**Exhibit 10.27**

**E**MPLOYMENT AGREEMENT

 

This Employment Agreement (the “Agreement”) isentered into on June 13, 2007 (the “Effective Date”) by and between GinaGoldberg, an individual (“Employee”), and MxEnergy Inc., a Delawarecorporation (the “Company”).  Termswithin this Agreement that begin with initial capital letters shall have themeaning specially set forth herein, unless the context clearly demonstrates adifferent meaning.  Employment.  Employee shall serve as Vice President, Salesand Marketing, will report to the Chief Operating Officer (“COO”) and/or theChief Executive Officer (“CEO”) and will render such services consistent withthe foregoing role.  Employee’s officeshall be located at the Employee offices of the Company in Stamford,Connecticut.  

# 1.             Term.  Company’s employment of Employee pursuant tothis Agreement shall commence on the Effective Date and end on the TerminationDate (as defined below).  The Employee’semployment shall be “at will” and either the Company or Employee may terminatethis agreement and Employee’s employment at any time, for any reason or noreason, in its or her sole discretion, upon sixty (60) days’ prior writtennotice of termination.  “TerminationDate” shall mean (i) if this Agreement is terminated on account of death,the date of death; (ii) if this Agreement is terminated by the Company, thedate on which such termination occurs as set forth in a notice of terminationgiven to Employee by the Company in accordance with Section 10(b); or (iii) ifthe Agreement is terminated by Employee, the date indicated in a notice oftermination given to the Company by Employee in accordance with Section10(b).  The period between the EffectiveDate and the Termination Date is the “Employment Term”; subject,however, to the provisions of Section 6(b) below.

# 2.             Salary.  The Company shall pay Employee base salary (“BaseSalary”) at an annual rate of $238,000. Employee’s Base Salary shall be paid in conformity with the Company’ssalary payment practices generally applicable to similarly situated CompanyEmployees.  

# 3.             Bonus.  The Company shall pay Employee a bonus basedon Employee’s and the Company’s performance, such bonus to be determined andpaid annually in a manner consistent with the determination and payment ofbonuses paid to other executives of the Company.  Subject to the Company’s discretion, suchbonus is expected to range between 50 and 100% of Employee’s Base Salary forsatisfactory and outstanding performance, respectively.  

# 4.             Employee Benefits.

## (a)           Equity Compensation.  Company has granted Employee warrants andoptions to acquire its common stock.  Theterms of such warrants, options and the relevant option plans shall not beimpacted by this Agreement.  Employeeshall be entitled to participate in any future stock option plans and any otherequity based incentive plans as may be approved by the compensation committeeof the Board of Directors from time to time on the same basis as othersimilarly situated employees of the Company. 

 

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## (b)           Business Reasons.  The term “Business Reasons” means (i) grossnegligence, willful misconduct or other willful malfeasance by Employee in theperformance of her duties provided that, the Board provides written notice ofsuch conduct to the Employee and such conduct continues for five (5) days afterthe Employee's receipt of such notice, (ii) Employee's conviction of, plea ofnovo contendere to, or written admission of the commission of, a felony, or another criminal offense involving moral turpitude, (iii) any act by the Employeeinvolving moral turpitude, fraud or material misrepresentation with respect toher duties for the Company or its affiliates, (iv) any act by the Employeeconstituting a failure to follow the lawful directions of the either the CEO,the COO, or the Board (or anyone else whom any of them may appoint to supervisethe Employee), provided that, the Board provides written notice of such failureto the Employee and the failure continues for five (5) days after theEmployee's receipt of such notice, or (v) Employee's material breach of thisAgreement, including without limitation any breach of Sections 7 through 10hereof, provided that, in the case of any such breach, the Board provideswritten notice of breach to the Employee, specifically identifying the manner inwhich the Board believes that Employee has breached this Agreement, andEmployee shall have the opportunity to cure such breach (but only if it isreasonably capable of being cured) to the reasonable satisfaction of the Boardwithin thirty (30) days following the delivery of such notice, unless suchbreach is incapable of cure.  For purposeof this paragraph, no act or failure to act by Employee shall be considered"willful" if such act or failure to act occurred at the direction ofthe Board.  

