Exhibit 10.16


Execution Copy


 


REGISTRATION RIGHTS AGREEMENT


 


This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of June 25, 2004 by
and among MxEnergy Inc., a Delaware corporation (the “Company”), Lathi LLC, a
Delaware limited liability company (“Lathi”), Charter Mx LLC, a Delaware
limited liability company (“Charter Mx”), Greenhill Capital Partners,
L.P., Delaware limited partnership, Greenhill Capital Partners (Cayman), L.P.,
a Cayman Islands limited partnership, Greenhill Capital Partners (Executives),
L.P., a Delaware limited partnership, Greenhill Capital, L.P., a Delaware
limited partnership (and together with Charter Mx, the “Series A Investors”),
and Jeffrey A. Mayer, Carol R. Artman-Hodge and Daniel P. Burke, Sr. (each, an “Original
Stockholder” and collectively, the “Original Stockholders”).


 


RECITALS:


 


A.            Concurrently with the execution of
this Agreement, the Series A Investors are acquiring from the Company shares of
the Company’s Series A Convertible Preferred Stock, par value $0.01 per
share (“Series A Stock”), pursuant to the Series A Convertible
Preferred Stock Purchase Agreement of even date herewith (the “Purchase
Agreement”).


 


B.            By entering into this Agreement, the
Company wishes to provide a further inducement to the Series A Investors to
purchase the Series A Stock pursuant to the Purchase Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing, the parties agree as follows:


 


1.             Definitions. For purposes of
this Agreement:


 


(a)           “Common Stock” means shares of common stock, par
value $0.01 per share, of the Company.


 


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


 


(c)           “Form S-1” means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC used for the initial public offering of
securities.


 


(d)           “Form S-3” means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.


 


(e)           “Holder” means any Person owning or having the
right to acquire Registrable Securities, or any assignee thereof in accordance
with Section 11 hereof.


 


(f)            “Initiating Holders” means the Holder(s)
initiating a registration request under Sections 2(a) or 2(b) below.


 

















 


(g)           “Lathi Request” means a request from Lathi that the
Company file a registration statement under the Securities Act covering the
registration of fifty percent (50%) or more of the Registrable Securities owned
by Lathi as of the date of such request, provided that the anticipated
aggregate offering price, net of underwriting discounts and commissions, shall
be for an amount not less than $10,000,000.


 


(h)           “majority in interest of the Initiating Holders”
means Initiating Holders holding a majority of the Registrable Securities held
by all Initiating Holders.


 


(i)            “Person” means any individual, partnership,
limited liability company, joint venture, corporation, association, trust or
any other entity or organization.


 


(j)            “Register,” “registered,” and “registration”
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document.


 


(k)           “Registrable Securities” means, collectively, (i)
any Common Stock directly or indirectly issuable or issued upon conversion of
the Series A Stock owned by the Series A Investors; (ii) the shares of Common
Stock owned by the Series A Investors, Lathi or the Original Stockholders on
the date hereof; (iii) any shares of Common Stock hereafter acquired by any
Series A Investor, Lathi or any Original Stockholder; and (iv) any shares of
Common Stock hereafter distributed to any Series A Investors, Lathi or any
Original Stockholder by the Company as a stock dividend or otherwise; provided,
however, that any such securities shall cease to be Registrable
Securities when (a) such securities shall have been registered under the
Securities Act, the registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such securities
shall have been disposed of pursuant to such effective registration statement;
(b) such securities shall have been otherwise transferred, if new certificates
or other evidences of ownership for them not bearing a legend restricting
further transfer and not subject to any stop transfer order or other
restrictions on transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any state
securities law then in force; or (c) such securities shall cease to be
outstanding.


 


(l)            “SEC” means the Securities and Exchange
Commission.


 


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


 


(n)           “Series A Request” means a request from Series A
Investors that the Company file a registration statement under the Securities
Act covering the registration of fifty percent (50%) or more of the Registrable
Securities owned by the Series A Investors as of the date of such request, provided
that the anticipated aggregate offering price, net of underwriting
discounts and commissions, shall be for an amount not less than $10,000,000.


 


(o)           “Series A Stock” means the Series A Convertible
Preferred Stock of the Company.


 


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(p)           “Violation” means any of the following statements,
omissions or violations:  (i) any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement filed under or referred to in this Agreement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto or any documents filed under state securities
or “blue sky” laws in connection therewith, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law arising from, relating to or in
connection with the offer and sale of Registrable Securities pursuant to this
Agreement.


