Exhibit 10.46
HOUSTONSTREET EXCHANGE, INC.
THIRD AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
THIS AGREEMENT, as amended and restated, (the "Agreement") is dated as
of March 30, 2001 and is entered into by and among HoustonStreet Exchange, Inc.,
a Delaware corporation, (the "Company"), those holders of shares of the
Company's Common Stock, par value $.01 per share ("Common Stock"), Series A
Convertible Preferred Stock, par value $.01 per share (the "Series A Stock"),
and Series B Convertible Preferred Stock, par value $.01 per share (the "Series
B Stock") listed on SCHEDULE A hereto, and purchasers of units consisting of (x)
Senior Secured Notes (the "Notes"), (y) Warrants to purchase shares of the
Company's Series C Convertible Preferred Stock, par value $.01 per share (the
"Series C Stock") (the "Series C Warrants"), and (z) Warrants to purchase shares
of Common Stock (the "Common Stock Warrants") (the "Unit Purchasers") listed on
SCHEDULE A hereto.
For the purposes of this Agreement, the term "Unit" or "Units" shall
mean the units consisting of the Notes, the Series C Warrants and the Common
Stock Warrants; provided that any restriction or right which applies to a Unit
shall also apply to the individual components thereof to the extent that they no
longer constitute a Unit.
RECITALS
1. BayCorp Holdings, Ltd., a Delaware corporation ("BayCorp"),
Equiva Trading Company, a Delaware general partnership ("Equiva"), Enron Net
Works LLC, a Delaware limited liability company ("Enron"), and those other
persons identified on SCHEDULE A comprise all the holders of shares of Common
Stock, each holding the number of shares of Common Stock listed on SCHEDULE A.
2. The Company has issued shares of its Series A Stock
pursuant to a Series A Convertible Preferred Stock Purchase Agreement dated as
of February 2, 2000; has issued shares of its Series B Convertible Preferred
Stock pursuant to a Series B Convertible Preferred Stock Purchase Agreement
dated as of March 31, 2000; and has issued Units pursuant to a Senior Secured
Note and Warrant Purchase Agreement of even date (the "Note and Warrant Purchase
Agreement"). The holders of Series A Stock, Series B Stock and Series C Stock
are sometimes referred to in this Agreement individually as a "Preferred Holder"
and collectively the "Preferred Holders," and collectively, the Preferred
Holders, the Unit Purchasers and the holders of the shares of Common Stock
listed on SCHEDULE A and any of their respective transferees who become a party
to this Agreement pursuant to Section 7.1 hereof are referred to herein as the
"Stockholders."
3. Enron purchased 1,781,043 shares of Common Stock pursuant
to that certain Common Stock Purchase Agreement by and between the Company and
Enron dated as of
1
September 20, 2000 (the "Enron Stock Purchase Agreement") and Enron may be
entitled to receive an additional 763,305 shares of Common Stock pursuant to the
Enron Stock Purchase Agreement.
4. In connection with the Enron Stock Purchase Agreement, on
December 4, 2000, the Company issued to Enron a warrant (which, when
exercisable, will be defined as the "Enron Warrant") to purchase a minimum of
2,544,347 shares of Common Stock (or such number of shares of Common Stock equal
to ten 10% of the outstanding Common Stock on the date of exercise of the Enron
Warrant) pursuant to a Warrant Agreement dated as of September 20, 2000.
5. The Company, certain holders of shares of Common Stock and
certain holders of Series A Stock originally entered into this agreement in
furtherance of their desire to protect the management and control of the Company
from influence by any person not acceptable to the Stockholders and to assist
the Preferred Holders in selling their Co-Sale Shares (as defined below). They,
together with the holders of the Series B Stock, amended and restated the
original agreement as of February 2, 2000 to enable the holders of Series B
Stock to become parties to the agreement. They, together with Enron amended and
restated the agreement as of December 4, 2000 (the "Existing Agreement") to
enable Enron to become a party to the Existing Agreement.
6. The holders of shares of Common Stock, Series A Stock,
Series B Stock, Enron and the Unit Purchasers now desire to amend and restate
the Existing Agreement in the manner set forth below and to add the Unit
Purchasers as parties to this Agreement.
7. (a) As used in this Agreement, (i) the term "Shares" shall
include (A) all shares of capital stock of the Company held by the Stockholders,
whether now owned or hereafter acquired, (B) the Enron Warrant, (C) the Common
Stock Warrants and (D) the Series C Warrants and (ii) the term "Preferred Stock"
shall include all shares of Series A Stock, Series B Stock and Series C Stock.
