Exhibit 10.23


 


MxEnergy.com
Inc.

P.O. Box 2454

26 Pequot Road

Westport,
CT 06880


 


May 1, 2000


 


Mr. Emmett Capanna

6 Hayward Street

Bound Brook, NJ 08805


 


Dear Emmett:


 


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-exclusive 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 will
employ you, to commence on the date of the closing of the Corporation’s equity
capital transaction (the “Employment Date”), in the position of Senior Vice
President, Supply and Marketing. In such position, you will be responsible for
managing all natural gas supply activities of the Corporation and for related
duties as directed by the Corporation. As used in this paragraph, the closing
of the Corporation’s equity capital transaction shall be deemed to take place
at such time as the Corporation receives capital funding in an aggregate of at
least $4 million.


 


3.                          Compensation.


 


(a)                     Your base salary shall be the higher of (x)
$10,000 per month, or (y) that amount determined 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 the Corporation’s
Incentive Stock Option Plan.


 


(c)                     Notwithstanding anything herein to the
contrary, you acknowledge that the employment relationship between you and the
Corporation is intended to be, and will be, strictly “at-will,” meaning that
you and the


 

















 


Corporation are free to
terminate the relationship at any time, with or without reason.


 


4.                          Reimbursement of Expenses; Access to Information. 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.


 


5.                          Eligibility to Receive Warrants. You are eligible to receive warrants for up to ) 500 shares of the
common stock of the Corporation (“Warrants”) and with a strike price equal to
the then current value of shares on the date of transfer, as follows:


 


(a)                     Your right to receive Warrants for up to 50 shares shall vest one month
following your execution and delivery of this Agreement.


 


(b)                    Your right to receive additional Warrants for 450 Shares shall vest in
three installments of Warrants for 150 shares each 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 Corporation on each such vesting date.


 


(c)                     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 all Shares 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 (rounded to the nearest 1 share) 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. [By way of example only, if the Corporation were to
terminate your employment without cause effective on October 1, 2001, you
would be entitled to receive Warrants on 75 shares, which represents 1/2 of the
warrants on 150 shares scheduled to vest on May 1, 2002, the second
anniversary of the date of this Agreement.]


 


(d)                    For purposes of this section 5, “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.


 


5.                          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 Corporation, 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 has
been made available to you.


 


6.                          Representations
and Warranties. You represent and warrant, and agree with the Corporation,
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
Corporation 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 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 Warrants.


 


7.                          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


 

















 


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.


 


8.                          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.


 


(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
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.


 


9.                          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 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 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 nonassessable.


 


10.                    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 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.


 


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


 


12.                    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.


 

















 


13.                    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.


 


 


	
   

  	
  Very
  truly yours,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MxEnergy.com
  Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey A. Mayer

  	
   

  
	
   

  	
   

  	
  Jeffrey
  A. Mayer

  President

  	
   

  



 


 


	
  Agreed and accepted this

  5th day of May 2000:

  	
   

  
	
   

  	
   

  
	
  /s/
  Emmett Capanna

  	
   

  
	
  Emmett
  Capanna

  	
   

  



 

















 


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.