 


2.             Demand Registration.


 


(a)           Lathi Request. If at any time after one hundred
eighty (180) days after the effective date of the initial public offering of
the Company’s securities, the Company shall receive a written Lathi Request
that the Company file a registration statement under the Securities Act, then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and, subject to the limitations of
Section 2(c) below, shall file (as expeditiously as practicable, and in any event
within ninety (90) days of the receipt of such request) and use commercially
reasonable efforts to effect, a registration statement under the Securities Act
with respect to all Registrable Securities which the Holders request to be
registered within twenty (20) days of the mailing of such notice by the Company
in accordance with Section 19 below.


 


(b)           Series A Request. If at any time after one hundred
eighty (180) days after the effective date of the initial public offering of
the Company’s securities, the Company shall receive a written Series A Request
that the Company file a registration statement under the Securities Act, then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and, subject to the limitations of
Section 2(c) below, shall file (as expeditiously as practicable, and in any
event within ninety (90) days of the receipt of such request) and use
commercially reasonable efforts to effect, a registration statement under the
Securities Act with respect to all Registrable Securities which the Holders
request to be registered within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 19 below.


 


(c)           If the Initiating Holders intend to distribute the Registrable
Securities covered by their request pursuant to Section 2(a) or 2(b), as the
case may be, by means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to this Section 2 and the Company shall
include such information in the written notice referred to in Section 2(a) or
2(b), as the case may be. In such event, the right of any Holder to include
such Holder’s Registrable Securities in such registration shall be conditioned
upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. A majority in interest of the Initiating Holders of
Registrable Securities participating in the underwriting, subject to the
consent of the Company, which consent shall not be unreasonably withheld, shall
select the managing


 


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underwriter or underwriters in such underwriting. All Holders proposing
to distribute their securities through such underwriting shall (together with
the Company as provided in Section 4(f)) enter into an underwriting agreement
(and related custody agreements and powers of attorney) in customary form with
the underwriter or underwriters selected for such underwriting by a majority in
interest of such Initiating Holders; provided, however, that no
Holder (or any of their assignees) shall be required to make any
representations, warranties or indemnities except as they relate to such Holder’s
ownership of shares and authority to enter into the underwriting agreement and
to such Holder’s intended method of distribution, and the liability of such
Holder shall be limited to an amount equal to the net proceeds from the
offering received by such Holder. Notwithstanding any other provision of this
Section 2, if the underwriter advises the Initiating Holder that marketing
factors require a limitation of the number of shares to be underwritten, then
the Initiating Holder shall so advise the Company and the Company shall so
advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated as
follows:  (i) first, among the Initiating Holders requesting
registration pursuant to Sections 2(a) or 2(b) as the case may be, until such
Holders have included in the underwriting all shares requested by such holders
to be included and allocated (if necessary) pro rata on the basis of the number
of Registrable Securities that each Initiating Holder has requested to be
included in such registration, (ii) second, among Holders of Registrable Securities
that have elected to participate in such underwritten offering, in proportion
(as nearly as practicable) to the aggregate amount of Registrable Securities
held by all such Holders, until such Holders have included in the underwriting
all shares requested by such Holders to be included, and (iii) thereafter, among all other holders of Common Stock, if
any, that have the right and have elected to participate in such underwritten
offering, in proportion (as nearly as practicable) to the amount of shares of
Common Stock owned by such holders. Without the consent of a majority in
interest of the Holders of Registrable Securities participating in a
registration referred to in Section 2(a), no securities other than Registrable
Securities shall be covered by such registration if the inclusion of such other
securities would result in a reduction of the number of Registrable Securities
covered by such registration or included in any underwriting or if, in the
opinion of the managing underwriter, the inclusion of such other securities
would adversely impact the marketing of such offering.


 


(d)           The Company shall not be obligated to effect: (i) in the
case of a Lathi Request pursuant to Section 2(a), more than two (2)
registrations and (ii) in the case of a Series A Request pursuant to Section
2(b), more than (x) one registration on Form S-1 and (y) two (2) registrations
on Form S-3. In order to count as an “effected” registration statement, such
registration statement shall not have been withdrawn and all shares registered
pursuant to it (excluding any overallotment shares) shall have been sold.


