AGREEMENT AND PLAN OF MERGER among CONSTELLATION ENERGY RESOURCES, LLC, NUTMEG MERGER SUB, INC., and MXENERGY HOLDINGS INC. May 12, 2011

Exhibit 2.1

Execution Copy

AGREEMENT AND PLAN OF MERGER

among

CONSTELLATION ENERGY RESOURCES, LLC,

NUTMEG MERGER SUB, INC.,

and

MXENERGY HOLDINGS INC.

May 12, 2011

TABLE OF CONTENTS

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated May 12, 2011, is being entered into by and among Constellation Energy Resources, LLC, a Delaware limited liability company (“Parent”), Nutmeg Merger Sub, Inc., a Delaware corporation (“Merger Sub”), MXenergy Holdings Inc., a Delaware corporation (the “Company”) and, for certain limited purposes, Mx SR LLC, a Delaware limited liability company.  Parent, Merger Sub and the Company are referred to herein collectively as the “Parties” and individually as a “Party.”

RECITALS

WHEREAS, the boards of directors of the Company, Parent and Merger Sub deem it advisable and in the best interests of their respective corporations and such corporations’ respective shareholders to consummate the merger of Merger Sub with and into the Company upon the terms and conditions set forth herein and in accordance with the provisions of the General Corporation Law of the State of Delaware (the “DGCL”); and

WHEREAS, as a condition and inducement for the Company to enter into this Agreement, Constellation Energy Group, Inc. has agreed to guarantee the performance of certain of Parent’s and Merger Sub’s obligations hereunder pursuant to a Limited Guaranty Agreement, executed and delivered as of  the date hereof.

NOW, THEREFORE, in consideration of these premises, the mutual representations, warranties, covenants, agreements and conditions contained herein, and in order to set forth the terms and conditions of the Merger, the Parties hereby agree as follows:

ARTICLE I
DEFINITIONS AND INTERPRETATIONS

1.1           Definitions.  Unless otherwise provided to the contrary in this Agreement, the following capitalized terms shall have the meanings set forth below:

“2011 Interest Rate Swap” means that certain floating to fixed interest rate swap entered into by the Company, with the Royal Bank of Scotland as the counterparty, with a notional amount of $80,000,000 and a termination date of August 1, 2011.

“2011 Notes” means the approximately $6,413,000 aggregate principal amount of Floating Rate Notes due 2011 issued by the Company pursuant to the 2011 Notes Indenture.

“2011 Notes Indenture” means the Indenture, dated as of August 4, 2006, by and among the Company, the Subsidiary guarantors party thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as registrar and paying agent, pursuant to which the Company issued the 2011 Notes.

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“2014 Notes” means the approximately $67,751,000 aggregate principal amount of 13.25% Senior Subordinated Secured Notes due 2014 issued by the Company pursuant to the 2014 Notes Indenture.

“2014 Notes Indenture” means the Indenture, dated as of September 22, 2009, by and among the Company, the Subsidiary guarantors party thereto and Law Debenture Trust Company of New York, as trustee, pursuant to which the Company issued the 2014 Notes.

“Acceptable Confidentiality Agreement” means a confidentiality and standstill agreement with terms that are not materially less favorable in the aggregate to the Company in any substantive respect than those contained in the Confidentiality Agreement; provided, however, that no Acceptable Confidentiality Agreement shall prohibit or adversely affect compliance by the Company with any provision of this Agreement in any material respect; and provided further that no such agreement shall be required to contain any exclusivity provisions.

“Adjusted Base Price” means an amount equal to:  (a) the Base Price plus (b) the Estimated NOL Tax Benefit plus (c) the Estimated Approved Capital Expenditures, if any, minus (d) the sum of the Estimated Debt, the Estimated Transaction Costs and the Estimated Change in Control Costs.

“Adjustment Escrow Account” means the account established with the Escrow Agent pursuant to the Escrow Agreement for the deposit of the Adjustment Escrow Amount.

“Adjustment Escrow Amount” shall have the meaning set forth in Section 5.3(b).

“Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person.  For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

“Agreement” shall have the meaning set forth in the preamble.

“Antitrust Approval” means:  (a) the receipt of authorizations required under, or (b) the expiration of all applicable waiting periods (and any extensions thereof) under, in each case, the HSR Act and any other applicable Antitrust Laws with respect to the Merger.

“Antitrust Laws” means the HSR Act and any other domestic or foreign antitrust, competition, pre-merger notification or other Law designed to prohibit, restrict or regulate actions which have the purpose or effect of monopolization or restraint of trade.

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“Applicable Rate” means, with respect to a payment, the prime rate of interest quoted in The Wall Street Journal on the second Business Day prior to the date of such payment.

“Approved Capital Expenditures” means capitalized customer acquisition costs and fixed asset expenditures incurred by a Company Entity prior to the NWC Calculation Time and either (i) paid by the Company Entity prior to the NWC Calculation Time or (ii) accrued as a current liability and taken into account in calculating Net Working Capital, and, in each case, approved in writing by Parent, in its sole discretion, as an “Approved Capital Expenditure” for purposes of this Agreement.

“Audited Financial Statements” shall have the meaning set forth in Section 7.3(a)(i).

“Balance Sheet Date” shall have the meaning set forth in Section 7.3(a)(ii).

“Base NOL Tax Benefit” shall have the meaning set forth on Schedule J.

“Base Price” means $175,000,000, subject to adjustment pursuant to Section 9.16(c).

“Bidder” means a Person or group of Persons submitting a Takeover Proposal.

“Board” means the Company’s board of directors.

“Bond Deposit” means (a)  the aggregate funds needed to pay in full the 2011 Notes on August 1, 2011 and, if applicable, otherwise satisfy the satisfaction and discharge provisions of Section 11.1 of the 2011 Notes Indenture, including any fees that are or will become due to the trustee under the 2011 Notes Indenture, and (b) the aggregate funds needed to redeem in full the 2014 Notes in accordance with Section 3.7 of the 2014 Notes Indenture and otherwise satisfy the satisfaction and discharge provisions of Section 11.1 of the 2014 Notes Indenture, including any fees that are or will become due to the trustee under the 2014 Notes Indenture.

“Bonds” means the 2011 Notes and the 2014 Notes.

“Break-Up Fee” means an amount equal to $10,000,000.

“Business Day” means any day other than a Saturday, Sunday, a federal holiday or a day when commercial banks in New York, New York are authorized or required by Law to be closed.

“Certificates” shall have the meaning set forth in Section 5.4(b).

“Certificate of Merger” shall have the meaning set forth in Section 2.2.

“Change in Control Costs” means (i) the payments set forth on Schedule A, which payments shall be made by the Company at the Closing, and (ii) all other change

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in control, severance and similar payments that become payable prior to or as of the Closing Date to any directors, officers or employees of a Company Entity as a result of the Merger (including the estimated costs of benefits required to be provided pursuant to such Contracts, but excluding benefits required to be provided pursuant to COBRA or under state law); provided, however, that Change in Control Costs shall not include:  (a) any Transaction Costs; (b) any payments or distributions resulting from actions or omissions of the Surviving Corporation or any other Company Entity from and after the Effective Time; or (c) any such payments or distributions made prior to the NWC Calculation Time or that are reflected as current liabilities in the calculation of Net Working Capital.

“Class A Common Stock” means the Company’s Class A Common Stock, par value $0.01 per share.

“Class B Common Stock” means the Company’s Class B Common Stock, par value $0.01 per share.

“Class C Common Stock” means the Company’s Class C Common Stock, par value $0.01 per share.

“Class D Common Stock” means the Company’s Class D Common Stock, par value $0.01 per share.

“Closing” shall have the meaning set forth in Article VI.

“Closing Common Share Price” means an amount equal to the quotient (rounded to two decimal places) of:  (a) the Closing Payment minus the sum of (i) the Fixed Escrow Amount, (ii) the Adjustment Escrow Amount and (iii) the Securityholders Representative Escrow Amount; divided by (b) the Fully Diluted Common Stock.

“Closing Date” shall have the meaning set forth in Article VI.

“Closing Financial Statements” means the consolidated statements of operations, cash flows and stockholder’s equity of the Company Entities for the 11-month period ended on the NWC Calculation Date and the consolidated balance sheet of the Company Entities as of the NWC Calculation Time, which statements of operations, cash flows and stockholder’s equity and balance sheet shall be prepared in accordance with GAAP on a basis consistent with the Company’s preparation of the Audited Financial Statements (i.e., using the same methodologies and judgments that were used by the Company in preparation of such Audited Financial Statements, but only to the extent that such methodologies and judgments are consistent with GAAP).

“Closing Payment” shall have the meaning set forth in Section 5.1(b).

“Closing Statement” shall have the meaning set forth in Section 5.1(a).

“Closing Time” means 11:59 p.m. New York City time on the Closing Date.

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“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.

“Code” means the Internal Revenue Code of 1986.

“Common Share Price” means an amount equal to the Closing Common Share Price, as adjusted for the release, if any, of all or any portion of the Fixed Escrow Amount, the Adjustment Escrow Amount and the Securityholders Representative Escrow Amount to the Securityholders (and any interest, dividends and other income earned thereon for the account of the Securityholders) pursuant to the terms of this Agreement, the Escrow Agreement and the Securityholders Representative Escrow Agreement.

“Common Stock” means the Class A Common Stock, the Class B Common Stock, the Class C Common Stock (including the Restricted Shares) and the Class D Common Stock.

“Company” shall have the meaning set forth in the preamble.

“Company Adverse Recommendation Change” shall have the meaning set forth in Section 9.11(a).

“Company Closing Certificate” shall have the meaning set forth in Section 10.3(a)(iii)(A)

“Company Entity” or “Company Entities” means, collectively, the Company and its Subsidiaries.

“Company Fundamental Representations” means the representations and warranties contained in Sections 7.1 (excluding Section 7.1(d) and the last sentence of Section 7.1(g)), clause (d) of Section 7.2, Section 7.15, Section 7.24 and Section 7.25 and the certifications with respect to such representations and warranties set forth in the Company Closing Certificate.

“Company Indemnifiable Losses” shall have the meaning set forth in Section 11.2(b).

“Company Indemnitees” shall have the meaning set forth in Section 11.2(b).

“Company Mandatory Consents” shall have the meaning set forth in Section 7.2.

“Company Recommendation” shall have the meaning set forth in Section 9.11(a).

“Company Restricted Share Units” means the restricted share units issued by the Company under the Equity Compensation Plan.

“Computer Systems” means all servers, computer hardware, networks, Software, databases, telecommunications systems, interfaces and related systems.

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“Confidentiality Agreement” means the confidentiality agreement dated October 4, 2010, by and between Parent (or an Affiliate) and the Company, as it has been or may hereafter be amended in accordance with its terms.

“Consent Order” shall have the meaning set forth in Section 7.7(b).

“Consent Solicitation” shall have the meaning set forth in Section 9.16(a).

“Constituent Corporations” shall have the meaning set forth in Section 2.3.

“Continuing Employees” shall have the meaning set forth in Section 9.8(b).

“Contract” means any agreement, contract or other binding commitment, understanding or arrangement, whether written or oral (including any amendments and other modifications thereto).

“Debt” means, with respect to any Person, without duplication, any of the following, in each case to the extent not included in the calculation of Net Working Capital and whether or not then due and payable:  (a) all indebtedness for borrowed money or indebtedness issued in exchange for borrowed money (including all obligations for principal, interest (including all accrued interest through the date of repayment, premiums, pre-payment and other penalties, fees, expenses and breakage costs); (b) all deferred obligations for the payment of the purchase price of property or capital assets purchased; (c) all obligations evidenced by any note, bond, debenture or other debt security; (d) all obligations of any Person for or on account of capitalized leases; (e) all obligations of any Person for the reimbursement of letters of credit, bankers’ acceptance or similar credit transaction other than Permitted Credit Support; (f) all obligations of any Person under any currency, commodity or interest rate swap, hedge or similar protection device other than Permitted ▇▇▇▇▇▇ and Eligible Hedging Arrangements; (g) all premiums, penalties and change of control payments required to be paid or offered in respect of any of the foregoing as a result of the transactions contemplated by this Agreement; and (h) all obligations of the types described in clauses (a) through (g) above of any other Person, the payment of which is guaranteed, directly or indirectly, by, or secured by a Lien on the assets of, such first Person, but in all events excluding (1) the Bonds, (2) Permitted Credit Support, (3) Permitted ▇▇▇▇▇▇ and Eligible Hedging Arrangements, (4) Permitted Encumbrances, (5) any unrealized losses from risk management activities and (6) the payments to be made to Sempra under the Sempra Termination Agreement.

“De Minimis Threshold” shall have the meaning set forth in Section 11.3(b).

“Deductible Threshold” shall have the meaning set forth in Section 11.3(b).

“DGCL” shall have the meaning set forth in the recitals.

“Disclosure Schedules” shall have the meaning set forth in the introductory paragraph to Article VII.

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“Dissenting Shares” shall have the meaning set forth in Section 5.5(b).

“Effective Time” shall have the meaning set forth in Section 2.2.

“Eligible Hedging Arrangements” means any hedging or swap arrangements with respect to natural gas inventory entered into by the Company Entities and settled during the calendar months of April 2011 and May 2011.

“Employee Benefit Plans” means:  (a) each “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA); (b) each “employee welfare benefit plan” (as such term is defined in Section 3(1) of ERISA); (c) each retirement, savings, profit sharing, deferred compensation, severance, change in control, stock option, equity-based compensation, performance, bonus, incentive, vacation or holiday pay, hospitalization or other medical, disability, life or other insurance, or other welfare, benefit or fringe benefit plan or policy; and (d) each Contract, whether written or oral, in each case, that provides compensation or benefits to any present or former officer, employee or Person that is or was engaged as a consultant of any Company Entity and with respect to which any Company Entity has any liability (direct, indirect, current, contingent, prospective or otherwise); provided, however, that any employment practice or policy that is not subject to ERISA and provides for de minimis benefits will not constitute an Employee Benefit Plan.

“Employees” shall have the meaning set forth in Section 7.13(b).

“Enforceability Limitations” shall have the meaning set forth in Section 7.1(e).

“Environment” shall mean surface or subsurface soil or strata, surface waters and sediments, navigable waters, groundwater, drinking water supply, ambient air and indoor air to the extent regulated under any Environmental Requirements.

“Environmental Requirements” means all Laws concerning pollution or protection of the Environment, including all those relating to the presence, use, generation, handling, transport, treatment, storage, disposal, discharge, release, threatened release, control or cleanup of any Hazardous Materials.

“Equity Compensation Plan” means the MXenergy Holdings Inc. 2010 Stock Incentive Plan, as it may be amended from time to time after the date of, and in accordance with, this Agreement.

“Equity Interest Equivalents” means all warrants, options, convertible securities or indebtedness, exchangeable securities or other instruments, or other rights that are outstanding and exercisable for or convertible or exchangeable into, directly or indirectly, any Equity Interest at the time of issuance or upon the passage of time or occurrence of some future event.

“Equity Interests” means the equity ownership rights in an entity, whether a corporation, company, joint stock company, limited liability company, general or limited partnership, joint venture, bank, association, trust, trust company, land trust, business

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trust, sole proprietorship or other entity, organization or other Person, and whether in the form of capital stock, ownership unit, limited liability company interest, limited or general partnership interest or any other form of ownership, including all Equity Interest Equivalents.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any of the Company Entities or any trade or business, whether or not incorporated, that together with the Company Entities would be considered affiliated under Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.

“Escrow Agent” means the escrow agent under the Escrow Agreement.

“Escrow Agreement” means an agreement to be entered into at Closing among the Securityholders Representative, Parent and the Escrow Agent in the form attached hereto as Exhibit A or in such other form as may be reasonably acceptable to each of the Securityholders Representative, the Company and Parent.

“Estimated Approved Capital Expenditures” means the Company’s good faith estimate of the Approved Capital Expenditures, if any, as of the NWC Calculation Time.

“Estimated Change in Control Costs” means the Company’s good faith estimate of the Change in Control Costs as of the Closing Time.

“Estimated Debt” means the Company’s good faith estimate of the aggregate amount of Debt of the Company Entities outstanding as of the Closing Time.

“Estimated Net Working Capital” means the Company’s good faith estimate of the Net Working Capital.

“Estimated NOL Tax Benefit” means the amount set forth on Schedule E (which amount shall in no event be less than the Base NOL Tax Benefit), which represents the Parties’ good faith estimate of the NOL Tax Benefit.

“Estimated Transaction Costs” means the Company’s good faith estimate of the Transaction Costs as of the Closing Time.

“Existing Company Officer” means, prior to the Effective Time, any executive officer of the Company who, at such time, is authorized to execute and deliver agreements and documents on behalf of the Company.

“Federal Power Act” means the Federal ▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq.

“FERC” means the U.S. Federal Energy Regulatory Commission.

“Final Adjustment Amount” means the algebraic sum of (1) the Final Working Capital minus the Estimated Net Working Capital; (2) the Final Approved Capital

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Expenditures minus the Estimated Approved Capital Expenditures; (3) the Final NOL Tax Benefit minus the Estimated NOL Tax Benefit; (4) the Estimated Debt minus the Final Debt; (5) the Estimated Transaction Costs minus the Final Transaction Costs; and (6) the Estimated Change in Control Costs minus the Final Change in Control Costs.

“Final Approved Capital Expenditures” shall have the meaning set forth in Section 5.6(g).

“Final Change in Control Costs” shall have the meaning set forth in Section 5.6(g).

“Final Debt” shall have the meaning set forth in Section 5.6(g).

“Final NOL Tax Benefit” shall have the meaning set forth in Section 5.6(g); provided that in no event shall the Final NOL Tax Benefit be less than the Base NOL Tax Benefit.

“Final Transaction Costs” shall have the meaning set forth in Section 5.6(g).

“Final Working Capital” shall have the meaning set forth in Section 5.6(g).

“Financial Statements” shall have the meaning set forth in Section 7.3(a).

“Fixed Escrow Account” means the account established with the Escrow Agent pursuant to the Escrow Agreement for the deposit of the Fixed Escrow Amount.

“Fixed Escrow Amount” shall have the meaning set forth in Section 5.3(a).

“Fully Diluted Common Stock” means the sum of:  (a) the total number of shares of Common Stock and (b) the total number of shares of Common Stock subject to Company Restricted Share Units, in each case outstanding as of immediately prior to the Effective Time and assuming the acceleration and vesting of all Restricted Shares and Company Restricted Share Units outstanding as of immediately prior to the Effective Time.

“GAAP” means U.S. generally accepted accounting principles consistently applied.

“General Indemnity Escrow” shall have the meaning set forth in Section 5.3(a).

“Governmental Authority” means any national, federal, foreign, state, county, city or other political subdivision, court, tribunal, arbitrator, department, commission, board, bureau, agency, authority, instrumentality, legislature, executive branch or other body, and any governmental or quasi-governmental body administering, regulating or having oversight over wholesale or retail electricity or gas service or markets (including any independent system operators, regional transmission organizations or other similar organizations or bodies in Canada).

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“Hazardous Materials” means any chemicals, materials, wastes or substances that are defined, regulated, determined or identified as toxic or hazardous under any Environmental Requirements (including substances defined as “hazardous substances,” “hazardous materials,” “hazardous waste,” “pollutant or contaminant,” “petroleum” or “natural gas liquids”).

“HSR Act” means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976.

“Indemnifiable Losses” means Parent Indemnifiable Losses or Company Indemnifiable Losses, as the context requires.

“General Indemnification Termination Date” shall have the meaning set forth in Section 11.1(a).

“Indemnified Company Parties” shall have the meaning set forth in Section 9.12(a).

“Indemnified Person” means any Parent Indemnitee or Company Indemnitee, as applicable.

“Indemnifying Party” means, as applicable, either:  (a) the Securityholders with respect to their obligations pursuant to Section 11.2(a) or (b) the Surviving Corporation and Parent with respect to their obligations pursuant to Section 11.2(b).

“Independent Accountants” shall have the meaning set forth in Section 5.6(e).

“Intellectual Property” means the following intellectual property rights arising under the Laws of any jurisdiction:  (a) all patents and patent applications; (b) all trademarks, service marks, trade dress, brand names, logos, other source or business identifiers and general intangibles of like nature, whether at common law or registered, domain names, and websites, and all applications, registrations, and renewals in connection therewith; (c) all copyrights, and all applications, registrations and renewals in connection therewith; (d) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals); and (e) all other intellectual property or proprietary rights.

“Intellectual Property Agreement” means any Contract to which a Company Entity is a party pursuant to which a Company Entity licenses to a third party, or is licensed to use, any Intellectual Property.

