Exhibit 4.3


 


REGISTRATION
RIGHTS AGREEMENT


 


Dated as of August
4, 2006


 


Among


 


MXENERGY
HOLDINGS INC.


 


and




THE GUARANTORS NAMED HEREIN

as Issuers,



and


 


DEUTSCHE BANK
SECURITIES INC.,



and



MORGAN STANLEY & CO. INCORPORATED



as Initial Purchasers



Floating Rate Senior Notes due 2011


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  2.

  	
   

  	
  Exchange Offer

  	
   

  	
  5

  
	
  3.

  	
   

  	
  Shelf Registration

  	
   

  	
  9

  
	
  4.

  	
   

  	
  Additional Interest

  	
   

  	
  10

  
	
  5.

  	
   

  	
  Registration Procedures

  	
   

  	
  12

  
	
  6.

  	
   

  	
  Registration Expenses

  	
   

  	
  20

  
	
  7.

  	
   

  	
  Indemnification and Contribution

  	
   

  	
  20

  
	
  8.

  	
   

  	
  Rules 144 and 144A

  	
   

  	
  24

  
	
  9.

  	
   

  	
  Underwritten Registrations

  	
   

  	
  25

  
	
  10.

  	
   

  	
  Miscellaneous

  	
   

  	
  25

  



 


i

















 


REGISTRATION
RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”) is dated as of August 4,
2006, among MxEnergy Holdings Inc., a Delaware corporation (the “Company”), the subsidiaries of the
Company that are listed on the signature pages hereto (collectively, and together
with any entity that in the future executes a supplemental indenture pursuant
to which such entity agrees to guarantee the Notes (as hereinafter defined),
the “Guarantors” and, together with the
Company, the “Issuers”), and Deutsche Bank
Securities Inc. and Morgan Stanley & Co. Incorporated, as initial purchasers
(the “Initial Purchasers”).


 


This Agreement is entered into in connection
with the Purchase Agreement by and among the Company, the Guarantors and the Initial
Purchasers, dated as of August 1, 2006 (the “Purchase
Agreement”), which provides for, among other things, the sale by
the Company to the Initial Purchasers of $200,000,000 aggregate principal
amount of the Company’s Floating Rate Senior Notes due 2011 (the “Notes”) guaranteed by the Guarantors
(the “Guarantees”). The Notes and
the Guarantees are collectively referenced to herein as the “Securities”. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers and any subsequent holder or holders of the Securities. The
execution and delivery of this Agreement is a condition to the Initial
Purchasers’ obligation to purchase the Securities under the Purchase Agreement.


 


The parties hereby agree as follows:


 


1.                                      Definitions


 


As used in this Agreement, the following
terms shall have the following meanings:


 


Additional Interest:  See Section 4(a) hereto.


 


Advice:  See the last paragraph of Section 5
hereto.


 


Agreement:  See the introductory paragraphs hereto.


 


Applicable Period:  See Section 2(b) hereto.


 


Application:  See Section 7(a) hereto.


 


Business Day:  Any day that is not a Saturday, Sunday or a
day on which banking institutions in New York are authorized or required by law
to be closed.


 


Company:  See the introductory paragraphs hereto.


 

















 


Effectiveness Date:  The 270th day after the Issue Date; provided, however, that
if the Initial Purchasers or any holder of Private Exchange Notes so requests
in writing to the Company at any time after the consummation of the Exchange
Offer pursuant to clause (iii) of Section 2(c), the Effectiveness Date may be
extended for up to 90 days after delivery of the Shelf Notice; provided further, that if the Effectiveness Date would
otherwise fall on a day that is not a Business Day, then the Effectiveness Date
shall be the next succeeding Business Day.


 


Effectiveness Period:  See Section 3(a) hereto.


 


Event Date:  See Section 4(b) hereto.


 


Exchange Act:  The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.


 


Exchange Notes:  See Section 2(a) hereto.


 


Exchange Offer:  See Section 2(a) hereto.


 


Exchange Offer Registration
Statement: 
See Section 2(a) hereto.


 


Filing Date:  The 180th day after the Issue Date; provided, however, that
if the Filing Date would otherwise fall on a day that is not a Business Day,
then the Filing Date shall be the next succeeding Business Day.


 


Guarantees:  See the introductory paragraphs hereto.


 


Guarantors:  See the introductory paragraphs hereto.


 


Holder:  Any holder of a Registrable Note or
Registrable Notes.


 


Indenture:  The Indenture dated as of August 4, 2006, by
and among the Company, the Guarantors and Law Debenture Trust Company of New
York, as Trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.


 


Information:  See Section 5(n) hereto.


 


Initial Purchasers:  See the introductory paragraphs hereto.


 


Inspectors:  See Section 5(n) hereto.


 


Issue Date:  August 4, 2006, the date of original issuance
of the Notes.


 


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Issuers:  See the introductory paragraphs hereto.


 


NASD:  See Section 5(r) hereto.


 


Notes:  See the introductory paragraphs hereto.


 


Participant:  See Section 7(a) hereto.


 


Participating Broker-Dealer:  See Section 2(b) hereto.


 


Person:  An individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.


 


Private Exchange:  See Section 2(b) hereto.


