Exhibit 10.20


 


 


	
  

  	
   

  	
  MxEnergy.com Inc.

  Box 2454

  Westport, CT 06880

  

  Phone: 203 858 8851

  Fax: 203 226 2738

  

  www.mxenergy.com

  



 


April 1, 1999


 


 


Carole Roberta Artman-Hodge 

61 Rye Road 

Rye, NY


 


Dear Robi:


 


This will confirm that, in consideration of the mutual covenants
contained herein, you and MxEnergy.com Inc. (the “Corporation”) agree as
follows:


 


1.                          Initial Consulting Services. You will provide certain non-excusive consulting services to the
Corporation from the date of this Agreement until your Employment Date (as
defined in Section 2 hereof). Until your Employment Date, you acknowledge
and agree that (a) your relationship to the Corporation is strictly that
of an independent contractor, and nothing herein shall be deemed to create a
partnership, joint venture, agency or employment relationship during such
period, and (b) either you or the Corporation may terminate the
relationship at any time.


 


2.                          Employment Relationship. You have
agreed to the terms of this Agreement under which the Corporation may employ
you, to commence on the date of the closing of the Corporation’s equity capital
transaction (the “Employment Date”), in the position of Executive Vice
President and Chief Financial Officer. In such position, you will be
responsible for managing all financial matters of the Corporation and for
related duties as directed by the Corporation.


 


3.                          Compensation.


 


(a)                     Your
base salary shall be the higher of (x) $12000 per month, or (y) such amount as
set by the Corporation from time to time.


 


(b)                    During
the period in which you are an employee of the Corporation, you will be
entitled to participate, to the extent of your eligibility, on an equivalent
basis, in the employee benefits generally made available to senior employees in
the Corporation, including among other things year-end bonuses and the
Corporation’s Incentive Stock Option Plan.


 


(c)                     Once
employed, in the event of a termination of your employment by the Corporation
without “cause,” you shall be entitled to a severance payment equal to 36
months of your base salary then in effect at the time of your termination plus
any unvested warrants, options or other securities or evidences of equity
ownership awarded to you at any time by the Corporation.


 

















 


(d)                    If
you terminate your consulting or employment relationship with the Corporation
for any reason, including, without limitation, resignation or retirement, or
the Corporation terminates your employment with “cause,” you shall forfeit the
right to receive warrants or options pursuant to the Incentive Stock Option
Plan (the “Warrants or Options”) that have not vested as of the effective date
of the termination of such consulting or employment relationship, as the case may be.
Notwithstanding anything herein to the contrary, if the Corporation terminates
your consulting or employment relationship at any time without “cause,” you
shall vest immediately in the pro-rata portion of the Warrants or Options which
were scheduled to vest on the vesting date next succeeding the effective date
of your termination, and you shall forfeit the right to receive all remaining
unvested Warrants or Options.


 


(e)                     If
you terminate your consulting or employment relationship with the Corporation
for any reason, including, without limitation, resignation or retirement, or
the Corporation terminates your employment with or without “cause,” the
Corporation shall promptly repay any outstanding loans made by you to the
Corporation, immediately terminate any outstanding guarantees or
indemnifications by you of the Corporation, and indemnify and hold you harmless
from any liability (including the costs of any litigation regarding such
alleged liability, whether or not concluded in favor of you or of the
Corporation) for actions by or concerning the Corporation.


 


(f)                       For
purposes of this section 3, “cause” shall mean (i) your conviction
of, or pleading guilty to, a felony-class crime: (ii) any action
taken in bad faith by you that has, or is likely to have, in the Corporation’s
reasonable judgment, a material, detrimental effect on the reputation of the
Corporation or its business; (iii) an act of fraud, dishonesty or gross
misconduct by you, or (iv) a material breach by you of any provision of
this Agreement that has not been cured within thirty (30) days after written
notice of such breach by the Corporation.


 


4.                          Term.
The term of this agreement shall be five years commencing April 1, 1999
and shall be automatically renewed for successive five year terms unless
terminated by either party upon not less than six months advance written
notice.


 


5.                          Reimbursement
of Expenses: Access to Information. (a) While you are a consultant or
employee of the Corporation, you will be reimbursed for the reasonable and
necessary out-of-pocket expenses that you incur in furtherance of the
Corporation’s business; provided, however, that all expenses must be properly
documented and otherwise in compliance with the policies established from time
to time by the Corporation.


 


(b)                    At
all times during the term of this Agreement, you will be provided with access
to all meeting minutes, resolutions, presentations and any other materials
reviewed


 


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or generated by
the Corporation’s board of directors, or any committee or subgroup thereof.


