**Exhibit 10.42**

 

**AMENDMENTTO THE**

**EMPLOYMENTAGREEMENT**

 

This **AMENDMENT** tothe Employment Agreement (as defined below), effective January 1, 2009, ishereby entered into as of the 31st day of December, 2008 by and betweenMxEnergy Inc. (the “Company”) and Gina Goldberg (the “Employee”).

 

**WHEREAS**,the Company and the Employee entered into an Employment agreement setting forththe details of the Employee’s employment with the Company on June 13, 2007 (the“Employment Agreernent”); and

 

**WHEREAS**,the Company and Employee desire and agree to amend the provisions of theEmployment Agreement as provided below in order to reduce the risk of potentialadverse tax consequences to the Employee under Section 409A of the**InternalRevenue Code of 1986, as amended.

 

**NOW THEREFORE**,in consideration of the foregoing and for other valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, the**undersignedparties agree to amend the Employment Agreement, effective January 1, 2009,as follows:

 

1.             Section 3of the Employment Agreement is amended as follows, with ***bold and italicized text***highlightingthe additions:

 

3.             Bonus.The Company shall pay Employee a bonus based on******Employee’s and the Company’sperformance, such bonus to be determined and paid annually in a mannerconsistent with the determination and payment of bonuses paid to otherexecutives of the Company; ***provided,however, such bonus shall not be paid later than two and one-half (2******1/******2)months following the end of the year 10 which the performance objectivesrelate.***Subject******tothe Company’s discretion, such bonus is expected to range between 50 and 100%of Employee’s Base Salary for satisfactory and outstanding performance,respectively.

 

2.             Section 4(f) ofthe Employment Agreement is**amended as follows,with***bold and italicized text***highlighting theadditions:

 

(f)            ExpenseReimbursement. Employee shall be reimbursed for all items of travel,entertainment and miscellaneous expenses, including high speed home Internetaccess which the Employee reasonably incurs in connection with the performanceof her duties hereunder, provided that (i) the Employee submits to the Companyon 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’s request forreimbursement and the Company’s payment both occur not later than the last dayof Employee’s taxable year ending after the taxable year in which the expenseis incurred. ***Thereimbursement of expenses pursuant to this section shall not affect anyexpenses eligible for reimbursement in any other calendar year, and shall notbe liquidated or exchanged for any other benefit.***

 

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3.             Section 5(b)of the Employment Agreement is amended as follows, with ***bold and italicized text***highlightingthe additions:

 

(b)           ConstructiveTermination or Termination without Business Reasons. If at any time duringthe Employment Term (i) Employee terminates her employment as a result ofa Constructive Termination, or (ii) the Company terminates Employee’semployment without Business Reasons then subject to Employee signing and notrevoking a general release of claims against the Company and its Successors ***(using a form of release that theCompany provides to Employee not later than 10 business days after Employee’sTermination Date) and such release becoming irrevocable within sixty (60) daysafter Employee’s Termination Date,***Employee shall be entitled toreceive ***upon the expirationof such sixty (60) day period***(A) a lump sum payment equalto the greater of (i) her Base Salary for the remainder of the Employment Termor (ii) her Base Salary for a 12 month period, and (B) all other benefitsunder Sections 5(a)(C) and 5(a)(D) above. For purposes of determining severancefor the remainder of the Employment Term under this Section 5(b). the parties agree**that the Employment Term shall be deemedto be two (2) years from the date of this 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 ***the event the Company provides the Executive with anotice of nonextension,***Employee shall be entitled to a lump sumpayment equal to 12 months of her Base Salary at the end of the then currentEmployment Term, which amount shall, ***subject to Section 5(d) below, be paid upon thenext business day following the Employee’s Termination Date.***

 

4.             Section 5(c) ofthe Employment Agreement is amended as follows, with***bold and italicized text***highlightingthe additions:

 

(C)           ConstructiveTermination. For purposes of this Agreement, a “Constructive Termination”shall be deemed to occur if the Employee elects to voluntarily terminateemployment within the ninety (90) day period immediately following any of thefollowing events: (i) Employee is required to relocate her place ofemployment, other than a relocation within thirty (30) miles of the Company’sStamford offices, (ii) there is an intentional and material reduction in Employee’sBase Salary other than any such reduction consistent with a general reductionof pay across the executive staff as a group, as an economic or strategicmeasure due to poor financial performance 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 to the Company’s COO and/or theCEO. Notwithstanding the foregoing, an event shall not constitute a“Constructive Termination” unless Employee’s resignation occurs after a writtendemand for substantial performance is delivered to the Company by Employeewhich specifically identifies the condition which Employee believes constitutesgrounds for “Constructive Termination”****within thirty*(30) days of theoccurrence of such condition,***and

 

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the Company has failed to cure such condition to the reasonablesatisfaction of Employee within thirty-one (31) days following the delivery ofsuch notice.

