Exhibit 10.45


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (the “Agreement”) is entered into as of April 1,
2010, 2010 (the “Effective Date”) by and between Robert Werner, an
individual (“Employee”), and MxEnergy Inc., a Delaware corporation (the “Company”).  Employee and the Company are referred to
individually herein as a “Party” and collectively as the “Parties.”  Terms within this Agreement that begin with
initial capital letters shall have the meaning specially set forth herein,
unless the context clearly demonstrates a different meaning.


 


1.     Employment.  Employee shall serve as Vice President,
Supply, of the Company, will report to the Chief Executive Officer (“CEO”) or
whomever the CEO designates in the event of a reorganization (but in no event anyone
other than the CEO or someone serving as the Company’s Chief Operating Officer
or as an executive vice president), and will render such services consistent
with the foregoing role.  Employee’s
office shall be located at the Company’s principal Houston, Texas location (the
“Houston Office”).


 


2.     Term.  Unless earlier terminated in accordance with
this Section 2, the Company’s employment of Employee pursuant to
this Agreement shall commence on the Effective Date and end on the third
anniversary of the Effective Date (the “Initial Term”); provided, however, that this Agreement shall remain in
effect thereafter for consecutive one-year periods (each a “Renewal Term”)
provided that neither Party has provided written notice to the other Party, at
least sixty (60) days prior to the expiration of the Initial Term or the
then-current Renewal Term, that this Agreement shall terminate at the end of
such Initial Term or Renewal Term, as applicable.  Notwithstanding the foregoing, (a) the
Company may terminate this Agreement (i) on the account of Employee’s
death; (ii) for Business Reasons (as defined below); or (iii) without
Business Reasons, upon sixty (60) days’ written notice; and (b) Employee
may terminate this Agreement (i) as the result of a Constructive Termination
(as defined below); or (ii) upon sixty (60) days’ written notice for any
reason other than a Constructive Termination. 
The term “Termination Date,” as used in this Agreement shall mean
(A) if this Agreement is terminated on account of Employee’s death, the
date of death; (B) if this Agreement is terminated by the Company, the
date on which such termination occurs as set forth in a notice of termination
given to Employee by the Company in accordance with Section 11(b); or (C) if
the Agreement is terminated by Employee, the date indicated in a notice of
termination given to the Company by Employee in accordance with Section 11(b).  The period between the Effective Date and the
Termination Date is the Employment Term.


 


3.     Base
Salary; Signing Payment.  The Company
shall pay Employee base salary (“Base Salary”) at an annual rate of
$300,000.  Employee’s Base Salary shall
be paid in conformity with the Company’s salary payment practices generally
applicable to the Company’s similarly situated executive employees.  In addition, within ten (10) days of the
Effective Date, the Company shall pay Employee a lump sum of $31,253, which
such amount equals the difference between the amount of base salary that
Employee earned between August 13, 2009 and the Effective Date and the
amount of base salary that Employee would have earned during that time had his
annualized base salary been $300,000.


 

















 


4.     Bonus.  The Company shall pay Employee an annual
bonus (the “Annual Bonus”) based on Employee’s and the Company’s performance
for each complete and partial fiscal year in which this Agreement is in effect,
which such bonus shall be determined and paid annually in a manner consistent
with the determination and payment of bonuses paid to other executives of the
Company.  For purposes of determining
Employee’s Annual Bonus, the target shall be 100% of Employee’s Base Salary
(the “Target Bonus”) for performance that the Board determines, in its
sole discretion, to be satisfactory.  If
performance goals are exceeded, the Annual Bonus may exceed the Target Bonus; provided however that in no event shall the Annual Bonus
exceed 150% of Employee’s Base Salary. 
The Annual Bonus shall be paid annually in a manner consistent with the
payment of bonuses paid to other executives 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 to which the
performance objectives relate.


 


5.  Employee Benefits.


 


(a)   Stock Options and Other Stock Awards.  During the Employment Term, the Employee
shall be entitled to participate, on the same basis as other similarly situated
employees of the Company, in any future stock option plans and any other equity
based incentive plans as may be approved by the compensation committee of the
Board of Directors from time to time.  Nothing in this Section 5(a) shall
preclude Employee from continuing to participate in stock option plans and
other equity based incentive plans in which he participates as of the Effective
Date.


 


(b)   Other Employee Benefits. 
During the Employment Term, the Employee shall be entitled to receive
all benefits provided to executive employees of the Company generally from time
to time, including health, life insurance and disability, and all other
retirement (including without limitation 401(k)), welfare, and fringe benefits
provided to the Company’s executive employees generally, in each case so long
as, and to the extent, the same exist; provided, that in respect to each such
plan Employee is otherwise eligible and insurable in accordance with the terms
of such plans.