(b) For purposes of calculating any Stockholder's "pro rata"
ownership of Shares, (i) all of the Common Stock Warrants, Series C Stock
Warrants and the Enron Warrant (when it becomes exercisable) shall be deemed to
have been exercised, (ii) all shares of Preferred Stock of the Company shall be
deemed to have been converted into Common Stock and (iii) a Stockholder's "pro
rata ownership interest" shall equal a fraction, (A) the numerator of which
equals the number of Shares then owned by that Stockholder and (B) the
denominator of which equals the aggregate number of Shares then owned by all
Stockholders.
(c) For purposes of calculating any Stockholder's "pro rata"
ownership of the Notes, a Stockholder's "pro rata ownership interest" shall
equal a fraction, (i) the numerator of which equals the aggregate principal
amount and accrued and unpaid interest outstanding under the Notes then owned by
that Stockholders and (ii) the denominator of which equals the aggregate
principal amount and accrued and unpaid interest outstanding under all the Notes
then owned by all Stockholders.
2
8. (a) As used in this Agreement, the term "Co-Sale Shares"
means the shares of (i) the Preferred Stock of the Company and, without
duplication, the shares of the Common Stock issued or issuable upon conversion
of the Preferred Stock of the Company (assuming exercise of the Series C Stock
Warrants), (ii) the shares of Common Stock listed on SCHEDULE A as owned by
Enron, the shares of Common Stock listed on SCHEDULE A to which Enron may be
entitled to pursuant to the Enron Stock Purchase Agreement and, without
duplication, the shares of Common Stock issued or issuable upon exercise of the
Enron Warrant, (iii) the shares of Common Stock issued or issuable upon exercise
of the Common Stock Warrants, (iv) the Common Stock Warrants, (v) the Series C
Warrants, and (vi) the Enron Warrant. Without limiting the preceding sentence,
the shares of the Common Stock listed on SCHEDULE A as owned by Equiva, BayCorp,
Xxxxxx X. Xxx Investors Limited Partnership, TSG Equity Fund, L.P., TSG Equity
Partners LLC, Xxxxxx X. Xxxxxxxx, T. Xxxxxxxxx Xxxxxxxx and Xxxxx X. Xxxxxx are
not Co-Sale Shares.
(b) As used in this Agreement, the term "Co-Sale Notes" means
all the Notes.
NOW, THEREFORE, for valuable consideration, it is agreed as
follows.
1. Restrictions on Transfer.
1.1. Any sale, transfer or other disposition, including without
limitation, any pledge or hypothecation, whether voluntarily or by
operation of law ("Transfer") of any of the Shares or Notes by any of
the Stockholders, other than according to the terms of this Agreement,
shall be void and transfer no right, title or interest in or to any of
such Shares or Notes, as the case may be, to the purported transferee.
1.2. An original copy of this Agreement, duly executed by each of the
parties hereto, shall be delivered to the Secretary of the Company and
maintained at the principal executive office of the Company and made
available for inspection by any person requesting it.
1.3. Each of the Stockholders agrees to present the certificates
representing the Shares presently owned or hereafter acquired by it to
the Secretary of the Company and allow the Secretary to stamp on the
certificate in a prominent manner the following legend:
"The sale or other disposition of any of the shares
represented by this certificate is restricted by a Right of
First Refusal and Co-Sale Agreement, dated as of March 30,
2001, as amended from time to time, among certain of the
stockholders of this Company and this Company (the
"Agreement"). A copy of the Agreement is available for
inspection during normal business hours at the principal
executive office of this Company."
2. Transfers Not Subject to Restrictions.
2.1. A bona fide pledge of Shares or Notes by a Stockholder wherein the
pledgee
3
agrees in writing to be bound by the provisions of this Agreement as
and to the same extent as the Stockholders shall not be deemed to
violate the provisions of Section 1.1.
2.2. The rights of the Company and the Stockholders under Sections 4
and 5 hereof shall not apply to any Transfer of Shares or Notes by a
Stockholder to any person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, that Stockholder (the "Affiliate"), provided the
Affiliate provides the Company and the Stockholders with a written
agreement to be bound hereby to the same extent as the Stockholders.
2.3. The rights of the Company and the Stockholders under Section 4 and
5 hereof shall not apply to any Transfer of Shares or Notes by BayCorp
that involves the spinoff of its Shares or Notes offered to
substantially all stockholders of BayCorp or any similar transaction
that results in stockholders of BayCorp acquiring Shares or Notes or
the right to acquire Shares or Notes from BayCorp, such Shares or Notes
or right to acquire Shares or Notes in an amount that is pro rata to
each such stockholder's holdings of BayCorp capital stock.
