Exhibit 10.59


 


MXENERGY
HOLDINGS INC.


2010
STOCK INCENTIVE PLAN


 






 


Restricted
Stock Unit Award Agreement: Officers


 






 


You are hereby awarded
Restricted Share Units (the “RSUs”) subject to the terms and conditions
set forth in this Restricted Share Unit Award Agreement (the “Award
Agreement” or “Award”), and in the MXenergy Holdings Inc. 2010 Stock
Incentive Plan (the “Plan”).  A
copy of the Plan is attached as Exhibit A.  Terms beginning with initial capital letters
within this Agreement have the special meaning defined in the Plan (or in this
Award Agreement, if defined herein).


 


This
Award is conditioned on your execution of this Award Agreement within 20
(twenty) days after the Grant Date specified in Section 1 below.  By executing this Award Agreement, you will be
irrevocably agreeing that all of your rights under this Award will be
determined solely and exclusively by reference to the terms and conditions of
the Plan, subject to the provisions set forth below.  As a result, you should not
execute this Award Agreement until you have (i) carefully considered the
terms and conditions of the Plan and this Award, and (ii) consulted with
your personal legal and tax advisors about all of these documents.


 


1.                                       Specific Terms. 
Your RSUs have the following terms:


 


	
  Name
  of Participant

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Number
  of RSUs Subject to Award

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price per Share (if applicable)

  	
   

  	
  Not
  applicable.

  
	
   

  	
   

  	
   

  
	
  Grant
  Date

  	
   

  	
                       ,
  20    .

  
	
   

  	
   

  	
   

  
	
  Vesting

  	
   

  	
  Your
  Award will vest with respect to one-third (1/3) of the number of RSUs
  designated above on each the first three annual anniversary dates (each a “Vesting
  Date”) of the Grant Date, provided that your Continuous Service has not
  ended before the particular Vesting Date (subject to the terms of any
  employment agreement between you and the Company).

  
	
   

  	
   

  	
   

  
	
  Accelerated
  Vesting

  	
   

  	
  You
  will become 100% vested in this Award if there is a Change in Control or if
  your Continuous Service ends due to your Retirement, your death, your
  Disability, or your Involuntary Termination.

  
	
   

  	
   

  	
   

  
	
  §83(b) Elections

  	
   

  	
  Allowed
  pursuant to Section 7(d) of the Plan, using the Election attached
  hereto as Exhibit B.

  
	
   

  	
   

  	
   

  
	
  Deferral
  Elections

  	
   

  	
  Allowed
  pursuant to Section 7(e) of the Plan.

  
	
   

  	
   

  	
   

  
	
  Recapture
  and Recoupment

  	
   

  	
  Section 14
  of the Plan shall apply re Termination, Rescission, and Recapture of this
  Award.  

   

  Section 15
  shall apply re Recoupment of this Award.

  



 

















 


2.                                       Termination of Continuous
Service.  Subject to the terms of any employment
agreement between you and the Company (and/or any Affiliate) that is in effect
when your Continuous Service terminates, this Award shall be canceled and
become automatically null and void immediately after termination of your
Continuous Service for any reason, but only to the extent you have not become
vested, pursuant to terms of Section 1 above, on or before your Continuous
Service ends.


 


3.                                       Settlement through
Issuance of Shares.  No Shares will be issued
before you complete the requirements that are necessary for you to vest in the
Shares underlying your RSUs.  The Company
will issue to you or your duly-authorized transferee, free from vesting
restrictions (but subject to such legends as the Company determines to be
appropriate), one Share for each vested RSU, as soon as practicable after the
later of –


 


(a)                                  the date on which your RSUs vest in whole
or in part, or


 


(b)                                 the distribution date or dates set forth
in your deferral and distribution election forms (if allowed under Section 1
and made by you using the form attached hereto as Exhibit C);


 


provided that the
number of Shares issued to you shall be reduced by a number of Shares having a
Fair Market Value equal to the sum of (I) the par value per Share issued
(as payment thereof), plus (II) the minimum statutory tax withholding
required in connection with the vesting of your RSUs, and with cash being
withheld from your pay for any additional withholding and employment taxes that
applicable tax laws may require. 
Certificates shall not be delivered to you unless and until all
applicable conditions of this Award have been satisfied, including all
employment and tax-withholding obligations.


