the Company or another wholly-owned subsidiary
of the Company;


 


(b)           Any creation of any subsidiary other
than a wholly owned subsidiary; and


 


(c)           Any incurrence of indebtedness by the
Company in excess of $2,000,000.00 in the aggregate, other than pursuant to
(i)  any supplier financing arrangement;
(ii) loans from any bank or other institutional lender; (iii) debt
incurred in the ordinary course of the Company’s business and (iv) the Lathi
Loan Agreement.


 


7.             Covenants.


 


7.1           The Company shall not engage in any
transaction between the Company (or any subsidiary thereof) and any Affiliate
thereof without the prior approval of a majority of


 


24

















 


all disinterested members of the Board of
Directors, including the Series A Director (unless all such directors shall not
be disinterested), other than (i) purchases by the Company of Stock pursuant to
Section 3.5 or (ii) transactions between the Company and Lathi pursuant to
the Lathi Loan Agreement.


 


7.2           The consent of a majority of the members
of the Board of Directors, including the Series A Director, shall be required
to approve (i) the Company’s budget and (ii) any expenditure, individually or
collectively, in excess of $250,000 in any twelve month period which is not
part of such budget, other than purchases by the Company of (i) Series A Share
Equivalents from any or all of the Series A Investors or (ii) Common Stock from
Lathi, in each case pursuant to Section 3.5(b) hereof.


 


7.3           The consent of a majority of the
members of the Compensation Committee shall be required to approve executive
compensation for Key Employees. “Key Employees” means officers of the
Company who are Vice Presidents or higher and employees of the Company with a
base salary in excess of $175,000 annually.


 


7.4           As soon as practicable, but in no
event later than 30 days from the date hereof, the Company shall use
commercially reasonable efforts and take all action necessary to obtain
directors’ and officers’ liability insurance providing coverage in such amount
that the Board of Directors determines is appropriate for companies of
established reputation engaged in the same or similar business and similarly
situated.


 


7.5           The Company (or any subsidiary
thereof) shall not purchase or hold beneficially any stock, other securities or
evidences of indebtedness in, or make any investment in any other Person,
excluding a subsidiary of the Company, without the approval of the Board of
Directors, which approval shall include the approval of the Series A Director.


 


7.6           Any decision to change the nature of
the business of the Company (or any subsidiary thereof) to any business which
is fundamentally separate and distinct from the business currently conducted by
the Company shall require the consent of the Board of Directors, which approval
shall include the approval of the Series A Director.


 


8.             Representations and Warranties.


 


8.1           Each of the parties hereto severally,
as to itself only, and not jointly, hereby represents and warrants to each of
the other parties to this Agreement that:


 


(a)           such party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation and has the full right, power and authority to execute, deliver and
perform this Agreement and to bind all Persons or entities, if any, for which
it is acting pursuant to this Agreement;


 


(b)           this Agreement has been duly
authorized, executed and delivered by or on behalf of such party and
constitutes a legal, valid and binding obligation of such party and all Persons
or entities, if any, for which such party is acting, enforceable against such
party, and all such Persons or entities, if any, for which it is acting, in
accordance with its terms except


 


25

















 


(i) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally and
(ii) as enforceability may be limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies;


 


(c)           no consent, approval, authorization
or order of any Person is required for the execution, delivery or performance
of this Agreement by such party or any such Persons or entities, if any, for which
it is acting, except for such consents, approvals, authorizations or orders,
the failure of which to obtain could not have a material adverse effect on the
Investor’s ability to consummate the transactions contemplated hereby or as
might be required in connection with the performance hereof in the course of an
extraordinary transaction contemplated hereby; and


 


(d)           neither the execution, delivery nor
performance of this Agreement by such party or any such Persons or entities, if
any, for which it is acting will (A) conflict with, or result in a breach of,
or constitute a default under, or result in a violation of, any organizational
document of such party (if applicable) or any agreement or instrument to which
such party or any such Persons or entities, if any, for which it is acting is a
party or by which such party or any such Persons or entities, if any, for which
it is acting or their property is bound, or (B) result in the violation of any
applicable law or order, judgment, writ, injunction, decree or award of any
Governmental Authority, except for such violations which could not have a
material adverse effect on the Investor’s ability to consummate the
transactions contemplated hereby.