 


Private Exchange Notes:  See Section 2(b) hereto.


 


Prospectus:  The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.


 


Purchase Agreement:  See the introductory paragraphs hereto.


 


Records:  See Section 5(n) hereto.


 


Registrable Notes:  Each Note (and the related Guarantees) upon
its original issuance and at all times subsequent thereto, each Exchange Note
(and the related Guarantees) as to which Section 2(c)(iv) hereof is
applicable upon original issuance and at all times subsequent thereto and each
Private Exchange Note (and the related Guarantees) upon original issuance
thereof and at all times subsequent thereto, until, in each case, the earliest
to occur of (i) a Registration Statement (other than, with respect to any
Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Note, Exchange Note or Private
Exchange Note has been declared effective by the SEC and such Note, Exchange
Note or such Private Exchange Note (and the related Guarantees), as the case
may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange
Offer for an Exchange Note or Private Exchange Note (and the related Guarantees)
that may be resold without restriction


 


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under state
and federal securities laws, (iii) such Note, Exchange Note or Private Exchange
Note (and the related Guarantees), as the case may be, ceases to be outstanding
for purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related Guarantees), as the case may be, may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities Act.


 


Registration Statement:  Any registration statement of the Issuers
that covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and the related guarantees, if any) filed with the SEC under the Securities
Act, including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.


 


Rule 144:  Rule 144 under the Securities Act.


 


Rule 144A:  Rule 144A under the Securities Act.


 


Rule 405:  Rule 405 under the Securities Act.


 


Rule 415:  Rule 415 under the Securities Act.


 


Rule 424:  Rule 424 under the Securities Act.


 


SEC:  The United States Securities and Exchange
Commission or any successor agency thereto.


 


Securities:  See the introductory paragraphs hereto.


 


Securities Act:  The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.


 


Shelf Notice:  See Section 2(c) hereto.


 


Shelf Registration:  See Section 3(a) hereto.


 


Shelf Registration Statement:  Any Registration Statement relating to a
Shelf Registration.


 


TIA:  The Trust Indenture Act of 1939, as amended.


 


Trustee:  The trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes (and the related guarantees).


 


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Underwritten registration or
underwritten offering:  A registration in which Registrable Notes are
sold to an underwriter for reoffering to the public.


 


Except as otherwise specifically provided,
all references in this Agreement to acts, laws, statutes, rules, regulations, releases,
forms, no-action letters and other regulatory requirements (collectively, “Regulatory Requirements”) shall be
deemed to refer also to any amendments thereto and all subsequent Regulatory
Requirements adopted as a replacement thereto having substantially the same
effect therewith; provided that Rule 144 shall
not be deemed to amend or replace Rule 144A.


 


2.                                      Exchange
Offer


 


(a)           Unless the Exchange
Offer would violate applicable law or any applicable interpretation of the
staff of the SEC, the Issuers shall use their commercially reasonable efforts
to file with the SEC, no later than the Filing Date, a Registration Statement
(the “Exchange Offer Registration Statement”)
on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and
all of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company (the “Exchange Notes”)
guaranteed by the Guarantors that are identical in all material respects to the
Securities, except that (i) the Exchange Notes shall contain no
restrictive legend thereon and (ii) the Exchange Notes shall not be
entitled to any of the rights set forth in Section 4 of this Agreement, and that
are entitled to the benefits of the Indenture, which shall be qualified under
the TIA. The Exchange Offer shall comply in all material respects with all
applicable tender offer rules and regulations under the Exchange Act and other
applicable laws. The Issuers shall (x) use their commercially reasonable efforts
to cause the Exchange Offer Registration Statement to be declared effective
under the Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the 300th day following
the Issue Date; provided, however,
that if such 300th day would otherwise fall on a day that is not a Business
Day, then such Exchange Offer must be consummated not later than the next succeeding
Business Day.


 


The parties hereto acknowledge that each
Holder (including, without limitation, each Participating Broker-Dealer) who participates
in the Exchange Offer will be required to represent to the Issuers in writing
(which may be contained in the applicable letter of transmittal) that:  (i) any Exchange Notes acquired in
exchange for Registrable Notes tendered are being acquired in the ordinary
course of business of the Person receiving such Exchange Notes, whether or not
such recipient is such Holder itself; (ii) at the time of the commencement
or consummation of the Exchange Offer neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder has an arrangement or understanding with any Person to participate in
the “distribution” (within the meaning of the Securities Act) of the Exchange
Notes in violation of the provisions of the


 


5

















 


Securities
Act; (iii) neither the Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder is an “affiliate”
(as defined in Rule 405) of the Company or, if it is an affiliate of the
Company, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have their Notes included in the Shelf Registration
Statement and benefit from the provisions regarding Additional Interest in
Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of
such Holder, any other Person receiving Exchange Notes from such Holder is
engaging in or intends to engage in a distribution of the Exchange Notes; and
(v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable provisions of
the Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder) in connection with any resale of the Exchange Notes.


 


Upon consummation of the Exchange Offer in
accordance with this Section 2, the provisions of this Agreement shall continue
to apply solely with respect to Registrable Notes that are Private Exchange
Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and
Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have
no further obligation to register Registrable Notes (other than Private
Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof
applies) pursuant to Section 3 hereof.