## (c)           Repurchase of Common Stock.  In the event that the Employee’s employmentterminates for any reason, the Company shall have the right (but not theobligation) to purchase all of the shares of Common Stock that the Employeeowns, whether such shares were acquired before or after the Effective Date ofthis Agreement,  for their then fairmarket value as determined by the Company in its sole and reasonablediscretion; provided that (i) if the total amount payable to the Employee forsuch shares exceeds $200,000, the Company may pay the excess to the Employee inquarterly installment payments, plus interest at the prime rate announced byCitibank NA, from time to time, on unpaid balances, over a period of threeyears; and (ii) the Company’s obligation to make any payment shall be suspendedduring any period for which payment would cause the Company to violate a loanor similar financial covenant (with such suspension only applying to theportion of the payment that would cause violation of the loan or similar financialcovenant).  The Company shall have theopportunity to exercise this repurchase right only within the ninety (90) dayperiod following the Employee’s termination of employment and the repurchaseright shall expire immediately upon an initial public offering of the Company’sstock.  The repurchase price of theshares being repurchased shall equal the fair market value as establishedthrough an independent valuation, by a valuation firm selected by the Board.   

## (d)           Other Employee Benefits.  During the Employment Term, the Employeeshall be entitled to receive all benefits provided to employees of the Companygenerally from time to time, including health, life insurance and disability,and all other benefits provided to the Company’s employees generally, in eachcase so long as and to the extent the same exist; provided, that in respect toeach such plan Employee is otherwise eligible and insurable in accordance withthe terms of such plans.  

## (e)           Vacation, Sick Leave, Holidays andSabbatical.  Employee shall beentitled to paid time off (“PTO”), sick leave, and holidays inaccordance with the policies of the Company, as 

 

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## they exist from time to time for seniorexecutives.  PTO not used during anycalendar year will not roll over to the following year.

                (f)            Expense Reimbursement.  Employee shall be reimbursed for all items oftravel, entertainment and miscellaneous expenses, including high speed homeInternet access which the Employee reasonably incurs in connection with theperformance of her duties hereunder, provided that (i) the Employee submits tothe Company on proper forms provided by the Company, such statements and otherevidence supporting such expenses as the Company may require and provided suchexpenses meet the Company's policy concerning such matters, and (ii) Employee’srequest for reimbursement and the Company’s payment both occur not later thanthe last day of Employee’s taxable year ending after the taxable year in whichthe expense is incurred.

# 5.             TerminationPay.  

# (a)           Resignationor Termination for Business Reasons. If (i) Employee voluntarily terminates her employment, other than as aresult of a Constructive Termination (as defined below), or (ii) the Companyterminates Employee’s employment for Business Reasons, then in any such event (A)all further vesting of Employee’s stock options and other equity arrangements,if any, whether such stock options or other equity arrangements were acquiredbefore or after the Effective Date of this Agreement, will cease immediatelyand such awards will expire in accordance with the terms of this Agreement andthe applicable award agreement(s) to the extent they are not inconsistent withthis Agreement, (B) all payments of compensation by the Company toEmployee hereunder will terminate immediately, (C) Employee will be paid allaccrued but unpaid PTO, expense reimbursements and other benefits due toEmployee through her termination date under any Company-provided or paid plans,policies, and arrangements, and (D) Employee will be paid all accrued and unpaidsalary.