 


(e)           Notwithstanding the foregoing, if the Company shall
furnish to the Initiating Holders requesting a registration statement pursuant
to this Section 2, a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than ninety (90)
days after receipt of the request of the Initiating Holders; provided, however,
that the Company may not utilize this right more than once in any twelve


 


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(12) month period; provided further, that the Company shall have
no obligation to effect any registration pursuant to Section 2(a) or 2(b) during
the period starting with the sixty (60) days prior to the Company’s good faith
estimate of the date of filing of, and ending on a date ninety (90) days after
the effective date of, a registration statement filed by the Company under the
Securities Act, provided that the Company is actively employing in good faith
all reasonable efforts to cause such registration to become effective.


 


3.             Piggyback Registration. If
(but without any obligation to do so) the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Series A Investors or Lathi) any of its stock or
other securities under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-8 (or similar or successor form) relating solely to the sale of securities to
participants in a Company stock option, stock purchase or other stock-based
compensation arrangements to the extent includable on Form S-8 (or similar or
successor form), or a registration relating solely to an transaction under Rule
145 of Securities Act on Form S-4 (or similar or successor form) or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered)
(each such registration not withdrawn or abandoned prior to the effective date
thereof being herein called a “Piggyback Registration”), the Company
shall, at such time, promptly give each Holder written notice of such
registration not later than thirty (30) days prior to the anticipated filing
date of such Piggyback Registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by the Company in
accordance with Section 19, the Company shall, subject to the provisions of
Section 8, use commercially reasonable efforts to cause to be registered under
the Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. The Company shall have no obligation under this
Section 3 to make any offering of its securities, or to complete an offering of
its securities that it proposes to make. Any selling Holder shall be permitted
to withdraw all or any part of its Registrable Securities from any Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration.


 


4.             Obligations of the Company.
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:


 


(a)           Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective, keep such
registration statement effective for up to one hundred twenty (120) days or
until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); provided
that before filing such registration statement or any amendments thereto,
the Company will furnish to the Holders copies of all such documents proposed
to be filed.


 


(b)           Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.


 


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(c)           Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents as Holders may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.


 


(d)           Use commercially reasonable efforts to register and
qualify the securities covered by such registration statement for offer and
sale under such other securities or “blue sky” laws of such states or
jurisdictions as shall be reasonably requested by the Holders, provided that
the Company shall not be required in connection therewith or as a condition
thereto (i) to qualify to do business in any state or jurisdiction where it
would not otherwise be required to qualify but for the requirements of this
clause (d), or (ii) to take any action which would subject it to general
service of process or taxation.


 


(e)           Use diligent efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by virtue
of the Company’s business or operations to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities.


 


(f)            In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such registration shall also enter into and perform its
obligations under such an agreement.


 


(g)           Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
of which it has knowledge as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing.


 


(h)           Notify each Holder of Registrable Securities covered by
such registration statement and such Holder’s underwriters, if any, and confirm
such advice in writing:  (i) when the
registration statement has become effective, (ii) when any post-effective
amendment to the registration statement becomes effective and (iii) of any
request by the SEC for any amendment or supplement to the registration
statement or prospectus or for additional information.


 


(i)            Notify each Holder of Registrable Securities if at any
time the SEC should institute or threaten to institute any proceedings for the
purpose of issuing, or should issue, a stop order suspending the effectiveness
of the Registration Statement. Upon the occurrence of any of the events
mentioned in the preceding sentence, the Company will use commercially
reasonable efforts to prevent the issuance of any such stop order or to obtain
the withdrawal thereof as soon as possible. The Company will advise each Holder
of Registrable


 


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Securities promptly of any order or communication of any public board
or body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.


 


(j)            Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Agreement, (i) on the
date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, an opinion, dated such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) on the date
that the registration statement with respect to such securities becomes
effective, a “comfort” letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities (the Company shall
use commercially reasonably efforts to achieve this), and, if such securities
are being sold through underwriters, a reaffirmation of such letter on the date
that such Registrable Securities are delivered to the underwriters for sale.


 


(k)           As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have “made generally available to its security holders” (within the meaning of
Rule 158 under the Securities Act) an earning statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.


 


(l)            Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or quotation system on which
similar securities issued by the Company are then listed or quoted.


 


(m)          Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.


 


(n)           take all actions necessary to comply with the provisions
of the Sarbanes-Oxley Act of 2002, as amended, and the rules of the applicable
securities exchange or quotation system on which the Company’s securities are
listed or quoted including, but not limited to, establishing internal
disclosure controls and procedures (including internal control over financial
reporting), establishing or changing committees of the Board of Directors and
electing independent directors, including a “qualified financial expert”; and


 


5.             Furnish Information. It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Agreement with respect to the Registrable Securities of
any selling Holder that such Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of


 


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such securities as shall be required to effect the
registration of such Holder’s Registrable Securities. If any registration
statement or comparable statement under the Securities Act refers to a Series A
Investor, Lathi or any of their respective affiliates, by name or otherwise, as
the holder of any securities of the Company then, unless counsel to the Company
advises the Company that such reference be included in any such statement
pursuant to any applicable law, rule or regulation, each such holder shall have
the right to require the deletion of such reference to itself and its
affiliates.


