Exhibit 10.44
HOUSTONSTREET EXCHANGE, INC.
FOURTH AMENDED AND RESTATED
STOCKHOLDERS' VOTING AGREEMENT
This Fourth Amended and Restated Stockholders' Voting Agreement (the
"Agreement") dated as of March 30, 2001 is entered into by and among
HoustonStreet Exchange, Inc., a Delaware corporation (the "Company"), those
holders of shares of the Company's Common Stock, par value $.01 per share
("Common Stock"), Series A Convertible Preferred Stock, par value $.01 per share
(the "Series A Stock"), and Series B Convertible Preferred Stock, par value $.01
per share (the "Series B Stock"), listed on SCHEDULE A hereto and the purchasers
of units ("Units") consisting of (x) Senior Secured Notes, (y) Warrants (the
"Series C Stock Warrants") to purchase shares of Series C Convertible Preferred
Stock, par value $.01 per shares (the "Series C Stock"), and (z) Warrants to
purchase shares of Common Stock listed on SCHEDULE A hereto (the "Unit
Purchasers"). The holders of the Common Stock, the Series A Stock, the Series B
Stock and, to the extent the Series C Warrants are exercised, the Series C Stock
are sometimes referred to in this Agreement individually as a "Stockholder" and
collectively as the "Stockholders."
RECITALS:
A. BayCorp Holdings, Ltd., a Delaware corporation ("BayCorp"), Equiva
Trading Company, a Delaware general partnership ("Equiva"), Enron Net Works LLC,
a Delaware limited liability company ("Enron"), and those other persons
identified on SCHEDULE A comprise all the holders of shares of Common Stock,
each holding the number of shares of Common Stock listed on SCHEDULE A;
B. The holders of shares of Series A Stock (collectively, the "Series A
Stockholders") acquired their shares of Series A Stock pursuant to a certain
Series A Convertible Preferred Stock Purchase Agreement dated as of February 2,
2000 (the "Series A Preferred Stock Purchase Agreement"). The number of shares
of Series A Stock held by each of the Series A Stockholders is listed on
SCHEDULE A;
C. The holders of shares of Series B Stock (collectively, the "Series B
Stockholders") acquired their shares of Series B Stock pursuant to a certain
Series B Convertible Preferred Stock Purchase Agreement dated as of March 31,
2000 (the "Series B Preferred Stock Purchase Agreement"). The number of shares
of Series B Stock held by each of the Series B Stockholders is listed on
SCHEDULE A;
D. The Unit Purchasers acquired the Units pursuant to a certain Senior
Secured Note and Warrant Purchase Agreement dated as of March 30, 2001 (the
"Note and Warrant Purchase Agreement"). The number of Units held by each of the
Unit Purchasers is listed on SCHEDULE A;
D. Certain holders of shares of Common Stock and Series A Stock entered
into that certain Stockholders' Voting Agreement dated as of February 2, 2000;
and, together with other certain holders of shares of Common Stock and Series A
Stock, that certain Amended and Restated Stockholders' Voting Agreement dated as
of March 6, 2000; and, together with certain holders of the Series B Stock, that
certain Second Amended and Restated Stockholders' Voting Agreement dated as of
March 6, 2000; and, together with Enron, that certain Third Amended and Restated
Stockholders' Voting Agreement dated December 4, 2000 (the "Existing
Agreement");
E. The holders of shares of Common Stock, Series A Stock and Series B
Stock now desire to amend and restate the Existing Agreement to provide for
representation of all of their interests on the Board of Directors of the
Company (the "Board") in the manner set forth below and to add the Unit
Purchasers as parties to this Agreement.
NOW, THEREFORE, In consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. Voting of Shares.