# (b)           ConstructiveTermination or Termination without Business Reasons.  If at any time during the Employment Term (i)Employee terminates her employment as a result of a Constructive Termination,or (ii) the Company terminates Employee’s employment without Business Reasons,then subject to Employee signing and not revoking a general release of claimsagainst the Company and its successors in a form reasonably acceptable toEmployee and the Company, Employee shall be entitled to receive (A) a lump sumpayment equal to the greater of (i) her Base Salary for the remainder of theEmployment Term or (ii) her Base Salary for a 12 month period, and (B) allother benefits under Sections 6(a)(C) and 6(a)(D) above.  For purposes of determining severance for theremainder of the Employment Term under this Section 6(b), the parties agreethat the Employment Term shall be deemed to be two (2) years from the date ofthis Agreement.  The Employment Termshall be extended for additional one year periods unless Company providesExecutive with at least 90 days prior written notice of nonextension before theend of the then current Employment Term. In that event, Employee shall be entitled to a lump sum payment equal to12 months of her Base Salary at the end of the then current Employment Term.

# (c)           ConstructiveTermination.  For purposes of thisAgreement, a “Constructive Termination” shall be deemed to occur if theEmployee elects to voluntarily terminate employment within the ninety (90) dayperiod immediately following any of the following events: (i) Employee isrequired to relocate her place of employment, other than a relocation withinthirty (30) miles of the 

 

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# Company’sStamford offices, (ii) there is an intentional and material reduction in  Employee’s Base Salary other than any suchreduction consistent with a general reduction of pay across the executive staffas a group, as an economic or strategic measure due to poor financialperformance by the Company,  (iii) thereoccurs any other material breach of this Agreement by the Company, (iv)Employee’s duties and/or responsibilities are materially diminished,  or (v) Employee no longer reports directly tothe Company’s COO and/or the CEO. Notwithstanding the foregoing, an event shallnot constitute a “Constructive Termination” unless Employee’s resignationoccurs after a written demand for substantial performance is delivered to theCompany by Employee which specifically identifies the condition which Employeebelieves constitutes grounds for “Constructive Termination,” and the Companyhas failed to cure such condition to the reasonable satisfaction of Employeewithin thirty-one (31) days following the delivery of such notice.

(d)           DelayedPayment for Section 409A Compliance. Notwithstanding anything in Section 5 to the contrary, if and to theextent that (i) any payments or benefits otherwise payable to Employee underthis Section involves a "deferral of compensation" under Section 409Aof the Internal Revenue Code of 1986, as amended (the "Code") (asdetermined both after consideration of any reasonably applicable exemptions andas set forth in applicable treasury regulations or binding administrativenotices or rulings issued by the Internal Revenue Service), and (ii) Employeeis a "specified employee" within the meaning of Code Section409A(a)(2)(B)(i), then the Company shall suspend such payments or benefitsuntil the end of the six-month period following termination of Employee’semployment (the "409A Suspension Period"). As soon as reasonablypractical after the end of the 409A Suspension Period, the Company will make alump sum payment to Employee, in cash, in an amount equal to any payments andbenefits that the Company does not make during the 409A Suspension Period.Thereafter, Employee will receive any remaining payments and benefits duepursuant to this Agreement in accordance with its terms (as if there had notbeen any suspension beforehand). Employee shall be solely responsible for all taxes arising from paymentsand benefits provided under this Agreement.

# 6.             ConfidentialInformation.

## (a)           Employee acknowledges that theConfidential Information relating to the business of the Company and itssubsidiaries which Employee has obtained or will obtain during the course ofher association with the Company and subsidiaries and her performance underthis Agreement are the property of the Company and its subsidiaries.  Employee agrees that Employee will notdisclose or use at any time, either during or after the Employment period, anyConfidential Information without the written consent of the Board of Directorsof the Company, other than proper disclosure or use in the performance of herduties hereunder.  Employee agrees todeliver to the Company at the end of the Employment Term, or at any other timethat the Company may request, all memoranda, notes, plans, records,documentation and other materials (and copies thereof) containing ConfidentialInformation relating to the business of the Company and its subsidiaries, nomatter where such material is located and no matter what form the material maybe in, which Employee may then possess or have under her control.  If requested by the Company, Employee shallprovide to the Company written confirmation that all such materials have beendelivered to the Company or have been destroyed.  Employee shall take all appropriate steps tosafeguard Confidential Information and to protect it against disclosure,misuse, espionage, loss and theft.  