“Interim Statements” shall have the meaning set forth in Section 7.3(a)(ii).

“Knowledge” means the actual knowledge after due and reasonable inquiry of the individuals specified in clause (a) or (b) below, as applicable:  (a) in the case of Parent or Merger Sub, any of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇

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▇▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and (b) in the case of the Company, any of ▇▇▇▇▇▇▇ ▇▇▇▇▇, President and CEO, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, EVP & CFO, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant General Counsel, ▇▇▇▇▇▇ ▇▇▇▇▇, SVP Regulatory, ▇▇▇▇▇▇ ▇▇▇▇▇▇, SVP Supply, ▇▇▇▇ ▇▇▇▇▇▇▇▇, SVP Sales & Marketing, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director, Risk Management, ▇▇▇▇▇ ▇▇▇▇▇, SVP & CIO, or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP Controller, and, in the case of clauses (a) and (b), any person who replaces one of the foregoing persons, in the same position and capacity and solely with respect to matters first occurring or arising from and after such replacement.

“Latest Balance Sheet” shall have the meaning set forth in Section 7.3(a)(ii).

“Law” means any statute, code, regulation, rule, injunction, judgment, Order, decree, ruling, charge, or other restriction of any applicable Governmental Authority.

“Letter of Transmittal” shall have the meaning set forth in Section 5.4(b).

“Lien” means any lien, pledge, claim, charge, security interest or other encumbrance.

“Losses” means all claims, demands, suits, proceedings, judgments, losses, charges, penalties, fees, liabilities, damages, Taxes, costs and expenses of every kind and nature (including reasonable attorneys’ fees and expenses).

“Mailing Date” shall have the meaning set forth in Section 9.16(a).

“Major Customers” means the 50 largest retail gas and 50 largest retail electricity customers of the Company Entities, each based on volume billed during the 12 months prior to the date of this Agreement.

“Mandatory Consents” means the Company Mandatory Consents and the Parent Mandatory Consents.

“Matching Bid” shall have the meaning set forth in Section 9.11(c).

“Material Adverse Effect” means any fact, circumstance, event, change, effect or occurrence (whether or not foreseeable as of the date of this Agreement or covered by any indemnity provided pursuant to this Agreement (except as provided in clause (7) below)) that, individually or in the aggregate, with all other facts, circumstances, events, changes, effects and occurrences (whether or not such fact, circumstance, event, change, effect or occurrence has yet, or at any time in question, manifested itself in the historical financial statements of the Company Entities) has had, or reasonably would be expected to have, a material adverse effect on the assets, business, results of operation or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole; provided, however, that the following alone or in combination (or the effects or consequences thereof) shall not be deemed or construed to constitute a Material Adverse Effect:

(1)           changes in market conditions in the industry in which the Company and its Subsidiaries operate (including changes in commodity prices) that do not materially

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disproportionately affect the assets, business, results of operation or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, as compared to other Persons in such industry;

(2)           circumstances, events, changes, effects or occurrences arising out of, resulting from or attributable to:  (x) the execution, announcement or performance of this Agreement or the consummation of the Merger, including the effect thereof on relationships, contractual or otherwise, with customers, vendors, distributors, partners, industry participants, employees or other third parties with whom the Company and its Subsidiaries have a business relationship, (y) national or international political, economic or social conditions, including the engagement by any country in hostilities or the threat thereof, whether commenced before or after the date hereof and whether or not pursuant to the declaration of a national emergency or war or the occurrence of any military or terrorist attack, and acts of war or the threat thereof or any escalation or worsening of any such acts of war underway as of the date of this Agreement, in each case that do not materially disproportionately affect the assets, business, results of operation or financial condition of the Company and its Subsidiaries, taken as a whole, as compared to other industry participants, or (z) any action taken by the Company or its Subsidiaries that is expressly permitted by this Agreement;

(3)           changes in Law or GAAP;

(4)           any failure by the Company to meet any projections or forecasts for any period;

(5)           any failure by the Company to obtain any consents or approvals of third parties set forth on Disclosure Schedule 7.2(c) (excluding the consents required by Section 10.1(a)(xii));

(6)           any actions by any Company Entity that are taken pursuant to (i) Schedule R or (ii) at the written request of, or with the written consent of, Parent, Merger Sub or their Affiliates; or

(7)           any of the facts, circumstances, events or consequences relating to the matters set forth on Schedule N, but solely to the extent of the aggregate amounts of the Specific Indemnity Escrow, Regulatory Indemnity Escrow or Waiver Escrow as may be applicable to such facts, circumstances, events or consequences.

“Material Contracts” shall have the meaning set forth in Section 7.11(a).

“MBR Order” shall have the meaning set forth in Section 7.21(a).

“Merger” shall have the meaning set forth in Section 2.1.

“Merger Consideration” shall have the meaning set forth in Section 5.3(d).

“Merger Sub” shall have the meaning set forth in the preamble.

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“MxElectric” means MxEnergy Electric Inc.

“Net Working Capital” means, as of the NWC Calculation Time, without duplication, the Company Entities’ (A)(i) aggregate cash, cash equivalents and restricted cash, (ii) net accounts receivable (including accounts receivable due from Sempra), (iii) inventories (which inventories are to be valued in accordance with the Company’s weighted average cost of gas (WACOG) and excluding physical natural gas inventory owned by Sempra that is held on behalf of any Company Entity), as calculated in accordance with GAAP applied on a consistent basis with prior periods), (iv) other current assets (excluding any deferred income Tax benefits or assets and excluding any Tax benefits associated with any NOL carryforwards), (v) security deposits (including both short and long term deposits), (vi) the value associated with $458,000 of 2014 Notes owned by the Company, including any accrued interest and premium on redemption through the redemption date, and (vii) any losses with respect to Eligible Hedging Arrangements less, without duplication, (B)(i) the Bond Deposit, (ii) gains with respect to Eligible Hedging Arrangements, (iii) aggregate accounts payable and other current liabilities (which includes all employee-related accruals through the NWC Calculation Time, current income Tax liabilities, other current Tax liabilities and the 2011 Interest Rate Swap), and (iv) deferred financing costs associated with the Sempra Agreements (other than deferred financing liabilities associated with forward adder fees for natural gas and power swaps under the Sempra Agreements) and the Bonds; provided, however, that Net Working Capital shall exclude:  (1) any deferred income Tax benefits or liabilities; (2) the NOL Tax Benefit; (3) Debt; (4) Transaction Costs; (5) Change in Control Costs; and (6) the current portion of any unrealized gains or losses from the Permitted ▇▇▇▇▇▇. For the avoidance of doubt, Net Working Capital shall be comprised of the balance sheet accounts shown on Schedule D (which includes a sample calculation of Net Working Capital as of December 31, 2010) and shall be calculated in a manner consistent with the Company’s calculation thereof for its Audited Financial Statements, except as set forth on Schedule D.

“NOL Tax Benefit” means an aggregate amount equal to the sum of (i) the Base NOL Tax Benefit plus (ii) the amount of the Tax benefits that may be received or realized by Parent or the Surviving Corporation (whether or not received or realized but discounted (using a 10% discount rate) to reflect the deferral of the utilization of the NOL Tax Benefit due to limitations set forth in Section 382 of the Code as reflected on Schedule E and the Post-Closing Statement) arising from (but without duplication for) the following:  (a) net operating loss carryforwards as of the Closing Date (excluding any foreign net operating loss carryforwards that are not taken into account in determining U.S. federal income Taxes), and (b) to the extent not already included in the calculation of clause (a), (i) the Transaction Deductions, (ii) Tax deductions attributable to the retirement of the Bonds or Debt of the Company, including early termination or redemption fees, interest accrued through the applicable redemption or repayment date and the acceleration of deductions for deferred financing fees incurred in connection with Debt or the Bonds and (iii) any Tax deductible settlement costs associated with interest rate swap arrangements and agreements, including the 2011 Interest Rate Swap; provided that, for purposes of this definition, (x) the applicable Tax rate shall be deemed to be 40% and (y) Parent and/or the consolidated tax return group that the Surviving Corporation

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will be a part of as of the Effective Time shall be deemed to have sufficient income to use the entire amount of the foregoing deductions; and provided further that in no event shall the NOL Tax Benefit be less than the Base NOL Tax Benefit.

“NWC Calculation Date” means May 31, 2011.

“NWC Calculation Time” means 11:59 p.m., New York City time on May 31, 2011.

“Open Tax Period” means any Tax Period for which the statute of limitations for assessing Taxes has not expired.

“Order” means any order, writ, ruling, charge, injunction, judgment, plan or decree.

“Ordinary Course of Business” means the ordinary course of business, consistent with past practice, of the Company and its Subsidiaries.

“Organizational Documents” means the articles of incorporation, certificate of incorporation, charter, bylaws, articles or certificate of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement and all other similar documents, instruments and certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.

“Parent” shall have the meaning set forth in the preamble.

“Parent Benefit Plans” shall have the meaning set forth in Section 9.8(b).

“Parent Closing Certificate” shall have the meaning set forth in Section 10.3(b)(iv)(A).

“Parent Indemnifiable Losses” shall have the meaning set forth in Section 11.2(a).

“Parent Indemnitees” shall have the meaning set forth in Section 11.2(a).

“Parent Mandatory Consents” shall have the meaning set forth in Section 8.2.

“Party” and/or “Parties” shall have the meaning set forth in the preamble.

“Paying Agent” shall have the meaning set forth in Section 5.4(a).

“Paying Agent Agreement” shall have the meaning set forth in Section 5.4(a).

“Percentage Share” means, with respect to each Securityholder, the amount calculated as follows and expressed as a percentage:  (a) the sum of the number of shares of Common Stock owned by such Securityholder and the number of shares of Common Stock subject to Company Restricted Share Units held by such Securityholder, in each case immediately prior to the Effective Time (assuming the acceleration and vesting of

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all Restricted Shares and Company Restricted Share Units issued or granted as of immediately prior to the Effective Time); divided by (b) the Fully Diluted Common Stock.

“Permits” means all certificates, licenses, franchises, permits, authorizations, consents, approvals, exemptions, variances, orders, rights of way, easements, filings and registrations granted by a Governmental Authority.

“Permitted Credit Support” shall have the meaning set forth in Section 7.11(c).

“Permitted Encumbrances” means:  (a) Liens for Taxes or assessments not yet due and payable; (b) Liens arising out of deferred purchase price agreements, conditional sales Contracts and/or arrangements, equipment leases and/or any arrangements having similar effect with third parties as of the date of this Agreement and disclosed on Schedule F; (c) mechanics’, carriers’, workers’, repairers’ and other similar Liens arising by operation of Law in the Ordinary Course of Business relating to obligations which are not past due and the validity or amount of which is not being contested; (d) pledges, deposits or other Liens incurred in the Ordinary Course of Business and securing the performance of bids, trade Contracts, leases, or regulatory or statutory obligations (including workers’ compensation, unemployment insurance or other Social Security Laws); (e) easements, reservations, licenses, rights-of-way or zoning or other restrictions as to the use of real property that were not incurred in connection with Debt and that do not individually or in the aggregate materially adversely affect the value of such properties or materially impair their use in the Ordinary Course of Business; (f) encumbrances on title or restrictions on transfer arising by operation of any applicable securities Laws; and (g) pledges, deposits or other Liens required by utilities and local distribution companies on accounts receivable, imbalances and inventory as disclosed on Schedule G or otherwise relating to purchase of receivables and inventory/imbalance arrangements entered into in the Ordinary Course of Business.

“Permitted ▇▇▇▇▇▇” means the forward hedging, swap, option or similar financially settled or physical Contracts and other commodity, interest rate or currency exchange Contracts listed on Disclosure Schedule 7.11(a)(xiii), which such schedule shall be updated by the Company prior to Closing to reflect such Contracts existing as of immediately prior to the Closing.

“Person” means an individual, corporation (including the Company), association, joint stock company, trust, joint venture, limited liability company, unincorporated organization, Governmental Authority or other entity.

“Post-Closing Statement” shall have the meaning set forth in Section 5.6(a).

“Pre-Closing Period” means any Tax Period ending on or before the Closing Date.

“Proceeding” means any action, demand, arbitration, audit, hearing, complaint, inquiry, claim, investigation, litigation or suit (whether civil, criminal, administrative,

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investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.

“PUC” means a public utility commission or public service commission.

“Real Property Leases” shall have the meaning set forth in Section 7.17.

“Related Party” means, with respect to any specified Person:  (a) any Affiliate of such specified Person, (b) any holder of Equity Interests representing more than 1% of the issued and outstanding Equity Interests of such specified Person; (c) any Person who serves or within the past five years has served as a director, executive officer, general partner, managing member or in a similar capacity of such specified Person; or (d) the spouse or direct lineal descendant of a Person described in clauses (b) or (c).

“Representatives” means, with respect to any Person, its and its Affiliates’ managers, directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives.

“Restricted Holder” means a holder of a Restricted Share or an RSU Holder.

“Restricted Shares” means restricted shares of Class C Common Stock issued pursuant to the Equity Compensation Plan.

“Reverse Break-Up Fee” means $20,000,000.

“RSU Holder” means a holder of a Company Restricted Share Unit.

“Savings Plan” shall have the meaning set forth in Section 9.8(a).

“Schedule M Filings” shall have the meaning set forth in Section 9.1(e).

“Schedule Update” shall have the meaning set forth in Section 9.7(a).

“SEC” means the U.S. Securities and Exchange Commission.

“SEC Documents” shall have the meaning set forth in Section 7.22(a).

“Securityholders” means, collectively, the Stockholders and the Restricted Holders.

“Securityholders Representative” shall have the meaning set forth in Section 2.4(a).

“Securityholders Representative Escrow Account” shall have the meaning set forth in Section 2.4(g).

“Securityholders Representative Escrow Agreement” means an agreement to be entered into at Closing between the Escrow Agent and the Securityholders Representative pursuant to which the Securityholders Representative Escrow Account is established.

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“Securityholders Representative Escrow Amount” means an aggregate amount equal to $2,000,000, plus any interest or earnings accrued thereon.

“Seller Taxes” means any and all Taxes imposed on the Company or any Subsidiary of the Company or for which the Company or any Subsidiary of the Company may otherwise be liable:  (a) for any Pre-Closing Period and for the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 9.10(b)); (b) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period on or prior to the Closing Date by reason of Treasury Regulation § 1.1502-6(a) or any analogous or similar Law; (c) imposed on any other Person for which the Company or any Subsidiary is or has been liable as a transferee or successor, by Contract or otherwise, for any Pre-Closing Period and for the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 9.10(b)); (d) that are Social Security, Medicare, unemployment or other employment or withholding Taxes owed as a result of any payments of Change of Control Costs and any payments made to the Securityholders pursuant to this Agreement; (e) that are Transfer Taxes allocable to the Securityholders pursuant to Section 9.10(e), to the extent not included as Transaction Costs; or (f) for any Tax Period ending after the Closing Date resulting from the disallowance of a deduction for any items described in clause (a) or (b)(i) of the definition of NOL Tax Benefit to the extent attributable to a deduction taken on or prior to the Closing Date; provided that no such Tax in clauses (a)-(e) will constitute a Seller Tax to the extent such Tax was included as a current liability in the calculation of Net Working Capital.

“Sempra” means Sempra Energy Trading LLC.

“Sempra Agreements” means, collectively:  (a) the “ISDA Documents” as such term is defined in that certain ISDA Master Agreement, dated September 22, 2009, by and among Sempra, MxEnergy Electric Inc., the Company and the other Company Entities party thereto and (b) the “ISDA Documents” as such term is defined in that certain ISDA Master Agreement, dated September 22, 2009, by and among Sempra, MxEnergy Inc., the Company and the other Company Entities party thereto.

“Sempra Restricted Cash” shall have the meaning set forth in Section 5.2(b).

“Sempra Termination Agreement” shall have the meaning set forth in Section 7.24.

“Sempra Termination Payment” means the amounts required to be paid to Sempra pursuant to Section 1.04 of the Sempra Termination Agreement.

“Severance Obligations” means any severance payment or similar obligation of a Company Entity to any director, officer or manager, Employee or any other Person pursuant to any Contract with such Person and that would arise from the termination (including termination with or without cause and voluntary termination) of the position, office, employment or engagement of such Person upon or at any time after Closing or that exists as of immediately prior to Closing as a result of any such termination prior to

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Closing, including any severance, bonus or tax indemnification obligations or other similar payments and the Company Entity’s portion of any Medicaid, Social Security or unemployment Taxes in respect of such payments, but excluding salary, accrued bonus, accrued vacation and other compensation and benefits through the date of any such termination, and further excluding any payment or other obligation pursuant to Law.

“Software” means any and all computer software and code, including algorithms, routines, assemblers, applets, compilers, source codes, object codes, data, design tools and user interfaces, in any form or format, however fixed, including source code listings and documentation.

“Specific Indemnity Escrow” shall have the meaning set forth in Section 5.3(a).

“Stockholder Consent” means the written consent of (i) Stockholders holding at least a majority of the outstanding shares of Common Stock, voting together as a single class, (ii) Stockholders holding at least 70% of the outstanding shares of Class A Common Stock, voting together as a separate class, and (iii) Stockholders holding at least 70% of the outstanding shares of Class B Common Stock, voting together as a separate class, by which they approve this Agreement and the Merger, substantially in the form attached hereto as Exhibit B.

“Stockholders” means all holders of Common Stock.

“Stockholders Agreement” means the Stockholders Agreement, dated September 22, 2009, among the Company, and the stockholders party thereto, as such agreement is in effect on the date hereof.

“Straddle Period” means any Tax period beginning on or before and ending after the Closing Date.

“Subsidiary” means any corporation, partnership, association or other entity in which the Company directly or indirectly owns at least a majority of the Equity Interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions.

“Succession Order” shall have the meaning set forth in Section 7.21(a).

“Superior Proposal” means any bona fide, written Takeover Proposal that, if consummated, would result in the Bidder submitting such Takeover Proposal owning, directly or indirectly:  (a) more than 50% of the outstanding shares of Common Stock and other Equity Interests of the Company; or (b) more than 50% of the assets of the Company and its Subsidiaries, taken as a whole, in either case which the Board determines in good faith, (x) is reasonably likely to be consummated in accordance with its terms, and (y) if consummated, would be more favorable to the Securityholders from a financial point of view than the Merger, in each case taking into account all financial, legal, accounting and regulatory aspects of such Takeover Proposal.

“Surrender Agreement” shall have the meaning set forth in Section 5.4(b).

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“Surviving Corporation” shall have the meaning set forth in Section 2.3.

“Takeover Proposal” means any inquiry, proposal or offer from any Person providing for:  (a) any direct or indirect acquisition or purchase, in a single transaction or a series of related transactions, of (1) 25% or more (based on the fair market value, as determined in good faith by the Board) of the assets (including capital stock of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole, or (2) shares of Common Stock or other Equity Interests of the Company, which together with any other shares of Common Stock or Equity Interests beneficially owned by such Person, would equal 25% or more of the outstanding shares of Common Stock or other Equity Interests of the Company; (b) any tender offer or exchange offer that, if consummated, would result in any Person owning, directly or indirectly, 25% or more of the outstanding shares of Common Stock or other Equity Interests of the Company or any of its Subsidiaries; (c) any merger, consolidation, business combination, binding share exchange or similar transaction involving the Company or any of its Subsidiaries pursuant to which any Person or group (or the shareholders of any Person) would own, directly or indirectly, 25% or more of the aggregate voting power of the Company or of the surviving entity in a merger or the resulting direct or indirect parent of the Company or such surviving entity; or (d) any recapitalization, liquidation, dissolution or any other similar transaction involving the Company or any of its Subsidiaries, in each case, other than the Merger.

“Tax” or “Taxes” means:  (a) any taxes, assessments, tariffs, levies, fees and other governmental charges imposed, directly or indirectly, by any Governmental Authority, including income, profits, gross receipts, miscellaneous gross receipts, net proceeds, alternative or add on minimum, ad valorem, value added, turnover, sales, use, property, personal property (tangible and intangible), environmental, stamp, leasing, lease, user, excise, duty, franchise, capital stock, transfer, registration, license, withholding, unclaimed property, business, net worth, public purpose, goods and services, Social Security (or similar), unemployment, disability, payroll, employment, social contributions, fuel, excess profits, occupational, premium, windfall profit, transaction, energy, margin, utility, severance, estimated or other like tax, including any interest, penalty or addition thereto, whether disputed or not; (b) any liability for the payment of any amounts of the type described in clause (a) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (c) any liability for the payment of any amounts of the type described in clause (a) or (b) as a result of the operation of Law or any express obligation to indemnify any other Person pursuant to a tax sharing or tax indemnity agreement.