 


No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement.


 


(b)           The Issuers shall
include within the Prospectus contained in the Exchange Offer Registration
Statement a section entitled “Plan of Distribution,” reasonably acceptable to
the Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential “underwriter”
status of any broker-dealer that is the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a “Participating
Broker-Dealer”), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing view of the staff of the SEC. Such “Plan of
Distribution” section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including, to the extent permitted by applicable policies and regulations
of the SEC, all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes in compliance with the Securities Act.


 


The Issuers shall use their commercially
reasonable efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the Prospectus


 


6

















 


contained
therein in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the Securities Act for
such period of time as is necessary to comply with applicable law in connection
with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90
days or such longer period if extended pursuant to the last paragraph of
Section 5 hereof (the “Applicable Period”).


 


If, prior to consummation of the Exchange
Offer, the Initial Purchasers hold any Notes acquired by them that have the
status of an unsold allotment in the initial distribution, the Issuers upon the
request of the Initial Purchasers shall simultaneously with the delivery of the
Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes
held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company,
guaranteed by the Guarantors that are identical in all material respects to the
Exchange Notes except for the placement of a restrictive legend on such Private
Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes if permitted by the CUSIP Service Bureau.


 


In addition to the provisions set forth elsewhere
in this Section 2, in connection with the Exchange Offer, the Issuers shall:


 


(1)           mail, or cause to be
mailed, to each Holder of record entitled to participate in the Exchange Offer
a copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;


 


(2)           utilize the services of
a depositary for the Exchange Offer with an address in the Borough of
Manhattan, The City of New York;


 


(3)           permit Holders to
withdraw tendered Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Exchange Offer remains open;
and


 


(4)           otherwise comply in all
material respects with all applicable laws, rules and regulations.


 


As soon as practicable after the close of the
Exchange Offer and the Private Exchange, if any, the Issuers shall:


 


(1)           accept for exchange all
Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange, if any;


 


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(2)           cause the Exchange
Agent to deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and


 


(3)           cause the Trustee to
authenticate and deliver promptly to each Holder of Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to the Notes
of such Holder so accepted for exchange; provided that,
in the case of any Notes held in global form by a depositary, authentication
and delivery to such depositary of one or more replacement Notes in global form
in an equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and delivery
requirement.


 


The Exchange Offer and the Private Exchange
shall not be subject to any conditions, other than that (i) the Exchange
Offer or Private Exchange or the making of any exchange by a Holder, as the
case may be, does not violate applicable law or any applicable interpretation
of the staff of the SEC; (ii) no action or proceeding shall have been instituted
or threatened in any court or by any governmental agency with respect to the
Exchange Offer or the Private Exchange which might materially impair the
ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange, (iii) no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuers; (iv) all
governmental approvals shall have been obtained, which approvals the Issuers
deem necessary for the consummation of the Exchange Offer or Private Exchange;
(v) the tender of Registrable Notes shall be made in accordance with the
Exchange Offer or Private Exchange; and (vi) each Holder of Registrable
Securities exchanged in the Exchange Offer shall have made all of the representations
required to be made pursuant to Section 2(a) of this Agreement.


 


The Exchange Notes and the Private Exchange
Notes shall be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, with such changes as are
necessary to comply with the requirements of the SEC to effect or maintain the
qualification thereof under the TIA, and which, in either case, has been
qualified under the TIA or is exempt from such qualification and shall provide
that the Exchange Notes shall not be subject to the transfer restrictions set
forth in the Indenture.


 


(c)           If, (i) because of
any change in law or in currently prevailing interpretations of the staff of
the SEC, the Issuers are not permitted to effect the Exchange Offer,
(ii) the Exchange Offer is not consummated within 300 days of the Issue
Date; provided, however,
that if such 300th day would otherwise fall on a day that is not a
Business Day then such Exchange Offer must be consummated not later than the
next succeeding Business Day, (iii) the Initial Purchasers or any holder
of Private Exchange Notes so requests in writing to the Company at any time
after the consummation of the Exchange Offer, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does not receive
Exchange Notes on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the status of
such Holder as an affiliate of the Issuers


 


8





















 


within the meaning of the Securities Act) and
so notifies the Company within 30 days after such Holder first becomes aware of
such restrictions, in the case of each of clauses (i) to and including (iv) of
this sentence, then the Issuers shall promptly deliver to the Holders and the
Trustee written notice thereof (the “Shelf Notice”)
and shall file a Shelf Registration pursuant to Section 3 hereof.


 


3.                                      Shelf
Registration


 


If a Shelf Notice is delivered as
contemplated by Section 2(c) hereof, then:


 


(a)           Shelf Registration. The Issuers
shall as promptly as practicable file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Registrable Notes (the “Shelf Registration”).
The Issuers shall use their commercially reasonable efforts to file with the
SEC the Shelf Registration as promptly as practicable. The Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of
such Registrable Notes for resale by Holders in the manner or manners
designated by Holders of a majority of the aggregate principal amount of such
Registrable Notes participating in the Shelf Registration (including, without
limitation, one or more underwritten offerings). The Issuers shall not permit
any securities other than the Registrable Notes and the Guarantees to be included
in the Shelf Registration.