 

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## (b)           “Confidential Information”shall mean information which is not generally known to the public and which isused, developed, or obtained by the Company or its subsidiaries relating to thebusinesses of any of the Company and its subsidiaries or the business of anycustomer thereof including, but not limited to: pricing models; products or services; fees, costs and pricing structure;designs; analyses; formulae; drawings; photographs; reports; computer software,including operating systems, applications, program listings, flow charts,manuals and documentation; databases; accounting and business methods;inventions and new developments and methods, whether patentable or unpatentableand whether or not reduced to practice; all copyrightable works; the customersof any of the Company and its subsidiaries and the Confidential Information ofany customer thereof; and all similar and related information in whateverform.  Confidential Information shall notinclude any information which (i) was rightfully known by Employee prior to theEmployment Term; (ii) is publicly disclosed by law or in response to an orderof a court or governmental agency; (iii) becomes publicly available through nofault of Employee or (iv) has been published in a form generally available tothe public prior to the date upon which Employee proposes to disclose suchinformation.  Information shall not bedeemed to have been published merely because individual portions of theinformation have been separately published, but only if all the materialfeatures comprising such information have been published in combination.

# 7.             IntellectualProperty.  In the event thatEmployee, as a part of Employee’s activities on behalf of the Company,generates, authors or contributes to any invention, new development or method,whether or not patentable and whether or not reduced to practice, anycopyrightable work, any trade secret, any other Confidential Information, orany information that gives any of the Company and its subsidiaries an advantageover any competitor, or similar or related developments or information relatedto the present or future business of any of the Company and its subsidiaries(collectively “Developments and Information”), Employee acknowledgesthat all Developments and Information are "work for hire" and theexclusive property of the Company. Employee hereby assigns to the Company, its nominees, successors orassigns, all rights, title and interest to Developments and Information.  Employee shall cooperate with the Company’sBoard of Directors to protect the interests of the Company and its subsidiariesin Developments and Information. Employee shall execute and file any document related to any Developmentsand Information requested by the Company’s Board of Directors includingapplications, powers of attorney, assignments or other instruments which the Company’sBoard of Directors deems necessary to apply for any patent, copyright or otherproprietary right in any and all countries or to convey any right, title orinterest therein to any of the Company’s nominees, successors or assigns.

# 8.             No Conflicts.

## (a)           Employee agrees that in herindividual capacity she will not enter into any agreement, arrangement orunderstanding, whether written or oral, with any supplier, contractor,distributor, wholesaler, sales representative, representative group orcustomer, relating to the business of the Company or any of its subsidiaries,without the express written consent of the Board.

## (b)           As long as Employee is employed bythe Company or any of its subsidiaries, Employee agrees that Employee will not,except with the express written consent of the Board, become engaged in, renderservices for, or permit her name to be used in connection with, any for-

 

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## profit business other than the business of theCompany, any of its subsidiaries or any corporation or partnership in which theCompany or any of its subsidiaries have an equity interest.

# 9.             Non-Competition Agreement.

## (a)           Employee acknowledges that Employee’sservices are of a special, unique and extraordinary value to the Company andthat Employee has access to the Company’s trade secrets, ConfidentialInformation and strategic plans of the most valuable nature and developsgoodwill on behalf of the Company. Accordingly, Employee agrees that during the Restricted Term (as definedbelow), Employee shall not directly or indirectly own, manage, control,participate in, consult with, render strategic, managerial sales, marketing,investment, financial, or other non-administrative services for, or in anymanner engage in any business Competing (as defined below) with the businessesof the Company or any of its subsidiaries as such businesses exist or are inprocess of development on the Termination Date (as evidenced by writtenproposals, market research or similar materials).  A business is a Competing business if itengages in the deregulated retail marketing of natural gas or electricity inmarkets in which the Company has operated at any time during the two-yearperiod ending on the Termination Date. Nothing herein shall prohibit Employee from being a passive owner of notmore than 3% of the outstanding stock of any class of a corporation that ispublicly traded, so long as Employee has no active participation in thebusiness of such corporation.  Forpurposes of this Agreement, the “Restricted Term” shall be the period duringwhich Employee is employed by the Company and if Employee has received aseverance payment under Section 5(b), one year thereafter.