“Tax Period” means any period prescribed by a Governmental Authority for which a Tax Return is required to be filed or a Tax is required to be paid.

“Tax Proceeding” means any audit, litigation or other Proceeding with respect to Taxes.

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“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Taxing Authority” means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision, including any Governmental Authority or agency that imposes, or is charged with collecting, Social Security or similar charges or premiums.

“Technology” means all information related to, constituting or disclosing, and all tangible copies and embodiments in any media of, any Software or other technology or technical information, including know-how, show-how, works of authorship, processes, methods, inventions (whether or not patented or patentable), memoranda, databases, algorithms, schematics, manuals, drawings, specifications, blue prints, mask sets and models.

“Termination Date” shall have the meaning set forth in Section 12.1(b).

“Third Party Claim” shall have the meaning set forth in Section 11.4(a).

“Transaction Costs” means all fees and expenses incurred by the Company Entities and/or the Securityholders Representative (including on behalf of the Securityholders) prior to or as of the Closing Time in connection with the negotiation, preparation, execution and effectuation of the Transaction Documents and the consummation of the Merger, including, without duplication, (i) the Sempra Termination Payment, (ii) the purchase by the Company prior to Closing of a six year tail policy of directors’ and officers’ liability insurance covering the Indemnified Company Parties, (iii) any Transfer Taxes allocable to the Securityholders pursuant to Section 9.10(d), (iv) any HSR fees allocable to the Company pursuant to Section 9.1, (v) all fees and expenses, if any, associated with the termination of the Contracts listed on Schedule L, (vi) all fees and expenses of the trustee under the 2011 Notes Indenture or the 2014 Notes Indenture to the extent not paid or included as part of the Bond Deposit or otherwise deducted from the Base Price or included as a liability in Net Working Capital, (vii) all fees and expenses incurred by the Company Entities in connection with or relating to preparing the documentation or addressing the matters described on Schedule M, Schedule Q and Schedule R, and (viii) all fees and expenses of counsel, investment bankers, accountants and other experts incident to the foregoing, in each case only to the extent any of the above are not paid prior to the NWC Calculation Time or included as a current liability in the determination of Net Working Capital.  It is the intention of the Parties that all Transaction Costs shall be paid prior to or at Closing to the extent feasible.

“Transaction Deductions” means the amount of federal and state income Tax deductions resulting from:  (a) the payment or accrual of Transaction Costs, (b) the payment or accrual of Change in Control Costs or any other stay bonuses or similar Severance Obligations paid prior to or as of the Closing Time, (c) payments or accruals made in exchange for the acceleration and cancellation of Company Restricted Share

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Units, and (d) the portion of the Sempra Termination Payment allocated as a contract termination fee on Schedule 1.04 of the Sempra Termination Agreement, in each case, to the extent such amounts are properly deductible for federal income Tax purposes.

“Transaction Documents” means this Agreement, the Paying Agent Agreement, the Escrow Agreement, the Company Closing Certificate and the Parent Closing Certificate.

“Transfer Taxes” shall have the meaning set forth in Section 9.10(e).

1.2           Interpretations.  Unless expressly provided otherwise in this Agreement, this Agreement shall be interpreted in accordance with the following provisions:

(a)           whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa;

(b)           if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(c)           the headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement;

(d)           all references in this Agreement to articles, sections or subdivisions thereof shall be deemed to refer to articles, sections or subdivisions of this Agreement unless otherwise specified;

(e)           a reference to a Party or a party to another agreement or document includes such Person’s successors and permitted assigns;

(f)            a reference to any Law includes a modification or reenactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

(g)           a reference to a writing includes a facsimile transmission of it and any means of reproducing its words in a tangible and permanently visible form;

(h)           the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(i)            the word “including” shall mean including without limitation;

(j)            unless provided otherwise, references to Exhibits, Schedules and Disclosure Schedules are to Exhibits, Schedules and Disclosure Schedules of this Agreement, which Exhibits, Schedules and Disclosure Schedules are incorporated herein by reference and made a part of this Agreement;

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(k)           the Parties and their counsel have reviewed the provisions of this Agreement and have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the  authorship of any of the provisions of this Agreement; and

(l)            all references to dollar amounts contained in this Agreement shall mean U.S. dollars.

ARTICLE II
THE MERGER; CLOSING

2.1           The Merger.  Subject to the terms and conditions hereof and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company (the “Merger”).

2.2           Effective Time of the Merger.  Prior to the Closing, the Parties shall pre-clear a certificate of merger in the form attached hereto as Exhibit C with the Secretary of State of the State of Delaware (such certificate of merger, with such changes as may be required by the Secretary of State of the State of Delaware as a result of the pre-clearance and agreed to by the Parties (such agreement not to be unreasonably withheld or delayed with respect to immaterial or de minimis changes), the “Certificate of Merger”).  At the Closing, the Company, Parent and Merger Sub shall cause the Certificate of Merger to be properly executed and filed with the Secretary of State of the State of Delaware in accordance with the terms and conditions of the DGCL.  The Merger shall become effective as of the time and date of filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL or at the time specified in the Certificate of Merger, if later than the time of filing.  The date and time when the Merger shall become effective is herein referred to as the “Effective Time.”

2.3           Effect of Merger.  At the Effective Time, Merger Sub and the Company (the “Constituent Corporations”) shall become a single corporation and the Company shall continue as the surviving corporation in the Merger (sometimes referred to herein as the “Surviving Corporation”).  At such time, the separate existence of Merger Sub shall cease as provided under the DGCL.  The Surviving Corporation shall have all the rights, privileges, immunities, powers and franchises and shall be subject to all liabilities of the Constituent Corporations as provided under the DGCL.  As of the Effective Time, title to all property owned by the Constituent Corporations shall be vested in the Surviving Corporation without reversion or impairment.

2.4           Securityholders Representative.

(a)           Mx SR LLC, a Delaware limited liability company, is hereby appointed, authorized and empowered to act as the representative of the Securityholders (the “Securityholders Representative”) hereunder and under the Escrow Agreement, with full power of substitution.  Such appointment is not as an agent but as a term of the merger contemplated by this Agreement and accordingly such appointment is irrevocable by

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action of any Securityholder.  The appointment made hereunder shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.  In its capacity as Securityholders Representative, the Securityholders Representative:

(i)                                     shall execute this Agreement, the Paying Agent Agreement, the Escrow Agreement and the Securityholders Representative Escrow Agreement;

(ii)                                  commencing with the Effective Time, shall be authorized and empowered to do any and all of the following:

(A)                              receipt and forwarding of notices and communications pursuant to this Agreement or the other Transaction Documents;

(B)                                administration of the provisions of this Agreement, including the provisions relating to the matters described in Section 5.6, Section 9.1(e)  and Article XI, and the other Transaction Documents, including the Escrow Agreement, and authorizing the release of funds from the Fixed Escrow Account;

(C)                                subject to the provisions of Section 13.7, giving or agreeing to, on behalf of the Securityholders, any and all consents or waivers deemed by the Securityholders Representative, in its sole discretion, to be necessary or appropriate under this Agreement or any other Transaction Document and the execution or delivery of any documents that may be necessary or appropriate in connection therewith;

(D)                               subject to the provisions of Section 13.7 and applicable Laws, amending this Agreement (other than this Section 2.4) or any other Transaction Documents, or any of the instruments to be delivered to Parent or Merger Sub pursuant to this Agreement or such Transaction Documents;

(E)                                 (1) disputing or refraining from disputing any claim made by Parent, the Surviving Corporation or any other Parent Indemnitees under Section 11.2 or under or with respect to any other provision of any Transaction Document, (2) acting on behalf of Securityholders in any litigation or arbitration involving this Agreement (including the indemnification obligations set forth in Article XI) or any other Transaction Documents and negotiating and compromising, on behalf of each Securityholder, any

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dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents, and (3) executing, on behalf of each Securityholder, any settlement agreement, release or other document with respect to any such dispute or remedy;

(F)                                 engaging attorneys, accountants, agents or consultants in connection with the foregoing and paying any fees related thereto; and

(G)                                doing any and all things deemed reasonably necessary or desirable by the Securityholders Representative in connection with the exercise of any of the foregoing powers and authorities.

(b)           Notwithstanding Section 2.4(a), in the event the Securityholders Representative, with the advice of counsel, is of the opinion that it requires further authorization or advice from the Securityholders on any matters concerning this Agreement or the other Transaction Documents, the Securityholders Representative shall be entitled to seek such further authorization from the Securityholders prior to acting on their behalf.  In such event, or in the event that a replacement Securityholders Representative is required to be appointed pursuant to Section 2.4(d) below, each Securityholder shall have such number of votes as is equal to such Securityholder’s Percentage Share and the authorization of a plurality of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders, except as may otherwise be required by applicable Laws.

(c)           Parent, Merger Sub and the Surviving Corporation may conclusively and absolutely rely upon any act of the Securityholders Representative with respect to all matters referred to herein, including the execution and delivery by the Securityholders Representative of any document executed, or purported to be executed, on behalf of any of the Securityholders.  Any decision or action by the Securityholders Representative hereunder shall constitute a decision or action of all of the Securityholders and shall be final, binding and conclusive upon each Securityholder, and no Securityholder shall have the right to object to, dissent from, protest or otherwise contest any such decision or action.  Any notices required to be made or delivered to the Securityholders hereunder or under any other Transaction Documents shall be made or delivered to the Securityholders Representative for the benefit of the applicable Securityholders and the making or delivering of such notice to the Securityholders Representative shall discharge in full the applicable notice requirement.

(d)           Mx SR LLC and any entity selected to replace Mx SR LLC pursuant to this Agreement, may resign as Securityholders Representative at any time by prior written notice delivered to Parent.  If Mx SR LLC resigns from its capacity as Securityholders Representative, it shall provide prior notice of such resignation to ▇▇▇▇▇▇ Commodity Partners Fund LP and ▇▇▇▇▇▇ Commodity Partners Fund LP, or an Affiliate thereof,  may, in its sole discretion, serve as the replacement Securityholders

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Representative upon written notice to Parent.  If there is a vacancy at any time in the position of Securityholders Representative (including if ▇▇▇▇▇▇ Commodity Partners Fund LP, or an Affiliate thereof, declines to serve as Securityholders Representative pursuant to the foregoing sentence within ten (10) days following the resignation of Mx SR LLC as Securityholders Representative), the Person last serving as Securityholders Representative shall request from the Paying Agent a list of all Securityholders and the addresses on file with the Paying Agent for such Securityholders and shall deliver, within seven (7) Business Days of such Person’s receipt of such addresses, a notice to each such Securityholder at such address notifying the Securityholders (i) that a vacancy in the position of Securityholders Representative exists and (ii) to the extent any Securityholders have agreed to be appointed Securityholders Representative, of the names of such Securityholders.  Following the delivery of such notice, the vacancy shall be filled by a vote of the Securityholders in accordance with Section 2.4(b).  If at any time there is no Person acting as the Securityholders Representative and the Securityholders fail to fill such vacancy within thirty (30) days following the resignation of the then current Securityholders Representative, Parent may appoint (with the consent of the Securityholder to be appointed the Securityholders Representative) the Securityholders Representative from among the Securityholders; provided, however, that the Securityholders Representative shall not be a trust; and provided further, that the Percentage Share of the Securityholders Representative selected by Parent must be greater than one percent as of the Closing Date.  In the event that Parent appoints a Securityholders Representative pursuant to the foregoing sentence (and such Securityholder agrees to such appointment), the Securityholders may revoke such appointment and appoint a replacement Securityholders Representative at any time in accordance with Section 2.4(b).  In no event shall any Securityholder be obligated to accept an appointment by Parent to serve as Securityholders Representative.

(e)           The Securityholders Representative acknowledges that it has carefully read and understands this Agreement and hereby accepts the appointment and designation made hereunder.

(f)            The Securityholders Representative shall act for the Securityholders on all of the matters set forth herein in the manner the Securityholders Representative reasonably believes to be in the best interests of the Securityholders as a group and consistent with the obligations of the Securityholders Representative and the Securityholders under this Agreement.  Notwithstanding the foregoing, the Securityholders Representative shall not be liable to Parent, Merger Sub, the Surviving Corporation or the Securityholders in its capacity as Securityholders Representative for any error of judgment, or any act done or step taken or omitted by it in good faith or for any mistake in fact or Law, or for anything that it may do or refrain from doing in connection with this Agreement, except for its own gross negligence or willful misconduct.  The Securityholders Representative shall not have any duties or responsibilities other than those expressly set forth in this Agreement, the Escrow Agreement or the Securityholders Representative Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Securityholders Representative.  The Securityholders Representative shall be entitled to rely, and shall be fully protected in

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relying, upon any statements furnished to it by the Company, the Surviving Corporation, any Securityholder, Parent or Merger Sub, or any other evidence deemed by the Securityholders Representative to be reliable.  The Securityholders Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or any other Transaction Document or its duties hereunder or thereunder, and it shall incur no liability in its capacity as Securityholders Representative to Parent, the Surviving Corporation or any Securityholder and shall be fully protected with respect to any action taken, omitted or suffered by it in accordance with the advice of such counsel.  The Securityholders shall severally, based on each Securityholder’s Percentage Share of the applicable liabilities, claims, actions, damages, losses and expenses, indemnify and hold harmless and defend the Securityholders Representative, its Affiliates and its Representatives against any and all liabilities, claims, actions, damages, losses and expenses (including legal and other professional fees and expenses and litigation costs) arising out of or in connection with (i) the Securityholders Representative’s acts or omissions to act, resulting from, arising out of, incurred in connection with, or otherwise with respect to, this Agreement, the Escrow Agreement and the Securityholders Representative Escrow Agreement and (ii) actions or omissions otherwise reasonably believed to be in the scope of the Securityholders Representative’s authority; provided that, in each case, such actions or omissions did not constitute gross negligence or willful misconduct.

(g)           The Securityholders shall pay the Securityholders Representative an annual fee of $100,000 through the date on which all of the funds in the Fixed Escrow Account are finally disbursed in accordance with the terms of this Agreement and the Escrow Agreement for each year or any portion of a year it serves as Securityholders Representative, which such fee shall be deducted from the escrow account established pursuant to the terms of the Securityholders Representative Escrow Agreement for compensation and reimbursement of the Securityholders Representative (the “Securityholders Representative Escrow Account”) and shall be paid in advance on the Closing Date and on each anniversary of the Closing Date.  In addition to such annual fee, the Securityholders shall reimburse the Securityholders Representative for any and all costs, expenses and other liabilities incurred by the Securityholders Representative in connection with the performance of its duties under this Agreement and such costs and expenses shall be paid as a Transaction Cost if incurred and ascertainable prior to Closing, and, thereafter, in accordance with this Section 2.4(g).  The Securityholders Representative shall be entitled to deduct any amounts from the Securityholders Representative Escrow Account necessary to satisfy the indemnification and payment obligations of the Securityholders pursuant to Sections 2.4(f)-(g).  If at any time there are insufficient (or no) funds remaining in the Securityholders Representative Escrow Account to pay such amounts, (A) the Securityholders Representative may deduct any amount owing to it pursuant to Sections 2.4(f)-(g), or any amounts it reasonably believes may be payable to it in the future, from any amounts that have been finally determined to be distributable to the Securityholders from the Fixed Escrow Account or the Adjustment Escrow Account in accordance with the terms of the Escrow Agreement and this Agreement, and (B) if no such amounts are to be distributed to the Securityholders, or if such amounts are insufficient, the Securityholders shall reimburse the Securityholders Representative based on each Securityholder’s Percentage Share of such amounts owing

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to the Securityholders Representative.  The Securityholders Representative shall have the right to deliver instructions to the Escrow Agent at any time to disburse funds to the Securityholders Representative from the Securityholders Representative Escrow Account or to withhold amounts that have been finally determined to be distributable to the Securityholders from the Fixed Escrow Account or the Adjustment Escrow Account in accordance with the terms of the Escrow Agreement and this Agreement, without the necessity of obtaining approval from any other Person (including any Securityholder); provided that such instructions comply with this Section 2.4(g).

(h)           Notwithstanding anything to the contrary in this Agreement:

(i)                                     with respect to any provision of this Agreement that requires Parent or the Surviving Corporation to obtain the consent or approval of the Securityholders Representative after the Closing Date, if the Securityholders Representative fails to provide written notice of the Securityholders Representative’s consent or rejection within the later of (x) the time period provided for in the applicable provisions of this Agreement and (y) fifteen (15) Business Days after the date Parent or the Surviving Corporation, as applicable, requested such consent or approval, then the Securityholders Representative shall be deemed to have rejected the request; and

(ii)                                  if at anytime the Securityholders Representative shall have resigned and no replacement Securityholders Representative shall have been designated in accordance with the terms of this Agreement (after the expiration of the applicable time periods set forth in Section 2.4(d), regardless of whether or not the Securityholders Representative has complied with, or taken the actions required by, Section 2.4(d)):

(A)                              any requirement in this Agreement to deliver notice to the Securityholders Representative shall be deemed to be satisfied upon providing notice, in accordance with Section 13.5, to each of the Securityholders at the applicable addresses on file with the Paying Agent; and

(B)                                Parent or the Surviving Corporation, as applicable, may take any action that is to be taken by the Securityholders Representative or that requires the consent or approval of the Securityholders Representative pursuant to this Agreement if (1) Parent or the Surviving Corporation, as applicable, delivers written notice of its intention to take such action to each of the Securityholders at the applicable addresses on file with the Paying Agent and (2) within fifteen (15) Business Days after the date of the mailing of such written notice, Parent or the Surviving Corporation, as applicable, does not receive written notice from a

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replacement Securityholders Representative appointed in accordance with the terms of this Agreement objecting to Parent or the Surviving Corporation, as applicable, taking such action; provided, that, if Parent’s or the Surviving Corporation’s inability to take the applicable action prior to the delivery of notice to the Securityholders or the expiration of such fifteen-Business Day period would materially prejudice the rights of Parent or the Surviving Corporation, then Parent or the Surviving Corporation, as applicable, may, in good faith, take such action and thereafter shall deliver prompt written notice thereof to the Securityholders.

ARTICLE III
THE SURVIVING CORPORATION

3.1           Certificate of Incorporation.  The Fourth Amended and Restated Certificate of Incorporation of the Company shall be amended and restated as of the Effective Time to be in the form set forth on Exhibit D and, as so amended and restated, shall be the Certificate of Incorporation of the Surviving Corporation immediately after the Effective Time, until duly altered, amended or repealed in accordance with applicable Laws.

3.2           Bylaws.  The Fourth Amended and Restated Bylaws of the Company shall be amended and restated as of the Effective Time to be in the form set forth on Exhibit E and, as so amended and restated, shall be the Bylaws of the Surviving Corporation immediately after the Effective Time, until duly altered, amended or repealed in accordance with applicable Laws.

3.3           Directors.  The directors of Merger Sub holding office immediately prior to the Effective Time shall be the directors of the Surviving Corporation as of the Effective Time.

3.4           Officers.  The officers of Merger Sub holding office immediately prior to the Effective Time shall be the officers of the Surviving Corporation as of the Effective Time.

ARTICLE IV
CONVERSION OF SHARES

4.1           Conversion of Shares.  At the Effective Time, by virtue of the Merger and without any action on the part of any Party or Securityholder, or immediately prior to the Effective Time as set forth in Section 4.1(g):

(a)           Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall remain outstanding and shall represent one share of common stock, par value $0.01 per share, of the Surviving Corporation, so that, after the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation’s capital stock.

(b)           Subject to the provisions of Article V, each share of Common Stock (excluding the Restricted Shares, which shall be governed by Section 4.1(c) below) that

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is issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive an amount in cash equal to the Common Share Price; provided, however, that Dissenting Shares shall not be so converted or represent the right to receive the foregoing consideration, but the holders of such Dissenting Shares shall only be entitled to such rights as are set forth in Section 5.5.

(c)           Subject to the provisions of Article V, each Restricted Share that is issued and outstanding immediately prior to the Effective Time shall be fully vested and each such Restricted Share shall be cancelled and extinguished and, in consideration therefor, the holder thereof shall be entitled to receive an amount in cash equal to the Common Share Price, less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations, if any; provided, however, that Dissenting Shares shall not be so converted or represent the right to receive the foregoing consideration, but the holders of such Dissenting Shares shall only be entitled to such rights as are set forth in Section 5.5.