2.4. The rights of the Company and the Stockholders under Section 4 and
5 hereof shall not apply to (a) the first 1,000,000 shares of Common
Stock that BayCorp transfers (in addition to any exempted Transfers
pursuant to Section 2.3) and (b) the first 481,500 shares of Common
Stock that Equiva transfers, in each case such number of shares to be
adjusted for stock splits, stock dividends, recapitalizations and other
similar events.
2.5 The rights of the Company and the Stockholders under the last
sentence of Section 3.2, Section 3.3, Section 4, Section 5 and Section
6 hereof shall not apply to any Transfer by Enron to (a) any person or
entity that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with Enron (an
"Enron Affiliate") or (b) any person or entity in which an Enron
Affiliate serves as the general partner, managing member, or in a
similar capacity; provided that any transferee pursuant to clauses (a)
or (b) shall provide the Company with a written undertaking to be bound
hereby to the same extent as the Stockholders. For purposes of this
Section 2.5, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through
ownership, by contract or otherwise.
3. Offer of Sale; Notice of Proposed Sale.
3.1. If a Stockholder desires to transfer any of its Shares or Notes,
or any interest in its Shares or Notes, in any transaction other than a
Transfer specified in Section 2 of this Agreement, that Stockholder
(the "Initial Selling Stockholder") shall first deliver written notice
of its desire to do so (the "Notice") to the Company and each of the
Stockholders, in the manner prescribed in Section 10.4 of this
Agreement.
3.2. The Notice must specify: (i) the name and address of the party to
which the Initial Selling Stockholder proposes to transfer the Shares
or Notes, as the case may be,
4
or an interest in the Shares or Notes, as the case may be (the
"Offeror"), (ii) the number of Shares or Notes, as the case may be, the
Initial Selling Stockholder proposes to transfer (the "Offered Shares
or Notes"), (iii) the consideration per Share or Note, as the case may
be, to be delivered to the Initial Selling Stockholder for the proposed
Transfer, (iv) all other material terms and conditions of the proposed
transaction and (v) that the Offeror has agreed to purchase all of the
Offered Shares or Notes, as the case may be, on the terms and
conditions set forth in the Notice. The giving of the Notice shall
constitute an irrevocable offer by the Initial Selling Stockholder to
sell the Offered Shares or Notes, as the case may be, to the Company
and/or the Stockholders on the terms and conditions contained in the
Offer.
3.3. If a majority of the members of the Company's Board of Directors
(excluding members employed or designated by the Initial Selling
Stockholder) determine in good faith that the proposed transferee is a
direct competitor of the Company, then (i) the Company shall so inform
the Initial Selling Stockholder within 10 days after the Notice is
deemed to have been delivered to the Company and (ii) the Initial
Selling Stockholder shall not transfer any of its Shares or Notes, as
the case may be, to the proposed transferee.
4. Company's Option to Purchase.
4.1. Subject to Sections 4.5 and 6.1, the Company shall have the first
option to purchase all or any part of the Offered Shares or Notes, as
the case may be, for the consideration per share and on the same terms
and conditions specified in the Notice. The Company may only exercise
such option, if at all, by written notice to the Initial Selling
Stockholder and the other Stockholders no later than 15 days after the
Notice is deemed to have been delivered to the Company.
4.2. In the event the Company does not exercise its option within such
15-day period with respect to all of the Offered Shares or Notes, as
the case may be, the Company shall, by the last day of such period,
give written notice of that fact to the Initial Selling Stockholder and
the other Stockholders (the "Stockholder Notice"). The Stockholder
Notice shall specify the number of Offered Shares or Notes, as the case
may be, not to be purchased by the Company (the "Remaining Shares or
Notes").
4.3. In the event the Company duly exercises its option to purchase all
or any part of the Offered Shares or Notes, as the case may be, the
closing of such purchase shall take place at the offices of the Company
on the later of (i) the date five days after the expiration of such
15-day period, (ii) the date that the Stockholders consummate their
purchase of Remaining Shares or Notes under Section 5.3 hereof or (iii)
the date the Initial Selling Stockholder consummates its sale of the
Shares or Notes, as the case may be, to the Offeror.