 


6.             Expenses of Demand Registration.
All expenses, other than underwriting discounts and commissions relating to
Registrable Securities, incurred in connection with registrations, filings or
qualifications pursuant to Section 2, including without limitation all
registration, filing and qualification fees, printers’ and accounting fees,
fees and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel (selected by the Initiating Holders) for the
selling Holders shall be borne by the Company, provided however, that
such fees shall be borne pro rata by the selling Holders based on the number of
shares of Common Stock sold for all subsequent registrations filed pursuant to
a Lathi Request or a Series A Request after the first request made by each of
Lathi and the Series A Investors.


 


7.             Expenses of Company Registration.
The Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 3 for each Holder, including without
limitation all registration, filing and qualification fees, printers’ and
accounting fees relating or apportionable thereto and the reasonable fees and
disbursements of one counsel for the selling Holders (selected by the Holders
of a majority of the Registrable Securities being registered), but excluding
underwriting discounts and commissions relating to Registrable Securities.


 


8.             Underwriting Requirements.
In connection with any offering initiated by the Company involving an
underwriting of shares being issued by the Company, the Company shall not be
required under Section 3 to include any Holder’s securities in such underwriting
unless such Holder accepts the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it, and then only in such quantity
as will not, in the opinion of the underwriters, exceed the largest number of
securities requested to be included in such offering which can be sold without
having an adverse effect on such offering by the Company; provided, however, that the
liability of such Holder shall be limited to an amount equal to the net
proceeds from the offering received by such Holder. If the total number of
securities, including Registrable Securities, requested by stockholders to be
included in such offering (or in any other offering in which Holders shall have
the right to include Registrable Securities pursuant to Section 3) exceeds the
largest number of securities that the underwriters reasonably believe can be
sold without having an adverse effect on such offering, then the Company shall
be required to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters believe will not have an adverse
effect on such offering, in the following priority:


 


(a)           if initiated by the Company: (i) first, securities of the Company to be sold for
the account of the Company; (ii) second, the Registrable Securities requested to be
included by Lathi and the Series A Investors, allocated (if necessary) pro rata
on the basis of the


 


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number of Registrable Securities that each such party has requested to
be included in such registration; (iii) third, the
Registrable Securities requested to be included by the Original Stockholders,
allocated (if necessary) pro rata on the basis of the number of Registrable
Securities that each such Original Stockholder has requested to be included in
such registration; and (iv) fourth, securities of the Company to be sold for
the account of other Persons, with such priorities among them as the Company
shall determine; or


 


(b)           if initiated by a Person other than the Company, Lathi or
the Series A Investors: (i) first, the securities of the Company requested to
be included by such initiating Person and the Registrable Securities requested
to be included by Lathi and the Series A Investors, allocated (if necessary)
pro rata on the basis of the number of securities of the Company that each such
party has requested to be included in such registration; (ii) second, securities of the Company to be sold for
the account of the Company; (iii) third, the Registrable Securities requested to be
included by the Original Stockholders, allocated (if necessary) pro rata on the
basis of the number of Registrable Securities that each such Original
Stockholder has requested to be included in such registration; and (iv) fourth, securities of the Company to be sold for
the account of other Persons, with such priorities among them as the Company
shall determine.


 


For purposes of this Section 8 for any selling
stockholder which is a Holder of Registrable Securities and which is a partnership
or corporation, the partners, retired partners and shareholders of such Holder,
or the estates and family members of any such partners and retired partners and
any trusts for the benefit of any of the foregoing persons shall be deemed to
be a single “selling Holder,” and any pro rata reduction with respect to such “selling
Holder” shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such “selling
Holder,” as defined in this sentence.


 


9.             Indemnification. In the
event any Registrable Securities are included in a registration statement under
this Agreement:


 


(a)           The Company will indemnify and hold harmless each Holder,
its heirs, personal representatives and assigns, each of such Holder’s
partners, officers, directors, members, employees and affiliates, any
underwriter (as defined in the Securities Act) for such Holder and each Person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon a Violation; and the Company will pay to each such
indemnified party, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 9(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
to a particular indemnified party for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by such
indemnified party.