 


The Issuers
shall use their commercially reasonable efforts to cause the Shelf Registration
to be declared effective under the Securities Act on or prior to the Effectiveness
Date and to keep the Shelf Registration continuously effective under the Securities
Act until the date that is two years from the Issue Date or such shorter period
ending when all Registrable Notes covered by the Shelf Registration have been
sold or cease to be outstanding in the manner set forth and as contemplated in
the Shelf Registration (the “Effectiveness Period”);
provided, however,
that the Effectiveness Period in respect of the Shelf Registration shall be extended
to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and
as otherwise provided herein and shall be subject to reduction to the extent
that the applicable provisions of Rule 144(k) are amended or revised to
reduce the two year holding period set forth therein.


 


(b)           Withdrawal of Stop Orders. If the
Shelf Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the Notes
registered thereunder), the Issuers shall use their commercially reasonable efforts
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation of
effectiveness amend such Shelf Registration Statement in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof.


 


9

















 


(c)           Supplements and Amendments. The
Issuers shall promptly supplement and amend the Shelf Registration if required
by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes (or their counsel) covered by such Registration
Statement with respect to the information included therein with respect to one
or more of such Holders, or by any underwriter of such Registrable Notes with respect
to the information included therein with respect to such underwriter.


 


(d)           Delay or Suspension of Shelf Registration
Effectiveness. Each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company or any Guarantor of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv)or
5(c)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof and, if so directed by the Company or any Guarantor, such
Holder will deliver to the Company and the Guarantors all copies in its possession,
other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice. If the Company or any Guarantor shall give any notice pursuant to
this Section 3(d) to delay or suspend the disposition of Registrable Securities
pursuant to a Shelf Registration, the Company and the Guarantors shall extend
the period during which such Shelf Registration shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders of such Registrable Securities shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The
Company and the Guarantors may give any such notice only twice during any
365-day period and any such delays and suspensions shall not exceed 60 days in
the aggregate and there shall not be more than two suspensions in effect during
any 365-day period.


 


4.                                      Additional
Interest


 


(a)           The Issuers and the Initial
Purchasers agree that the Holders will suffer damages if the Issuers fail to
fulfill their obligations under Section 2 or Section 3 hereof and
that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree that, as liquidated damages, the
interest rate on the Notes will increase (“Additional Interest”)
under the circumstances and to the extent set forth below (each of which shall
be given independent effect):


 


(i)      if
(A) neither the Exchange Offer Registration Statement nor the Shelf
Registration has been filed on or prior to the Filing Date applicable thereto
or (B) notwithstanding that the Issuers have consummated or will consummate the
Exchange


 


10





















 


Offer, the
Issuers are required to file a Shelf Registration and such Shelf Registration
is not filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.25% per annum for
the first 90 days immediately following such applicable Filing Date, and such
Additional Interest rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90 day period; or


 


(ii)     if
(A) neither the Exchange Offer Registration Statement nor the Shelf
Registration is declared effective by the SEC on or prior to the Effectiveness
Date applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are required to
file a Shelf Registration and such Shelf Registration is not declared effective
by the SEC on or prior to the Effectiveness Date applicable to such Shelf
Registration, then, commencing on the day after such Effectiveness Date,
Additional Interest shall accrue on the principal amount of the Notes at a rate
of 0.25% per annum for the first 90 days immediately following the day after
such Effectiveness Date, and such Additional Interest rate shall increase by an
additional 0.25% per annum at the beginning of each subsequent 90 day period;
or


 


(iii)    if
(A) the Issuers have not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior to the 300th
day after the Issue Date; provided, however, that if such 300th day would otherwise fall on a
day that is not a Business Day, then such Exchange Offer must be consummated
not later than the next succeeding Business Day; or (B) if applicable, a
Shelf Registration has been declared effective and such Shelf Registration
ceases to be effective or usable by the Holders for any reason for 30 days in
the aggregate in any consecutive twelve-month period during the Effectiveness
Period, then Additional Interest shall accrue on the principal amount of the
Notes at a rate of 0.25% per annum for the first 90 days commencing on the
(x) 300th day after the Issue Date, in the case of (A) above, or (y) the
day such Shelf Registration ceases to be effective or usable in the case of (B)
above, and such Additional Interest rate shall increase by an additional 0.25%
per annum at the beginning of each such subsequent 90 day period;


 


provided,
however, that (1) the Additional
Interest rate on the Notes may not accrue under more than one of the foregoing
clauses (i)-(iii) at any one time and at no time shall the aggregate amount of
Additional Interest accruing exceed in the aggregate 1.0% per annum; provided, further, however, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4),
(2) upon the effectiveness of the Exchange Offer Registration Statement or
the applicable Shelf Registration Statement as required hereunder (in the case
of clause (ii) of this Section 4), or (3) upon the exchange of the
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the


 


11

















 


applicable
Shelf Registration Statement which had ceased to remain effective (in the case
of (iii)(B) of this Section 4), Additional Interest on the Notes in
respect of which such events relate as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue. Notwithstanding
any other provision of this Section 4, the Issuers shall not be obligated to
pay Additional Interest required by Section 4(a)(i)(B), 4(a)(ii)(B) or
4(a)(iii)(B) during any delay or suspension of the effectiveness of a Shelf Registration
pursuant to Section 4(d).


