Exhibit 10.21


 


	
  

  	
   

  	
  Executive
  Office

  

  20 Summer Street

  Stamford, CT 06901

  Phone: 203 356 1318

  Fax: 203 425 9562

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Customer
  Care Center

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10010 Junction
  Drive, Suite 104-S

  
	
   

  	
   

  	
  Annapolis
  Junction, MD 20701

  
	
   

  	
   

  	
  Phone: 800 785
  4373

  
	
   

  	
   

  	
  240 456 0505

  
	
   

  	
   

  	
  Fax: 240 456
  0510

  
	
   

  	
   

  	
   

  
	
  November 11, 2002

  	
   

  	
  Energy
  Supply & Operations

  
	
   

  	
   

  	
   

  
	
  Mr. Chaitu
  Parikh

  	
   

  	
  1255 Bound Brook Road

  
	
  43
  Arborview

  	
   

  	
  P.O. Box 491

  
	
  Carmel, NY 10512

  	
   

  	
  Middlesex, NJ
  08846

  
	
   

  	
   

  	
  Phone: 732 805
  0300

  
	
   

  	
   

  	
  Fax: 732 805
  4044

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  feedback@mxenergy.com

  



 


Dear
Chaitu:


 


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


 


1.                          Employment Relationship. You have agreed to the terms of this
Agreement under which the Company will employ you, effective upon the date of
your acceptance of this agreement as indicated below (the “Employment Date”),
in the position of Vice President, Finance. In such position, you will be
responsible for preparing periodic management reports and reports to investors
and creditors regarding finances of the Company; analyzing and developing hedge
strategies for the Company’s forward commodity risks; and related duties as
directed by the Company through its Chief Financial Officer.


 


2.                          Compensation.


 


(a)                 Your
base salary shall be the higher of (x) $168,500 per calendar year, or (y) that
amount determined by the Company from time to time.


 


(b)                During
the period in which you are an employee of the Company, you will be entitled to
participate, to the extent of your eligibility, in the employee benefits
generally made available to senior employees in the Company, including the
Company’s Incentive Stock Option Plan.


 


(c)                 Notwithstanding
anything herein to the contrary, you acknowledge that the employment relationship
between you and the Company is intended to be, and will be, strictly “at-will,”
meaning that you and the Company are free to terminate the relationship at any
time, with or without reason.


 


3.                          Reimbursement
of Expenses: Access to Information. While you are an employee of the
Company, you will be reimbursed for the reasonable and necessary out-of-pocket
expenses that you incur in furtherance of the Company’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 Company.


 


4.                          Eligibility to Receive Warrants. You are eligible to receive warrants for up to 20,000 shares of the
common stock of the Company (“Warrants”) and with a strike


 

















 


price of $4 on the
date of transfer, as follows:


 


(a)                    Your
right to receive Warrants for up to 5,000 shares shall vest three months
following your execution and delivery of this Agreement.


 


(b)                   Your
right to receive additional Warrants for 15,000 Shares shall vest in three installments
of Warrants for 5,000 shares respectively on the first, second and third
anniversaries of the date of this Agreement (each of such dates is referred to
herein as a “vesting date”), provided that you are an active employee of the
Company on each such vesting date.


 


(c)                    If
you terminate your employment relationship with the Company for any reason,
including, without limitation, resignation or retirement, or the Company
terminates your employment with “cause,” you shall forfeit the right to receive
all Shares that have not vested as of the effective date of the termination of
such employment relationship, as the case may be.


 


(d)                   Notwithstanding
anything in this agreement to the contrary, you shall vest immediately in all
remaining unvested Warrants at such time as


 


i.                              the
Company terminates your employment relationship at any time without cause;


 


ii.                         the
Company enters into an agreement, except for purposes of raising new capital,
for the sale or other disposition, in one transaction or a series of
transactions, of securities representing at least 50% of the common stock of
the Company on a fully-diluted basis, or


 


iii.                      the
Company enters into a consolidation or merger (other than a merger (i) in
which the Company is the surviving company, (ii) which involves only a
change in the Company’s state of incorporation, or (iii) with a
wholly-owned subsidiary of the Company) or the sale of all or substantially all
of the Company’s assets;


 


iv.                     the
effectiveness of a registration statement in respect of a public offering by
the Company of common stock.


 


(e)                    Solely
for purposes of this section 4, the term “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 Company’s
reasonable judgment, a material, detrimental effect on the reputation of the
Company or its business; (iii) an act of fraud, dishonesty or gross
misconduct by you; (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 Company; or (v) failure to secure, in a timely
fashion, approval of requisite immigration status such that at no time shall
you or the Company fail to meet any and all legal requirements regarding your
employment as a non-citizen.


 


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(f)                      Soley
for purposes of this section 4, your termination shall not be considered
to have been for “cause” if you terminate your employments as a result of the
occurrence of any of the following events without your express written consent:


 


(i)                       Any
long term and material change in your authorities or responsibilities
(including reporting responsibilities) which represents a material adverse change
from your status, position or responsibilities (including reporting
responsibilities) which were in effect immediately prior to the change, or any
removal of you from, or failure to reappoint or reelect you to, any of such
positions, except if any such changes are because of disability, retirement,
death or similar cause;


 


(ii)                    A
reduction in or failure to pay any portion of your annual base salary;


 


(iii)                 The relocation of your office to a
location more than fifty (50) miles from the location at which you performed
your duties prior to the relocation, except for required travel on Company
business to an extent substantially consistent with your business travel
obligations; or


 


(iv)                In
the event of a change of control of the Company, either through an initial
public offering or sale of the Company or its assets, the failure by Company to
provide you (until the expiration of one year after the occurrence of such
change of control) with compensation and benefits which are, in the aggregate,
no less favorable than those provided by Company to you immediately prior to
the occurrence of such change of control.