4.4. To the extent that the consideration proposed to be paid by the
Offeror for the Offered Shares or Notes, as the case may be, consists
of property other than cash or a promissory note, the consideration
required to be paid by the Company and/or the
5
Stockholders exercising their options under Sections 4 and 5 hereof may
consist of cash equal to the value of such property, as determined in
good faith by agreement of the Initial Selling Stockholder and the
Company and/or the Stockholders acquiring such Offered Shares or Notes,
as the case may be. In the event the parties are unable to agree upon
the cash value of the property offered in consideration for the Offered
Shares or Notes, as the case may be, the value of such property shall
be determined by a firm of qualified independent appraisers of
recognized national standing selected by the Board of Directors of the
Company, whose determination shall be final and binding on all parties.
4.5. Notwithstanding anything to the contrary herein, neither the
Company nor any of the Stockholders shall have any right to purchase
any of the Offered Shares or Notes, as the case may be, hereunder
unless the Company and/or the Stockholders exercise their option or
options to purchase all of the Offered Shares or Notes, as the case may
be.
5. Stockholders' Option to Purchase.
5.1. Subject to Sections 4.5 and 6.1, each Stockholder shall have an
option, exercisable for a period of 15 days from the date of delivery
of the Stockholder Notice, to purchase, on a pro rata basis according
such Stockholder's "pro rata ownership interest" of Shares or Notes, as
the case may be, the Remaining Shares or Notes, as the case may be, for
the consideration per share and on the same terms and conditions set
forth in the Notice. Such options shall be exercised, if at all, by
delivery by such Stockholder of written notice to the Secretary of the
Company and the Initial Selling Stockholder. Alternatively, each
Stockholder that is a holder of Co-Sale Shares or Notes, as the case
may be, shall have the option, within the same 15-day period, to notify
the Secretary of the Company and the Initial Selling Stockholder of its
desire to participate in the sale of the Offered Shares or Notes, as
the case may be, on the same terms set forth in the Notice, and the
number of Co-Sale Shares or Notes, as the case may be, it wishes to
sell; provided that no Stockholder may exercise both of the foregoing
options.
5.2. In the event options to purchase have been exercised by the
Stockholders with respect to some but not all of the Remaining Shares
or Notes, as the case may be, those Stockholders who have validly
exercised their options within the 15-day period specified in Section
5.1 shall have an additional option, for a period of five days next
succeeding the expiration of such 15-day period, to purchase all or any
part of the balance of such Remaining Shares or Notes, as the case may
be, on the same terms and conditions set forth in the Notice, which
option shall be exercised by the delivery of written notice to the
Secretary of the Company and the Initial Selling Stockholder. In the
event there are two or more such Stockholders that choose to exercise
the last-mentioned option for a total number of Remaining Shares or
Notes, as the case may be, in excess of the number available, the
Remaining Shares or Notes, as the case may be, available for each such
Stockholder's option shall be allocated to such Stockholder pro rata
based on the "pro rata ownership interest" of Shares or Notes, as the
case may be, of the Stockholders so electing.
5.3. If the options to purchase the Remaining Shares or Notes, as the
case may be, are
6
exercised in full by the Stockholders, the Company shall immediately
notify all of the exercising Stockholders and the Initial Selling
Stockholder of that fact. The closing of the purchase of the Remaining
Shares or Notes, as the case may be, shall take place at the offices of
the Company or at such other place agreed upon by the parties no later
than seven days after the date of such notice to the Stockholders.