 


(b)           The Issuers shall
notify the Trustee within three Business Days after each and every date on
which an event occurs in respect of which Additional Interest is required to be
paid (an “Event Date”). Any amounts of
Additional Interest due pursuant to clause (a) of this Section 4 will be
payable in cash semiannually on each February 1 and August 1 (to the holders of
record on the January 15 and July 15 immediately preceding such dates),
commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360. No
Additional Interest shall accrue with respect to Notes that are not Registrable
Notes.


 


5.                                      Registration
Procedures


 


In connection with the filing of any
Registration Statement pursuant to Section 2 or 3 hereof, the Issuers
shall effect such registrations to permit the sale of the securities covered
thereby in accordance with the intended method or methods of disposition thereof,
and pursuant thereto and in connection with any Registration Statement filed by
the Issuers hereunder, each of the Issuers shall:


 


(a)           Prepare
and file with the SEC prior to the applicable Filing Date a Registration
Statement or Registration Statements as prescribed by Section 2 or 3
hereof, and use its commercially reasonable efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided, however, that if
(1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained
in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any Participating
Broker-Dealer in the Exchange Offer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Issuers shall furnish to and afford the
Holders of the Registrable Notes to be named in such Registration Statement or
each such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, a reasonable


 


12

















 


opportunity to review copies of all such documents (including copies of
any documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least five Business Days prior to such
filing). The Issuers shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Initial Purchasers or the Holders
of a majority in aggregate principal amount of the Registrable Notes to be
named in such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object within five (5) Business Days.


 


(b)           Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period, the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424, if required;
and comply in all material respects with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by an Participating Broker-Dealer covered by any such Prospectus.


 


(c)           If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom the Company has received written
notice that it will be a Participating Broker-Dealer in the Exchange Offer, notify
the selling Holders of Registrable Notes to be named in any Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any event
within two Business Days) in writing, (i) when a Registration Statement has
been filed and has become effective under the Securities Act, (ii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
prospectus or the initiation of any proceedings for that purpose, (iii) of the
receipt by any Issuer of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or
any of the Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (iv) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement made in
such Registration Statement or any document incorporated therein by reference untrue
in any material respect or that requires the making of any changes in or amendments
or supplements to such Registration Statement or documents so that the Registration


 


13

















 


Statement will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (v) of the Issuers’
determination that a post-effective amendment to a Registration Statement would
be appropriate.


 


(d)           Use
its commercially reasonable efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order preventing
or suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Notes or the Exchange Notes, for
sale in any jurisdiction, and, if any such order is issued, to use its commercially
reasonable efforts to obtain the withdrawal of any such order at the earliest
practicable moment.


 


(e)           If
a Shelf Registration is filed pursuant to Section 3 and if requested
during the Effectiveness Period by the managing underwriter or underwriters (if
any), the Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) as promptly as practicable incorporate in
a prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them reasonably request to be included
therein and (ii) make all required filings of any supplement or amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such supplement or amendment.


 


(f)            If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes to
be named in any Registration Statement and to each such Participating
Broker-Dealer who so requests and to their respective counsel and each managing
underwriter, if any, at the sole expense of the Issuers, one conformed copy of
the Registration Statement or Registration Statements, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits and as many
copies of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and any documents incorporated by reference therein as such Persons
may reasonably request; and, subject to the last paragraph of this
Section 5, the Issuers hereby consent to the use of such Prospectus by
each of the selling Holders of Registrable Notes named therein or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers, if any, in connection with the offering and sale
of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus.


 


14

















 


(g)           Prior
to any public offering of Registrable Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the  Applicable Period, use commercially
reasonable efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes to be named in the Registration Statement or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or qualification)
of such Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as Holders of a majority of
the aggregate principal amount being registered thereby, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request
in writing; provided, however,
that no Issuer shall be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject.


 


(h)           If
a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the
selling Holders of Registrable Notes and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Registrable Notes to be in such
denominations (subject to applicable requirements contained in the Indenture)
and registered in such names as the managing underwriter or underwriters, if
any, or Holders may request.


 


(i)            Use
its commercially reasonable efforts to cause the Registrable Notes covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof or the underwriter or underwriters, if any, to consummate
the disposition of such Registrable Notes, except as may be required solely as
a consequence of the nature of such selling Holder’s business, in which case
the Issuers will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.


 


(j)            Upon
the occurrence of any event contemplated by paragraph 5(c)(ii), 5(c)(iv)
or 5(c)(v) hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Issuers, a supplement or
post-effective amendment to the Registration Statement or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that any such Prospectus will not contain an untrue
statement of a material fact or


 


15

















 


omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.


 


(k)           Use
its commercially reasonable efforts to cause the Registrable Notes covered by a
Registration Statement or the Exchange Notes, as the case may be, to be rated
with the appropriate rating agencies (unless such Notes are already so rated),
if so requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the Exchange Notes,
as the case may be, or the managing underwriter or underwriters, if any.


 


(l)            Prior
to the effective date of the first Registration Statement relating to the
Registrable Notes, (i) provide the Trustee with certificates for the Registrable
Notes in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Notes.