(d)           Subject to the provisions of Article V, each Company Restricted Share Unit that is outstanding immediately prior to the Effective Time shall become vested or earned and be cancelled subject to and immediately following the Effective Time and converted into the right to receive an amount in cash equal to the Common Share Price, less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations.

(e)           Each share of Common Stock that is issued and held in the Company’s treasury or by any of the Company’s Subsidiaries immediately prior to the Effective Time shall be cancelled and retired without any conversion thereof and no payment or distribution shall be made in respect thereof.

(f)            Upon conversion or cancellation thereof as described in this Section 4.1, each share of Common Stock (including each Restricted Share) shall cease to exist and shall automatically be canceled and retired and each holder of a certificate representing such Common Stock or Restricted Shares shall cease to have any rights with respect thereto other than the right (which right is expressly subject to the other terms and provisions of this Agreement, including Sections 11.2 and 11.3) to receive the payments described in this Agreement without interest except as set forth in this Agreement.  Upon cancellation thereof as described in this Section 4.1, each Company Restricted Share Unit shall cease to exist and shall automatically be canceled and each holder of a Company Restricted Share Unit shall cease to have any rights with respect thereto other than the right (which right is expressly subject to the other terms and provisions of this Agreement, including Sections 11.2 and 11.3) to receive the payments described in this Agreement without interest except as set forth in this Agreement.

(g)           For the avoidance of doubt, (i) all of the issued and outstanding Class B Common Stock and all of the shares of Class C Common Stock held by Sempra shall be repurchased by the Company in full immediately prior to the Effective Time, pursuant to the Sempra Termination Agreement and, thereafter, such Class B Common Stock and such shares of Class C Common Stock shall be treated as treasury shares and shall be

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cancelled and retired in accordance with Section 4.1(e), (ii) all of the Company Restricted Share Units held by Sempra shall be cancelled immediately prior to the Effective Time, and (iii) except for purposes of determining whether the Stockholder Consent has been obtained, Sempra shall not be considered a Securityholder for purposes of this Agreement from and after the time of such repurchase and cancellation.

4.2           No Further Transfers.  At the Effective Time, the stock transfer books of the Company shall be closed and no transfer of Common Stock or other Equity Interests of the Company shall thereafter be made.

ARTICLE V
PAYMENT OF PURCHASE PRICE

5.1           Calculation of Closing Payment.

(a)           No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent (i) the Closing Financial Statements and (ii) a statement (the “Closing Statement”) setting forth in reasonable detail the Company’s calculation of the (A) Bond Deposit, (B) the Estimated Net Working Capital, (C) the Estimated Debt, (D) the Estimated NOL Tax Benefit, (E) the Estimated Transaction Costs, (F) the Estimated Approved Capital Expenditures, and (G) the Estimated Change in Control Costs,.  The Company shall use all reasonable efforts to deliver to Parent, not later than three (3) Business Days prior to the Closing Date, (1) a list of all Persons entitled to payment of any Transaction Costs and/or Change in Control Costs and the amounts owed to each such Person, (2) the wire transfer or other payment instructions for each such Person, and (3) copies of any invoices that have been received by the Company from any Persons entitled to payment of any Transaction Costs.

(b)           If (i) the Estimated Net Working Capital is positive, the amount of the Estimated Net Working Capital shall be added to the Adjusted Base Price and (ii)  the Estimated Net Working Capital is negative, the amount of the Estimated Net Working Capital shall be deducted from the Adjusted Base Price.  The Adjusted Base Price either (i) plus Estimated Net Working Capital or (ii) minus Estimated Net Working Capital, as applicable and contemplated hereby, is referred to herein as the “Closing Payment.”

5.2           Payments by the Company or the Surviving Corporation at Closing.

(a)           On the Closing Date, the Company or, the Surviving Corporation shall pay, or shall cause their respective Subsidiaries to pay, the following amounts:

(i)                                     the Change in Control Costs to each payee entitled to receipt thereof as reflected in the Closing Statement, less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations; and

(ii)                                  the Transaction Costs to each payee entitled to receipt thereof as reflected in the Closing Statement.

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(b)           Prior to the Closing Date, the Company shall direct that any amounts owing to the Company Entities by Sempra (including cash and restricted cash), net of any amounts to be paid to Sempra at the Closing pursuant to and in accordance with the Sempra Termination Agreement (such net amount, the “Sempra Restricted Cash”), shall be released upon the closing of the transactions contemplated by the Sempra Termination Agreement and delivered as follows: (A) if the 2011 Notes are then outstanding, an aggregate amount equal to the portion of the Bond Deposit pertaining to the 2011 Notes to the trustee under the 2011 Notes Indenture and (B) an aggregate amount equal to the portion of the Bond Deposit pertaining to the 2014 Notes to the trustee under the 2014 Notes Indenture; provided, that if the aggregate amount of the Sempra Restricted Cash plus any amounts held in any interest reserve accounts established with respect to the 2014 Notes is less than the Bond Deposit, the Company shall notify Parent of the estimated additional amounts necessary to redeem or satisfy and discharge, as applicable, the Bonds, and provided further that the Company shall direct that any Sempra Restricted Cash remaining after the foregoing payments and deposits are made be delivered to an account designated by Parent.  Not later than two (2) Business Days prior to the Closing Date, the Company shall notify Parent of the Company’s good faith estimate of the amount of Sempra Restricted Cash that is expected to be on hand as of the Closing.

(c)           Prior to the Closing Date, the Company shall notify the trustee under the 2014 Notes Indenture that any amounts held in any interest reserve accounts established with respect to the 2014 Notes shall be used to redeem or satisfy and discharge, as applicable, the 2014 Notes with respect to which such reserve accounts are maintained.

5.3           Payments by Parent at Closing; Posting of Credit Support by Parent at Closing.  At Closing, Parent shall pay, or shall cause the Surviving Corporation or its Subsidiaries to pay, the following amounts:

(a)           to the Escrow Agent, an amount equal to $43,000,000 (the “Fixed Escrow Amount”), (i) $15,000,000 of which shall be designated as the “General Indemnity Escrow”, (ii) $20,000,000 of which shall be designated as “Specific Indemnity Escrow”, (iii) $7,000,000 of  which shall be designated as the “Regulatory Indemnity Escrow”) and (iv) $1,000,000 of which shall be designated as the “Waiver Escrow”, in each case, for deposit in the Fixed Escrow Account to be held and disbursed in accordance with this Agreement, including Schedule N, and the Escrow Agreement;

(b)           to the Escrow Agent, an amount equal to 20% of the Estimated Net Working Capital (provided, that for purposes of this Section 5.3(b), the calculation of Estimated Net Working Capital shall not include (i) cash, (ii) restricted cash, (iii) any amounts owing to the Company Entities from Sempra (including cash and restricted cash), (iv) cash equivalents, and (v) security deposits) (the “Adjustment Escrow Amount”) for deposit in the Adjustment Escrow Account to be held and disbursed in accordance with this Article V and the Escrow Agreement (provided, however, that to the extent the amount in the Adjustment Escrow Account is insufficient to satisfy the amount to be disbursed to Parent or the Surviving Corporation, if any, in accordance with Article V and the Escrow Agreement, the amount of the General Indemnity Escrow shall be available to satisfy such disbursements);

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(c)           to the Escrow Agent, the Securityholders Representative Escrow Amount, for deposit in the Securityholders Representative Escrow Account to be held and disbursed in accordance with the Securityholders Representative Escrow Agreement;

(d)           to the Paying Agent, for the benefit of the Stockholders, an amount equal to the Closing Common Share Price multiplied by the number of shares of Common Stock (including Restricted Shares, but excluding Dissenting Shares) issued and outstanding immediately prior to the Effective Time (such amount, the “Merger Consideration”); and

(e)           to the Company or the Surviving Corporation, for the benefit of the RSU Holders, an amount equal to the Closing Common Share Price multiplied by the number of shares of Common Stock subject to Company Restricted Share Units outstanding immediately prior to the Effective Time.

5.4           Mechanics of Payments.

(a)           Prior to the Effective Time, Parent shall enter into an agreement with Manufacturers  and Traders Trust Company, or such other Person reasonably acceptable to the Company and Parent, in the form attached hereto as Exhibit F (or in such other form as may be reasonably acceptable to both the Company and Parent) (the “Paying Agent Agreement”), to act as paying agent for the Securityholders in connection with the Merger (the “Paying Agent”) and to receive (i) for the benefit of the Stockholders, the Merger Consideration and (ii) for the benefit of the Securityholders, any amounts payable to the Securityholders upon release of funds pursuant to the Escrow Agreement and the Securityholders Representative Escrow Agreement.  Parent shall deposit, or shall cause to be deposited, an amount equal to the Merger Consideration with the Paying Agent at or prior to the Effective Time.  The Merger Consideration deposited with the Paying Agent shall, pending its disbursement to the Stockholders, be invested by the Paying Agent as provided in the Paying Agent Agreement.  Any amounts in excess of the Merger Consideration, including any interest or other income resulting from such investments, shall be paid to Parent or Merger Sub upon termination of the paying agency arrangements under the Paying Agent Agreement and shall be the property of Parent or Merger Sub.  Notwithstanding anything to the contrary, Parent shall promptly replace funds deposited with the Paying Agent (by Parent or the Escrow Agent) in the event of any loss of such funds as a result of the investment of such funds.  Subject to the last sentence of this Section 5.4(a) and the immediately preceding sentence, Parent shall be deemed for all purposes of this Agreement to have satisfied its obligation to pay the Merger Consideration to the Stockholders hereunder at the Closing upon the Paying Agent’s receipt of the Merger Consideration, it being expressly agreed that Parent’s payment of the Merger Consideration to the Paying Agent shall forever and irrevocably be deemed to constitute payment to each and every Stockholder (other than with respect to Dissenting Shares) the full amount of the portion of the Merger Consideration which is owed to such Stockholder under this Agreement at the Closing.  In the event the Merger Consideration is paid to the Paying Agent and the Paying Agent fails to pay the full amount of the portion of the Merger Consideration which is owed to any Stockholder under this Agreement, such Stockholder’s sole and exclusive remedy shall be the right to

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be subrogated to Parent’s rights under the Paying Agent Agreement.  Notwithstanding the deposit of the Merger Consideration with the Paying Agent, Parent shall continue to have the obligation to pay the remaining portion of the Common Share Price, if any, due and owing to the Securityholders hereunder, which obligation shall be deemed to have been satisfied by the deposit by Parent of the Fixed Escrow Amount, the Securityholders Representative Escrow Amount and the Adjustment Escrow Amount with the Escrow Agent on or prior to the Closing Date (subject to the obligations set forth in the fifth sentence of this Section 5.4(a)) and Parent’s compliance with the terms and conditions of the Escrow Agreement and this Agreement with respect to distributions of any portions of the Fixed Escrow Amount and the Adjustment Escrow Amount, if any, to the Paying Agent thereunder, it being expressly agreed that (subject to the obligations set forth in the fifth sentence of this Section 5.4(a)) Parent’s deposit of the Fixed Escrow Amount, the Securityholders Representative Escrow Amount and the Adjustment Escrow Amount with the Escrow Agent on or prior to the Closing Date and Parent’s and the Surviving Corporation’s compliance with the terms and conditions of the Escrow Agreement and this Agreement with respect to distributions of the Fixed Escrow Amount and the Adjustment Escrow Amount, if any, to the Paying Agent, and Parent’s and the Surviving Corporation’s compliance with the Paying Agent Agreement, shall forever and irrevocably be deemed to constitute payment to each and every Securityholder (other than with respect to Dissenting Shares) of the full amount of the remaining portion of the Common Share Price, if any, that is owed to the Securityholders hereunder.

(b)           As soon as reasonably practicable after the Effective Time and in any event not later than two (2) Business Days following the Closing Date, the Paying Agent shall mail to each Stockholder of record as of the Effective Time whose shares of Common Stock were converted into the right to receive the Common Share Price pursuant to Section 4.1, a letter of transmittal in the form attached hereto as Exhibit G (or such other form as may be reasonably acceptable to each of the Company, Parent and the Paying Agent) (a “Letter of Transmittal”), which shall include instructions for effecting the surrender of the certificates which immediately prior to the Effective Time represented outstanding Common Stock (including Restricted Shares) (the “Certificates”), in exchange for payment of the portion of the Merger Consideration to which each Stockholder may be entitled, and shall specify that delivery shall be effected, and risk of loss shall pass, only upon proper delivery to the Paying Agent of the Certificates (provided, that the Company shall deliver any Certificates representing Restricted Shares held by the Company on behalf of the applicable Restricted Holder to such Restricted Holder prior to the Effective Time, or at such Restricted Holder’s direction, to the Paying Agent).  Prior to the Effective Time, the Company shall provide to each RSU Holder whose Company Restricted Share Units were converted into the right to receive the Common Share Price pursuant to Section 4.1, a Company Restricted Share Unit surrender agreement in the form attached hereto as Exhibit H (or in such other form as may be reasonably acceptable to each of the Company, Parent and the Paying Agent) (a “Surrender Agreement”), which shall contain an acknowledgement of surrender and such other terms as Parent may reasonably specify.  Upon delivery of a duly completed and validly executed Surrender Agreement to the Company and Parent, the applicable RSU Holder executing such Surrender Agreement shall be entitled to receive the Closing Common Share Price (less the applicable Tax withholdings pursuant

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to Section 4.1(d)), at the Closing in exchange for such RSU Holders’ Company Restricted Share Units and such Company Restricted Share Units shall forthwith be cancelled.  Upon delivery of a Surrender Agreement to the Paying Agent, the applicable RSU Holder executing such Surrender Agreement shall be entitled to receive any remaining portion of the Common Share Price (less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations) in respect of the Company Restricted Share Units held by such RSU Holder immediately prior to the Effective Time as may become payable pursuant to the terms of this Agreement.  Upon surrender of a Certificate for cancellation to the Paying Agent, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the amounts set forth in Section 4.1 and the Certificates so surrendered shall forthwith be cancelled.  No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Company Restricted Share Units.  If payment is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so surrendered shall be accompanied by all documents required to evidence and effect that transfer and (y) the Paying Agent shall be entitled to deduct any applicable Taxes from the payments made to such Person, unless the Person requesting such payment shall have established to the reasonable satisfaction of the Surviving Corporation that such Tax either has been paid or is not applicable.  Each Certificate and each Company Restricted Share Unit shall be deemed at any time after the Effective Time to represent only the right to receive, upon surrender in accordance with this Section 5.4, the payments set forth in Section 4.1.  No interest shall be paid or accrued on any cash payable to Securityholders pursuant to the provisions of this Article V, except as expressly set forth in this Agreement.

(c)           If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond pursuant to and in accordance with the Letter of Transmittal, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall pay the applicable portion of the Merger Consideration to be paid in respect of the Common Stock formerly represented by such lost, stolen or destroyed Certificate.

(d)           From and after the Effective Time, the Securityholders shall cease to have any rights with respect to the Common Stock or Company Restricted Share Units, except as otherwise provided herein or by applicable Law.

(e)           At any time following the termination of the Escrow Agreement in accordance with the terms thereof, Parent or the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest earned thereon) that had been made available to the Paying Agent for disbursement to Securityholders who have not, prior to such date, surrendered their Company Restricted Share Units or Certificates as required by the Letter of Transmittal, and thereafter such Securityholders shall be entitled to look only to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) as general creditors

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thereof with respect to any amounts that may be payable to such Securityholders, as determined pursuant to this Agreement, without any interest thereon.  Anything herein to the contrary notwithstanding, none of the Company, Parent, Merger Sub, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Securityholder for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(f)            Parent or the Surviving Corporation shall be entitled to deduct and withhold, or to direct the Paying Agent to deduct and withhold, from any amount payable pursuant to this Agreement such amounts as Parent or the Surviving Corporation shall determine in good faith it is required to deduct and withhold with respect to the making of such payment under the Code or any other Law relating to Taxes unless the applicable Securityholder shall have established to the reasonable satisfaction of Parent or the Surviving Corporation, as applicable, that such Tax either has been paid or is not applicable.  To the extent that amounts are so withheld by the Paying Agent, Parent or the Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such withholding was made by the Paying Agent, Parent or the Surviving Corporation.  Parent or the Surviving Corporation shall be responsible to pay, in due course, all applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other obligations for which amounts were withheld in respect of payments to the RSU Holders and payments of Change in Control Costs or otherwise withheld from payments made under this Agreement.

5.5           Dissenters’ Rights.

(a)           In connection and included with the mailing of the Consent Solicitation, the Company shall provide each record holder of Common Stock with notice of such holder’s appraisal rights pursuant to Section 262 of the DGCL.  The Company shall give Parent reasonably prompt notice (and in any event, no later than three (3) Business Days after receipt) of any demands for appraisal pursuant to Section 262 of the DGCL received by the Company from any Stockholders, withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company in connection therewith.  No later than ten (10) days following the Closing Date, Parent and the Surviving Corporation shall provide notice of the Closing Date to each Stockholder entitled to appraisal, in accordance with Section 262(d)(2) of the DGCL.

(b)           Notwithstanding any other provision of this Agreement to the contrary, any outstanding shares of Common Stock that are held immediately prior to the Effective Time by Persons who have neither voted in favor of the Merger nor consented thereto in writing and who have demanded and perfected the right, if any, for appraisal of such outstanding shares of Common Stock in accordance with the provisions of Section 262 of the DGCL and have not withdrawn or lost such right to appraisal (collectively, the “Dissenting Shares”) shall be automatically cancelled and shall cease to exist and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of the DGCL.  If a holder of Dissenting Shares thereafter withdraws or loses (through

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failure to perfect or otherwise) the right to appraisal with respect to such Dissenting Shares, then, as of the occurrence of such withdrawal or loss, each such Dissenting Share shall be deemed to have been converted, at the Effective Time, into and represent only the right to receive, in accordance with Section 4.1, the Common Share Price and other consideration described in this Agreement, without interest thereon, except as expressly provided herein.

5.6           Post-Closing Adjustments.

(a)           Following the Closing, the Surviving Corporation shall prepare a statement (the “Post-Closing Statement”) which shall contain or include (x) a reasonably detailed calculation of the Net Working Capital and (y) calculations of (i) the Approved Capital Expenditures, (ii) the NOL Tax Benefit, (iii) the Transaction Costs, (iv) the Change in Control Costs, (v) the aggregate amount of outstanding Debt of the Company Entities as of the Closing Time, and (vi) the estimated Final Adjustment Amount, and the Surviving Corporation shall deliver the same, together with the Closing Financial Statements, to the Securityholders Representative no later than the 45th day following the Closing Date; provided, however, that the Surviving Corporation shall have until the 60th day following the Closing Date to deliver the calculation of the NOL Tax Benefit to the Securityholders Representative, and, when delivered, such calculation of the NOL Tax Benefit shall be deemed part of the Post-Closing Statement.

(b)           The Post-Closing Statement delivered by the Surviving Corporation to the Securityholders Representative shall be final and binding on the Parties, the Securityholders and the Securityholders Representative unless the Securityholders Representative objects within forty-five (45) days after receipt of the full Post-Closing Statement, including the calculation of the NOL Tax Benefit, by:  (A) notifying the Surviving Corporation and Parent in writing of each objection thereto; and (B) delivering to the Surviving Corporation and Parent a statement describing the basis for each objection along with any modifications to the Post-Closing Statement proposed by the Securityholders Representative.  The modified Post-Closing Statement as proposed by the Securityholders Representative shall be final and binding on the Parties, the Securityholders Representative and the Securityholders unless the Surviving Corporation objects in writing no later than the fifteenth (15th) day following the receipt of such modified Post-Closing Statement, which such notice to the Securityholders Representative shall contain a detailed statement describing the basis of each objection thereto and any modifications proposed by the Surviving Corporation.

(c)           Any component of the Surviving Corporation’s Post-Closing Statement or the Securityholders Representative’s modified Post-Closing Statement that is not the subject of a proper and timely objection by the Surviving Corporation or the Securityholders Representative, as applicable, shall be final and binding on the Parties, the Securityholders and the Securityholders Representative.  If the items disputed pursuant to Section 5.6(b) equal an aggregate amount in dispute that is less than the Adjustment Escrow Amount, then the aggregate amount so disputed shall be retained in the Adjustment Escrow Account and the Securityholders Representative and Parent shall deliver a joint written instruction to the Escrow Agent directing that the remaining

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portion of the Adjustment Escrow Amount be distributed to the Securityholders or the Surviving Corporation, as applicable, as to the extent owing to such Persons pursuant to Section 5.6(g).

(d)           Following the Closing Date, the Surviving Corporation shall permit the Securityholders Representative and its counsel, accountants and other advisors reasonable access (with the right to make copies) to the financial books and records of the Surviving Corporation and the applicable workpapers of its accountants for the purposes of the review and objection right contemplated herein.