 


4.                                       Conditions on Issuance of
Shares; Transfer; Restrictions.  Notwithstanding any other provision of the
Plan or of this Award Agreement, your receipt of Shares pursuant to this Award
shall be contingent on your becoming a party to the Company’s
stockholders agreement, Class C Voting agreement and registration rights
agreement, as each such document is then in effect.


 


5.                                       Dividends. 
You shall have Dividend Equivalent Rights with respect to this Award,
and Section 10 of the Plan shall accordingly determine your right to
collect any cash dividends or Share dividends that are declared and paid to the
holders of Shares between the Grant Date and each vesting or deferred
settlement date upon which you are entitled to receive Shares to settle this
Award.  To the extent that your
Continuous Service ends before full vesting of the RSUs subject to this Award,
you will forfeit all cash and Share-based dividends that are attributable to
all of your non-vested RSUs.


 


6.                                       Designation of Beneficiary. 
Notwithstanding anything to the contrary contained herein or in the
Plan, following the execution of this Award Agreement, you may expressly
designate a death beneficiary (the “Beneficiary”) to your interest, if any, in
this Award and any underlying Shares. 
You shall designate the Beneficiary by completing and executing a
designation of beneficiary agreement substantially in the form attached hereto
as Exhibit D  (the “Designation
of Death  Beneficiary”) and delivering an executed copy of the
Designation of Beneficiary to the Company. 
To the extent you do not duly designate a beneficiary who survives you,
your estate will automatically be your beneficiary.


 

















 


7.                                       Restrictions on Transfer
of Award.
Your rights under this Award Agreement may not be sold, pledged, or otherwise
transferred without the prior written consent of the Committee.


 


8.                                       Taxes. 
Except to the extent otherwise specifically provided in an employment
agreement between you and the Company, by signing this Award Agreement, you
acknowledge that you shall be solely responsible for the satisfaction of any
applicable taxes that may arise pursuant to this Award (including taxes arising
under Code Section 409A (regarding deferred compensation) or 4999 (regarding
golden parachute excise taxes), and that neither the Company nor the
Administrator shall have any obligation whatsoever to pay such taxes or to
otherwise indemnify or hold you harmless from any or all of such taxes.  The Committee shall have the sole discretion
to interpret the requirements of the Code, including Section 409A, for
purposes of the Plan and this Award Agreement.


 


9.                                       Not a Contract of
Employment.  By executing this Award Agreement you
acknowledge and agree that (i) nothing in this Award Agreement or the Plan
confers on you any right to continue an employment, service or consulting
relationship with the Company, nor shall it affect in any way your right or the
Company’s right to terminate your employment, service, or consulting relationship
at any time, with or without Cause; and (ii) the Company would not have
granted this Award to you but for these acknowledgements and agreements.


 


10.                                 Investment Purposes. By executing this Award, you represent
and warrant to the Company that any Shares issued to you pursuant to your RSUs
will be for investment for your own account and not with a view to, for resale
in connection with, or with an intent of participating directly or indirectly
in, any distribution of such Shares within the meaning of the Securities Act of
1933, as amended.


 


11.                                 Securities Law
Restrictions.  Regardless of whether the offering and sale
of Shares under the Plan have been registered under the Securities Act of 1933,
as amended (the “Securities Act”), or have been registered or qualified under
the securities laws of any state, the Company at its discretion may impose
restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of appropriate legends on stock certificates or the imposition of
stop-transfer instructions) if, in the judgment of the Company, such
restrictions are necessary or desirable in order to achieve compliance with the
Securities Act or the securities laws of any state or any other law or to
enforce the intent of this Award.


 


12.                                 Headings.  Section and
other headings contained in this Award Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.