 


(m)          In
connection with any underwritten offering of Registrable Notes pursuant to a
Shelf Registration, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Notes, and take all
such other actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuers (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the Notes,
and confirm the same in writing if and when requested; (ii) obtain the
written opinions of counsel to the Issuers, and written updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter
or underwriters, addressed to the underwriters covering the matters customarily
covered in opinions reasonably requested in underwritten offerings;
(iii) obtain “cold comfort” letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of the Issuers,
or of any business acquired by the Issuers, for which financial statements and
financial data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type customarily covered
in “cold comfort” letters in connection with underwritten offerings of debt
securities similar to the Notes; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
no less favorable to the sellers and underwriters, if any, than those set forth
in Section 7


 


16

















 


hereof (or such other provisions and procedures reasonably acceptable
to Holders of a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement and the managing underwriter or
underwriters or agents, if any) with respect to all parties to be indemnified pursuant
thereto. The above shall be done at each closing under such underwriting
agreement, or as, and to the extent, required thereunder.


 


(n)           If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any Initial Purchaser,
any selling Holder of such Registrable Notes being named in any Registration
Statement or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable Notes, if any,
and any attorney, accountant or other agent retained by any such selling Holder
or each such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, or underwriter (any such Initial Purchaser,
Holders, Participating Broker-Dealers, underwriters, attorneys, accountants or
agents, collectively, the “Inspectors”),
upon written request, at the offices where normally kept, during reasonable
business hours, all pertinent financial and other records, pertinent corporate
documents and instruments of the Issuers and subsidiaries of the Company (collectively,
the “Records”), as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Issuers and any of their respective subsidiaries, if any, to supply all
information (“Information”) reasonably
requested by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep the
Records and Information confidential and that it will not disclose any of the
Records or Information unless (i) the disclosure of such Records or
Information is necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records or
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such Records or Information is
necessary or advisable, in the opinion of counsel for any Inspector, in
connection with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of, based
upon, relating to, or involving this Agreement or the Purchase Agreement, or
any transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records or Information has
been made generally available to the public other than through disclosure by an
Inspector or an “affiliate” (as defined in Rule 405) thereof; provided, however, that
prior notice shall be provided as soon as practicable to any Issuer of the
potential disclosure of any information by such Inspector pursuant to
clause (i), (ii) or (iii) of this sentence


 


17

















 


to permit the Issuers to undertake appropriate action to prevent
disclosure of such Records or Information at the Issuers’ expense.


 


(o)           Cause
the Indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement required by this Agreement and, in
connection therewith, cooperate with the trustee under the Indenture and the
Holders of the Registrable Notes, to effect such changes (if any) to the Indenture
as may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its commercially reasonable efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.


 


(p)           Comply
in all material respects with all applicable rules and regulations of the SEC
and make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any fiscal quarter (or 90 days after
the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable Notes
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company, after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.


 


(q)           Upon
consummation of the Exchange Offer or a Private Exchange, or if so requested by
the Trustee, obtain an opinion of counsel to the Issuers, in a form customary
for underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, the related guarantees and the Indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their respective terms, subject to customary exceptions
and qualifications. If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Company
(or to such other Person as directed by the Company), in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Issuers
shall mark, or cause to be marked, on such Registrable Notes that such Registrable
Notes are being canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.


 


18

















 


(r)            Cooperate
with each Holder of Registrable Notes covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. (the “NASD”).


 


(s)           Use
its commercially reasonable efforts to take all other steps necessary to effect
the registration of the Exchange Notes and/or Registrable Notes covered by a
Registration Statement contemplated hereby.


 


The Issuers may require each Holder of
Registrable Notes as to which any registration is being effected to furnish to
the Issuers such information regarding such Holder and the distribution of such
Registrable Notes as the Issuers may, from time to time, reasonably request. The
Issuers may exclude from such registration the Registrable Notes of any Holder so
long as such Holder fails to furnish such information within a reasonable time
after receiving such request and the failure to include any such Holder shall
not be deemed to be a default hereunder. Each Holder as to which any Shelf Registration
is being effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously furnished
to the Issuers by such Holder not materially misleading.


 


If any such Registration Statement refers to
any Holder by name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right to require (i) the insertion therein
of language, in form and substance reasonably satisfactory to such Holder, to
the effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or
(ii) in the event that such reference to such Holder by name or otherwise
is not required by the Securities Act or any similar federal statute then in
force, the deletion of the reference to such Holder in any amendment or
supplement to the Registration Statement filed or prepared subsequent to the
time that such reference ceases to be required.


 


Each Holder of Registrable Notes and each
Participating Broker-Dealer agrees by its acquisition of such Registrable Notes
or Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, that, upon actual receipt of any notice from the Company of a delay or
suspension of the effectiveness of a Shelf Registration pursuant to Section
4(d) or of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iv), or 5(c)(v) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, until the end of such delay or suspension and
such Holder’s or Participating Broker-Dealer’s receipt of the copies of any supplemented
or amended Prospectus contemplated by Section 5(j) hereof, or until it is
advised in


 


19

















 


writing (the “Advice”) by the Issuers that the use
of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Issuers shall give any
such notice, each of the Applicable Period and the Effectiveness Period shall
be extended by the number of days during such periods from and including the
date of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes, as
the case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof or (y) the
Advice.