## (b)           In addition, during the RestrictedTerm, Employee shall not (i) directly or indirectly induce or attempt to induceany employee of the Company or any subsidiary (other than her own assistant) toleave the employ of the Company or such subsidiary, or in any way interferewith the relationship between the Company or any subsidiary and any employeethereof, (ii) hire directly or through another entity any person who was anemployee of the Company or any subsidiary at any time during the then preceding12 months (unless such employee contacts the Employee on an unsolicited bases),(iii) directly or indirectly induce or attempt to induce any customer,supplier, licensee or other business relation of the Company or any subsidiaryto cease doing business with the Company or such subsidiary, or in any wayinterfere with the relationship between any such customer, supplier, licenseeor business relation and the Company or any subsidiary, or (iv) disparage theCompany, its executive officers, or its directors.

## (c)           If any court or tribunal of competentjurisdiction shall determine any of the foregoing covenants to be unenforceablewith respect to the term thereof or the scope of the subject matter orgeography covered thereby, such remaining covenants shall nonetheless beenforceable by such court or tribunal against such other party or parties orupon such shorter term or within such lesser scope as may be determined by thecourt or tribunal to be enforceable.

## (d)           Because Employee’s services areunique and because Employee has access to Confidential Information andstrategic plans of the Company of the most valuable nature and will help theCompany develop goodwill, the parties agree that the covenants contained inthis Section 10 are necessary to protect the value of the business of theCompany and that a breach of any such covenant would result in irreparable andcontinuing damage for which there would be no adequate 

 

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## remedy at law. The parties agree therefore that in the event of a breach or threatenedbreach of this Agreement, the Company or its successors or assigns may, inaddition to other rights and remedies existing in their favor, apply to anycourt of competent jurisdiction for specific performance and/or injunctive orother relief in order to enforce, or prevent any violations of, the provisionshereof.  The parties further agree thatin the event the Company is granted any such injunctive or other relief, theCompany shall not be required to post any bond or security that may otherwisenormally be associated with such relief.

# 10.           Miscellaneous Provisions.

## (a)           Notice.  Notices and all other communicationscontemplated by this Agreement shall be in writing, shall be effective whengiven, and in any event shall be deemed to have been duly given (i) whendelivered, if personally delivered, (ii) three (3) business days after depositin the U.S. mail, if mailed by U.S. registered or certified mail, returnreceipt requested, or (iii) one (1) business day after the business day ofdeposit with Federal Express or similar overnight courier, if so delivered,freight prepaid.  In the case of Employee,notices shall be addressed to her at the home address which she most recentlycommunicated to the Company in writing. In the case of the Company, notices shall be addressed to its corporateheadquarters, and all notices shall be directed to the attention of itsCorporate Secretary.

## (b)           Notice of Termination.  Any termination by the Company or Employeeshall be communicated by a notice of termination to the other party heretogiven in accordance with paragraph (a) hereof. Such notice shall indicate the specific termination provision in thisAgreement relied upon.

## (c)           Successors.

### (i)            Company’s Successors.  Any successor to the Company (whether director indirect and whether by purchase, lease, merger, consolidation, liquidationor otherwise) to all or substantially all of the Company’s business and/orassets shall be entitled to assume the rights and shall be obligated to assumethe obligations of the Company under this Agreement and shall agree to performthe Company’s obligations under this Agreement in the same manner and to thesame extent as the Company would be required to perform such obligations in theabsence of a succession.  For allpurposes under this Agreement, the term “Company” shall include any successorto the Company’s business and/or assets which executes and delivers the assumptionagreement described in this subsection (i) or which becomes bound by the termsof this Agreement by operation of law.

### (ii)           Employee’s Successors.  The terms of this Agreement and all rights ofEmployee hereunder shall inure to the benefit of, and be enforceable by,Employee’s personal or legal representatives, executors, administrators,successors, heirs, distributees, devisees and legatees.