(e)           The Surviving Corporation and the Securityholders Representative shall use reasonable efforts to resolve any dispute arising under Section 5.6(b); provided, however, that if they fail to resolve any dispute within thirty (30) days following the Surviving Corporation’s notice to the Securityholders Representative that it objects to the Securityholders Representative’s modifications to the Post-Closing Statement, then such disagreement shall be submitted for resolution to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such other firm of independent accountants to which the Surviving Corporation and the Securityholders Representative agree in writing (the “Independent Accountants”).  If issues are submitted to the Independent Accountants for resolution, the Securityholders Representative and the Surviving Corporation shall promptly enter into a customary engagement letter with the Independent Accountants.  Within fifteen (15) days after the Independent Accountants have been retained, each of the Securityholders Representative and the Surviving Corporation shall furnish to the Independent Accountants and each other a written statement of its position with respect to each matter in dispute.  Within ten (10) Business Days after the expiration of such 15-day period, the Securityholders Representative and the Surviving Corporation may deliver to the Independent Accountants and to each other their respective responses to the other’s position on each matter in dispute.  With each submission, the Securityholders Representative and the Surviving Corporation may also furnish to the Independent Accountants such other information and documents as they deem relevant or such information and documents as may be requested by the Independent Accountants with appropriate copies or notification being given to the other.  The Independent Accountants may, at their discretion, conduct a conference concerning the disputed matter(s) with the Securityholders Representative and the Surviving Corporation (provided that the Independent Accountants shall not conduct any substantive meetings or other communications with either of the Securityholders Representative or the Surviving Corporation outside the presence of the other), at which conference the Securityholders Representative and the Surviving Corporation shall each have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants.  Each of the Securityholders Representative and the Surviving Corporation shall provide copies to the other Person of any and all materials provided to the Independent Accountants.  All communications from the Independent Accountants to either of the Surviving Corporation or the Securityholders Representative, whether oral or in writing, shall be provided promptly to the other Person.

(f)            The Independent Accountants shall be directed to promptly, and in any event within forty (40) days after their appointment pursuant to Section 5.6(e), render

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their decision on the disputed matter(s).  The Independent Accountants’ determination as to each matter in dispute shall be set forth in a written statement delivered to the Securityholders Representative and the Surviving Corporation and shall be final and binding on the Parties, the Securityholders Representative and the Securityholders.  The fees of the Independent Accountants shall be borne solely by the Surviving Corporation or the Securityholders Representative (on behalf of the Securityholders) based on which Person’s calculations of the disputed matters (determined on an aggregate basis) as submitted to the Independent Accountants varied the most from the final calculations of the Independent Accountants.

(g)           Upon final determination of (i) the Net Working Capital (as so finally determined, the “Final Working Capital”); (ii) the Approved Capital Expenditures  (as so finally determined, the “Final Approved Capital Expenditures”), if any; (iii) the NOL Tax Benefit (as so finally determined, the “Final NOL Tax Benefit”); (iv) the aggregate amount of outstanding Debt of the Company Entities as of the Closing Time (as so finally determined, the “Final Debt”); (v) the aggregate amount of Transaction Costs (as so finally determined, the “Final Transaction Costs”); and (vi) the aggregate amount of Change in Control Costs (as so finally determined, the “Final Change in Control Costs”), in each case in accordance with Sections 5.6(a), 5.6(b), 5.6(c), 5.6(e) and/or 5.6(f), as applicable, then:

(i)            if the Final Adjustment Amount is a positive number:

(A)          Parent and the Securityholders Representative shall promptly provide a joint written instruction to the Escrow Agent to deliver promptly the aggregate amount of the Adjustment Escrow Amount remaining in the Adjustment Escrow Account after any distribution, if any, required by Section 5.6(c), plus any interest accrued thereon, to the Paying Agent for distribution to the Securityholders (subject to compliance with Section 5.4), pro rata in accordance with their Percentage Share; and

(B)           the Surviving Corporation shall pay, or cause to be paid to the Paying Agent for distribution to the Securityholders (subject to compliance with Section 5.4), pro rata in accordance with their Percentage Share, the amount, if any, by which the Final Adjustment Amount exceeds the Adjustment Escrow Amount, plus interest on such amount from the Closing Date through the date on which payment is made to the Paying Agent at the Applicable Rate;

(ii)           if the Final Adjustment Amount is a negative number, Parent and the Securityholders Representative shall promptly provide a joint written instruction to the Escrow Agent directing disbursement from the Adjustment Escrow Amount (and to the extent the

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Adjustment Escrow Amount is insufficient, also from the Fixed Escrow Amount as referenced below) as follows:

(A)          to the Surviving Corporation an amount equal to the lesser of (x) the absolute value of the Final Adjustment Amount and (y) the sum of (I) the aggregate Adjustment Escrow Amount plus (II) the General Indemnity Escrow, plus (in the case of clause (x) or (y) as applicable) any interest accrued thereon; and

(B)           to the Paying Agent, for distribution to the Securityholders (subject to compliance with Section 5.4) pro rata in accordance with their Percentage Share, the remainder of the Adjustment Escrow Amount in the Adjustment Escrow Account, if any, plus any interest accrued thereon, following the disbursement set forth in the foregoing clause (A).

(h)           For purposes of clarity, in no event shall Parent or the Surviving Corporation be entitled to any payments pursuant to this Section 5.6 in excess of the sum of the Adjustment Escrow Amount and General Indemnity Escrow (plus any interest accrued thereon).

5.7           No Duplicative Effect.  The provisions of this Article V and of any other Transaction Document shall apply in such a manner so as not to give the components and calculations duplicative effect to any item of adjustment and no amount shall be (or is intended to be) included, in whole or in part (either as an increase or reduction) more than once in the calculation of (including any component of) Net Working Capital or any other calculated amount pursuant to this Agreement if the effect of such additional inclusion (either as an increase or reduction) would be to cause such amount to be overstated or understated for purposes of such calculation.

5.8           Accrued Vacation.  At the Closing, the Company shall cause to be paid all accrued vacation with respect to Employees of any Company Entity (including any Employee on a leave of absence) that is earned and unused immediately prior to the Effective Time.

ARTICLE VI
CLOSING

Unless otherwise agreed to by the Company and Parent in writing, the closing of the Merger and the other transactions contemplated hereby (the “Closing”) shall take place at 10:00 a.m. local time at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., The ▇▇▇▇▇▇▇ Office Building, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇  ▇▇▇▇▇-▇▇▇▇, or at such other place as the Company and Parent may agree in writing, including by electronic exchange of documents.  The Closing shall take place on the date that is two (2) Business Days following the date on which each of the conditions precedent in Sections 10.1 and 10.2 has been satisfied or waived (other than those conditions that are to be satisfied at Closing, but subject to their due satisfaction or

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waiver at the Closing or such other date as the Company and Parent may agree in writing; provided, that in no event shall the Closing Date be earlier than July 1, 2011.  The date upon which Closing actually occurs is referred to herein as the “Closing Date.”

ARTICLE VII
REPRESENTATIONS AND WARRANTIES
REGARDING THE COMPANY

Except as otherwise set forth in the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement (the “Disclosure Schedules”), the Company hereby represents and warrants to Parent and Merger Sub that the statements set forth in this Article VII are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date as though made then, in each case except to the extent such representations and warranties expressly refer to another date, in which case such representations and warranties are made solely as of such other date:

7.1           Organization; Authority.

(a)           Organization.  The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.  Each Subsidiary is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction of incorporation.

(b)           Power.  The Company and each Subsidiary has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as and where such business is now being conducted.  The Company has all requisite corporate power and authority to enter into, execute and deliver this Agreement and the other Transaction Documents to be executed and delivered by the Company and to carry out the transactions contemplated hereby and thereby.

(c)           Authorization.  The execution and delivery of this Agreement and the other Transaction Documents that have been or are to be executed and delivered by the Company pursuant hereto, and full performance hereunder and thereunder, have been duly authorized by all necessary actions of the Board, and no other or further act of the Board is necessary therefor.  Upon receipt of the Stockholder Consent, all Securityholder approvals of this Agreement, the other Transaction Documents, the Merger and the other transactions contemplated herein and therein shall have been duly authorized and approved by all necessary actions of the Securityholders and no further Securityholder approvals are necessary.  Contemporaneously with the execution and delivery of this Agreement by the Company, Charter Mx LLC and ▇▇▇▇▇▇ Commodity Partners Fund LP delivered to the Company their written consent approving and adopting the Merger and this Agreement.  As of the date of this Agreement, Charter Mx LLC and ▇▇▇▇▇▇ Commodity Partners Fund LP are the record holders of an aggregate of 33.68% of the issued and outstanding Common Stock.

(d)           Qualification.  The Company and each of its Subsidiaries is duly qualified to do business in the jurisdiction of its organization and is duly qualified as a foreign

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corporation and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of property, or the conduct of its business, requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.  The jurisdictions in which the Company and each Subsidiary are qualified to do business as a foreign entity are listed on Disclosure Schedule 7.1(d).

(e)           Validity.  This Agreement has been, and each other Transaction Document to which the Company is a party has been or will be prior to or at Closing, duly and validly executed and delivered by the Company.  Assuming due authorization, execution and delivery of this Agreement and the other Transaction Documents by the other parties hereto and thereto, this Agreement is, and each other Transaction Document to which the Company is a party is, or when executed and delivered by the Company prior to or at Closing will be, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by:  (i) Laws governing bankruptcy, insolvency, moratorium, reorganization or similar Laws in effect that affect the enforcement of creditors’ rights generally; (ii) equitable limitations on the availability of specific remedies; or (iii) other principles of equity (such Laws, limitations and other principles, “Enforceability Limitations”).

(f)            Subsidiaries; Obligations to Provide Funds.  Disclosure Schedule 7.1(f) sets forth the name of each Subsidiary of the Company and, with respect to each such Subsidiary, the jurisdiction in which it is incorporated or organized, the number of shares of its authorized capital stock and other Equity Interests, the number and class of shares and other Equity Interests thereof duly issued and outstanding, which represent all of the Equity Interests in such Subsidiary, the names of all stockholders or other equity owners and the number of shares of stock and other Equity Interests owned by each such stockholder or equity owner.  Each Subsidiary has all requisite corporate or entity power and authority to own its properties and carry on its business as presently conducted.  The outstanding shares of capital stock of each Subsidiary of the Company are validly issued, fully paid and non-assessable, and all such shares or other Equity Interests represented as being owned by the Company or another Subsidiary of the Company are owned by it free and clear of any and all Liens, except for restrictions on transfer that may be imposed by state or federal securities Laws and Liens that are set forth in Disclosure Schedule 7.1(f).  Except as set forth on Disclosure Schedule 7.1(f), neither the Company nor any of its Subsidiaries is subject to any obligation or requirement to make any equity investment in any entity.  No Company Entity owns, directly or indirectly, any interest in any corporation, limited liability company, partnership, association or other entity, other than another Company Entity, and no Company Entity has any obligation to acquire any such interest.

(g)           Organization Documents, etc.  The copies of the Fourth Amended and Restated Certificate of Incorporation and Fourth Amended and Restated Bylaws of the Company, including any amendments thereto, the Organizational Documents of the other Company Entities and the Stockholders Agreement, which have been made available by the Company to Parent and Merger Sub, are true, correct and complete copies of such

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instruments as in effect on the date hereof.  The current directors and executive officers of the Company and its Subsidiaries are listed on Disclosure Schedule 7.1(g).

(h)           Capitalization of the Company.  The authorized capital stock of the Company consists of 200,000,000 shares of common stock, par value $0.01 per share, 50,000,000 shares of which are designated as Class A Common Stock, 10,000,000 shares of which are designated as Class B Common Stock, 40,000,000 shares of which are designated as Class C Common Stock, and 100,000,000 shares of which are designated as Class D Common Stock.  As of the date of this Agreement, there are:  (i) 33,710,902 shares of Class A Common Stock issued and outstanding (excluding shares held in treasury); (ii) 4,002,290 shares of Class B Common Stock issued and outstanding; (iii) 17,078,335 shares of Class C Common Stock issued and outstanding, of which 28,973 shares are Restricted Shares; (iv) no shares of Class D Common Stock issued and outstanding; and (v) 229,781 shares of Class A Common Stock held in treasury.  Disclosure Schedule 7.1(h) lists the total number of shares of Common Stock of the Company that are issued and outstanding as of the date hereof (and updated by the Company as of immediately prior to the Effective Time), the name of each record owner of such shares, the number of shares of each class of Common Stock held by each record owner (including the related stock certificate numbers) and the Percentage Share of each such record owner.  All of the issued and outstanding Equity Interest Equivalents of the Company are set forth on Disclosure Schedule 7.1(h), including the name of the record owner of such Equity Interest Equivalent and a description of each Equity Interest Equivalent including the exercise price and vesting schedule, as applicable, of each Equity Interest Equivalent and the Percentage Share of such record owner.  Except as set forth on Disclosure Schedule 7.1(h), there are no:  (A) Contracts of any kind to which a Company Entity is a party, or is bound, relating to the issuance, sale or transfer of any Equity Interest in any Company Entity (other than the Equity Compensation Plan and the Company Restricted Share Units); (B) obligations (contingent or otherwise) of any Company Entity to purchase, redeem or otherwise acquire any Equity Interest in any Company Entity (other than pursuant to Company Restricted Share Units or the terms of Restricted Shares) or to pay any dividend or make any other distribution in respect thereof; (C) Liens or restrictions on the transfer of any Equity Interest in any Company Entity pursuant to which any Company Entity is a party or is bound (other than pursuant to securities Laws); (D) voting trusts, proxies or other agreements or understandings to which any Company Entity is a party, or is bound, with respect to the voting of any Equity Interest in any Company Entity; (E) no Person is entitled to any preemptive right, right of first offer, right of first refusal or any similar right with respect to the issuance of any Equity Interest in any Company Entity pursuant to any Contract to which a Company Entity is a party, or is bound, and no Person is entitled to any rights with respect to the registration of any Equity Interest in any Company Entity; and (F) there are no outstanding equity or stock appreciation, phantom stock or equity, profit participation or similar rights with respect to any Company Entity.  To the Company’s Knowledge, each holder of Restricted Shares filed an election with respect to such Restricted Shares under Section 83(b) of the Code with the Internal Revenue Service within thirty (30) days of the grant of such Restricted Shares.

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7.2           No Violation; Conflicts, etc.  Assuming receipt of the Stockholder Consent and subject to the receipt of each of the consents, notices and approvals of Governmental Authorities set forth on Disclosure Schedule 7.2(a) that are required to be obtained by the Company prior to the Effective Time (such consents, notices and approvals required to be obtained prior to the Effective Time, collectively, the “Company Mandatory Consents”) (for purposes of clarification, Company Mandatory Consents does not include the Stockholder Consent) and Antitrust Approval, neither the execution and delivery of this Agreement, the other Transaction Documents to which the Company is a party and the Sempra Termination Agreement nor the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby will:  (a) violate any material applicable Laws of any Governmental Authority; (b) require any material authorization, consent, approval, exemption, registration, declaration, filing or other action by or notice to any Governmental Authority, other than notices required to be filed, or otherwise customarily filed, following the Effective Time; (c) except as set forth on Disclosure Schedule 7.2(c), violate, conflict with, or result in any violation of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, cancellation or acceleration under, or require prior notice to or the consent or approval of any Person party to, any Material Contract to which any of the Company Entities is a party, or by which any Company Entity or its properties or assets may be bound or affected; or (d) conflict with or result in any violation of any Organizational Documents of the Company Entities that will not be satisfied or waived in conjunction with Closing.

7.3           Financial Statements.

(a)           The Company has delivered to Parent true and complete copies of the following (collectively, the “Financial Statements”):

(i)            the audited consolidated balance sheets of the Company as of June 30, 2009 and June 30, 2010 and the audited consolidated statements of operations, cash flows and stockholder’s equity of the Company for the fiscal years ended June 30, 2010, June 30, 2009 and June 30, 2008 (including, in each case, the notes thereto), accompanied by the report thereon of Ernst & Young LLP, independent registered public accounting firm (the “Audited Financial Statements”); and

(ii)           the unaudited interim consolidated balance sheet of the Company dated December 31, 2010 (the “Latest Balance Sheet”) and the related unaudited interim consolidated statements of operations, cash flows and stockholder’s equity of the Company for the six-month period ended December 31, 2010 (collectively, the “Interim Statements”).  The date of the Latest Balance Sheet is referred to herein as the “Balance Sheet Date.”

(b)           The Audited Financial Statements (in each case including the notes thereto) were prepared from and are consistent in all material respects with the books and records of the Company Entities and in accordance with GAAP.  The Interim Statements were prepared in accordance with GAAP (except that such unaudited financial statements

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do not contain all footnotes required under GAAP and are subject to normal year-end adjustments) and on a basis and using principles consistent with the preparation of the Audited Financial Statements.  The Financial Statements fairly present, in all material respects, the assets and liabilities and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the periods then ended in accordance with GAAP.

(c)           Except as set forth on Disclosure Schedule 7.3(c), the Company and its Subsidiaries do not have any liability, commitment or obligation of any kind, whether secured or unsecured, fixed or unfixed, asserted or unasserted, due or to become due, accrued, absolute, contingent, direct, indirect or otherwise, except liabilities, commitments and obligations that:  (i) have been incurred in the Ordinary Course of Business since the Balance Sheet Date (none of which results from, arises out of, relates to or is in the nature of, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law); (ii) are accrued or reserved against on the Latest Balance Sheet; (iii) would not be required to be presented, set forth, or reserved against in consolidated unaudited financial statements (including the notes thereto, treating such financial statements as a year end financial statement for which notes are required) prepared in conformity with GAAP on a basis consistent with the accounting principles, practices and procedures used in the preparation of the Latest Balance Sheet; or (iv) are not material.

7.4           Tax Matters.  For purposes of this Section 7.4, references to the Company shall be deemed to include all Subsidiaries of the Company and all members of any affiliated, consolidated, combined or unitary group of which the Company is or was a member and any predecessors of any of the foregoing.

(a)           Except as set forth on Disclosure Schedule 7.4(a)(i), the Company has filed or caused to be filed (on a timely basis) all income, franchise, property and other Tax Returns that currently are or were required to be filed pursuant to Law.  All such Tax Returns are accurate and complete in all material respects.  Except as set forth on Disclosure Schedule 7.4(a)(ii), all Taxes currently owed by the Company (whether or not shown on any Tax Return) have been paid in full, except where (i) the failure to pay such Taxes would not result in a Tax liability of more than $100,000 for an individual Tax assessment or more than $1,000,000 in the aggregate, or (ii) such Taxes are being contested in good faith.  Except as set forth on Disclosure Schedule 7.4(a)(iii), the Company is not currently the beneficiary of any extension of time within which to file any Tax Return or pay any Tax and no power of attorney with respect to Taxes has been given by the Company that is still effective.  No claim has been made in writing by an authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.  The Company has no Knowledge of any Taxes owed in jurisdictions where a utility collects and or remits Taxes on the Company’s behalf.  There are no Liens on any of the assets or properties of the Company that arose in connection with any failure (or alleged failure) to pay any Tax.  Except as set forth on Disclosure Schedule 7.4(a)(iv), the Company does not have and has not had a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the U.S. and such foreign country.

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(b)           Except as set forth on Disclosure Schedule 7.4(b), the Company has withheld and paid all Taxes currently required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Person.  All other Taxes the Company is or was required by Law to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper entity or Person.

(c)           Except as set forth on Disclosure Schedule 7.4(c), there is no dispute or claim concerning any Tax liability of the Company either:  (i) claimed or raised by any Taxing Authority in writing or (ii) as to which the Company has Knowledge.  The Company has delivered or made available to Parent and Merger Sub copies of all Tax Returns filed with respect to the Company for any Open Tax Periods, and copies of all examination reports and statements of deficiencies assessed against or agreed to by the Company with respect to Taxes of the Company for all Open Tax Periods.  Disclosure Schedule 7.4(c) sets forth:  (1) all federal, state, local and foreign income Tax Returns filed with respect to the Company for Open Tax Periods, (2) all other material federal, state, local and foreign Tax Returns filed with respect to the Company for Open Tax Periods; (3) all Tax Returns that are currently the subject of an audit; (4) all Tax Returns for the Tax Periods ended on or after June 30, 2007 for which an audit has been completed; and (5) the outcome of each such completed audit.  Except as set forth on Disclosure Schedule 7.4(c), all deficiencies proposed as a result of such audits have been paid, reserved against on the face of the Latest Balance Sheet, settled, or are being contested in good faith by appropriate Proceedings.