 


13.                                 Severability. 
Every provision of this Award Agreement and of the Plan is intended to
be severable.  If any term hereof is
illegal or invalid for any reason, such illegality or invalidity shall not
affect the validity or legality of the remaining terms of this Award Agreement.


 


14.                                 Counterparts. 
This Award Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.


 


15.                                 Notices. 
Any notice or communication required or permitted by any provision of
this Award Agreement to be given to you shall be in writing and shall be
delivered electronically, personally, or sent by mail, addressed to you at the
last address that the Company had for you on its records.  Each party may, from time to time, by notice
to the other party hereto, 


 

















 


specify a new address for delivery of notices relating to this Award
Agreement.  Any such notice shall be
deemed to be given as of the date such notice is personally or electronically
delivered or properly mailed.


 


16.                                 Binding Effect. 
Except as otherwise provided in this Award Agreement or in the Plan,
every covenant, term, and provision of this Award Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
legatees, legal representatives, successors, transferees, and assigns.


 


17.                                 Modifications. 
This Award Agreement may be modified or amended at any time, in
accordance with Section 18 of the Plan and provided that you must consent
in writing to any modification that adversely and materially affects any rights
or obligations under this Award Agreement.


 


18.                                 Plan Governs. 
By signing this Award Agreement, you acknowledge that you have received
a copy of the Plan and that your Award Agreement is subject to all the
provisions contained in the Plan, the provisions of which are made a part of
this Award Agreement and your Award is subject to all interpretations,
amendments, rules and regulations which from time to time may be
promulgated and adopted pursuant to the Plan. 
In the event of a conflict between the provisions of this Award
Agreement and those of the Plan, the provisions of the Plan shall control.


 


19.                                 Governing Law. 
The laws of the State of Delaware shall govern the validity of this
Award Agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties hereto.


 


BY
YOUR SIGNATURE BELOW, along with the signature of the Company’s representative,
you and the Company agree that this Award is made under and governed by the
terms and conditions of this Award Agreement and the Plan.


 


	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
  The undersigned
  Participant hereby accepts the terms of this Award Agreement and the Plan.

  
	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of Participant:

  	
   

  
					



 

















 


Exhibit A


 


MXENERGY HOLDINGS INC.


2010 STOCK INCENTIVE PLAN


 






 


Plan Document


 






 

















 


Exhibit B


 


 MXENERGY HOLDINGS INC.


2010 STOCK INCENTIVE PLAN


 






 


Section 83(b) Election
Form


 






 


IF
YOU WISH TO MAKE A SECTION 83(b) ELECTION, THERE ARE TWO CRITICAL
REQUIREMENTS, PARTICULARLY:


 


·                  YOUR ELECTION MUST
BE FINAL WITHIN 30 DAYS AFTER THE GRANT DATE SET FORTH IN YOUR RSU AWARD
AGREEMENT, AND


 


·                  BEFORE MAKING YOUR
ELECTION, YOU MUST HAVE RECEIVED RESTRICTED SHARES PURSUANT TO SECTION 7(d) OF
THE PLAN. The Company will accept any form of written notice by which you
direct that Restricted Shares be issued pursuant to Section 7(d) of
the Plan


 


If you receive Restricted Shares, you will remain subject to the terms,
restrictions, and conditions of the underlying RSU Award Agreement.  Such terms, restrictions, and conditions
shall continue in effect until your Restricted Shares have become fully vested
and replaced with unrestricted Shares.


 


Attached
is an Internal Revenue Code Section 83(b) Election Form.  In order to make the election, you must
completely fill out the attached form and file one copy with the Internal
Revenue Service office where you file your tax return.  In addition, one copy of the statement also
must be submitted with your income tax return for the taxable year in which you
make this election.  Finally, you also
must submit a copy of the election form to the Company within 10 days after
filing that election with the Internal Revenue Service.  A Section 83(b) election normally
cannot be revoked.


 
















 


MXENERGY HOLDINGS INC.