### (iii)          No Other Assignment of Benefits.  Except as provided in this Section 11(c), therights of any person to payments or benefits under this Agreement shall not bemade subject to option or assignment, either by voluntary or involuntaryassignment or by operation of 

 

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### law, including (without limitation) bankruptcy,garnishment, attachment or other creditor’s process, and any action inviolation of this subsection (iii) shall be void.

## (d)           Waiver.  No provision of this Agreement shall bemodified, waived or discharged unless the modification, waiver or discharge isagreed to in writing and signed by Employee and by an authorized officer of theCompany (other than Employee).  No waiverby either party of any breach of, or of compliance with, any condition orprovision of this Agreement by the other party shall be considered a waiver ofany other condition or provision or of the same condition or provision atanother time.

## (e)           Entire Agreement.  This Agreement shall supersede any and allprior agreements, representations or understandings (whether oral or writtenand whether express or implied) between the parties with respect to the subjectmatter hereof.

## (f)            Severability.  The invalidity or unenforceability of anyprovision or provisions of this Agreement shall not affect the validity orenforceability of any other provision hereof, which shall remain in full forceand effect.

## (g)           Arbitration.  Except for injunctive or other equitablerelief in aid of arbitration, any dispute or controversy arising under or inconnection with this Agreement shall be settled exclusively by arbitration inStamford, Connecticut, in accordance with the rules of the American ArbitrationAssociation then in effect.  Judgment maybe entered on the arbitrator’s award in any court having jurisdiction.  No party shall be entitled to seek or beawarded punitive damages. All attorneys’ fees and costs shall be allocated orapportioned as agreed by the parties or, in the absence of an agreement, insuch manner as the arbitrator or court shall determine to be appropriate toreflect the final decision of the deciding body as compared to the initial positionsin arbitration of each party.  **THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BYTHE LAWS OF THE STATE OF NEW YORK AS THEY APPLY TO CONTRACTS ENTERED INTO ANDWHOLLY TO BE PERFORMED WITHIN SUCH STATE BY RESIDENTS THEREOF.**

## (h)           Withholding of  Taxes. All payments made pursuant to this Agreement will be subject towithholding of applicable taxes.

## (i)            Indemnification.  Employee will be covered under the Company’sinsurance policies and, subject to applicable law, will be provided indemnificationto the maximum extent permitted by the Company’s bylaws and Certificate ofIncorporation, with such insurance coverage and indemnification to be inaccordance with the Company’s standard practices for employees in similarpositions.  Indemnification shall not beawarded for any conduct that is found to be breach by a Court or tribunal ofcompetent jurisdiction to violate this agreement.

## (j)            Compliance with Company Policies.  During the Employment Term, Employee willcomply with all Company policies generally applicable to the Company’semployees.  

 

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## (k)           Counterparts.  This Agreement may be executed incounterparts, each of which shall be deemed an original, but all of whichtogether will constitute one and the same instrument.

## (l)            Non-Disclosure.  Unless required by law or to enforce thisAgreement, the parties hereto shall not disclose the existence of thisAgreement or the underlying terms to any third party, other than theirrepresentatives who have a need to know such matters.

## (m)          Legal Fees.  The Company shall promptly pay the reasonablelegal fees incurred in 2007 by the Employee in connection with the negotiationof this Agreement in an amount not to exceed $2,500; provided that Employee’srequest for reimbursement and the Company’s payment must both occur not laterthan the last day of 2008.  

IN WITNESS WHEREOF, each of the parties has executed this Agreement, inthe case of the Company by its duly authorized officer, as of the day and yearfirst above written.

 
|   | MxENERGY INC. |
|--------|---------------|
|   |          |
|   |          |
|   | By:           | /s/ Jeffrey Mayer |
|   | Name:         | Jeffrey Mayer |
|   | Title:        | President/CEO |
|   |          |   |
|   |          |   |
|   | EMPLOYEE      |
|   |          |   |
|   | By:           | /s/ Gina Goldberg |
|   |          | Gina Goldberg |

 

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