6. Failure to Fully Exercise Options; Co-Sale.
6.1. If the Company and the Stockholders do not exercise their options
to purchase all of the Offered Shares or Notes, as the case may be,
within the periods described in this Agreement (the "Option Period"),
then all options of the Company and the Stockholders to purchase the
Offered Shares or Notes, as the case may be, whether exercised or not,
shall terminate, but each holder of Co-Sale Shares or Notes, as the
case may be, which has given notice pursuant to Section 5 of such
holder's desire to sell Co-Sale Shares or Notes, as the case may be, in
the transaction (a "Participating Co-Sale Seller"), shall be entitled
to do so pursuant to this Section. The Company shall promptly, on
expiration of the Option Period, notify the Offeror and the Initial
Selling Stockholder of the aggregate number of Co-Sale Shares or Notes,
as the case may be, the Participating Co-Sale Sellers wish to sell. The
Initial Selling Stockholder shall use its commercially reasonable
efforts to interest the Offeror in purchasing, in addition to the
Offered Shares or Notes, as the case may be, the Co-Sale Shares or
Notes, as the case may be, that the Participating Co-Sale Sellers wish
to sell. If the Offeror does not wish to purchase all of the Co-Sale
Shares or Notes, as the case may be, made available by the Initial
Selling Stockholder and the Participating Co-Sale Sellers, then each
Participating Co-Sale Seller and the Initial Selling Stockholder shall
be entitled to sell, at the price (subject to adjustment as described
below) and on the same terms and conditions set forth in the Notice (or
in the case of a Participating Co-Sale Seller offering Co-Sale Shares
that are shares of Preferred Stock of the Company when the Initial
Selling Stockholder offers shares of Common Stock, then such terms and
conditions as would result if such offered Co-Sale Shares were deemed
to have been converted into Common Stock), its "pro rata portion" of
the Shares or Notes, as the case may be, being sold to the Offeror. In
determining the "pro rata portion" of the Shares being sold to the
Offeror of a Participating Co-Sale Seller or an Initial Selling
Stockholder for purposes of this Section 6, (i) all shares of Preferred
Stock shall be deemed to have been converted into Common Stock, and
(ii) a Participating Co-Sale Seller's or an Initial Selling
Stockholders' "pro rata portion" shall be represented by a fraction,
(A) the numerator of which equals the number of Shares (on an
as-converted basis) then owned by the Participating Co-Sale Seller or
the Initial Selling Stockholder and (B) the denominator of which equals
the aggregate number of Shares (on an as-converted basis) then owned by
the Initial Selling Stockholder and all of the Participating Co-Sale
Sellers; provided, that, to the extent that (a) the Offered Shares
consist of capital stock of the Company and the Co-Sale Shares consist
of the Enron Warrant, the Common Stock Warrants or the Series C
Warrants (collectively, the "Warrants"), the price for such Warrants
shall be discounted by then current exercise price of such
7
Warrants, (b) to the extent that the Offered Shares consist of Warrants
and the Co-Sale Shares consist of Common Stock or Preferred Stock, the
price for such Common Stock or Preferred Stock, as the case may be,
shall be increased by an amount equal to the then current exercise
price of such Warrants and (c) to the extent that the Offered Shares
consist of Warrants and the Co-Sale Shares consist of Warrants with
different exercise prices, the price for the Warrants constituting
Co-Sale Shares shall be equitably adjusted to reflect such difference;
provided, further, that, in the event that any adjustment pursuant to
clauses (a) or (c) above shall result in a price that is equal to or
less than zero (0) for the Warrants constituting Co-Sale Shares, the
Participating Co-Sale Seller shall not be entitled to include such
Co-Sale Shares. In determining the "pro rata portion" of the Notes
being sold to the Offeror of a Participating Co-Sale Seller or an
Initial Selling Stockholder for purposes of this Section 6, a
Participating Co-Sale Seller's or an Initial Selling Stockholders' "pro
rata portion" shall be represented by a fraction, (A) the numerator of
which equals aggregate principal amount and accrued and unpaid interest
outstanding under the Notes then owned by the Participating Co-Sale
Seller or the Initial Selling Stockholder and (B) the denominator of
which equals the aggregate principal amount and accrued and unpaid
interest outstanding under the Notes then owned by the Initial Selling
Stockholder and all of the Participating Co-Sale Sellers.
The transaction contemplated by the Notice shall be consummated not
later than 60 days after the expiration of the Option Period.
6.2. If the Participating Co-Sale Sellers do not elect to sell the full
number of Co-Sale Shares or Notes, as the case may be, which they are
entitled to sell pursuant to Section 6.1, the Initial Selling
Stockholder shall be entitled to sell to the Offeror, according to the
terms set forth in the Notice, that number of its own Co-Sale Shares
(or Shares, if the Initial Selling Stockholder is not a holder of
Co-Sale Shares) or Notes, as the case may be, which equals the
difference between the number of Shares or Notes, as the case may be,
desired to be purchased by the Offeror and the number of Co-Sale Shares
or Notes, as the case may be, the Participating Co-Sale Sellers are
entitled to sell pursuant to Section 6.1. If the Initial Selling
Stockholder wishes to transfer any such Shares or Notes, as the case
may be, at a price per share which differs from that set forth in the
Notice, upon terms different from those previously offered to the
Company and the Stockholders, to a transferee other than the Offeror,
or more than 60 days after the expiration of the Option Period, then,
as a condition precedent to such transaction, such Shares or Notes, as
the case may be, shall again be subject to the restrictions set forth
in this Agreement.
6.3. Without implying that unauthorized Transfers are permissible
hereunder, the proceeds of any Transfers made by the Initial Selling
Stockholder without compliance with the provisions of this Section 6
shall be deemed to be held in constructive trust in such amount as
would have been due the Participating Co-Sale Sellers if the Initial
Selling Stockholder had complied with this Agreement.