1.1. In any and all elections of the Board (whether at a meeting or by
written consent in lieu of a meeting), each Stockholder shall vote or cause to
be voted all Shares (as defined in Section 2 below) owned by him, her or it, or
over which he, she or it has voting control, and otherwise use his, her or its
respective best efforts, in order to cause:
(a) the authorized number of directors on the Board to be established at
between six and nine directors, such number as required to implement the
provisions of clauses (b) and (c) below;
(b) the election to the Board of:
(i) one member designated by Omega Advisors, Inc. ("Omega") --
initially, this member shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(ii) one member designated by ▇▇▇▇▇▇▇ Associates, L.P. ("▇▇▇▇▇▇▇")
-- initially, this member shall be ▇▇▇▇▇▇▇ ▇. Latina;
(iii) one member designated by Equiva -- initially, this member
shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
(iv) one member who serves as the Company's Chief Executive Officer
-- initially, this member shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.;
(v) one member designated by ▇▇▇▇▇▇▇▇ Energy Marketing & Trading
Company ("▇▇▇▇▇▇▇▇");
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(vi) one member designated by KRoad Ventures, L.P., a Delaware
limited partnership ("KRoad");
(vii) one member designated by the holders of the Series B Stock,
voting as a class;
(viii) subject to section 1.3 below, one member designated in
writing by Enron on or after the date hereof; and
(ix) subject to clause (c) below, up to one additional director
nominated by a majority of the eight directors identified in clauses
(i) through (viii) above, such additional director shall be
unaffiliated with Omega, ▇▇▇▇▇▇▇, Equiva, Enron, ▇▇▇▇▇▇▇▇, BayCorp,
kRoad and the Company (except for his or her service as a director
of the Company) and may or may not have an equity interest in the
Company;
(c) the election to the Board of one additional member designated by
Equiva, provided that this clause (c) shall apply only if, on the record
date for voting by stockholders of the Company to elect directors of the
Company:
(i) an additional director has been nominated for election to the
Board pursuant to Section 1.1(b)(vi), (vii) or (ix) above; and
Equiva holds 20% or more of the voting power of the Company (giving
effect to the conversion into Common Stock of all securities
convertible thereinto); and
(ii) Equiva has not already elected to the Board one additional
member pursuant to this Section 1.1(c); and
(d) in the event that any director designated hereunder for any reason
ceases to serve as a director of the Board during his or her term of
office, the resulting vacancy on the Board shall be filled by a director
designated as provided in clause (b) above by the person or entity
entitled to designate such director under clause (b) above or, in the case
of the additional member designated by Equiva pursuant to clause (c)
above, by Equiva.
In the event that an entity named in paragraph (a) through (c) above elects not
to designate a director, such entity shall be entitled to receive prior notice
of the meetings of the Board in the same manner and at the same time as
directors and to send an observer to the meetings of the Board.
1.2. Each Stockholder shall vote to remove from the Board (with or without
cause) any director at the written request of the person or entity entitled to
designate such director under Section 1.1(b) above or in the case of the
additional member designated by Equiva pursuant to Section 1.1(c) above, by
Equiva, but only upon such written request and under no other circumstances.
However, nothing contained herein shall limit the Board's ability to remove a
director for bad faith or willful misconduct.
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1.3. Enron shall not retain a right to elect a member to the Board
under Section 1.1(b)(viii) hereof (or send an observer and receive notice
in lieu thereof in accordance with the last sentence of Section 1.1), and
any such member elected by Enron pursuant to such section shall resign, at
such time as (a) Enron shall have provided any information regarding
products subject to the Posting Agreement, including prices, quantities,
delivery dates or other specifications, to any electronic trading platform
or electronic interface, including Web-based and non-Web based electronic
systems, other than EnronOnline or the Company's platform or (b) the
Posting Agreement, dated as of even date herewith, by and between Enron
and the Company (the "Posting Agreement") shall have been terminated
(i) by Enron prior to the Interface Completion Date (as
defined in the Posting Agreement) pursuant to Section 12(a)(i)
through (xi) (except (iii)) of the Posting Agreement;
(ii) by the Company at any time pursuant to Section 12(b) of
the Posting Agreement; or
(iii) at any time pursuant to Section 12(a)(iii) of the
Posting Agreement.
2. Shares. "Shares" shall mean and include any and all shares of Common
Stock, Series A Stock, Series B Stock and Series C Stock and any other shares of
capital stock of the Company, by whatever name called, which carry the right to
vote in the election of directors (including voting rights which arise by reason
of default) and shall include any such shares now owned or subsequently acquired
by a Stockholder, however acquired, including without limitation stock splits
and stock dividends.
3. Termination. This Agreement shall terminate in its entirety on the
earliest of (i) the tenth anniversary of the date of this Agreement, (ii) the
closing of the Company's initial firm commitment underwritten public offering of
shares of Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), resulting in at least $25
million of gross proceeds to the Company at a minimum price to the public of
$9.50 per share (subject to appropriate adjustment for stock splits, stock
dividends, recapitalizations and other similar events) or (iii) the sale of all
or substantially all of the assets or business of the Company, by merger, sale
of assets or otherwise.
4. No Revocation. The voting agreements contained herein are coupled with
an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with Section 7.6 hereof. Nothing in this
Section 4 shall be construed as limiting the provisions of Sections 3 or 7.6
hereof.