 


(c)   Vacation, Sick Leave, Holidays and Sabbatical.  Employee shall be entitled to paid time off (“PTO”),
sick leave, and holidays in accordance with the policies of the Company as they
exist from time to time, and as provided to executive-level employees.  PTO not used during any calendar year will
not roll over to the following year.


 


6.             Termination
Pay.


 


(a)             Resignation, Death, or
Termination for Business Reasons.  If
(i) Employee voluntarily terminates his employment, other than as a result
of a Constructive Termination (as defined below), or (ii) the Company
terminates Employee’s employment for Business Reasons (as defined below), then
in any such event (A) Employee will be paid all accrued but unpaid PTO,
expense reimbursements and other benefits due to Employee through the
Termination Date under any Company-provided or paid plans, policies and
arrangements, (B) Employee will be paid all accrued and unpaid salary
through the Termination Date, and (C) Employee will not be paid or accrue
the right to be paid any other compensation. 
Any amount payable hereunder shall paid pursuant to the applicable
provisions of Sections 3 and 4, above.


 


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(i)            The term “Business Reasons”
as used herein means Employee’s: (A) gross negligence, willful misconduct
or other willful malfeasance in the performance of his duties hereunder; (B) conviction
of, or plea of nolo contendere to, or written admission of the commission of, a
felony or other criminal offense involving moral turpitude; (C) any act
involving moral turpitude, fraud or misrepresentation with respect to his
duties for the Company or its affiliates; (D) any act or omission that
constitutes a failure to follow the reasonable, lawful directives of the
Company’s CEO or Board of Directors or willful, material breach of this
Agreement; provided, that the Board must provide written notice of such failure
or breach within five (5) days after the initial act, omission or breach
and Employee must fail to correct such failure, omission or breach within
twenty (20) days after his receipt of such written notice.  For purpose of this paragraph, no act or
failure to act by Employee shall be considered “willful” if such act of failure
to act occurred at the direction of the Company’s CEO or Board of Directors.


 


(b)           Constructive Termination or
Termination without Business Reasons. 
If (i) Employee terminates his employment as a result of a
Constructive Termination, or (ii) the Company terminates Employee’s
employment without Business Reasons (excluding because of Employee’s death),
then within thirty (30) days of the Termination Date, or earlier if required by
law, the Company shall pay Employee: (A) all accrued but unpaid PTO,
expense reimbursements and other benefits due to Employee through the
Termination Date under any Company-provided or paid plans, policies and
arrangements, (B) any accrued and unpaid Annual Bonus for a previous
fiscal year, which such amount shall be paid pursuant to the provisions of Section 4,
above, and (C) all accrued and unpaid salary through the Termination
Date.  In addition, subject to Section 6(e) below
and Employee’s signing and not revoking a general release of claims against the
Company and its successors in a form substantially similar to that attached as Exhibit A
and such release becoming irrevocable within sixty (60) days after the date of
Employee’s termination, the Company shall pay to Employee upon the expiration
of such sixty (60) day period, a lump sum equal to: (1) the amount of his
Base Salary for the greater of: (A) twelve (12) months; or (B) the
remainder of the Initial Term that existed as of the Termination Date, if
applicable; and (2) the Target Bonus.


 


(c)           Constructive Termination.  For purpose of this Agreement, a “Constructive
Termination” shall be deemed to occur if (1) Employee gives the Company
written notice of the existence of one of the events arising without Employee’s
consent listed in clauses (i) through (iii) below, within thirty (30)
days of the initial existence of such event; (2) the Company has failed to
cure such event within thirty (30) days following the date such notice is
given; and (3) the Employee elects to voluntarily terminate employment
within the ninety (90) day period immediately following any of the following
events: (i) Employee is required to relocate his place of employment,
other than a relocation within fifty (50) miles of the Company’s Houston
Office, (ii) there is an intentional and material reduction in Employee’s
Base Salary, other than any such reduction consistent with a general reduction
of pay across the executive staff as a group, as an economic or strategic
measure due to poor financial performance by the Company, (iii) any
material breach by the Company of Section 11(c)(i) of this Agreement,
provided, that a Constructive Termination will not be deemed to have occurred
if, within sixty (60) days of a Change of Control, the Executive is offered an
employment contract by the new owner of the Company which is at least as
economically favorable to the Executive as this Agreement, (iv) a material
reduction in Executive’s authority, duties, and responsibilities, or (v) there
occurs any other material breach of this Agreement by the Company


 


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after
a written demand for substantial performance is delivered to the Company by
Employee which specifically identifies the manner in which Employee believes
that the Company has materially breached this Agreement, and the Company has
failed to cure such breach to the reasonably satisfaction of Employee within
thirty (30) days following the delivery of such notice.