7. Additional Transfer Restrictions.
8
7.1. Notwithstanding any provision in this Agreement to the contrary,
no Transfer of any Shares or Notes other than pursuant to Section 2.3
or Section 2.4 may be made (i) unless the transferor provides, if
required by the Company, evidence and assurances satisfactory to the
Company in its reasonable discretion (which may include an opinion of
counsel and/or appropriate representations and warranties from the
transferor and transferee), that such Transfer is made in compliance
with all applicable securities laws and regulations promulgated
thereunder and (ii) unless the transferee executes and delivers a
written instrument acknowledging the receipt of a copy of the
provisions and restrictions contained in this Agreement and agreeing to
comply herewith and be bound hereby.
7.2. Any transferee of Shares or Notes, by reason of such transfer,
shall become a party to and be bound by this Agreement, as the same may
be amended from time to time, and if and when a transferee becomes the
owner of any Shares or Notes, this Agreement shall be amended by the
Stockholders in any reasonable manner required to continue to provide
the rights and protections contemplated herein in substantially the
same manner in which such rights and protections were provided prior to
such transferee becoming an owner of Shares or Notes. Any transferee of
Shares or Notes shall have all of the rights and obligations under this
Agreement of the Stockholder that transferred Shares or Notes, as the
case may be, to that transferee.
8. Termination of Agreement.
8.1. This Agreement shall terminate upon the earliest of the following
events:
(a) The sale of all or substantially all of the assets or
business of the Company, by merger, sale of assets or
otherwise (except a merger or consolidation in which the
holders of capital stock of the Company immediately prior to
such merger or consolidation continue to hold immediately
following such merger or consolidation at least a majority of
the voting power of the capital stock of the surviving
corporation);
(b) The closing of the Company's initial firm commitment
underwritten public offering of shares of Common Stock
pursuant to an effective registration statement under the
Securities Act of 1933, as amended, resulting in at least
$25,000,000 of gross proceeds to the Company at a price to the
public of at least $9.50 per share (subject to appropriate
adjustment for stock splits, stock dividends,
recapitalizations and other similar events); or
(c) such time as less than 25% of the aggregate of all
originally issued shares of Preferred Stock are outstanding
(such number to be proportionately adjusted in the event of
any stock splits, stock dividends, recapitalizations or
similar events occurring on or after the date hereof).
8.2. The provisions of Sections 3, 4, 5, 6 and 7 hereof shall not apply
to any sale of Shares or Notes pursuant to a transaction referred to in
Sections 8.1(a) or 8.1(b) above.
9
9. Transfers of Rights. Subject to Section 8 hereof, this Agreement, and the
rights and obligations of each Stockholder hereunder, may be assigned by such
Stockholder to any person or entity to which Shares or Notes are transferred
(other than a transferee that acquires shares pursuant to Section 2.3, 2.4 or
2.5 hereof) by such Stockholder, and such transferee shall be deemed a
"Stockholder" for purposes of this Agreement.
10. General.
10.1. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
10.2. Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this
Agreement, each Stockholder shall be entitled to specific performance
of the agreements and obligations of the Company and each other
Stockholder hereunder and to such other injunctive or other equitable
relief as may be granted by a court of competent jurisdiction.
10.3. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware (without
reference to the conflicts of law provisions thereof).
10.4. Notices. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be deemed delivered
(i) three business days after being sent by certified mail, return
receipt requested, postage prepaid or (ii) one business day after being
sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient at
his or its address as set forth SCHEDULE A hereto.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without
limitation, personal delivery, messenger service, telecopy, first class
mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until
it is actually received by the party for whom it is intended. Any party
may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other
parties notice in the manner set forth in this Section.
10.5. Complete Agreement. This Agreement, the Note and Warrant Purchase
Agreement, the Fourth Amended and Restated Stockholders' Voting
Agreement and the Amended and Restated Investor Rights Agreement
constitute the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof, and supersede all prior
agreements and understandings relating to such subject matter.