 


5.                          Early
Termination. In the event the Company terminates your employment without
cause at any time subsequent to May 1, 2003, or in the event of a change
of control of the Company, either through an initial public offering or sale of
the Company or its assets, prior to such date, you shall be entitled to a
severance payment equal to one half year of your then current annual salary
payable on a monthly basis thereafter. For purposes of this section 5. “cause”
shall mean (a) a material breach of Company policy; (b) failure to
perform any of the duties or responsibilities of your position to the
Company’s reasonable satisfaction, after being given notice and a reasonable
opportunity to improve; or (c) any of the events outlined in section 4(e) above.


 


6.                          Shareholders
Agreement. As a condition precedent to the issuance of Warrants to you, you
agree to enter into and be bound by the terms and conditions of the
Shareholders Agreement, dated as of May 1, 1999, as amended and restated
from time to time, among the Company, you, Jeffrey A. Mayer, Carole R.
Artman-Hodge and certain other shareholders who are parties to the Shareholders
Agreement from time to time (the “Shareholders Agreement”), a copy of which
will have been made available to you prior


 


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to the issuance of
such Warrants.


 


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


 


(a)                    You
have the absolute right and power to acquire the Warrants and 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
are acquiring the Warrants for your own account, for investment purposes only,
and not with a view to selling or distributing them in a manner that would
require registration under the Securities Act of 1933 (the “Act”) and the
regulations promulgated thereunder. You do not presently have any reason to
anticipate any change in your circumstances that would cause you to need to
sell the Warrants. You have the financial ability to bear the economic risk of
your investment for an indefinite period of time and have no need for liquidity
with respect to your ownership of the Warrants.


 


(c)                    All
documents and information having a bearing on your proposed ownership of the
Warrants have been made available to you for inspection. You have had a
complete opportunity to ask questions of, and receive answers from, the Company
about the terms and conditions of your proposed ownership of the Warrants, and
all such questions have been answered to your satisfaction. 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 Warrants.


 


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


 


8.                          Limitation
on Transfer of Warrants. You are aware that there are substantial
restrictions on the transferability of the Warrants and the underlying shares.
The Warrants will not be, and you have no right to require that they be,
registered under the Act. The Warrants and underlying stock 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


 


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imposed by any
applicable “Blue Sky” or state securities laws. You further acknowledge that
the Warrants and the underlying stock 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 Company or any
client of the Company.


 


(b)            Non-Competition.
You also covenant and agree that, from the date of your execution and delivery
of this Agreement until three (3) months following the cessation of your
employment with the Company for any reason, whether with or without cause, or
whether initiated by you or the Company, 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 Company, (i) work
with, or provide services to, any person or entity which was a customer of the
Company 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
Company within ninety (90) days prior to such date of cessation; or (ii) solicit
or induce any employee of the Company 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 Company. Accordingly, you agree that, in addition
to such other rights as the Company may have at law or in equity
(including the right to recover damages) or under this Agreement, the Company
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
Company or any affiliate.


 


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(b)            The Company represents
and warrants that (i) it has the absolute right and power to grant the
Warrants 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 Company 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 this agreement and in Schedule A
hereto. You agree to indemnify and hold harmless the Company, 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 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 Company 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 Company of any of its
representations, warranties or obligations hereunder. Notwithstanding the
foregoing, no representation, warranty, acknowledgment or agreement made by the
Company in this Agreement will in any way be deemed to constitute a waiver of
the Company’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.                  Legal
Expenses. The Company shall reimburse you, against presentation of invoices
from a law firm knowledgeable about immigration matters, for legal expenses
relating to your application for immigration status, provided such expenses do
not exceed, in the aggregate, $10,000.


 


14.                  Miscellaneous.


 


(a)             Entire Agreement.
This Agreement constitutes the entire agreement between you and the Company
with respect to the subject matter hereof. This Agreement may not be
amended, modified or


 


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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 Connecticut,
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 Company, 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 9(c) and
10(a) of this Agreement shall apply thereto.


 


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


 


 


	
   

  	
  Very truly yours,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MxEnergy Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Mayer

  	
   

  
	
   

  	
   

  	
  Jeffrey A. Mayer

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
					



Accepted and
Agreed effective this

2nd day of December 2002:


 


 


 


	
  /s/
  Chaitu Parikh

  	
   

  	
   

  	
   

  
	
      Chaitu
  Parikh

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


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SCHEDULE A


Intellectual Property


 


(a)             You
shall make full and prompt disclosure to the Company 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 Company, whether or not
during normal working hours or on the premises of the Company, and which
relates to the business then engaged in by the Company or in which the Company
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 Company (or any person or entity
designated by the Company) 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 Company any
Developments which are subject to the terms and provisions of an intellectual
property license or other similar agreement approved by the Company’s Board of
Directors between the Company and such third party. You also hereby waive all
claims to moral rights in any Developments.


 


(c)             You
agree to cooperate fully with the Company 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 Company
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 Company reasonably may deem
necessary or desirable in order to protect its rights and interests in any
Development and which shall be prepared by the Company or its counsel. You
further agree that if the Company is unable, after reasonable effort, to secure
your signature on any such papers, any executive officer of the Company 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
Company 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 Company 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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