(d)           There are no Liens on any of the assets of the Company that arose in connection with any failure to pay any Tax.

(e)           Except as set forth on Disclosure Schedule 7.4(e), the Company has not given any waivers or extensions (and is not subject to a waiver or extension given by any other Person) of any statute of limitations relating to the payment of Taxes of the Company or for which the Company may be liable.

(f)            The Company has not entered into or participated in:  (i) any transaction identified as a “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2); (ii) any transaction that constitutes a “confidential corporate tax shelter” within the meaning of Section 6111 of the Code, and Treasury Regulations Section 301.6111-2, as in effect prior to the enactment of the American Jobs Creation Act of 2004; or (iii) any similar or substantially similar transaction required to be disclosed to a Taxing Authority under any applicable Law relating to Taxes.

(g)           The Company has not participated in and is not participating in an international boycott within the meaning of Section 999 of the Code.

(h)           Except as set forth on Disclosure Schedule 7.4(h), the Company has not made any payments, is not obligated to make any payments, nor is it a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Section 280G of the Code.  The Company has not been a

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U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.  The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code (or any similar provision of state, local or foreign Law).  Except as set forth on Disclosure Schedule 7.4(h), the Company is not a party to or bound by any Tax allocation or sharing agreements or arrangements.  Except as set forth on Disclosure Schedule 7.4(h), the Company has not:  (i) been a member of any affiliated group within the meaning of Section 1504(a) of the Code (or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated federal income Tax Return; or (ii) been liable for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee, a successor, by Contract or otherwise.

(i)            Except as set forth on Disclosure Schedule 7.4(i), the Company is not required to:  (i) include any item of income in, or exclude any item of deduction or loss from, taxable income for any Tax Period or portion thereof beginning on or after the Closing Date as a result of (1) a change in method of accounting, under Section 481 of the Code, or otherwise, for a Tax Period beginning prior to the Closing Date, (2) any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed on or before the Closing Date, (3) any sale reported on the installment method where such sale occurred on or prior to the Closing Date, (4) any prepaid amount received on or prior to the Closing Date, (5) an election to treat any of its assets as owned by another Person for Tax purposes or as tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code, (6) a consent dividend election under Section 565 of the Code, or (7) any intercompany transactions or excess loss account described in Treasury Regulations promulgated under Section 1502 of the Code (or any similar provision of state, local or foreign Law); or (ii) make any of the foregoing elections or apply any of the foregoing rules under any comparable state, local, or foreign Law relating to Taxes.

(j)            Except as set forth on Disclosure Schedule 7.4(j), the unpaid Taxes of the Company:  (i) did not, as of the Latest Balance Sheet, materially exceed the amount of current liability accruals for Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Latest Balance Sheet (rather than in any notes thereto); and (ii) do not materially exceed the current liability accrual for Taxes as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.

(k)           The Company has provided copies of all agreements, consents, elections, changes of accounting methods and waivers filed or made with the Internal Revenue Service or other Taxing Authorities arising in connection with the Company.  The Company does not have pending any ruling requests filed by it or on its behalf with any Taxing Authority.

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(l)            Except as set forth on Disclosure Schedule 7.4(l), none of the property of the Company is held in an arrangement that is a partnership for U.S. federal Tax purposes, and the Company does not own any interest in any “controlled foreign corporation” (as defined in Section 957 of the Code), “passive foreign investment company” (as defined in Section 1297 of the Code) or other entity the income of which is or could be required to be included in the income of the Company.  Except as set forth on Disclosure Schedule 7.4(l), no liability of the Company is a debt obligation that:  was issued with “original issue discount,” as defined in Section 1273 of the Code; is a “registration-required obligation,” as defined in Section 163(f)(2) of the Code; is an “applicable high yield discount obligation,” as defined in Section 162(i) of the Code; provides for the payment of interest that is “disqualified interest,” as such term is defined in Section 163(j)(3) of the Code; constitutes “corporate acquisition indebtedness” within the meaning of Section 279(b) of the Code; or is a “disqualified debt instrument,” as defined in Section 163(b)(2) of the Code.

(m)          The Company has not entered into any agreement or arrangement with any Taxing Authority that requires the Company to take any action or to refrain from taking any action.  The Company is not a party to any agreement with any Taxing Authority that would be terminated or adversely affected as a result of the transactions contemplated by this Agreement.

(n)           The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code:  (i) in the two years prior to the date of this Agreement; or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.

(o)           Except as accrued for or reflected on the Latest Balance Sheet, there is no property or obligation of the Company, including uncashed checks to vendors, customers or employees, non-refunded overpayments or unclaimed subscription balances, that is escheatable or reportable as unclaimed property to any state or municipality under any applicable escheatment or unclaimed property Laws and is more than $100,000 individually or more than $1,000,000 in the aggregate.

(p)           All of the Company’s property that is subject to property Tax has been properly listed and described on the property tax rolls of the appropriate taxing jurisdiction for all periods prior to Closing and no portion of the Company’s property constitutes omitted property for property tax purposes.

(q)           All payments by, to or among the Company and its Affiliates comply in all material respects with all applicable transfer pricing requirements imposed by any Governmental Authority and the Company has made available to Parent accurate and complete copies of all transfer pricing documentation prepared pursuant to Treasury Regulation Section 1.6662-6 (or any similar foreign statutory, regulatory or administrative provision) by or with respect to the Company during the past three years.

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(r)            Except as set forth in Disclosure Schedule 7.4(r), the Company does not have any Knowledge of, nor has been advised by its external auditor or tax consultant of, any tax risk or additional potential tax liability or uncertain tax position as defined by GAAP.

(s)           Except as set for the in Disclosure Schedule 7.4(s), the Company has consistently affixed its hedge stamp as required by Treasury Regulation Section 1.1221-2(f) to all derivative instruments entered into during Open Tax Periods.

(t)            The Company has not terminated any of its commodity hedge positions, nor has the Company participated in any speculative trading activities during any Open Tax Period, except as set forth on Disclosure Schedule 7.4(t).

7.5           Notes, Accounts Receivable, etc.  All accounts receivable as of the Balance Sheet Date are reflected properly on the Latest Balance Sheet and on the accounting records of the Company; arise from contractual obligations owed to the Company Entities in the Ordinary Course of Business; and, to the Company’s Knowledge, constitute the legal, valid and binding obligation of the applicable customer, account debtor or other obligor.  To the Company’s Knowledge, no portion of any accounts receivable is or will be subject to any defense or counterclaim, subject to reserves for doubtful accounts in the Ordinary Course of Business.  Subject to applicable reserves reflected on the Latest Balance Sheet, to the Company’s Knowledge, all accounts receivable of the Company Entities are current and collectible in the Ordinary Course of Business.  Except as set forth on Disclosure Schedule 7.5, the Company Entities have no notes receivable.

7.6           Absence of Certain Changes.  Except as set forth on Disclosure Schedule 7.6 since the Balance Sheet Date through the date of this Agreement:

(a)           there has not occurred any Material Adverse Effect;

(b)           there has not been any declaration, setting aside or payment of any dividend or any other distribution in respect of the Company’s Equity Interests or any declaration, setting aside or payment or any other distributions of any kind made by the Company to the Securityholders (in such capacity), or any redemption, purchase or other acquisition by the Company of any Equity Interests in the Company or any security relating thereto (other than in connection with the termination of employment of the holder of any Equity Interest Equivalents pursuant to the terms thereof or the Equity Compensation Plan);

(c)           no Company Entity has sold, leased, transferred, assigned or otherwise disposed of in any way whatsoever any of the material assets (whether tangible or intangible) owned or leased by a Company Entity, other than gas and electricity sold in the Ordinary Course of Business;

(d)           no Person has accelerated, terminated, materially modified or cancelled any Material Contract, except in the Ordinary Course of Business;

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(e)           the Company has not granted any Lien upon any of the Common Stock that will not be discharged or released in conjunction with the Closing;

(f)            no Company Entity has granted any Lien (other than Permitted Encumbrances) upon any of the assets of a Company Entity that will not be discharged or released in conjunction with Closing;

(g)           no Company Entity has made or committed to make any individual capital expenditures (excluding customer acquisition costs and capitalized salary, benefits and contractor costs relating to technology projects, in each case, incurred in the Ordinary Course of Business) that (i) exceeded $500,000 individually or (ii) exceeded $1,000,000 for any single project;

(h)           no Company Entity has made or committed to make any capital investment in, or any acquisition of the Equity Interests of, any other Person;

(i)            no Company Entity has made or committed to make any loan to or any acquisition of the material assets of any other Person;

(j)            no Company Entity has created, incurred, assumed or guaranteed any Debt;

(k)           no Company Entity has materially delayed or postponed the payment of accounts payable of such Company Entity or other liabilities of such Company Entity, other than in the Ordinary Course of Business;

(l)            no Company Entity has cancelled, compromised, waived or released any material right or material claim relating to or affecting such Company Entity, other than the settlement of accounts receivable in the Ordinary Course of Business;

(m)          there has been no change made or authorized with respect to any of the Organizational Documents of the Company Entities;

(n)           no Company Entity has issued, sold or otherwise disposed of any of the Equity Interests of itself or any other Company Entity;

(o)           no Company Entity has experienced any damage, destruction or loss (whether or not covered by insurance) to its property or assets in excess of $1,000,000 in the aggregate, or revalued any portion of the assets or properties (including any write-down of the value of inventory or other assets, or any write-off of notes or accounts receivable outside of the Ordinary Course of Business) in an amount greater than $500,000 in the aggregate;

(p)           no Company Entity has granted any bonuses, whether monetary or otherwise, or made any increase in any general wage or other salary, benefits or other increases in respect of its compensation of any of the current or former directors, officers, employees, independent contractors or agents, or hired any new employees, in each case, except any immaterial grants or increases in the Ordinary Course of Business;

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(q)           except as required by Law, no Company Entity has adopted or terminated, or made any amendment or modification of, any Employee Benefit Plans (other than employment Contracts to the extent such amendments, modifications or the execution of any such Contracts is disclosed on Disclosure Schedule 7.11(a)(ix);

(r)            no Company Entity has made any other change in employment terms for any of the current or former directors, officers, employees, independent contractors or agents of any Company Entity, except immaterial changes in the Ordinary Course of Business;

(s)           no Company Entity has adopted any plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of a Company Entity, other than in connection with the Merger;

(t)            the Company Entities have not made any change in the Company Entities’ accounting methods, principles or practices or made any change in depreciation or amortization policies or rates adopted by them, except (i) as may have been required by a change in GAAP or (ii) immaterial changes;

(u)           no Company Entity has made or changed any Tax election, except as required by Law; and

(v)           no Company Entity has committed to do any of the foregoing, except as contemplated by this Agreement.

7.7           No Litigation.

(a)           There is no Proceeding pending or, to the Knowledge of the Company, threatened, against any Company Entity, the directors or executive officers of any Company Entity (in such capacity) or any assets of a Company Entity, whether at law or in equity, or before or by any Governmental Authority, except as described on Disclosure Schedule 7.7(a).  Except as set forth on Disclosure Schedule 7.7(a), there are no Orders of any Governmental Authority under which any Company Entity has any ongoing obligations or that are otherwise binding against any Company Entity or its assets.  Any Company Entity subject to an Order (including any settlement of a Proceeding) listed on Disclosure Schedule 7.7(a) is in compliance in all material respects with such Orders.

(b)           The Company has provided Parent and Merger Sub with a true, correct and complete copy of the Consent Order, dated November 18, 2010 (the “Consent Order”), entered in the United States District Court Eastern District of Pennsylvania regarding Civil Action No.:  5:100-cv-04836-JKG between MXEnergy, Inc. and Gateway Energy Services Corporation.  The Company Entities are in compliance in all material respects with all obligations imposed on any Company Entity by the Settlement Agreement.

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7.8           Compliance with Laws.

(a)           Except as disclosed on Disclosure Schedule 7.8(a), the Company Entities are in compliance in all material respects with all applicable Laws.  Except as disclosed on Disclosure Schedule 7.8(a), no Company Entity has received any written notice from a Governmental Authority of any violation or alleged violation of, and to the Knowledge of the Company, has not been threatened with any such notice, and no Company Entity is subject to any liability or conciliation or settlement agreement for past or continuing violation of, any applicable Laws.  Except as disclosed on Disclosure Schedule 7.8(a), to the Knowledge of the Company, no Company Entity is the subject of any investigation relating to any potential violation of any Laws.  Except as set forth on Disclosure Schedule 7.8(a), since January 1, 2008, and, to the Knowledge of the Company, since January 1, 2006 through and including December 31, 2007, all material reports and returns required to be filed by any Company Entity with any Governmental Authority (excluding Tax Authorities) have been filed, were accurate and complete in all material respects when filed (or, if subsequently amended prior to the date hereof, when so amended) and were in material compliance with all applicable Laws when filed (or, if subsequently amended prior to the date hereof, when so amended).

(b)           Each Company Entity has all material Permits necessary to own and operate its business and assets in the Ordinary Course of Business.  Set forth on Disclosure Schedule 7.8(b) is a true, correct and complete list of the material Permits held by any Company Entity, true and correct copies of which have been made available to Parent.

7.9           Title to and Condition of Assets and Properties; Sufficiency.

(a)           The Company Entities have, in all material respects, good title to or valid leasehold interests in:  (i) all the properties and assets (whether tangible or intangible) reflected in the Latest Balance Sheet (except for gas and electricity sold in the Ordinary Course of Business and immaterial assets disposed of in the Ordinary Course of Business, in each case, since the Balance Sheet Date); and (ii) all of the properties and assets (whether tangible or intangible) purchased or otherwise acquired by the Company Entities since the Balance Sheet Date (except for gas and electricity sold in the Ordinary Course of Business and immaterial assets disposed of in the Ordinary Course of Business since the Balance Sheet Date), in the case of each of clauses (i) and (ii), free and clear of all Liens other than Permitted Encumbrances.

(b)           The personal property and assets of the Company Entities that are reflected on the Latest Balance Sheet or that were acquired thereafter, and the Intellectual Property owned or licensed by the Company Entities in the conduct of the business of the Company Entities, are sufficient for the Company Entities to conduct their business as presently conducted.

(c)           No Company Entity owns any natural gas pipelines or electrical distribution facility.

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7.10         Insurance.

(a)           Set forth on Disclosure Schedule 7.10 is a complete and accurate list of all material policies of fire, liability, product liability, workers compensation, health and other forms of insurance presently in effect with respect to the Company Entities and the properties of the Company Entities (other than any policy providing coverage under any Employee Benefit Plan), and the Company has made available to Parent and Merger Sub true, correct and complete copies of all such policies.  No written notice of cancellation or termination has been received by any Company Entity with respect to any such policies.

(b)           With respect to each insurance policy listed on Disclosure Schedule 7.10:  (i) no Company Entity nor, to the Knowledge of the Company, any other party to the policy is in material breach or default (including with respect to the payment of premiums or the giving of notices) under such policy and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time, would constitute such a material breach or default or permit termination, modification or acceleration under such policy; and (ii) to the Knowledge of the Company, no party to the policy has repudiated any provision thereof.  Disclosure Schedule 7.10 describes any self-insurance arrangements affecting the Company Entities.  Disclosure Schedule 7.10 contains a true, correct and complete list of each claim (or series of related claims) made by a Company Entity against any insurance policies since January 1, 2009.

7.11         Material Contracts and Related Matters.

(a)           Disclosure Schedule 7.11(a) sets forth a true, correct and complete list of all Contracts (without duplication) of the following types to which any Company Entity is a party or by which any Company Entity or its property or assets is bound, excluding Contracts with any retail customers of any Company Entity, other than with respect to Major Customers (collectively, the “Material Contracts”):

(i)            any Contract or series of related Contracts that would reasonably be expected to result in payments by or to any one or more Company Entities in excess of $100,000 in any 12-month period, including third party broker or referral agreements or marketing (including telemarketing and door-to-door) agreements, but excluding imbalance payments made to utilities and independent system operators by or to the Company Entities in the Ordinary Course of Business;

(ii)           any Contract with a Major Customer;

(iii)          any Contract concerning a partnership or joint venture;

(iv)          any Intellectual Property Agreement that is material to the business of the Company, other than commercially available off-the-shelf software;

(v)           excluding Contracts listed pursuant to clause (xiii) below or Section 7.11(c), any Contract under which a Company Entity has

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created, incurred, assumed or guaranteed any Debt, or under which it has granted a Lien (other than Permitted Encumbrances) on any of its assets, tangible or intangible;

(vi)                             except for any Contract entered into in connection with this Agreement, any Contract relating to a Company Entity’s agreement not to compete with any Person or in any market or line of business or that materially restrains the ability of the Company Entities to otherwise compete in any manner or engage in any business;

(vii)                          any Contract between or among (A) a Company Entity (on the one hand) and (B) any Related Party of a Company Entity (on the other hand), other than (1) Contracts related to employment, (2) Contracts relating to banking arrangements and Contracts relating to investment or financial advisory services entered into on an arm’s length basis that are terminable on not more than  thirty (30) days prior notice without penalty or premium and under which no services are currently being provided, and (3) customer Contracts pursuant to which a Related Party purchases electricity or gas from a Company Entity on an arms’ length basis or pursuant to discount programs established by the Company Entities and disclosed on Disclosure Schedule 7.19;

(viii)                      any collective bargaining agreement or other similar labor arrangement or Contract, or any conciliation, settlement or resolution agreement with any Governmental Authority concerning employment-related matters;

(ix)                              any Contract for the employment of any individual on a full-time, part-time, consulting, agency or any other basis providing compensation or including Severance Obligations;

(x)                                 any wholesale commodity purchase or sale Contract, including power and  natural gas supply Contracts, under which any Company Entity has made purchases during the 12 months prior to the date hereof or under which any Company Entity has any current obligations;

(xi)                              any pipeline transportation or storage Contract, including capacity release agreements, and agreements with gas or electric local distribution companies and/or utilities;

(xii)                           any Contract with an independent system operator, independent power producer, electric or gas marketing company, electric/regional transmission organization and/or power pool, and any scheduling, scheduling coordination, wholesale power/electric

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capacity counterparty, and any capacity ancillary services or similar Contracts;

(xiii)                       any forward hedging, swap, option or similar financially-settled Contract, or any other commodity, interest rate or currency exchange Contract, including any swap agreements with customers (excluding any customer Contracts entered into in the Ordinary Course of Business for the supply of commodities);

(xiv)                      any Contract under which it has advanced or loaned any amount to any of its current or former directors, officers, employees, shareholders or any other Person not acting at arm’s length; and

(xv)                         any Contract or series of related Contracts that by its terms, requires payments by any one or more Company Entities in excess of $1,000,000 over the term (excluding renewals, “evergreen” renewals and other extensions) of such Contract or series of related Contracts.

(b)           The Company has made available to Parent and Merger Sub true, correct and complete copies of all of the Material Contracts.  Except as set forth on Disclosure Schedule 7.11(b), with respect to each Material Contract:  (i) such Material Contract is the legal, valid, binding obligation of the Company Entity party thereto and, to the Knowledge of the Company, the other Persons thereto, enforceable in accordance with its terms, subject to Enforceability Limitations; (ii) no Company Entity is, and to the Knowledge of the Company, no other party thereto is in material breach or default under such Material Contract; and (iii) no event has occurred which with notice or lapse of time would constitute a material breach or default, by a Company Entity or, to the Knowledge of the Company, any other party thereto under such Material Contract.

(c)           Disclosure Schedule 7.11(c) (which Disclosure Schedule shall be updated by the Company immediately prior to the Closing) contains a complete and accurate list of all currently effective guaranties, letters of credit, deposits, surety bonds and other credit support:  (i) in favor of any Person provided by, or on behalf of, any Company Entity; or (ii) in favor of any Company Entity provided by any Person (the “Permitted Credit Support”).  No Company Entity is in material breach or default under any Permitted Credit Support, and no event has occurred that, with notice or the passage of time or both, would result in a material breach or default by any Company Entity under any Permitted Credit Support provided by, or on behalf of, any Company Entity and, to the Knowledge of the Company, no other Person has is in material breach or default under any Permitted Credit Support provided by such Person in favor of a Company Entity or under any obligations of such Person for which a Company Entity has provided Permitted Credit Support.