5. Restrictive Legend. All certificates representing Shares owned or
hereafter acquired by the Stockholders or any transferee of the Stockholders
bound by this Agreement shall have affixed thereto a legend in substantially the
following form:
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"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Stockholders' Voting
Agreement, as amended from time to time, by and among the registered
owner of this certificate, the Company and certain other
stockholders of the Company, a copy of which is available for
inspection at the offices of the Secretary of the Company."
The Company shall remove the foregoing legend from the certificates, at
the request of the holders thereof, upon the termination of this Agreement
pursuant to Section 3.
6. Transfer of Rights. No Stockholder shall transfer any Shares unless the
transferee agrees in writing to be bound by this Agreement. Any transferee to
whom Shares are transferred by a Stockholder, whether voluntarily or by
operation of law, shall have all of the rights and obligations of the transferor
under this Agreement, to the same extent as if such transferee were a
Stockholder hereunder. In the event the Shares of a Stockholder are held by more
than one transferee, the transferees' rights shall be exercised, as a group, by
the actions of the holders of a majority of the voting power of the Shares held
by those transferees.
7. General.
7.1. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
7.2. Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement,
each Stockholder shall be entitled to specific performance of the
agreements and obligations of the Stockholders hereunder and to such other
injunctive or other equitable relief as may be granted by a court of
competent jurisdiction.
7.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
(without reference to the conflicts of law provisions thereof).
7.4. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be
deemed delivered (i) three business days after being sent by certified
mail, return receipt requested, postage prepaid or (ii) one business day
after being sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, in each case to the intended
recipient at his or its address as it appears on SCHEDULE A hereto.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or
electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it
is actually received by the party for whom it is intended. Any party may
change the address to which notices, requests, consents or other
communications
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hereunder are to be delivered by giving the other parties notice in the manner
set forth in this Section.
7.5. Complete Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings relating to the
subject matter hereof.
7.6. Amendments. No amendment, modification or termination of, or waiver
under, any provision of this Agreement shall be valid unless in writing and
signed by Stockholders holding 85% of the voting power of the Shares then held
by all of the Stockholders (giving effect to the conversion into Common Stock of
all securities convertible thereinto), provided that this Agreement may be
amended with the consent of less than all of the Stockholders only in a manner
which affects all Stockholders in the same fashion, and any such amendment,
modification, termination or waiver shall be binding on all parties hereto;
provided that the consent of a party shall not be required for any waiver under
any provision of this Agreement if such party is not adversely affected thereby;
and provided further that in addition to the foregoing requirements, no
amendment, modification or termination of, or waiver under, this Agreement shall
be valid unless in writing and signed by:
(a) Omega, if such amendment, modification, termination or waiver amends,
modifies, terminates or waives Section 1.1(a) or 1.1(b)(i);
(b) ▇▇▇▇▇▇▇, if such amendment, modification, termination or waiver
amends, modifies, terminates or waives Section 1.1(a) or 1.1(b)(ii);
(c) Equiva, if such amendment, modification, termination or waiver amends,
modifies, terminates or waives Section 1.1(a) or 1.1(b)(iii) or 1.1(c);
(d) ▇▇▇▇▇▇▇▇, if such amendment, modification, termination or waiver
amends, modifies, terminates or waives Section 1.1(a) or 1.1(b)(v);
(e) KRoad, if such amendment, modification, termination or waiver amends,
modifies, terminates or waives Section 1.1(a) or 1.1(b)(vi);
(f) Enron, if such amendment, modification, termination or waiver amends,
modifies, terminates or waives Section 1.1(a), Section 1.1(b)(viii) or the
last sentence of Section 1.1;
(g) The Company, if such amendment, modification, termination or waiver
amends, modifies, terminates or waives Sections 1.1(a) or 1.1(b)(iv);
(h) The holders of Series B stock, if such amendment, modification,
termination or waiver amends, modifies, terminates or waives Section
1.1(a) or 1.1(b)(vii).
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7.7. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
7.8. Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same document. This Agreement
may be executed by facsimile signatures.
7.9. Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit or restrict the contractual
obligations of the parties.
7.10. Indemnification of Directors. Except to the extent required by law,
until the termination of this Agreement, the Company will not amend Article
Eight of its Amended and Restated Certificate of Incorporation to diminish the
rights to indemnification of officers and directors therein provided.
7.11 Subsequent Unit Purchasers. Any future purchaser of Units in
accordance with the terms of the Note and Warrant Purchase Agreement may become
a party to this Agreement after the date hereof without the consent of the other
parties hereto by executing a counterpart signature page to this Agreement. Each
such party shall be deemed a Unit Purchaser hereunder. SCHEDULE A hereto shall
be amended from time to time to reflect the addition of any Unit Purchasers
pursuant to this Section 7.11
[The remainder of this page is intentionally blank]
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By its authorized signature below, HoustonStreet Exchange, Inc. hereby
agrees to be bound by the provisions of Section 5 of this Fourth Amended and
Restated Stockholders' Voting Agreement dated as of March 30, 2001.