 


8.2           Each of the Original Stockholders and
the Other Stockholders severally, as to itself only, and not jointly, hereby
represents and warrants to each of the Series A Investors that it has no
actions, causes of action, suits, claims (including, without limitation, claims
for contribution and indemnification), demands, liabilities, obligations,
promises, damages and judgments (“Claims”) against the Company and
hereby absolutely and irrevocably releases, waives, relinquishes, renounces and
discharges forever the Company from all Claims whatsoever, in law, admiralty or
equity, in the United States of America or any other jurisdiction, whether the
same be known or unknown, suspected or unsuspected, material or immaterial,
absolute or contingent. Lathi hereby represents and warrants to each of the
Series A Investors that it has no actual knowledge of any Claims that it has or
may have against the Company solely in its capacity as a stockholder of the
Company and Lathi hereby absolutely and irrevocably releases, waives,
relinquishes, renounces and discharges forever the Company from all such Claims
of which Lathi has actual knowledge whether in law, admiralty or equity, in the
United States of America or any other jurisdiction and whether such Claims be
material or immaterial, absolute or contingent. For the avoidance of doubt, the
foregoing sentence shall not constitute a release by Lathi of any Claims Lathi
has or may have against the Company in Lathi’s capacity as a lender under the
Lathi Loan Agreement whether, in law, admiralty or equity, in the United States
of America or any other jurisdiction, whether the same be known or unknown,
suspected or unsuspected, material or immaterial, absolute or contingent.


 


8.3           Each of the parties hereto agrees
that the representations and warranties set forth in this Section 8 shall
survive the execution and delivery of this Agreement.


 


26

















 


8.4           Each of the Stockholders agrees that
any and all rights that a Stockholder may have been entitled to pursuant to any
written or oral agreement with the Company that pertain to tag-alongs,
drag-alongs, antidilution adjustments, preemptive rights, rights to participate
in a sale or other similar type of rights shall be superceded by this
Agreement.


 


9.             Miscellaneous.


 


9.1           “Market Stand-Off” Agreement. Each
Stockholder hereby agrees that, during the period of ninety (90) days following
the effective date of a registration statement of the Company filed under the
Securities Act in connection with an underwritten offering (and, in the case of
the initial public offering of the Company’s securities, one hundred eighty
(180) days or such shorter period as the underwriter may specify), it shall
not, if requested by the Company and such underwriter, directly or indirectly
sell, offer to sell (including, without limitation, any short sale), grant any
option to purchase, or otherwise transfer or dispose of (other than to donees,
affiliates or partners who agree to be similarly bound) any Common Stock or any
securities of the Company convertible into Common Stock held by it.


 


9.2           Injunctive Relief. Each party
hereto acknowledges that it will be impossible to measure in money the damages
that would be suffered if any party fails to comply with any of the obligations
herein imposed on such party and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate
remedy at law. Any such Person shall, therefore, be entitled to injunctive
relief and/or specific performance to enforce such obligations, and if any
action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law.


 


9.3           Further Assurances. Each party
hereto shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments, and documents as any other party hereto reasonably
may request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.


 


9.4           Governing Law.


 


(a)           This Agreement shall be governed by
and construed under 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.


 


(b)           The jurisdiction and venue in any
action brought by any party hereto pursuant to this Agreement shall properly
lie in any federal or state court located in the City and State of New York. By
execution and delivery of this Agreement, each party hereto irrevocably submits
to the jurisdiction of such courts for himself or itself and in respect of his
or its property with respect to such action. The parties irrevocably agree that
venue would be proper in such court, and hereby waive any objection that such
court is an improper or inconvenient forum for the resolution of such action. The
parties further agree that the mailing by certified or registered mail, return
receipt requested, of any process required by any such court shall


 


27

















 


constitute valid and lawful service of process
against them, without necessity for service by any other means provided by
statute or rule of court.