 


6.                                      Registration
Expenses


 


All fees and expenses incident to the
performance of or compliance with this Agreement by the Issuers (other than any
underwriting discounts or commissions) shall be borne by the Issuers, whether
or not the Exchange Offer Registration Statement or any Shelf Registration
Statement is filed or becomes effective or the Exchange Offer is consummated,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made
with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws),
(ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses,
(iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for, and other Persons retained by, the Issuers and,
in the case of a Shelf Registration, reasonable fees and disbursements of one
special counsel for all of the sellers of Registrable Notes, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any “cold
comfort” letters required by or incident to such performance),
(vi) internal expenses of the Issuers (including, without limitation, all
salaries and expenses of officers and employees of the Issuers performing legal
or accounting duties), (vii) the expense of any annual audit and (viii) any
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable.


 


7.                                      Indemnification
and Contribution


 


(a)           Each of the Issuers
agree, jointly and severally, to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, and each Person, if any, who controls such Person
or its affiliates within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, a “Participant”)
against any losses, claims, damages or liabilities to which any Participant may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:


 


20





















 


(i)      any
untrue statement or alleged untrue statement made by any Issuer contained in
any application or any other document or any amendment or supplement thereto
executed by any Issuer based upon written information furnished by or on behalf
of any Issuer filed in any jurisdiction in order to qualify the Notes under the
securities or Blue Sky laws thereof or filed with the SEC or any securities
association or securities exchange (each, an “Application”);


 


(ii)     any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus; or


 


(iii)    the
omission or alleged omission to state, in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus or any Application or any other document or any amendment or
supplement thereto, a material fact required to be stated therein or necessary
to make the statements therein not misleading;


 


and will
reimburse, as incurred, the Participant for any reasonable legal or other
expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided,
however, the Issuers will not be liable
in any such case (i) to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Statement or
any preliminary prospectus or Application or any amendment or supplement
thereto in reliance upon and in conformity with information relating to any
Participant furnished to the Issuers by such Participant specifically for use
therein and (ii) if such Participant sold to the person asserting the claim the
Registrable Notes or Exchange Notes that are the subject of such claim and such
untrue statement or alleged untrue statement or omission or alleged omission
was contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto and the Prospectus does not contain any
other untrue statement or omission of a material fact that was the subject
matter of the related proceeding and it is established by the Issuers in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance with the Issuers with Section 7 of this Agreement. The indemnity
provided for in this Section 7 will be in addition to any liability that
the Issuers may otherwise have to the indemnified parties. The Issuers shall
not be liable under this Section 7 for any settlement of any claim or
action effected without its prior written consent, which shall not be unreasonably
withheld.


 


21





















 


(b)           Each Participant,
severally and not jointly, agrees to indemnify and hold harmless the Issuers,
their directors, their officers and each Person, if any, who controls the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Issuers or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Application, Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material
fact necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning such Participant, furnished
to the Issuers by the Participant, specifically for use therein; and subject to
the limitation set forth immediately preceding this clause, will reimburse, as
incurred, any reasonable legal or other expenses incurred by the Issuers or any
such director, officer or controlling person in connection with investigating
or defending against or appearing as a third party witness in connection with
any such loss, claim, damage, liability or action in respect thereof. The
indemnity provided for in this Section 7 will be in addition to any
liability that the Participants may otherwise have to the indemnified parties. The
Participants shall not be liable under this Section 7 for any settlement
of any claim or action effected without their consent, which shall not be
unreasonably withheld. The Issuers shall not, without the prior written consent
of such Participant, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Participant is or could have been
a party, or indemnity could have been sought hereunder by any Participant,
unless such settlement (A) includes an unconditional written release of
the Participants, in form and substance reasonably satisfactory to the
Participants, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Participant.


 


(c)           Promptly after receipt
by an indemnified party under this Section 7 of notice of the commencement
of any action for which such indemnified party is entitled to indemnification
under this Section 7, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party of the commencement thereof in writing; but the
omission to so notify the indemnifying party (i) will not relieve it from
any liability under paragraph (a) or (b) above unless and to the extent such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying


 


22





















 


party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however,
that if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after receipt by the indemnifying party of notice of the institution of such
action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal
or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially similar
actions in the same jurisdiction arising out of the same general allegations or
circumstances, designated by Participants who sold a majority in interest of
the Registrable Notes and Exchange Notes sold by all such Participants in the
case of paragraph (a) of this Section 7 or the Issuers in the case of
paragraph (b) of this Section 7, representing the indemnified parties
under such paragraph (a) or paragraph (b), as the case may be, who
are parties to such action or actions) or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this
Section 7, in which case the indemnified party may effect such a
settlement without such consent.


 


(d)           In circumstances in
which the indemnity agreement provided for in the preceding paragraphs of this
Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof), each indemnifying party, in order to provide for
just and equitable contribution, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses,


 


23





















 


claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Notes or (ii)
if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and such Participant on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) of the Notes received by the Issuers bear to the total net profit received
by such Participant in connection with the sale of the Notes. The relative
fault of the parties 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 the Issuers on the one hand, or the Participants on the other, the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission,
and any other equitable considerations appropriate in the circumstances. The parties
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Participant shall be obligated to
make contributions hereunder that in the aggregate exceed the total net profit received
by such Participant in connection with the sale of the Notes, less the
aggregate amount of any damages that such Participant has otherwise been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this paragraph (d), each
person, if any, who controls a Participant within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Participants, and each director of any
Issuer, each officer of any Issuer and each person, if any, who controls any
Issuer within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Issuers.