2010 STOCK INCENTIVE PLAN


 






 


Election to Include Value of
Restricted Shares in Gross Income


in Year of Transfer Under
Internal Revenue Code Section 83(b)


 






 


Pursuant to Section 83(b) of the Internal
Revenue Code, I hereby elect within 30 days after receiving the property
described herein to be taxed immediately on its value specified in item 5
below.


 


1.             My General Information:


 


Name:


Address:


 


S.S.N.


or T.I.N.:


 


2.             Description of the property with respect
to which I am making this election:


 


shares of
                      
stock of MXenergy Holdings Inc. (the “Restricted Shares”).


 


3.                                       The Restricted Shares were transferred to
me on
                            
      , 20    , pursuant to
an Award Agreement executed on
                 ,
20     (the “Award Agreement”).  This election relates to the
20         calendar taxable year.


 


4.                                       The Restricted Shares are subject to the
restrictions set forth in the Award Agreement, and are generally are not
transferable until my interest becomes vested and non-forfeitable, pursuant
thereto.


 


5.             Fair market value:


 


The fair market
value at the time of transfer (determined without regard to any restrictions
other than restrictions which by their terms never will lapse) of the
Restricted Shares with respect to which I am making this election is
$           per share.


 


6.             Amount paid for Restricted Shares:


 


The amount I paid
for the Restricted Shares is $        
per share.


 


7.             Furnishing statement to employer:


 


A copy of this
statement has been furnished to my employer, MXenergy Holdings, Inc.  If the transferor of the Restricted Shares is
not my employer, that entity also has been furnished with a copy of this
statement.


 


8.             Award Agreement or Plan not affected:


 

















 


Nothing contained
herein shall be held to change any of the terms or conditions of the Award
Agreement or the Plan.


 


Dated:
                        
    , 200  .


 


 


	
   

  	
   

  
	
   

  	
  Taxpayer

  



 

















 


Exhibit C


 


MXENERGY HOLDINGS INC.


2010 STOCK INCENTIVE PLAN


 






 


Deferral and Distribution
Election


(if allowed under Section 1
of the RSU Award Agreement)


 






 


DEFERRAL
AND DISTRIBUTION ELECTION (the “Election”), made this
         day of 
          ,
          , by me, as the
undersigned participant in the above-referenced plan (the “Plan”) that
is sponsored by MXenergy Holdings, Inc. (the “Company”).


 


WHEREAS, I have received an Award of RSUs
pursuant to an Award Agreement dated
                
    , 2010 (my “2010 RSU Award”) that permits me to
make a deferral election pursuant to Section 7(e) of the Plan, and I
desire to make such an election subject to the terms and conditions hereof.


 


NOW,
THEREFORE, I
hereby elect as follows, and the Company agrees to be bound by the terms of my
elections herein effective immediately, provided that,
within 30 days after the Grant Date set forth in my 2010 RSU Award, I provide
an executive officer of the Company (other than myself) with an original copy
of my completed and fully-executed Election herein:


 


1.             Defined Terms.  Terms
beginning with initial capital letters within this Election have the special
meaning defined in the Plan or my 2010 RSU Award (or in this Election for
definitions set forth herein).


 


2.             Provisions Incorporated by Reference. 
The terms of Sections 3 through 19 of my 2010 RSU Award are incorporated
herein by reference.


 


3.             Term of Election. 
This Election and the provisions of my 2010 RSU Award and the Plan
constitute the entire agreement between me and the Company regarding this
matter, and will continue in full force and effect until and unless I execute a
superseding distribution election pursuant to Section 8(c)(ii) of the
Plan.


 


4.             RSUs being Deferred. 
I hereby elect to defer the receipt of
            
percent (    %) of the Shares that would otherwise be
transferred to me more than 12 months after the date of this deferral election
(or upon my earlier death).  I understand
and recognize that pursuant to this Election, the Company agrees to credit me
on its books and records with DSUs pursuant to the terms and conditions of Section 8
of the Plan.