 


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(b)           To the extent permitted by law, each selling Holder
(severally and not jointly) will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, any other Person selling securities in
such registration statement and any controlling Person of any such underwriter
or other Person, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing Persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal
or other expenses reasonably incurred by any Person intended to be indemnified
pursuant to this Section 9(b), in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 9(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; and provided further, that, in no event
shall the liability of any Holder under this Section 9(b) exceed the net
proceeds from the offering received by such Holder.


 


(c)           Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have
the right to retain its own counsel, with the fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 9 except if, and only
to the extent that, the indemnifying party is actually prejudiced thereby; and
such failure to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 9. An indemnifying party may settle any action or claim
under this Section 9 at any time without the consent of the indemnified party
so long as such settlement involves no cost or liability to the indemnified
party and includes an unconditional release of the indemnified party from all
liability with respect to such claim or action.


 


(d)           The obligations of the Company and Holders under this
Section 9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement, and otherwise.


 


10

















 


(e)           Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain operative
and in full force and effect regardless of any investigation made or omitted by
or on behalf of any indemnified party.


 


(f)            If a court of competent jurisdiction holds that the
foregoing indemnity is unavailable, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other (taking into
consideration, among other things, the fact that the provision of the
registration rights and indemnification hereunder was a material inducement to
the Series A Investors and Lathi to purchase Registrable Securities) or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law
or provides a lesser sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other (taking into consideration, among other things, the fact
that the provision of the registration rights and indemnification hereunder is
a material inducement to the Series A Investors and Lathi to purchase
Registrable Securities) but also the relative fault of the indemnifying party
and the indemnified party as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything to the contrary in this Section 9, no Holder shall be
required, pursuant to this Section 9, to contribute any amount in excess of the
net proceeds received by such indemnifying party from the sale of securities in
the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.


 


10.           Reports Under the Exchange Act.
With a view to making available to the Holders the benefits of Rule 144 under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees at
all times after 90 days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have
become effective, to:


 


(a)           make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;


 


(b)           use commercially reasonable efforts (without unreasonable
expense) to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities;


 


(c)           file with the SEC in a timely manner all reports,
certifications and other documents required of the Company under the Securities
Act and the Exchange Act;


 


11

















 


(d)           furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 under the
Securities Act (at any time after the effective date of the first registration
statement filed by the Company) and the Securities Act and Exchange Act (at any
time after it has become subject to such reporting requirements) or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.


 


11.           Assignment of Registration Rights.
The rights to cause the Company to register Registrable Securities pursuant to
this Agreement may be assigned in whole or in part by  a Holder to one or more of its affiliates
(including, without limitation, in the case of the Series A Investors and
Lathi, transfers between them and to their respective members and partners and
any members or partners thereof and transfers by Lathi to Sowood Commodity
Partners LP or any of its affiliates) or to one or more transferees or
assignees of the Registrable Securities owned by such Holder, provided that
(in each case) such transferee or assignee delivers to the Company a written
instrument by which such transferee or assignee agrees to be bound by the
obligations imposed on Holders under this Agreement to the same extent as if
such transferee or assignee was a party hereto. Except as specifically
permitted in the preceding sentence, neither this Agreement nor any Holder’s
rights or privileges under this Agreement can be assigned or transferred in
whole or in part without the prior written consent of the other parties.


 


12.           No Other Registration Rights;
Limitations on Subsequent Registration Rights. The Company, represents and
warrants to each Holder that, upon the execution of this Agreement by all of
the parties hereto, no “registration rights” relating to securities of the
Company and granted by the Company will exist on the date hereof other than
pursuant to this Agreement. From and after the date of this Agreement, the
Company shall not, without the prior written consent of Lathi and Charter Mx,
enter into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder
(a) to include such securities in any registration filed under this Agreement,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of such holder’s securities will not reduce the amount of the
Registrable Securities of any Holder which is included therein or (b) to
request a registration.


 


13.           “Market Stand-Off” Agreement.
Each Holder 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, contract to sell (including, without limitation, any short
sale), grant an 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 except Common Stock included in such registration. No Holder shall
be bound by this Section 13 unless each officer,


 


12

















 


director and other stockholder of the Company
holding in excess of 1% of the then outstanding common share equivalents of the
Company shall have complied with this Section 13.


 


In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of the Holders (and the
shares or securities of every other person subject to the foregoing
restriction) until the end of such period.