 


6.                          Shareholders Agreement.
As a founder and owner of a substantial equity interest in the Corporation (the
“Shares”), you acknowledge and agree that you have entered into and are bound
by the terms and conditions of the Shareholders Agreement, dated as of May 1,
1999, among the Corporation, you, Jeffrey A. Mayer, and certain other
shareholders who are parties to the Shareholders Agreement from time to time
(the “Shareholders Agreement”), a copy of which has been made available to you.


 


7.                          Representations and Warranties. You represent and warrant, and agree with the Corporation, as follows:


 


(a)                     You have the absolute right and power to perform your obligations
under this Agreement and the Shareholders Agreement (collectively, the “Agreements”),
and you are not subject to any contractual or other restriction that would
prevent you from entering into the Agreements. The Agreements are valid,
binding and enforceable against you in accordance with their respective terms.


 


(b)                    You have such knowledge and experience in financial and business matters
that you are capable of evaluating the merits, risks and suitability of an
investment in or ownership of, the Shares of the Corporation.


 


(d)                    You have made an independent determination and evaluation of the
economic and tax consequences of your investment in, and ownership of the
Shares in the Corporation or of Warrants and Options. You have not received,
and you are not relying on any representations, statements or warranties made
by the Corporation or any director, officer, employee agent or other person purportedly
acting on behalf thereof regarding the Corporation or its capital stock or the
economic or tax consequences of your investment in, or ownership of, the Shares
or of Warrants and Options.


 


8.                          Limitation on Transfer of the Shares. You are aware that there are substantial restrictions on the
transferability of the Shares. The Shares will not be, and you have no right to
require that they be, registered under the Act. The Shares cannot be, and you
agree that they will not be, sold unless an exemption from registration is
available under the Act. You also acknowledge that you will be responsible for
compliance with all conditions of transfer imposed by any applicable “Blue Sky”
or state securities laws. You further acknowledge that the Shares may not
be sold, transferred or otherwise disposed of without compliance with the terms
and conditions of the Shareholders Agreement.


 


9.                          Restrictive Covenants.
(a) Confidentiality. You covenant and agree you will maintain in
strictest confidence and not disclose to any person or business entity, except
as specifically required in the performance of your duties hereunder, or use
for personal benefit, gain or otherwise, any confidential or proprietary
information of the Corporation or any client of the Corporation.


 


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(b)                    Non-Competition. You
also covenant and agree that, from the date of your execution and delivery of
this Agreement until one year following the cessation of your engagement by or
employment with the Corporation for any reason, whether with or without cause,
or whether initiated by you or the Corporation, you will not directly or
indirectly (whether as owner, officer, director, shareholder or employee of a
business or in any other manner), without the prior written consent of the
Corporation, (i) work with, or provide services to, any person or entity
which was a customer of the Corporation at the date of cessation of your
consulting or employment relationship, as the case may be, or within the
twelve-month period preceding such date, or which was contacted as a client
prospect by any representative of the Corporation within ninety (90) days prior
to such date of cessation; or (ii) solicit or induce any employee of the
Corporation to leave its employ or to hire or attempt to hire any such
employee.


 


(c)                     Injunctive and Other Relief. You acknowledge that your services and skills are unique and that any
actual or threatened violation of the provisions of this Section will
cause irreparable harm to the Corporation. Accordingly, you agree that, in
addition to such other rights as the Corporation may have at law or in
equity (including the right to recover damages) or under this Agreement, the
Corporation will be entitled to temporary and permanent injunctive relief in
the event of any actual or threatened violation by you of the provisions of
this Section.


 


10.                    Representations and Warranties.  (a)  You represent and warrant that you are not a
party to any agreement, contract or understanding, whether of employment or
otherwise, which would in any way restrict or prohibit you from undertaking or
performing the services contemplated by, and in accordance with, the terms and
conditions of this Agreement, and that you are not in possession of any trade
secrets or other confidential information of any other person which might
result in such other person making a claim against the Corporation or any
affiliate.


 


(b)                    The Corporation represents and warrants that (i) it has the
absolute right and power to grant the Shares to you and to perform its
obligations under this Agreement and the Shareholders Agreement (collectively,
the “Agreements”); (ii) it is not subject to any contractual or other
restriction that would prevent it from entering into the Agreements; (iii) the
Agreements are valid, binding and enforceable against the Corporation in
accordance with their respective terms; and (iv) it is not a party to any
agreement, contract or understanding, whether of employment or otherwise, which
would in any way restrict or prohibit it from undertaking or performing the
services contemplated by, and in accordance with, the terms and conditions of
this Agreement; and (v) the shares granted to you under this letter
agreement are fully paid and non-assessable.