 


(c)           WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHTS
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE INVESTORS.


 


9.5           Entire Agreement; Amendment;
Waiver. This Agreement:  (a) contains
the entire agreement among the parties hereto with respect to the subject
matter hereof, (b) supersedes all prior written agreements and negotiations and
oral understandings, if any, with respect thereto, (c) may not be amended or
supplemented except by an instrument or counterparts thereof in writing signed
by the Company, Lathi, Charter Mx and by Stockholders holding a majority of the
then outstanding shares of Voting Stock, provided, however, that
any amendment which would affect any Stockholder materially and adversely in a
manner that is disproportionate to other similarly situated Stockholders shall
require the consent of such Stockholder, and (d) amends and restates the
Existing Shareholders Agreement in its entirety and as a result such Existing
Shareholder Agreement is terminated and of no force and effect. The observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company, Lathi, Charter Mx and Stockholders holding a
majority of the then outstanding shares of Voting Stock. Any amendment or
waiver effected in accordance with this paragraph 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. The waiver by any party of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach.


 


9.6           Binding Effect; Assignment. This
Agreement shall be binding on and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns. The rights
and obligations arising from this Agreement shall be transferred in connection
with the transfer by a Stockholder to any Person of any Common Stock or Common
Share Equivalents in compliance with this Agreement, other than in a registered
public offering or in Rule 144 Sales, and any such Person shall conclusively be
deemed to have agreed to be bound by this Agreement. Notwithstanding the
foregoing, each Stockholder and each assignee of each Stockholder may, without
the Company’s consent, assign its rights under this Agreement, in whole or in
part, to any other Stockholder or any affiliate or Permitted Transferee of any
Stockholder, and the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon their respective successors and assigns.


 


9.7           Termination. This Agreement
shall terminate upon the occurrence of any of the following events: (a) the
entry of an order for relief in a proceeding involving the Company as debtor
under Title 11 of the United States Code entitled “Bankruptcy,” as now or


 


28

















 


hereafter in effect, or any successor thereto
(the “Bankruptcy Code”); (b) the appointment of a receiver, trustee or
custodian (as defined in the Bankruptcy Code) in respect of the Company; (c) a
Qualified Public Offering; or (d) the sale of the Company or its business,
regardless of the form of such transaction.


 


9.8           Invalidity of Provision. The
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of
this Agreement, including that provision, in any other jurisdiction.


 


9.9           Notice. All notices and other
communications provided for herein shall be dated and in writing and shall be
deemed to have been duly given (x) on the date of delivery, if delivered personally
or by telecopier, receipt confirmed, (y) on the first following business day,
if delivered by a recognized overnight courier service, or (z) three days after
mailing, if sent by registered or certified mail, return receipt requested,
postage prepaid, in each case, to the party to whom it is directed at the
address set forth opposite his or its name on the signature pages hereto (or at
such other address as any party hereto shall hereafter specify by notice in
writing to the other parties hereto).


 


9.10         Headings; Execution in Counterparts.
The headings and captions contained herein are for convenience of reference
only and shall not control or affect the meaning or construction of any
provision hereof. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Facsimile counterpart signatures to
this Agreement are valid.


 


9.11         Pronouns. Whenever the context
may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa.


 


9.12         Attorneys’ Fees. If any action
at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.


 


9.13         Certain Stockholders. Each
Stockholder that is an entity that was formed for the sole purpose of acquiring
Preferred Stock, Common Stock and/or Common Share Equivalents or that has no
substantial assets other than Preferred Stock, Common Stock and/or Common Share
Equivalents or interests in such securities agrees that (a) shares of its
capital stock or other instruments, certificates or documents reflecting equity
interests in such entity (and the shares of capital stock or other equity
interests in any similar entities controlling such entity) will note the
restrictions contained in this Agreement on the transfer of securities as if
such common stock or other equity interests were Preferred Stock, Common Stock
or Common Share Equivalents, as applicable, and (b) no shares of such capital
stock or other equity interests may be transferred to any person or entity
other than in accordance with the terms and provisions of this Agreement as if
such capital stock or other equity interests were Preferred Stock, Common Stock



 


29

















 


or Common Share Equivalents, as applicable. Any
transfer or attempted transfer in contravention of the foregoing shall be void
ab initio.