7.12         Labor Matters.  No Company Entity has ever been a party to any collective bargaining or other similar labor Contract.  No Company Entity has experienced or is experiencing any actual or, to the Knowledge of the Company, threatened material labor dispute,

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union organization attempt or work stoppage due to a labor disagreement in connection with any Company Entity.  No collective bargaining agreements or other similar labor Contracts are being negotiated by any Company Entity and none of the employees of any Company Entity are represented by a union.  To the Company’s Knowledge, no union organizational campaign or representation petition is currently pending with respect to any employee of any Company Entity.  No Proceeding arising out of or under any collective bargaining agreement is pending against any Company Entity and, to the Knowledge of the Company, no claim therefor exists.

7.13         Employee Matters.

(a)           Except as set forth on Disclosure Schedule 7.13(a), each Company Entity is, and, at all times since January 1, 2006, has been:  (i) in compliance in all material respects with all applicable Laws and regulations regarding labor and employment, employment practices, terms and conditions of employment and wages and hours; and (ii) not engaged in any unfair labor practice.  Except as set forth in Disclosure Schedule 7.13(a), there are no pending or, to the Knowledge of the Company, threatened material claims concerning such Laws and regulations, including those relating to:  (1) wages, hours, salaries, commissions, bonuses, vacation pay, severance pay, sick pay or other compensation; (2) alleged unlawful, unfair, wrongful or discriminatory employment or labor practices; (3) alleged breach of contract or other claim arising under a collective bargaining or individual employment agreement; (4) alleged violations of any confidentiality, noncompetition, nonsolicitation, or proprietary rights agreements; or (5) alleged violations of plant closing and mass layoff, immigration, workers’ compensation, disability, unemployment compensation, whistleblower, or other employment or labor relations Laws.  There are no continuing liabilities or obligations, other than those related to confidentiality, pursuant to the confidential settlement agreement described on Disclosure Schedule 7.11(a)(viii).

(b)           Except as set forth on Disclosure Schedule 7.13(b), to the Knowledge of the Company, no executive officer, key employee or group of employees of the Company Entities has informed the Company of the intention to terminate his, her or their employment with any Company Entities, except as expressly contemplated by this Agreement.  Disclosure Schedule 7.13(b) sets forth a true and complete list of the names, job titles, annual wages or salaries, and other compensation of all current employees of each Company Entity (the “Employees”).  No Employee or director of a Company Entity is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality, noncompetition or proprietary rights agreement, between such Employee or director and any Company Entity that in any way adversely affects or will affect:  (i) the performance of his or her duties as an Employee or director of such Company Entity; or (ii) the ability of the Company Entities to conduct their respective businesses.  All Employees of any Company Entity (including any on leave of absence) have been paid or liabilities have been or will be properly accrued for all salaries, wages, vacation and other compensation (including a pro rata portion of any performance, retention or other bonuses or incentive compensation) earned for time worked by such Employees for such Company Entity.  On the Closing Date, the Company shall have all personnel Records of the Employees.

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7.14         Employee Benefit Plans.

(a)           Disclosure Schedule 7.14(a) lists each Employee Benefit Plan, other than of the type described in clause (d) of the definition thereof.  There are no pending or, to the Knowledge of the Company, threatened actions, suits or claims (other than claims for benefits in the Ordinary Course of Business) against or with respect to any Employee Benefit Plan or fiduciary thereof, nor Proceedings with respect thereto by the Department of Labor, the Pension Benefit Guaranty Corporation, the Internal Revenue Service or any other Governmental Authority.  The Company has made available to Parent and Merger Sub a true, correct and complete copy of each Employee Benefit Plan set forth on Disclosure Schedule 7.14(a) and Disclosure Schedule 7.14(h) (including all amendments thereto and written interpretations), the most recent summary plan description for each Employee Benefit Plan for which such a summary plan description is required, and, if applicable, any related trust or funding agreements or arrangements or insurance policies, together with the three most recent annual reports (Form 5500, including all schedules and attachments), if applicable, prepared in connection with any Employee Benefit Plan.  Benefits under all Employee Benefit Plans are as set forth in such plan documents and have not been modified other than as set forth in such plan documents and amendments.

(b)           Neither the Company nor any other entity that would be treated as an ERISA Affiliate of the Company, is obligated to sponsor, maintain, or contribute to, or has in the past been obligated to sponsor, maintain or contribute to any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title IV of ERISA or Section 412 of the Code and neither the Company nor any of its ERISA Affiliates otherwise has any obligation or liability under Title IV of ERISA.

(c)           Neither the Company nor any of its ERISA Affiliates contributes to, or has in the past contributed to, or has any other liability under or with respect to, any “multiemployer plan” as defined in Section 3(37) of ERISA.

(d)           Each Employee Benefit Plan maintained or adopted by any Company Entity which is intended to be qualified under Section 401(a) of the Code either:  (i) is subject to a current Internal Revenue Service opinion letter with respect to the qualified status of the form of such Employee Benefit Plan; or (ii) has received a current favorable determination letter or has pending, or has time remaining (before expiration of the remedial amendment period set forth in Section 401(b) of the Code) in which to file, an application for such determination from the Internal Revenue Service, such plan has not been amended and the Company is not aware of any reason why any such determination letter (or opinion letter) should be revoked or not be issued or reissued.  The Company has made available to Parent and Merger Sub copies of the most recent Internal Revenue Service opinion letters or determination letters with respect to each such Employee Benefit Plan which is intended to be qualified under Section 401(a) of the Code.  Each Employee Benefit Plan maintained or adopted by any Company Entity has been maintained, funded and administered in all material respects in compliance with its terms and with the requirements prescribed by any Laws, including ERISA and the Code, which are applicable to such Employee Benefit Plan.

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(e)           There have been no “prohibited transactions” within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code for which a statutory or administrative exemption does not exist with respect to any Employee Benefit Plan and, to the Knowledge of the Company, no event or omission has occurred in connection with which any Company Entity or any of their assets or properties or any Employee Benefit Plan, directly or indirectly, could be subject to any liability under ERISA, the Code or any other Law applicable to any Employee Benefit Plan or under any agreement, instrument, Law pursuant to or under which a Company Entity has agreed to indemnify or is required to indemnify any Person against liability incurred under any such Law.

(f)            With respect to each Employee Benefit Plan, as of the date hereof:  (i) all contributions or other payments (including insurance premiums) required to be contributed or paid by any Company Entity to date have been made and all amounts properly accrued to date as liabilities of the Company which have not been paid have been properly recorded on the books of the Company and are reflected in the Latest Balance Sheet; and (ii) no Employee Benefit Plan is a plan which is established and maintained outside the U.S. primarily for the benefit of individuals substantially all of whom are nonresident aliens.  No Employee Benefit Plan is funded through a trust that is intended to be exempt from federal income taxation pursuant to Section 501(c)(9) of the Code.

(g)           No Employee Benefit Plan will provide benefits or have any current or projected liability, including death or medical benefits (whether or not insured) with respect to current or former employees, officers or directors of any Company Entity beyond their retirement or other termination of service other than:  (i) coverage mandated by Law; (ii) death or retirement benefits under any Employee Benefit Plan that is an “employee pension benefit” plan as defined in Section 3(2) of ERISA; (iii) deferred compensation benefits accrued as liabilities on the books of the Company (including the Latest Balance Sheet); (iv) death or disability benefits under any Employee Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA and which have been fully provided for by insurance or otherwise; or (v) benefits under any Employee Benefit Plan in the nature of Severance Obligations.  The Company and its ERISA Affiliates are in compliance with the requirements of COBRA and any similar state Laws.

(h)           Except as provided on Disclosure Schedule 7.14(h), the consummation of the Merger (either alone or in connection with a subsequent event) will not:  (i) entitle any current or former employee, shareholder, officer or director of any Company Entity to Severance Obligations, or any other payment or benefits, except (1) as expressly provided in this Agreement, (2) Severance Obligations that constitute Change in Control Costs, or (3) as required by Law; (ii) accelerate the time of payment or vesting, or increase the amount of, compensation due, to or for any such employee or former employee; or (iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.  In connection with the consummation of the transactions contemplated by this Agreement, no payments of money or other property, acceleration of benefits or provision of other rights have been or will be made hereunder under any agreement contemplated herein or under any

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Employee Benefit Plans or any of the programs, agreements, policies or other arrangements of the Company that will be nondeductible under Section 280G of the Code (determined without regard to the exceptions contained in Sections 280G(b)(4) or 280G(b)(5) or Section 404 of the Code), whether or not some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered.

(i)            To the extent that any Employee Benefit Plan constitutes a “non-qualified deferred compensation plan” within the meaning of Section 409A of the Code, such Employee Benefit Plan has been operated at all times in compliance with Section 409A of the Code and applicable guidance promulgated thereunder and the document(s) that evidence such plan have conformed to the provisions of Section 409A of the Code and the final regulations thereunder.

(j)            No Employee Benefit Plan is funded with or allows for payments, investments or distributions in any employer security of the Company or any ERISA Affiliate, including employer securities as defined in Section 407(d)(1) of ERISA and employer real property as defined in Section 407(d)(2) or ERISA.

7.15         No Brokers or Finders.  Except as set forth on Disclosure Schedule 7.15, no Company Entity is obligated to pay any fees or commissions to any broker or finder in connection with the Merger.  Parent shall not become liable or obligated to pay such fees.

7.16         Minute Books.  The minute books of each Company Entity contain complete and accurate copies of its Organizational Documents and true, correct and complete copies of the material resolutions of each Company Entity’s board of directors, adopted from and after September 21, 2009, have been made available to Parent.  The stock records of the Company Entities are complete and accurate in all material respects.  True, correct and complete copies of the foregoing (other than any minutes which include references to the transactions contemplated by this Agreement or any alternate transactions considered by the Company, the Board or any committee thereof) have been made available to Parent and Merger Sub.  At Closing, all such minute books and stock records shall be in the possession of the Company.  Neither the Company’s outside auditors nor the Board (or any committee thereof) has been advised of any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

7.17         Real Property; Real Property Leases.  No Company Entity currently owns, or has ever owned, any fee title in any real property.  The applicable Company Entity has a valid and subsisting leasehold estate in, and the right to quiet enjoyment of, the real property subject to the real property leases set forth on Disclosure Schedule 7.17 (the “Real Property Leases”).  The Real Property Leases are the only real property leases to which a Company Entity is party, or otherwise included in the assets of, any Company Entity.  Each of the Real Property Leases is a legal, valid and binding obligation of the applicable Company Entity, enforceable in accordance with its terms (subject to Enforceability Limitations) and there is no material default (or any condition or event which, after notice or lapse of time or both, would constitute a material default) thereunder by the Company Entity or, to the Knowledge of the Company, any landlord.  Except as set forth on Disclosure Schedule 7.17, the Real Property Leases consist solely of leases

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for commercial office space and no Company Entity has ever leased any real property other than commercial office space.

7.18         Intellectual Property and Information Technology.

(a)           Disclosure Schedule 7.18(a) identifies all of the following items of Intellectual Property owned by any Company Entity:  patents, registered trademarks, registered copyrights, domain names and applications for any of the foregoing.  With respect to each of the foregoing items:  (i) the Company Entities possess sole and exclusive title and interest in and to the item, free and clear of any Lien, except for Permitted Encumbrances; and (ii) no Proceeding is pending or, to the Knowledge of the Company, threatened, that challenges the legality, validity, enforceability, use or ownership of any of such items.  Subject to the receipt of any consents that may be required, including those set forth on Disclosure Schedule 7.2(c), each item of material Intellectual Property and material Technology owned or used by a Company Entity immediately prior to the Closing Date will be owned or available for use by such Company Entity on the same terms and conditions immediately subsequent to the Closing Date.

(b)           Except as set forth on Disclosure Schedule 7.18(b), to the Knowledge of the Company, the Company Entities have not infringed upon, misappropriated or otherwise violated any Intellectual Property of a third party in any material respect and no Company Entity has received any claim, demand or notice in writing alleging any such infringement, misappropriation or violation.  Except as set forth on Disclosure Schedule 7.18(b), to the Knowledge of the Company, no Person has infringed upon, materially misappropriated or otherwise violated any of the Intellectual Property that is owned by a Company Entity.

(c)           Each Company Entity has taken commercially reasonable actions to protect and maintain the confidentiality of all material trade secrets or confidential information owned by a Company Entity or licensed to such a Company Entity pursuant to an Intellectual Property Agreement.  With respect to any Software owned by a Company Entity that is material to the business of a Company Entity, including the PRiMO Software and data warehouse table structure and reports, a Company Entity exclusively owns all right, title, and interest in and to such Software, including all Intellectual Property therein, and all independent contractors of a Company Entity who have had access to the source code or programming documentation of such Software have executed or are otherwise bound by agreements obligating such independent contractors to maintain the source code and programming documentation of such Software in confidence.  Except as set forth on Disclosure Schedule 7.18(c), none of the Software developed or owned by Company (including the PRiMO Software and the data warehouse table structure and reports) contains, or is distributed with, any Software that is licensed pursuant to an “open source,” public source, freeware, or other third party license agreement that, as such Software is used by the Company, requires (through a condition, covenant or otherwise) the disclosure or licensing of any source code of the Software or other material Intellectual Property.

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(d)           The Company Entities own, lease or have the right to use all Computer Systems that are material to the operations of their respective businesses.  There has been no material failure or other material substandard performance of any Computer Systems of any Company Entity which has caused any material disruption to the business of the Company Entities during the two-year period prior to the date hereof.  Except as set forth on Disclosure Schedule 7.18(d), the Company Entities have taken commercially reasonable steps to provide for the backup and recovery of data and information, have commercially reasonable disaster recovery plans, procedures and facilities and, as applicable, have taken commercially reasonable steps to implement such plans and procedures.  The Company Entities have taken commercially reasonable actions to protect the integrity and security of the Computer Systems and the Software and other information stored thereon from unauthorized use, access or modification by third parties.  To the Knowledge of the Company, no Company Entity has suffered a material data loss, business interruption or other harm as a result of any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components intentionally designed to permit unauthorized access to a computer or network.

(e)           To the Knowledge of the Company, the Company Entities have complied with all privacy agreements, privacy policies and Laws regarding personally identifiable information, including any data privacy Laws and consumer privacy Laws.  Except as set forth on Disclosure Schedule 7.18(e), to the Knowledge of the Company, there has been no unauthorized access to personally identifiable information processed by a Company Entity in connection with services provided by or to a Company Entity.

7.19         Interests of Related Parties.  Except as set forth on Disclosure Schedule 7.19, no Related Party of any of the Company Entities or any current or former employee of any Company Entity has or has had since January 1, 2006 any business dealings or a financial interest in any transaction with a Company Entity (other than (1) banking arrangements and Contracts relating to investment or financial advisory services entered into on an arm’s length basis that are terminable on not more than thirty (30) days prior notice without penalty or premium and under which no services are currently being provided, (2) transactions related to such Related Party’s or employee’s employment by a Company Entity or ownership of Equity Interests of the Company or (3) transactions related to the sale of gas or electricity to such Related Party or employee as a customer of a Company Entity in the Ordinary Course of Business and on an arm’s length basis), and no Related Party of the Company Entities owns or has owned, directly or indirectly, or has or has had any interest in (other than, in each case, as the result of the ownership of Equity Interests in the Company) any property (whether real or personal, tangible or intangible) that is used by any Company Entity in connection with the business of the Company Entities.

7.20         Bank Accounts.  Disclosure Schedule 7.20 contains a true, complete, and correct list of the names and addresses of all banks and other institutions (including brokerage firms and mutual funds) at which a Company Entity has deposit accounts, securities accounts, other accounts, deposits, balances, investments or safety deposit boxes, including account and identification numbers and the names of all Persons authorized to draw on or give instructions with respect to such accounts or deposits or to have access thereto.

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7.21         Regulatory Matters.

(a)           No Company Entity is subject to regulation:  (i) as a “public utility” under the Federal Power Act, with the exception of MxElectric; or (ii) as a “public-utility company,” a “holding company,” or a “subsidiary company” or an “affiliate” of a “public-utility company” within the meaning of the Public Utility Holding Company Act of 2005.  MxElectric:  (1) is a “public utility” under the Federal Power Act; (2) has received all necessary authorizations from FERC pursuant to Section 205 of the Federal Power Act to sell electric energy, capacity and ancillary services at market-based rates pursuant to FERC’s orders in MxEnergy Inc., Letter Order, Docket No. ER02-737-000 (Mar. 1, 2002) (approving application for market-based rate authority) (the “MBR Order”) and MxEnergy Electric Inc., Letter Order, Docket No. ER04-170-000 (Jan. 12, 2004) (accepting notice of succession to MxElectric) (“Succession Order”), and (3) has received all blanket authorizations and waivers customarily granted by FERC to public utilities with market-based rate authority pursuant to the  MBR Order, the Succession Order and FERC’s Notice of Issuance of Order, Docket No. ER02-737-000 (Mar. 12, 2002).  Except as set forth on Disclosure Schedule 7.21(a), each Company Entity has complied in all material respects with all applicable FERC rules, filing and reporting requirements.

(b)           Except as set forth on Disclosure Schedule 7.21(b), each Company Entity has complied in all material respects with all rules, filing and reporting requirements applicable to the marketing and sales at retail of natural gas and electric power in the states and Canadian provinces in which such Company Entity engages in the marketing and sale at retail of natural gas or electric power.  Disclosure Schedule 7.21(b) sets forth:  (i) the states and Canadian provinces in which each Company Entity is licensed to market or sell at retail natural gas or electric power; and (ii) the states and Canadian provinces in which each Company Entity engages in the marketing and sale at retail of natural gas or electric power.

(c)           Except as set forth on Disclosure Schedule 7.21(c), no Company Entity has entered into a buy/sell or flipping transaction during the last five years with regard to FERC jurisdictional gas pipeline capacity.

(d)           No Company Entity has used FERC jurisdictional gas pipeline capacity that is under contract by a customer and not released by the customer to serve parties other than the customer.

(e)           No Company Entity has engaged in the sale or assignment of FERC jurisdictional pipeline capacity outside of the FERC-approved capacity release program.

7.22         SEC Documents; Regulatory Reports.

(a)           The Company has filed with or furnished to the SEC all required reports, schedules, registration statements and other documents (collectively, the “SEC Documents”).  As of their respective dates of filing with or furnishing to the SEC, or their respective effective dates in the case of registration statements (or, if amended or

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superseded by a subsequent filing, as of the date of such filing), the SEC Documents complied as to form in all material respects with the requirements of the Securities Act of 1933, as amended, or the Securities and Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as the case may be, and none of the SEC Documents as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.  The financial statements of the Company and its Subsidiaries included in the SEC Documents complied as of their respective dates of filing with the SEC, in all material respects, with all applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto.

(b)           The Company Entities are in compliance in all material respects with all applicable provisions of the Sarbanes Oxley Act.

7.23         Environmental Matters.

(a)           To the Company’s Knowledge, the Company and its Subsidiaries have materially complied and are in material compliance with all applicable Environmental Requirements.

(b)           To the Company’s Knowledge, the Company and its Subsidiaries have obtained and are in material compliance with all material Permits, licenses and other authorizations that are required pursuant to applicable Environmental Requirements for the occupation of its facilities and the conduct of its business.

(c)           Neither the Company nor any of its  Subsidiaries has received any written claim, complaint, citation, report or other written notice regarding any material liabilities or potential liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations, arising under applicable Environmental Requirements.

(d)           To the Company’s Knowledge, neither the Company nor any of its Subsidiaries has stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any Hazardous Materials, except in material compliance with applicable Environmental Requirements.

7.24         Sempra Termination Agreement.  MxEnergy Inc. and MxEnergy Electric have entered into that certain Termination and Transfer Agreement, by and between MxEnergy Inc., MxEnergy Electric, the Company, Constellation Energy Commodities Group, Inc. and Sempra (the “Sempra Termination Agreement”).  A true, correct and complete copy of the executed and delivered Sempra Termination Agreement is attached hereto as Exhibit I.  The Sempra Termination Agreement is in full force and effect (and has not been amended or modified in any respect and there has been no waiver of any rights or obligations thereunder) and no Company Entity has received written notice alleging any breach or violation of the Sempra Termination Agreement by any Company Entity or of the termination or intent to terminate such agreement.  Each Company Entity has performed in all material respects all of its obligations then required to

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have been performed under the Sempra Termination Agreement and, to the Company’s Knowledge, no event has occurred which (with or without notice or lapse of time, or both) would constitute a default or an event of default by a Company Entity or by Sempra under the terms of the Sempra Termination Agreement.  The Company Entities party to the Sempra Termination Agreement have all requisite corporate power and authority to enter into, execute and deliver the Sempra Termination Agreement and to carry out the transactions contemplated thereby.  The execution and delivery of the Sempra Termination Agreement, and full performance thereunder, have been duly authorized by all necessary actions of the Company Entities party thereto, and no other or further act of such Company Entities is necessary therefor.  The Sempra Termination Agreement has been duly and validly executed and delivered by the Company Entities party thereto.  The Sempra Termination Agreement is enforceable and in full force and effect and constitutes a legal, valid and binding obligation of each Company Entity which is a party thereto, subject to the Enforceability Limitations.  To the Knowledge of the Company, Sempra is not in breach of any of the terms, provisions or conditions of the Sempra Termination Agreement.