 


5.             Settlement of DSUs. 
The Company agrees to settle my DSUs through issuing unrestricted Shares
(with cash being paid in lieu of fractional Shares) in accordance with the  earliest  to occur of the
events determined pursuant to my elections in the following schedule:


 

















 


	
  Event

  	
   

  	
  Form of Distribution

  	
   

  	
  Time of Distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o My
  Death

  	
   

  	
  o    One lump sum
  distribution.  

   

  o    Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o    As soon as
  practicable.  

   

  o    The next January 1st.  

   

  o    Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o My
  Disability

  	
   

  	
  o    One lump sum
  distribution.  

   

  o    Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o    As soon as
  practicable.  

   

  o    The next
  January 1st.  

   

  o    Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o My
  Other Separation from Service

  	
   

  	
  o    One lump sum
  distribution.  

   

  o    Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o    As soon as
  practicable.  

   

  o    The next
  January 1st.  

   

  o    Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Change
  in Control

  	
   

  	
  o    One lump sum
  distribution.  

   

  o    Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o    As soon as
  practicable.  

   

  o    The next
  January 1st.  

   

  o    Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Specified
  Date

  	
   

  	
  o    One lump sum
  distribution.  

   

  o    Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  Date:
                  
        ,       .

  



 


Note: the term “Separation from Service”
means the first to occur of a termination of your Continuous Service, or your “separation
from service” within the meaning of Code Section 409A and associated
rulings and regulations (with such separation being presumed to occur if based
on a 50% or more reduction in your service, as determined thereunder).


 


6.             Taxes.  By signing
this Election, you acknowledge that you shall be solely responsible for the
satisfaction of any taxes that may arise pursuant to this Award (including
taxes arising under Sections 409A or 4999 of the Code), and that neither the
Company nor any of its officers, directors, employees, or other service
providers shall have any obligation whatsoever to pay such taxes or to
otherwise indemnify or hold you harmless from any or all of such taxes.


 


The Committee shall nevertheless have the discretion (i) to
condition any issuance of Shares on my satisfaction of applicable employment
and withholding taxes; and (ii) to unilaterally interpret this Election in
any manner that (i) conforms with the requirements of Section 409A of
the Code, (ii) that modifies or voids any election of mine to the extent
it would violate Section 409A of the Code, and (iii) for any
distribution election that would violate Section 409A of the Code, that


 


2

















 


defers distributions pursuant hereto until the
earliest to occur of a distribution event that is allowable under Section 409A
of the Code or any distribution event that is both allowable under Section 409A
of the Code and is duly elected by me.


 


7.             Effect of This Election. I recognize and agree that the Company
will honor the terms and conditions of this Election, subject to any provisions
of the Plan or my 2010 RSU Award that are not patently inconsistent herewith.


 


IN
WITNESS WHEREOF,
I have made this election on the day and year first above-written.


 


	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
  My Signature:

  
	
   

  	
   

  
	
   

  	
  My Printed Name:

  	
   

  



 


3

















 


Exhibit D


 


MXENERGY HOLDINGS INC.


2010 STOCK INCENTIVE PLAN


 






 


Designation of Death Beneficiary


 






 


In
connection with the Awards designated below that I have received pursuant to
the Plan, I hereby designate the person specified below as the beneficiary upon
my death of my interest in such Awards. 
This designation shall remain in effect until revoked in writing by me.


 


Name
of Beneficiary:


Address:


 


 


Social
Security No.:


 


This
beneficiary designation relates to any and all of my rights under the following
Award or Awards:


 


o    any Award that I have received or ever receive under
the Plan.


 


o    the
                                  
Award that I received pursuant to an award agreement dated
                  
    ,         
between myself and the Company.


 


I
understand that this designation operates to entitle the above named
beneficiary, in the event of my death, to any and all of my rights under the
Award(s) designated above from the date this form is delivered to the
Company until such date as this designation is revoked in writing by me,
including by delivery to the Company of a written designation of beneficiary
executed by me on a later date.


 


	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name of Participant

  



 


Sworn to before me this


 


       day of
                        ,
200  


 


Notary Public


County of


State of