 


9.14         Additional Stockholders. As a
condition precedent to the future grant of any stock option and/or stock award
by the Company to any Person who is not then a party to this Agreement, such
Person shall execute a counterpart of this Agreement and thereafter shall be
deemed to be a “Stockholder” for all purposes of this Agreement; provided, however,
that such Person shall not be entitled to the rights set forth in Sections 3.6,
4, 5 and 6.1.


 


9.15         Effectiveness.       This Agreement shall be effective for all
Stockholders, other than the Series A Investors, immediately upon the execution
of this Agreement by holders holding the requisite percentage of Stock (as
defined in the Existing Shareholders Agreement) of the Company necessary to
amend the Existing Shareholders Agreement. This Agreement shall be effective
for the Series A Investors upon the issuance of the Series A Stock pursuant to
the Purchase Agreement.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


30

















 


IN
WITNESS WHEREOF, the undersigned have executed this Third Amended and Restated
Stockholders’ Agreement as of the date first written above.


 


	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Jeffrey A. Mayer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey A. Mayer

  
	
   

  	
   

  	
  Title:

  	
  Its President

  
					



 


	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  20 Summer Street

  
	
   

  	
  Stamford, CT 06901

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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/ Jen Guzman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jen Guzman

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
  1105 Market Street

  
	
   

  	
  Suite 1300

  
	
   

  	
  Wilmington, DE 19899

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Proskauer Rose LLP

  
	
   

  	
  1585 Broadway

  
	
   

  	
  New York, NY 02215

  
	
   

  	
  Attn: Lauren K. Boglivi

  



 


31

















 


	
   

  	
  LATHI LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Harvard Management Company, Inc.,

  
	
   

  	
   

  	
  pursuant to delegated authority

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  600 Atlantic Avenue

  
	
   

  	
  Boston, MA 02210

  
	
   

  	
  Attn: Megan Kelleher

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Ropes & Gray LLP

  
	
   

  	
  One International Place

  
	
   

  	
  Boston, MA 02215

  
	
   

  	
  Attn: Leigh Fraser

  



 


32

















 


	
   

  	
  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  GREENHILL CAPITAL PARTNERS,
  L.P.

  
	
   

  	
   

  
	
   

  	
  GREENHILL CAPITAL PARTNERS

  (CAYMAN), L.P.

  
	
   

  	
   

  
	
   

  	
  GREENHILL CAPITAL PARTNERS

  (EXECUTIVES), L.P.

  
	
   

  	
   

  
	
   

  	
  GREENHILL CAPITAL, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  GCP Managing Partner, L.P., as managing

  general partner of each of the foregoing

  partnerships

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  Greenhill Capital Partners, LLC, its general

  partner

  
	
   

  	
   

  	
   

  



 


	
   

  	
  By: 

  	
  /s/ V. Frank
  Pottow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  V. Frank Pottow

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  c/o Greenhill Capital Partners

  
	
   

  	
  300 Park Avenue, 23rd floor,

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attn:

  



 


	
   

  	
  ORIGINAL STOCKHOLDERS:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
    /s/ Jeffrey A. Mayer

  
	
   

  	
  Jeffrey A. Mayer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
    /s/ Carole R. Artman-Hodge

  
	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
    /s/ Daniel P. Burke, Sr.

  
	
   

  	
  Daniel P. Burke, Sr.

  



 


 


33

















 


	
   

  	
  OTHER STOCKHOLDERS:

  



 


	
   

  	
  By

  	
  /s/ Robert Gould

  
	
   

  	
   

  	
  Robert Gould

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JED Communications Associates, Inc.