7.25         Schedule M Filings.  The information contained in the Schedule M Filings is true, correct and complete in all material respects.

ARTICLE VIII
REPRESENTATIONS AND WARRANTIES REGARDING
PARENT AND MERGER SUB

Parent and Merger Sub, jointly and severally, hereby represent and warrant to the Company that the statements set forth in this Article VIII are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date as though made then (except to the extent such representations and warranties refer to another date, in which case such representations and warranties are made solely as of such other date).

8.1           Corporate.

(a)           Organization.  Parent is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware.  Merger Sub is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(b)           Power.  Each of Parent and Merger Sub has all requisite corporate power and authority to enter into, execute and deliver this Agreement and the other Transaction Documents to be executed and delivered by Parent and Merger Sub and to carry out the transactions contemplated hereby and thereby.

(c)           Authority.  The execution and delivery of this Agreement and the other Transaction Documents that have been or are to be executed and delivered by Parent and Merger Sub pursuant hereto, and full performance hereunder and thereunder, have been duly authorized by all necessary actions of Parent and Merger Sub, and no other or further act of Parent or Merger Sub is necessary therefor.

(d)           Validity.  This Agreement has been duly executed and delivered by Parent and Merger Sub and constitutes, and when executed and delivered the Transaction

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Documents to be executed and delivered by Parent and Merger Sub pursuant hereto will constitute, valid and binding agreements of Parent and Merger Sub to the extent they are a party thereto, enforceable in accordance with their respective terms, except as such may be limited by Enforceability Limitations.

8.2           No Violation; Conflicts, etc.  Neither the execution and delivery of this Agreement and the other Transaction Documents to which Parent or Merger Sub is a party nor the consummation by Parent or Merger Sub of the Merger:  (a) will violate any Laws of any Governmental Authorities applicable to Parent or Merger Sub; (b) will require any authorization, consent, approval, exemption, registration, declaration, filing or other action by or notice to any Governmental Authority prior to the Closing Date or any other Person, except for the consents, approvals and filings set forth on Schedule 8.2 (the “Parent Mandatory Consents”) and Antitrust Approval, in each case with respect to Parent and Merger Sub; or (c) will conflict with or result in any violation of the Organizational Documents of Parent and Merger Sub.

8.3           No Litigation.  There is no Proceeding pending or, to the Knowledge of Parent, Merger Sub or their respective directors or executive officers, threatened against Parent, Merger Sub or their respective directors or executive officers (in such capacity) or any assets of Parent or Merger Sub, whether at law or in equity, or before or by any Governmental Authority that would restrain, enjoin, prohibit or otherwise make illegal the consummation of the Merger.

8.4           No Brokers or Finders.  Neither Parent nor Merger Sub have retained, employed, or used any broker or finder in connection with the Merger.

8.5           No Reliance.  Parent has conducted to its satisfaction its own independent investigation of the Company and its Subsidiaries and, in making the determination to proceed with the transactions contemplated by this Agreement, Parent has relied on the results of its own independent investigation and the representations and warranties of the Company set forth in this Agreement and the Company Closing Certificate.  As of the time of execution and delivery of this Agreement by Parent, none of the officers of Parent listed in the definition of “Knowledge” set forth in this Agreement has actual conscious awareness of any breach of any of the representations and warranties of the Company set forth in this Agreement in Article VII (excluding Section 7.22, which shall not be deemed to be covered by this representation and except with respect to any facts or circumstances relating to the matters specifically described on Schedule N or in Sections 11.2(a)(v)-(xii)).  Parent acknowledges that all other representations and warranties that the Company or anyone purporting to represent the Company gave or might have given, or which might be provided or implied by applicable Law or commercial practice, with respect to the Company or its Subsidiaries, are hereby expressly excluded.  Parent acknowledges that neither the Company nor any other Person on the Company’s behalf has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company, its Subsidiaries or the transactions contemplated by this Agreement not expressly set forth in Article VII or the Company Closing Certificate, and, without limiting the generality of the foregoing, neither the Company nor any other Person will have or be subject to any liability or indemnification obligation to Parent or any other Person resulting from the distribution in written or oral communication to Parent, or use by Parent of, any information, documents, projections, forecasts or other material made available to Parent in the electronic data room (except to the extent that the Company has made a representation or

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warranty in Article VII that it has provided or made available to Parent true and complete copies of any such materials), confidential information memoranda, management interviews and presentations or otherwise in expectation of the transactions contemplated by this Agreement.

8.6           Financial Capacity.  Parent and/or Merger Sub have, and will have at the Closing, access to (in each case, that is not subject to any condition or contingency) the financial resources to consummate the Merger and to make all payments required to be made by Parent or Merger Sub under the Transaction Documents.

ARTICLE IX
COVENANTS

9.1           Regulatory and Other Approvals; Cooperation; Contracts.

(a)           Parent and the Company shall cooperate with each other in making all filings with respect to, and obtaining the Mandatory Consents and Antitrust Approvals and making any other filings with Governmental Authorities as may be necessary in connection with the Merger.  Except with respect to filings being made pursuant to the HSR Act, any other Antitrust Laws or the Schedule M Filings, each of Parent and the Company shall promptly provide drafts to the other, allow reasonably adequate time for comment by the other and consult promptly with the other with respect to the contents of all notifications, filings, submissions, further documentation and evidence to be submitted to all relevant Governmental Authorities, to the extent permitted by applicable Laws.  Parent and the Company shall:  (i) furnish to the other such necessary information and reasonable assistance as the other may require in connection with its preparation of any notification, filing, submission or further documentation or evidence that is necessary in making any filing to, or obtaining any consent from, any Governmental Authority; and (ii) to the extent permitted by applicable Laws, promptly disclose to the other all correspondence received from or sent to any relevant Governmental Authority in connection herewith and shall keep the other fully informed of any other related communication in whatever form with any relevant Governmental Authority.

(b)           Parent and the Company shall make all appropriate filings necessary to obtain the Mandatory Consents and Antitrust Approvals, including filings pursuant to the HSR Act and any applicable Antitrust Laws and the Federal Power Act, in each case with respect to the transactions contemplated by this Agreement as soon as practicable but (i) with respect to the filings pursuant to the HSR Act, any applicable Antitrust Laws, the Federal Power Act and the Georgia Public Service Commission rules and regulations (as described in item 4 of Disclosure Schedule 7.2(a) in no event later than seven (7) Business Days after the date hereof, and (ii) with respect to the other notice filings set forth on Disclosure Schedule 7.2(c) that are required to be made prior to the Closing, prior to the deadline for making any such filings, and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act, any other applicable Antitrust Laws, the Federal Power Act and any other applicable Laws.  Without limitation of the foregoing, no Party or any of its respective Affiliates shall enter into any agreement with any Governmental Authority not to consummate the Merger,

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except with the prior written consent of the other Parties.  Subject to Section 9.1(c), the Parties shall use their commercially reasonable efforts to obtain the Mandatory Consents and early termination of the applicable waiting period under the HSR Act and any other Antitrust Laws, as applicable, and, to the extent available, under any other Laws relating to Mandatory Consents.  The filing fees with respect to any filing under the HSR Act or any other Antitrust Laws shall be split evenly between Parent and the Company.

(c)           Notwithstanding any other provision of this Agreement (including Sections 9.6 and 12.1(c)), nothing in this Agreement shall require Parent, the Company or any of their respective Affiliates to dispose of any of their assets or to limit their ability to conduct or operate any of their businesses or to consent to any disposition of  assets or limits on their ability to conduct or operate any of such businesses, whether prior to or after the Effective Time, or to commit or agree to any of the foregoing, to obtain any consents, approvals, Permits or authorizations or to remove any impediments to the Merger relating to Antitrust Laws or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding relating to any Antitrust Laws.  In addition, notwithstanding any other provision of this Agreement to the contrary, nothing in this Section 9.1 shall require any Party to disclose to any other Party confidential information about third parties in connection with seeking approvals from Governmental Authorities to the extent that such disclosures would constitute violations of contractual obligations or legal duties; provided that, to the extent reasonably practicable, the Parties shall use commercially reasonable efforts to obtain the consent or approval of any such third parties to permit any such disclosures.

(d)           Subject to Section 9.1(c), if any Proceeding is instituted (or threatened), challenging the Merger as in violation of any Antitrust Laws, or if any Order is entered, enforced or attempted to be entered or enforced, by a court or other Governmental Authority, which Order would make the Merger illegal or would otherwise prohibit, prevent, restrict, impair or delay consummation of the Merger, each of Parent and the Company shall use commercially reasonable efforts to contest and resist any such action or Proceeding and to have vacated, lifted, reversed, or overturned any such decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and to have such decree, judgment, injunction or other Order repealed, rescinded or made inapplicable so as to permit consummation of the Merger.

(e)           The Company shall make the filings (in a form and substance reasonably acceptable to Parent) described on Schedule M (the “Schedule M Filings”) no later than thirty (30) days following the date hereof, unless, subsequent to the meetings with the appropriate members of the FERC staff as described below in this Section 9.1(e), in the opinion of the Company after consultation with Parent, a delay in the actual filings to consider the effect thereon of ongoing discussion with appropriate members of the FERC staff is deemed to be advisable, but in no event, later than the Closing Date.  Prior to the submission of the Schedule M Filings, the Company and Parent shall attend a meeting with the appropriate member of FERC staff to discuss the Schedule M Filings.  Such a meeting shall be scheduled by the Company at a time mutually convenient to the Company and Parent but in no event later than seven (7) days after the date hereof;

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provided, however, that if FERC staff is not available within seven (7) days, the meeting shall occur as soon as practicable thereafter, but in any event prior to Closing.  Prior to the meeting with FERC staff, the Company shall promptly provide drafts of the Schedule M Filings to Parent and allow reasonably adequate time for comment by Parent.  The Company shall consult promptly with Parent with respect to the contents of all notifications, filings, submissions, further documentation and evidence to be submitted to FERC, to the extent permitted by applicable Laws.  Subsequent to the submission of the Schedule M Filings, the Company and Parent shall each be entitled to participate in any meetings, discussions, or settlement conferences with FERC staff arising from FERC staff’s review and consideration of the Schedule M Filings; provided that Parent shall in no way take positions that are adverse to the Company.  The Company shall be responsible for the submission of any amendments or supplements to the Schedule M Filings or any pleadings or other documentation in connection with matters covered by the Schedule M Filings and shall carry out its responsibilities in an active and diligent manner.  The Company shall provide Parent with a reasonable opportunity to comment prior to submitting any such documents to FERC.  Parent may, but shall not be required to, submit pleadings or other documentation to FERC on its own behalf and shall provide the Company with a reasonable opportunity to comment prior to submitting any such documents to FERC; provided that Parent shall not submit comments that are adverse the positions of the Company.  Following the execution of this Agreement and to the extent the matters addressed in the Schedule M Filings have not been fully and finally resolved prior to the Closing Date, the prosecution and administration of the Schedule M Filings shall be conducted in accordance with Schedule Q.

(f)            The Company shall comply with its obligations set forth on Schedule R.

9.2           Access to Information and Records; Inspection; Integration.

(a)           Subject to the requirements of Law and the Confidentiality Agreement, during the period prior to Closing, the Company shall, and shall cause its Subsidiaries to, give Parent, Merger Sub and their respective Affiliates, and its and their counsel, accountants and other Representatives:  (i) reasonable access during normal business hours with advance notice to all of the properties, books, records, Contracts (including customer Contracts and data related thereto and source materials associated with employment agreements and Equity Interest Equivalents of the Company Entities) and documents of the Company Entities for the purpose of any inspection, investigation and stress testing financial models as may be reasonably requested by Parent and Merger Sub (and the Company shall, and shall cause the other Company Entities to, make available or cause to be made available to Parent, Merger Sub and their Representatives all information with respect to the business and affairs of the Company Entities as Parent or Merger Sub may reasonably request, subject to applicable Laws including Antitrust Laws); (ii) reasonable access to key employees, agents and Representatives of the Company Entities for the purposes of such meetings and communications as Parent or Merger Sub may reasonably request to prepare for integration of the Company Entities into Parent’s and its Affiliates’ operations, subject to applicable Laws including Antitrust Laws; and (iii) the right to share such information among themselves solely for the purposes of this Agreement (in each case, except to the extent necessary to protect

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attorney-client privilege).  All books and records of the Company Entities necessary for, or material to, the conduct of their respective businesses or as required by the terms of this Agreement or applicable Law, including general ledgers, journal entries, fixed assets records, Tax Returns, Tax provisions, Tax registrations, Tax and book workpapers and other related supporting data shall be in the possession of the Company as of the Closing or shall be in the possession of the Company’s accountants and available to the Company and the Surviving Corporation at Closing.

(b)           The Company agrees to, and to cause the other Company Entities to, reasonably cooperate with Parent in conducting the inspections referred to in Section 9.2(a) and the Company shall have the right, but not the obligation, to have its personnel or Representatives present at any and all such inspections.  All inspections referred to in Section 9.2(a) shall be performed at Parent’s sole expense.

(c)           All due diligence conducted by Parent, Merger Sub, their Affiliates or any Person acting on Parent’s or its Affiliates’ behalf pursuant to or in connection with this Agreement or the Merger shall be conducted so as not to unreasonably disrupt the normal operations of the Company or any of its Affiliates and shall be subject to the terms of the Confidentiality Agreement.  Notwithstanding any other provision of this Agreement to the contrary, each of Parent and Merger Sub acknowledges and agrees that the terms of Section 9.1(e) do not give Parent, Merger Sub or any of their respective Affiliates or Representatives the right to contact, directly or indirectly, any customer, supplier or other third party with whom the Company has any business relationship in connection with this Agreement or the Merger without the express prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed; provided, however, that the Company hereby gives its consent for Parent, Merger Sub and their respective Affiliates and Representatives to contact and engage in such discussions with the Persons listed on Schedule H.

9.3           Conduct of the Company Entities Pending Closing.  From the date hereof until the earlier of Closing or the termination of this Agreement in accordance with its terms, except as (i) contemplated or permitted by this Agreement, (ii) as set forth on Schedule I, or (iii) as otherwise approved in writing by Parent in its sole discretion, the Company covenants and agrees that the Company shall not and shall cause its Subsidiaries not to:

(a)           mortgage or pledge any of the assets or properties of the Company Entities or create any Lien (other than Permitted Encumbrances) thereupon;

(b)           issue, sell or transfer any capital stock or other Equity Interest in the Company Entities;

(c)           merge or consolidate with any other entity;

(d)           amend, or authorize the amendment of, its Organizational Documents, the Stockholders Agreement or the Stockholders Consent;

(e)           sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of the assets and properties of the Company Entities, whether owned or leased, other

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than (i) immaterial assets sold in the Ordinary Course of Business or (ii) gas or electricity sold in the Ordinary Course of Business;

(f)            create, incur, assume or guarantee any Debt, except Debt created, incurred, assumed or guaranteed in the Ordinary Course of Business that will be discharged at or prior to Closing or that will be deducted from the Adjusted Base Price or reflected in Net Working Capital;

(g)           other than the Approved Capital Expenditures and up to a maximum aggregate amount of $500,000 in respect of capitalized salary, benefits and contractor costs relating to technology projects, make any capital expenditure (other than customer acquisition costs incurred in the Ordinary Course of Business) in excess of $250,000 individually or $1,500,000 in the aggregate;

(h)           (A) terminate or assign any rights or obligations under any Material Contract, except the termination of any Material Contract in connection with the Company’s exercise of remedies in the Ordinary Course of Business (provided, that, for purposes of clarification the term “terminate” as used in this clause (A) does not include any decision not to renew or extend any “evergreen” Material Contract), (B) enter into any Contract with any Related Party or any employee, except for Contracts relating to the sale of gas or electricity sold in the Ordinary Course of Business, or (C) make any amendment or modification to, or waive any provision of, a Material Contract except amendments, modifications or waivers in the Ordinary Course of Business which are not reasonably expected to cost or result in a loss of revenue to any one or more Company Entities in an amount in excess of $250,000 per Material Contract or $1,500,000 in the aggregate for all such amendments, modifications and waivers to Material Contracts or, with respect to the 2011 Notes and the 2011 Notes Indenture, as may be necessary to repay in full and retire the 2011 Notes on August 1, 2011 in the event that the Closing has not occurred on or prior to August 1, 2011,

(i)            settle or resolve any pending or threatened material litigation, unless such settlement or resolution creates no current or future obligation (other than the payment of cash that would be taken into account in the calculation of Net Working Capital) or Lien (other than Permitted Encumbrances) with respect to any assets or properties of the Company Entities;

(j)            agree to, request or adopt (A) any moratorium or suspension of payment of any Debt of the Company Entities, (B) the appointment of a receiver, administrator, liquidator, assignee, trustee or other similar official with respect to any Company Entity or any part of the assets and properties of the Company Entities, (C) an assignment for the benefit of creditors or an admission in writing of the inability of any Company Entity to pay its debts as they become due, or (D) any other thing under any applicable Law analogous to any of the foregoing (A) through (C);

(k)           except as required by Law or by existing Employee Benefit Plans, or as required under Section 9.8, (i) make or commit to make any wage, salary, benefits or other increases or grant any bonuses of any kind, whether monetary or otherwise, to any

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of the current or former directors, officers, employees, consultants, independent contractors or agents of the Company Entities; (ii) adopt, terminate, amend, modify or enter into any Employee Benefit Plan, Contract or arrangement related to any employees, consultants or independent contractors or any current or former director, officer, agent, independent contractor or employee of the Company Entities, except in the Ordinary Course of Business and as would not, in the aggregate, obligate the Company Entities to pay more than $25,000; (iii) employ new employees or terminate the employment of any Employees, consultants or independent contractors of the Company Entities; or (iv) make any other change in employment terms for any of the current or former directors, officers, employees, independent contractors or agents of the Company Entities, except in the Ordinary Course of Business and other than changes that would not, in the aggregate, obligate the Company Entities to pay more than $25,000 (it being understood, for the avoidance of doubt, that this clause (k) does not apply to Severance Obligations, which are addressed in clause (l) below);

(l)            except as required by applicable Law, make any change to any Severance Obligations;

(m)          make any distribution or dividend to Securityholders (or, in the case of any other Company Entity, the holders of any of its Equity Interests) that is not paid in full and completed prior to May 31, 2011 and taken into account in determining Net Working Capital;

(n)           except as contemplated by the Sempra Termination Agreement, redeem, purchase or otherwise acquire any of its Equity Interests;

(o)           permit any material insurance policy to be amended (except as required by applicable Law), cancelled or terminated;

(p)           (1) make any material change in its methods, principles or practices of accounting or in depreciation or amortization policies or rates adopted by them in effect on the date hereof, except as may be required to comply with changes in GAAP, (2) make or change any Tax election or change (or make a request to change) its Tax accounting methods, policies or procedures, except as may be required by changes in Law, (3) settle or compromise any Proceeding relating to any Tax liability except, in each case, as may be required by Law, (4) revalue any material asset except as required by GAAP on a basis consistent with past practice and the preparation of the Audited Financial Statements, (5) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or (6) take any extraordinary actions with respect to the Company’s Tax matters, except as required by Law;

(q)           adopt a plan of complete or partial liquidation or other resolution providing for or authorizing a liquidation, dissolution, merger, consolidation or other restructuring;

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(r)            enter into any forward hedging, swap, option or similar financially-settled Contract, or any other commodity, interest rate or currency exchange Contract, except pursuant to and in accordance with the Sempra Termination Agreement;

(s)           make or commit to make any capital investment in, or any acquisition of the Equity Interests of, any other Person;

(t)            make or commit to make any loan to, or any acquisition of the material assets of, any other Person;

(u)           cancel, compromise, waive or release any material right or material claim relating to or affecting any Company Entity, other than the settlement of accounts receivable in the Ordinary Course of Business;

(v)           enter into any market or line of business that any Company Entity is not operating in as of the date of this Agreement or exit any market or line of business in which any Company Entity is operating as of the date of this Agreement; or

(w)          enter into any agreement or make any commitment to take any of the type of action prohibited in the foregoing clauses of this Section 9.3.