 


8.                                      Rules
144 and 144A


 


For so long as the Registrable Notes remain
outstanding, each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time such Issuer is not required to file such reports, such
Issuer will, upon the request of any Holder or beneficial owner of Registrable
Notes, make available such


 


24

















 


information
necessary to permit sales pursuant to Rule 144A. Each of the Issuers
further covenants and agrees, for so long as any Registrable Notes remain
outstanding that it will take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.


 


9.                                      Underwritten
Registrations


 


If any of the Registrable Notes covered by
any Shelf Registration are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will manage the
offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Notes included in such offering and shall be
reasonably acceptable to the Issuers.


 


No Holder of Registrable Notes may
participate in any underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder’s Registrable Notes on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.


 


10.                               Miscellaneous


 


(a)           No
Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuers’ other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with respect to any of their securities which will grant to any
Person piggy-back registration rights with respect to any Registration Statement.


 


(b)           Adjustments
Affecting Registrable Notes. The Issuers shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.


 


(c)           Amendments
and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Company, and (II)(A) the Holders of not less than
a majority in aggregate principal amount of the


 


25





















 


then outstanding Registrable Notes and
(B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section 10(c) may
not be amended, modified or supplemented without the prior written consent of
each Holder and each Participating Broker-Dealer (including any person who was
a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes,
as the case may be, disposed of pursuant to any Registration Statement) affected
by any such amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Notes whose securities are being sold pursuant to a Registration
Statement may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Notes being sold pursuant to such Registration
Statement.


 


(d)           Notices.
All notices and other communications (including, without limitation, any
notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:


 


(i)            if
to a Holder of the Registrable Notes or any Participating Broker-Dealer, at the
most current address of such Holder or Participating Broker-Dealer, as the case
may be, set forth on the records of the registrar under the Indenture, with a
copy in like manner to the Initial Purchasers as follows:


 


Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

Facsimile No.:  [                        ]

Attention:  Corporate Finance Department


 


and


 


Morgan Stanley & Co. Incorporated

1585 Broadway

New York, New York 10036

Facsimile No.:  [                         ]

Attention:  Corporate Finance Department


 


26

















 


with a copy to:



Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

Facsimile No.:  (212) 269-5420

Attention:  John Tripodoro, Esq.


 


(ii)           if
to the Initial Purchasers, at the addresses specified and with a copy as
specified in Section 10(d)(i);


 


(iii)          if
to the Issuers, at the address as follows:


 


MxEnergy Holdings Inc.

595 Summer Street

Stamford, CT 06901

Facsimile No.:  [                        ]

Attention:  Tom Hartmann, Esq.


 


with a copy to:


 


Paul, Hastings, Janofsky & Walker LLP

75 East 55th Street

New York, New York 10022

Facsimile No.:  (212) 319-4090

Attention:  Michael Chernick, Esq.


 


All such notices and communications shall be
deemed to have been duly given:  when
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier; and when receipt is acknowledged by
the addressee, if sent by facsimile.


 


Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee at the address and in the manner specified in such Indenture.


 


(e)           Successors
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto, the Holders
and the Participating Broker-Dealers; provided, however, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Notes in violation of
the terms of the Purchase Agreement or the Indenture.


 


27





















 


(f)            Counterparts.
This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.


 


(g)           Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.


 


(h)           Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW.


 


(i)            Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.


 


(j)            Securities
Held by the Issuers or Their Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is required
hereunder, Registrable Notes held by the Issuers’ affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.


 


(k)           Third-Party
Beneficiaries. Holders of Registrable Notes and Participating
Broker-Dealers are intended third-party beneficiaries of this Agreement, and
this Agreement may be enforced by such Persons.


 


(l)            Entire
Agreement. This Agreement, together with the Purchase Agreement
and the Indenture, is intended by the parties as a final and exclusive statement
of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or


 


28





















 


successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced hereby.


 


29





















 


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


 


	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Executive Vice President,
  Chief

  
	
   

  	
   

  	
  Operating Officer and
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
						



 


S-1

















 


	
   

  	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY GAS CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
					



 


S-2

















 


	
   

  	
  MXENERGY ELECTRIC CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Chief Operating Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOTAL GAS & ELECTRICITY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOTAL GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief Operating Officer

  
					



 


S-3

















 


The foregoing Agreement is hereby confirmed
and accepted as of the date  first above
written.


 


 


	
  DEUTSCHE BANK SECURITIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  Thomas Cole

  	
   

  
	
   

  	
  Name: Thomas
  Cole

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  David J. Crescenzi

  	
   

  
	
   

  	
  Name: David
  J. Crescenzi

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  MORGAN
  STANLEY & CO. INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  Todd J. Singer

  	
   

  
	
   

  	
  Name: Todd
  J. Singer

  
	
   

  	
  Title:
  Executive Director

  



 


S-4