10.6. Amendments. No amendment, modification or termination of, or
waiver (other
10
than a waiver as to only the rights of the particular party granting
the waiver) under any provision of this Agreement relating to the
Shares shall be valid unless in writing and signed by Preferred Holders
holding 85% of the voting power of the Co-Sale Shares (assuming the
exercise of the Series C Warrants, the exercise of the Common Stock
Warrants and the conversion into Common Stock of all securities
convertible thereinto) and stockholders holding 85% of the Notes (based
upon aggregate principal and accrued and unpaid interest) then held by
all of the Stockholders; provided that:
(a) the consent of the Company or BayCorp, as applicable,
shall be required to effect any amendment, modification or
termination of, or waiver under, any provision of this
Agreement that adversely affects such party's rights or
obligations set forth in this Agreement (it being agreed that
adding subsequent purchasers does not adversely affect such
party's rights or obligations set forth in this Agreement);
(b) any amendment, modification or waiver (other than a waiver
as to only the rights of the particular party granting the
waiver) under this Agreement that is not executed by all of
the parties hereto shall affect all of the parties hereto in
the same fashion;
(c) subsequent purchasers of the Company's capital stock, or
options to purchase such capital stock, securities convertible
into such capital stock or Notes, shall constitute
"Stockholders" for purposes of this Agreement and the
securities of the Company owned by such purchasers shall
constitute "Shares" and "Co-Sale Shares" for purposes of this
Agreement without any amendment hereto;
(d) subsequent purchasers of Units shall constitute "Unit
Purchasers" for purposes of this Agreement and the Units owned
by such purchasers shall constitute "Units" for purposes of
this Agreement without any amendment hereto; and
(e) any amendment, modification or termination effected in
accordance with this Section 10.6 shall be binding upon all
parties hereto.
10.7. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include
the plural, and vice versa.
10.8. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed
to be an original, and all of which together shall constitute one and
the same document. This Agreement may be executed by facsimile
signatures.
10.9. Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
11
IN WITNESS WHEREOF, this Third Amended and Restated Right of First Refusal and
Co-Sale Agreement has been executed by the parties hereto as of the day and year
first above written.
HOUSTONSTREET EXCHANGE, INC.
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
President and Chief Executive Officer
BAYCORP HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
President and Chief Executive Officer
EQUIVA TRADING COMPANY
By: /s/ X.X. Xxxxxxxx
-------------------------------------
Name: X.X. Xxxxxxxx
Title: Sr. VP-ETCO
XXXXXX X. XXX INVESTORS
LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: SVP + Treasurer
TSG EQUITY FUND, L.P.
By: /s/ T. Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: T. Xxxxxxxxx Xxxxxxxx
Title: President
TSG EQUITY PARTNERS LLC
By: /s/ T. Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: T. Xxxxxxxxx Xxxxxxxx
Title:President
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
12
T. XXXXXXXXX XXXXXXXX
/s/ T. Xxxxxxxxx Xxxxxxxx
-----------------------------------------
XXXXX X. XXXXXX XX.
/s/ XXXXX X. XXXXXX XX.
-----------------------------------------
ENRON NET WORKS LLC
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
XXXXXXX XXXXXXXX
/s/ Xxxxxxx XxXxxxxx
-----------------------------------------
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
-----------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
XXXXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx
-----------------------------------------
A-13
XXXXXXXX ENERGY MARKETING &
TRADING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
SAPIENT CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXXXXXX.XXX, INC.
By:
-------------------------------------
Name:
Title:
OMEGA ADVISORS, INC. for and on behalf of
Omega Capital Partners, L.P.,
Omega International Partners, L.P.,
Omega Overseas Partners, Ltd., and
various institutional accounts under the
investment management of Omega Advisors,
Inc.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Operating Officer
XXXXXXX ASSOCIATES, L.P.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name:
Title:
KROAD VENTURES, L.P.
By: KRoad Partners, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
A-14
VIVENDI, S.A.
By:
-------------------------------------
Name:
Title:
CONOCO, INC.
By: /s/ E.L. Oshlo
-------------------------------------
Name: E.L. Oshlo
Title: Vice President
MICROARTS CORPORATION AFFILIATES
By:
-------------------------------------
Name:
Title:
A-15
SCHEDULE A
HOLDERS OF COMMON STOCK SHARES
BayCorp Holdings, Ltd. 10,000,000
Attn. Xxxxx X. Xxxxxx Xx.