 


11.                    Indemnification. (a)   You acknowledge that you understand the
meaning and legal consequences of the representations, warranties and
agreements set forth in Sections 6 through 9 above, and in Schedule A
hereto. You agree to indemnify and hold harmless the Corporation, its shareholders,
directors, officers and employees from and against any and all loss, damage or
liability due to or arising out of a breach by you of


 


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any such representation, warranty or agreement. Notwithstanding the
foregoing, no representation, warranty, acknowledgment or agreement that you
make in this Agreement will in any way be deemed to constitute a waiver of your
rights under federal or state securities laws.


 


(b)                     The Corporation agrees to indemnify you and hold you harmless from and
against any and all loss, damage or liability due to or arising out of a breach
by the Corporation of any of its representations, warranties or obligations
hereunder. Notwithstanding the foregoing, no representation, warranty,
acknowledgment or agreement made by the Corporation in this Agreement will in
any way be deemed to constitute a waiver of the Corporation’s rights under
federal or state securities laws.


 


12.                    Legend. You
acknowledge that any certificate representing the Shares will bear the legends
required by the Shareholders Agreement.


 


13.                    Miscellaneous.


 


(a)                     Entire Agreement. This
Agreement constitutes the entire agreement between you and the Corporation with
respect to the subject matter hereof. This Agreement may not be amended,
modified or supplemented except by written agreement executed by the parties
hereto.


 


(b)                    Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, legal representatives, successors and assigns.


 


(c)                     Waiver. No delay or
failure by either party to exercise any right under this Agreement, and no
partial or single exercise of that right, shall constitute a waiver of that or
any other right.


 


(d)                    Governing Law. This
Agreement shall be governed by the laws of the State of Delaware, without
giving regard to its conflicts of law provisions.


 


(e)                     Headings. Headings are
provided for convenience of reference only, and shall not constitute a part of
this Agreement or affect the interpretation thereof.


 


14.                    Intellectual Property.
During your employment with the Corporation, you will comply with all of the
provisions set forth in the attached Schedule A, entitled “Intellectual
Property,” and you further agree that the provisions of Sections 8(c) and
10(a) of this Agreement shall apply thereto.


 


Please acknowledge your acceptance of the
terms and conditions of this Agreement by signing and returning to the
undersigned the enclosed counterpart of this Agreement.


 


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  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  MxEnergy.com Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Mayer

  	
   

  
	
   

  	
   

  	
  Jeffrey A. Mayer

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Agreed and accepted this

  	
   

  
	
  1st day of April 1999;

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Carole Roberta Arman-Hodge

  	
   

  
	
  Carole Roberta Arman-Hodge

  	
   

  
					



 


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SCHEDULE A

Intellectual Property.


 


(a)                      You
shall make full and prompt disclosure to the Corporation of all trademarks or
trade names, including, without limitation, designs, logos or slogans, which
are created, made, conceived or reduced to practice by you or under your
direction or jointly with others during your affiliation with the Corporation,
whether or not during normal working hours or on the premises of the
Corporation, and which relates to the business then engaged in by the
Corporation or in which the Corporation then reasonably anticipates being
engaged (all of which are collectively referred to in this Agreement as “Developments”).


 


(b)                     You (i) agree to assign and do hereby assign to the Corporation (or
any person or entity designated by the Corporation) all of your respective
right, title and interest in and to all Developments and all related
applications; and (ii) agree to assign and do hereby assign to any third
party designated by the Corporation any Developments which are subject to the
terms and provisions of an intellectual property license or other similar
agreement approved by the Corporation’s Board of Directors between the
Corporation and such third party. You also hereby waive all claims to moral
rights in any Developments.


 


(c)                      You agree to cooperate fully with the Corporation with respect to the
procurement, maintenance and enforcement of intellectual property rights (both
in the United States and foreign countries) relating to Developments, provided
that the Corporation shall reimburse you for any costs or expenses incurred in
connection with the procurement, maintenance and enforcement of intellectual
property. You shall sign all papers, including, without limitation, trademark
applications, declarations, oaths, formal assignments, assignments of priority
rights, and limited powers of attorney, which the Corporation reasonably may deem
necessary or desirable in order to protect its rights and interests in any
Development and which shall be prepared by the Corporation or its counsel. You
further agree that if the Corporation is unable, after reasonable effort, to
secure your signature on any such papers, any executive officer of the
Corporation shall be entitled to execute any such papers as your agent and the
attorney-in-fact, and you hereby irrevocably designate and appoint each
executive officer of the Corporation as your agent and attorney-in-fact to
execute any such papers on your behalf, and to take any and all reasonable
actions as the Corporation may deem necessary or desirable in order to
protect its rights and interests in any Development, under the conditions
described in this sentence.


 


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