HOUSTONSTREET EXCHANGE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
President and Chief Executive Officer
8
IN WITNESS WHEREOF, this Fourth Amended and Restated Stockholders' Voting
Agreement has been executed by the parties hereto as of the day and year first
above written.
BAYCORP HOLDINGS, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
President and Chief Executive
Officer
EQUIVA TRADING COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Sr. VP-ETCO
▇▇▇▇▇▇ ▇. ▇▇▇ INVESTORS
LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: SVP + Treasurer
TSG EQUITY FUND, L.P.
By: /s/ T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
TSG EQUITY PARTNERS LLC
By: /s/ T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
----------------------------------
ENRON NET WORKS LLC
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ENERGY MARKETING &
TRADING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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SAPIENT CORPORATION
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
-----------------------------------
Name:
Title:
OMEGA ADVISORS, INC. for and on behalf
of Omega Capital Partners, L.P., Omega
International Partners, L.P., Omega
Overseas Partners, Ltd., and various
institutional accounts under the
investment management of Omega
Advisors, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
KROAD VENTURES, L.P.
By: KRoad Partners, LLC
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
VIVENDI, S.A.
By:
-----------------------------------
Name:
Title:
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CONOCO, INC.
By: /s/ E.L. Oshlo
-----------------------------------
Name: E.L. Oshlo
Title: Vice President
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SCHEDULE A
HOLDERS OF COMMON STOCK SHARES
BayCorp Holdings, Ltd. 10,000,000
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Equiva Trading Company 4,814,815
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited Partnership 200,000
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TSG Equity Fund, L.P. 55,217
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
TSG Equity Partners LLC 667
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 7,939
c/o TSG Equity Partners LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,844
c/o TSG Equity Partners LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. 60,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ 03801-6809
Enron Net Works LLC 1,781,043
Attention: Compliance Department; ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
----------
TOTAL 16,922,525
HOLDERS OF CONTINGENT RIGHTS TO RECEIVE COMMON STOCK SHARES SHARES
Enron Net Works LLC 763,305
Attention: Compliance Department; ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
HOLDERS OF WARRANTS TO PURCHASE COMMON STOCK SHARES
Enron Net Works LLC 2,544,347
Attention: Compliance Department; ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
HOLDERS OF SERIES A CONVERTIBLE PREFERRED STOCK SHARES
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 22,222
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 22,223
▇▇▇▇▇ ▇▇▇▇▇▇ 22,222
c/o MicroArts Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 26,667
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company 800,000
Attention: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sapient Corporation 266,667
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. 66,667
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Equiva Trading Company 1,066,667
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Omega Advisors, Inc. 666,667
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Associates, L.P. 666,667
Attention: ▇▇▇▇▇▇▇ ▇. Latina
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Equiva Trading Company 133,334
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
One ▇▇▇▇▇ Center - ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
---------
TOTAL 3,760,003
HOLDERS OF SERIES B CONVERTIBLE PREFERRED STOCK SHARES
KRoad Ventures, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇,▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Vivendi, S.A. 166,667
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Conoco, Inc 500,000
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
---------
TOTAL 1,083,334
PURCHASERS OF UNITS
Name and Address Units/Principal No. of Series C No. of Common Stock
Amount of Notes Stock Warrants Warrants
--------------- -------------- --------
BayCorp Holdings, Ltd. $8,419,842.00 56,132,280 2,806,614
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TSG Equity Fund, L.P. $ 17,763.11 118,421 5,920
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
TSG Equity Partners LLC $ 179.43 1,196 60
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ $ 1,503.60 10,024 501
c/o TSG Equity Partners LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 553.86 3,692 185
c/o TSG Equity Partners LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $ 187,500.00 1,250,000 62,500
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 125,000.00 833,334 41,667
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
KRoad Ventures $ 160,000.00 1,066,667 53,334
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Equiva Trading Company $1,394,354.00 9,295,693 464,785
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Omega Advisors, Inc.
Attention: ▇▇ ▇▇▇▇ $ 180,000.00 1,200,000 60,000
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ $ 83,333.00 555,553 27,778
c/o MicroArts Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 83,334.00 555,560 27,778
c/o MicroArts Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $ 83,333.00 555,553 27,778
c/o MicroArts Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Conoco, Inc. $ 437,819.00 2,918,793 145,940
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited $ 75,000.00 500,000 25,000
Partnership
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vivendi, S.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