000 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000
Equiva Trading Company 4,814,815
Attention: Xxxxxxx X. Xxxxxxxx
One Xxxxx Center
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxx X. Xxx Investors Limited Partnership 200,000
Attention: Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
TSG Equity Fund, L.P. 55,217
Attention: Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxx, XX 00000
TSG Equity Partners LLC 667
Attention: Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx 7,939
c/o TSG Equity Partners LLC
000 Xxxxx Xxxx
Xxxx, XX 00000
T. Xxxxxxxxx Xxxxxxxx 2,844
c/o TSG Equity Partners LLC
000 Xxxxx Xxxx
Xxxx, XX 00000
Xxxxx X. Xxxxxx Xx. 60,000
000 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxxxxx 03801-6809
A-1
Enron Net Works LLC 1,781,043
Attention: Compliance Department; Xxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
-----------
TOTAL 16,922,525
HOLDERS OF CONTINGENT RIGHTS TO RECEIVE COMMON STOCK SHARES
Enron Net Works LLC 763,305
Attention: Compliance Department; Xxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
HOLDERS OF WARRANTS TO PURCHASE COMMON STOCK SHARES
Enron Net Works LLC 2,544,347
Attention: Compliance Department; Xxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
HOLDERS OF SERIES A CONVERTIBLE PREFERRED STOCK SHARES
Xxxxxxx Xxxxxxxxxx 22,222
Xxxxxxx XxXxxxxx 22,223
Xxxxx Xxxxxx 22,222
c/o MicroArts Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx X. Xxxxxx 26,667
00 Xx. Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
A-2
Xxxxxxxx Energy Marketing & Trading Company 800,000
Attention: Xxxx Xxxxx
Xxx Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Sapient Corporation 266,667
Attention: Xxxxx Xxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxxx.xxx, Inc. 66,667
Attention: Xxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Equiva Trading Company 1,066,667
Attention: Xxxxxxx X. Xxxxxxxx
One Xxxxx Center
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Omega Advisors, Inc. 666,667
Attention: Xxxxxxxx X. Xxxxxxx
Wall Street Plaza
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Associates, L.P. 666,667
Attention: Xxxxxxx X. Latina
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Equiva Trading Company 133,334
Attention: Xxxxxx Xxxxxxxxx
One Xxxxx Center - 000 Xxxxxx
Xxxxxxx, Xxxxx 00000
----------
TOTAL 3,760,003
A-3
HOLDERS OF SERIES B CONVERTIBLE PREFERRED STOCK SHARES
KRoad Ventures, L.P.
000 Xxxxxxx Xxx. 000,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Vivendi, S.A. 166,667
x/x XXxxx Xxxxxxxx, X.X.
000 Xxxxxxx Xxx.
00xx Xxxxx
Xxx Xxxx, XX 00000
Conoco, Inc 500,000
000 X. Xxxxx Xxxxxxx
XX 0000
Xxxxxxx, XX 00000-0000
----------
TOTAL 1,083,334
PURCHASERS OF UNITS
Name and Address Units/Principal No. of Series C No. of Common Stock
---------------- --------------- --------------- -------------------
Amount of Notes Stock Warrants Warrants
--------------- -------------- --------
BayCorp Holdings, Ltd. $8,419,842.00 56,132,280 2,806,614
Attn: Xxxxx X. Xxxxxx, Xx
000 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
TSG Equity Fund, L.P. $ 17,763.11 118,421 5,920
Attn: Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxx, XX 00000
TSG Equity Partners LLC $ 179.43 1,196 60
Attn: Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx $ 1,503.60 10,024 501
c/o TSG Equity Partners LLC
000 Xxxxx Xxxx
Xxxx, XX 00000
T. Xxxxxxxxx Xxxxxxxx $ 553.86 3,692 185
c/o TSG Equity Partners LLC
000 Xxxxx Xxxx
Xxxx, XX 00000
Xxxxx X. Xxxxxx $ 187,500.00 1,250,000 62,500
00 Xx. Xxxxxx Xxxxxx
Xxxxxx, XX 00000
A-4
Xxxxxxxx Xxxxxx $ 125,000.00 833,334 41,667
0 Xxxxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
KRoad Ventures $ 160,000.00 1,066,667 53,334
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Equiva Trading Company $1,394,354.00 9,295,693 464,785
Attention: Xxxxxxx X. Xxxxxxxx
One Xxxxx Center
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Omega Advisors, Inc. $ 180,000.00 1,200,000 60,000
Attention: Xx Xxxx
Wall Street Plaza
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx $ 83,333.00 555,553 27,778
c/o MicroArts Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx XxXxxxxx $ 83,334.00 555,560 27,778
c/o MicroArts Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx $ 83,333.00 555,553 27,778
c/o MicroArts Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Conoco, Inc. $ 437,819.00 2,918,793 145,940
000 X. Xxxxx Xxxxxxx
XX 0000
Xxxxxxx, XX 00000-0000
Xxxxxx X. Xxx Investors Limited $ 75,000.00 500,000 25,000
Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
A-5