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ Daniel Bergstein

  
	
   

  	
   

  	
   

  	
  Name: Daniel Bergstein

  
	
   

  	
   

  	
   

  	
  Title: President

  



 


	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Seymour Mayer

  
	
   

  	
   

  	
  Seymour Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Matthew D. Stewart UGMA

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ John A. Stewart

  
	
   

  	
   

  	
   

  	
  John A. Stewart, Trustee

  



 


	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Susan Fast

  
	
   

  	
   

  	
  Susan Fast

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David Diesenhouse

  
	
   

  	
   

  	
  David Diesenhouse

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Arlene Diesenhouse

  
	
   

  	
   

  	
  Arlene Diesenhouse

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Augustus J. Costaldo

  
	
   

  	
   

  	
  Augustus J. Costaldo

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Karen L. Costaldo

  
	
   

  	
   

  	
  Karen L. Costaldo

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Brandt Zembach

  
	
   

  	
   

  	
  Brandt Zembach

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Stewart Family Trust

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ Jacalyn Diesenhouse

  
	
   

  	
   

  	
   

  	
  Jacalyn Diesenhouse, Trustee

  



 


	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Gary L. Seevers

  
	
   

  	
   

  	
  Gary L. Seevers

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Shelly Kassen

  
	
   

  	
   

  	
  Shelly Kassen

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Doug Bowen

  
	
   

  	
   

  	
  Doug Bowen

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Ellen Bowen

  
	
   

  	
   

  	
  Ellen Bowen

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Vogel Partners LP

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/
  Stephen A. Vogel

  
	
   

  	
   

  	
   

  	
  Name:
  Stephen A. Vogel

  
	
   

  	
   

  	
   

  	
  Title:
  General Partner

  



 


	
   

  	
  By

  	
  /s/
  Michael Bergstein

  
	
   

  	
   

  	
  Michael
  Bergstein

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Kelvin Westbrook

  
	
   

  	
   

  	
  Kelvin
  Westbrook

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Donald Marshall

  
	
   

  	
   

  	
  Donald Marshall

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ William F. Schwitter

  
	
   

  	
   

  	
  William F. Schwitter

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Seth M. Zachary

  
	
   

  	
   

  	
  Seth M. Zachary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John S. McGeeney

  
	
   

  	
   

  	
  John S. McGeeney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Thomas M. Cunningham

  
	
   

  	
   

  	
  Thomas M. Cunningham

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ E. Buckley Griswold

  
	
   

  	
   

  	
  E. Buckley Griwold

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  L&L Capital Partners

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
   

  	
  Title: Member Manager

  



 


	
   

  	
  Nakoma Investments, LLC

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ Irwin F. Smith

  
	
   

  	
   

  	
   

  	
  Name: Irwin F. Smith

  
	
   

  	
   

  	
   

  	
  Title: Senior Managing Director

  



 


	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ William L. Jaffe, M.D.

  
	
   

  	
  William L. Jaffe, M.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert H. Steele

  
	
   

  	
  Robert H. Steele

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Bob Blake

  
	
   

  	
  Bob Blake

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Emmett Capanna

  
	
   

  	
  Emmett Capanna

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Greg Taffet

  
	
   

  	
  Greg Taffet

  
	
   

  	
   

  	
   

  
	
   

  	
  Advest Inc. Custodian FBO Jacalyn Diesenhouse IRA
  A/C#WPR-810903

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ Jacalyn Diesenhouse

  
	
   

  	
   

  	
   

  	
  Jacalyn Diesenhouse

  



 


	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Brian Mayer

  
	
   

  	
  Brian Mayer, by Jeffrey Mayer, Guardian

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marshall Mayer

  
	
   

  	
  Marshall Mayer, by Jeffrey Mayer, Guardian

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Citigroup Global Market as IRA Custodian FBO John
  Stewart

  
	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  By

  	
  /s/ John Stewart

  
	
   

  	
   

  	
   

  	
  John Stewart

  



 


 


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