 

5.             Section 5(d) ofthe Employment Agreement is amended as follows, with ***boldand italicized text*** highlighting the additions:

 

(d)           Section 409ACompliance. Notwithstanding anything in Section 5 to the contrary, ifand to the extent that any payments or benefits otherwise payable to Employeeunder this Section involves a “deferral of compensation” under Section 409Aof the Internal Revenue Code of 1986, as amended (the “Code”) (as determinedboth after consideration of any reasonably applicable exemptions and as setforth in applicable treasury regulations or binding administrative notices orrulings issued by the Internal Revenue Service), ***paymentof such amounts and benefits shall commence when you incur a “separation fromservice” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, fromthe Company and any entity that would be considered a single employer with theCompany under Code Section 414(b) or 414(c) (“Separation fromService”). Such payments or benefits shall be provided in accordance with thetiming provisions of this Agreement by substituting this Agreement’s referencesto “termination of employment” or “termination” with “Separation from Service.”Notwithstanding the foregoin, if at the time of your Separation from Service,you are***a “specified employee” within the meaning of CodeSection 409A(a)(2)(B)(i), then the Company shall suspend such payments orbenefits until the ***earlier of (i) the first business dayof the seventh month following your Separation from Service, or (ii) thedate of your death*** (the “409A Suspension Period”).  As soon as reasonably practical after the endof the 409A Suspension Period, the Company will make a lump sum payment toEmployee, in cash, in an amount equal to any payments and benefits that theCompany does not make during the 409A Suspension Period ***as ifthere had not been a six-month delay imposed by this paragraph***.  Thereafter, Employee will receive anyremaining payments and benefits due pursuant to this Agreement in accordancewith its terms (as if there had not been any suspension beforehand). Employeeshall be solely responsible for all taxes arising from payments and benefitsprovided under this Agreement. ***For the purposes of thisAgreement, each payment that is part of a series of installment payments shallbe treated as a separate payment for purposes of Code Section 409A.***

 

6.             AllEmployment Agreement references to section numbers and defined terms areamended to reflect the above modifications.

 

7.             Nothingherein shall be held to alter, vary or otherwise affect the terms, conditions,and provisions of the Employment Agreement, except as noted above.

 

[Signature Page to Follow]

 

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**IN WITNESSWHEREOF,**the parties hereto have agreed upon thisAmendment and such Amendment shall be effective as of the date first writtenabove.

 
| ** ** | ** ** | **THE  COMPANY:**  |
|------------|------------|--------------------|
| ** ** | ** ** | ** **         |
|       |       |               |
|       |       | **MxEnergy  Inc.** |
|       |       |               |
|       |       | By:                | /s/ S.J. Murry |   | /s/ Jeffrey  A. Mayer |
|       |       | Its:               | COO |   | CEO  President |
|       |       |               |   |
|       |       | ** **         |
|       |       | **THE  EMPLOYEE:** |
|       |       | ** **         |
|       |       |               |   |
|       |       | By:                | /s/ Gina  Goldberg |
|       |       | Name:              | Gina  Goldberg |

 

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January 6, 2009

 

Ms. Gina Goldberg 

[Address]

[City, State]

 

Re:        Correctionto Employment Agreement Amendment dated December 31, 2008

 

Dear Ms. Goldberg:

 

This letter responds to your understandableconcern that there is a mistaken reference to your outdated letter agreementwithin the amendment, dated December 31, 2008 (the “Amendment”), toyour current employment agreement with MxEnergy Inc., dated June 13, 2007(the “Employment Agreement”). There is good news in that the content ofthe Amendment is specifically addressed to your Employment Agreement, with thereference to your letter agreement being a mere mistake. To straighten thisout, we have signed this letter and ask that you do the same in order toexpress our agreement that –

 

·              eachreference in the Amendment to “letter agreement” or “Letter Agreement” shall bereplaced with “employment agreement” or “Employment Agreement”, respectively;and

 

·              thefirst “Whereas” clause shall be modified by replacing “February 1, 2004” with“June 13, 2007.”

 

For your convenience, a copy of the Amendmentis attached hereto as Exhibit A, and a copy of the EmploymentAgreement is attached hereto as Exhibit B.

 

If you are comfortable with these changeseffective as of December 31, 2008, please sign below, and return a signedcopy to MxEnergy at your earliest convenience.

 

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| ** ** | ** ** | Sincerely,    |
|------------|------------|---------------|
|       |       |          |
|       |       |          |
|       |       | MxEnergy Inc. |
|       |       | Name:         |   |
|       |       | Title:        |   |

 

 

AGREED TO ANDACCEPTED this

21 day ofJanuary, 2009:

 

Gina Goldberg

 
| /s/ Gina Goldberg |   |   |
|-------------------|--------|--------|

 

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