 


Notwithstanding
the foregoing, the obligations described in this Section 13 shall not apply to
a registration relating solely to employee benefit plans on Form S-1 or Form
S-8 or similar forms which may be promulgated in the future, or a registration
relating solely to a transaction under Rule 145 of Securities Act on Form S-4
or similar forms which may be promulgated in the future.


 


14.           Amendment; Waiver. The
provision of this Agreement may not be amended or supplemented except by an
instrument or counterparts thereof in writing signed by the Company, Lathi,
Charter Mx and by Holders holding a majority of the then outstanding
Registrable Securities, provided, however, that any amendment
which would affect any Holder materially and adversely in a manner that is
disproportionate to other similarly situated Holders shall require the consent
of such Holder. The observance of any provision 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 party to be charged,
provided that the Holders of a majority of the Registrable Securities then
outstanding may act on behalf of all Holders of Registrable Securities. Any
amendment or waiver effected in accordance with this Section 14 shall be
binding upon each Holder of Registrable Securities at the time outstanding,
each future Holder of all such securities, and the Company.


 


15.           Changes in Registrable Securities.
If, and as often as, there are any changes in the Registrable Securities by way
of stock split, stock dividend, combination or reclassification, or through
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions of this
Agreement, as may be required, so that the rights and privileges granted hereby
shall continue with respect to the Registrable Securities as so changed.
Without limiting the generality of the foregoing, the Company will require any
successor by merger or consolidation to assume and agree to be bound by the
terms of this Agreement, as a condition to any such merger or consolidation.


 


16.           Entire Agreement. This Agreement
constitutes the full and entire understanding and agreement among the parties
with regard to the subject matter hereof. Nothing in this Agreement, express or
implied, is intended to confer upon any Person, other than the parties hereto
and their respective successors and assigns, any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided herein.


 


17.           Governing Law.


 


(a)           This Agreement shall be governed by and construed under
the laws of the State of New York as applied to agreements among New York
residents entered into and to be performed entirely within New York.


 


13

















 


(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 Borough of New York in the 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
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, AND INTENTIONALLY
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.


 


18.           Successors and Assigns. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, permitted assigns (as provided in Section 11), heirs, executors and
administrators of the parties hereto.


 


19.           Notices. Unless otherwise
provided, any notice required or permitted under this Agreement shall be given
in writing and shall be deemed effectively given upon receipt by the party to
be notified (including by telecopier, receipt confirmed) or three (3) days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified (a) if to a
party other than the Company, at such party’s address set forth at the end of
this Agreement or at such other address as such party shall have furnished the
Company in writing, or, until any such party so furnishes an address to the
Company, then to and at the address of the last holder of the shares covered by
this Agreement who has so furnished an address to the Company, or (b) if to the
Company, at its address set forth at the end of this Agreement, or at such
other address as the Company shall have furnished to the parties in writing.


 


20.           Severability. Any invalidity,
illegality or limitation on the enforceability of this Agreement or any part
thereof, by any party whether arising by reason of the law of the respective
party’s domicile or otherwise, shall in no way affect or impair the validity,
legality or enforceability of this Agreement with respect to other parties. If
any provision of this Agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


21.           Titles and Subtitles. The
titles of the Sections of this Agreement are for convenience of reference only
and are not to be considered in construing this Agreement.


 


22.           Delays or Omissions; Remedies
Cumulative. It is agreed that no delay or omission to exercise any right,
power or remedy accruing to the parties shall impair any such


 


14

















 


right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence therein, or
of any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind or character by a party of any breach
or default under this Agreement, or any waiver by a party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in writing and that all remedies, either
under this Agreement, or by law or otherwise afforded to a party, shall be
cumulative and not alternative.


 


23.           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 attorney’s
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.


 


24.           Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. Facsimile
counterpart signatures shall be acceptable.


 


25.           Effectiveness.       This Agreement shall be effective for all
Holders other than the Series A Investors immediately upon the execution of
this Agreement by Holders holding the requisite percentage of Stock (as defined
in 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”)) 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.


 


 


[END OF TEXT. SIGNATURE PAGES FOLLOW.]


 


15

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.


 


	
   

  	
  MxENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey Mayer

  	
   

  
	
   

  	
   

  	
  Name:
  Jeffrey Mayer

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  LATHI LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Harvard
  Management Company, Inc.,

  
	
   

  	
   

  	
  pursuant
  to delegated authority

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  [ILLEGIBLE]

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  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

  
										



 


16

















 


	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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.

  
						



 


17