 


(d)           Termination Following a Change in
Control.  If there is a Change in
Control during the Initial Term or any Renewal Term, as applicable, and either:
(i) a Constructive Termination occurs; (ii) the Company terminates
Employee’s employment without Business Reasons within twelve (12) months
following the Change in Control; or (iii) the Company elects not to extend
this Agreement for a Renewal Term within the twelve (12) months that follow the
Change in Control, then subject to Section 6(e) below and Employee’s
signing and not revoking a general release of claims against the Company and
its successors in a form substantially similar to that attached as Exhibit A
and such release becoming irrevocable within sixty (60) days after the date of
Employee’s termination, the Company shall pay to Employee upon the expiration
of such sixty (60) day period, in addition to all amounts otherwise owed
hereunder, a lump sum equal to Employee’s Base Salary.  For purposes of this Agreement, a “Change
in Control” shall have the same meaning as in Treas. Reg. §§ 1.409A-3(i)(5)(vi) and
1.409A-3(i)(5)(vii), except that for purposes of Treas. Reg. §
1.409A-3(i)(5)(vi)(1), the phrase “30 percent” shall be replaced with “50
percent.”


 


(e)           Code Section 409A Compliance.  To the extent amounts or benefits that become
payable under this Agreement on account of the Employee’s termination of
employment (other than by reason of the Employee’s death) constitute “nonqualified
deferred compensation plan” within the meaning of Code Section 409A (“Deferred
Compensation”), payment of such amounts and benefits shall commence when
the Employee incurs a “separation from service” within the meaning of Treasury
Regulation 1.409A-1(h), without regard to any of the optional provisions
thereunder, from the Company and any entity that would be considered a single
employer with the Company under Code Section 414(b) or 414(c) (“Separation
from Service”).  Such payments or
benefits shall be provided in accordance with the timing provisions of this
Agreement by substituting this Agreement’s references to “termination of
employment” or “termination” with “Separation from Service.”  Notwithstanding the foregoing, if at the time
of the Employee’s Separation from Service, the Employee is a “specified
employee” (within the meaning of Code Section 409A and Treasury Regulation
Section 1.409A-3(i)(2)), any such Deferred Compensation will not be paid
until after the earlier of (i) the first business day of the seventh month
following Employee’s Separation from Service, or (ii) the date of the
Employee’s death (the “409A Suspension Period”).  Within 14 calendar days after the end of the
409A Suspension Period, the Company shall then pay to Employee, without
interest, all such Deferred Compensation that would have otherwise been paid
under this Agreement but for the imposition of the 409A Suspension Period.  Thereafter, the Company shall pay Employee
any remaining unpaid Deferred Compensation in accordance with this Agreement as
if there had not been a six-month delay imposed by this paragraph.  For the purpose of this Agreement, each
payment that is part of a series of installment payments shall be treated as a
separate payment for purposes of Code Section 409A.


 


(f)            Code Section 280G.


 


(i)            Notwithstanding any provision of
this Agreement to the contrary, if Employee becomes entitled to payment and/or
benefits by this Agreement or any other amounts in


 


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the
nature of compensation, whether alone or together or with payments or benefits
that Employee receives or realizes or is then entitled to receive or realize
from the Company or any of its affiliates or ay other person whose actions
result in a change of ownership or effective control of the Company, and such
payments and/or benefits would constitute an “excess parachute payment” within
the meaning of Section 280G of the Internal Revenue Code (the “Code”)
and/or any corresponding and applicable state law provision, the payments
and/or benefits provided to Employee under this Agreement will be reduced by
reducing the amount of payments or benefits payable to Employee (the “280G Reduction”)
to the extent necessary so that no portion of Employee’s payments or benefits
will be subject to the excise tax imposed by Section 4999 of the Code or
any interest or penalties are incurred by Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties are
hereinafter collectively referred to as the “Excise Tax”).  Notwithstanding the foregoing, the 280G
Reduction will be made only if, by reason of that deduction, Employee’s “net
after tax benefit” (as defined below) exceeds the net after tax benefit he
would realize if the 280G Reduction were not made.  The reduction of payments or benefits shall
be made by reducing, first, cash payments in in the order receivable in time,
and then, to the extent necessary, from the non-cash benefits in similar
order.  To the extent that the 280G
Reduction is not applicable because Employee’s net after tax benefits is
greater than the net after tax benefit that he would receive if the 280G
Reduction were made, then the Company will pay to Employee a “Gross-Up Payment”
as set forth below in Section 6(f)(iii).


 


(ii)           For purposes of this Section 6(f),
“net after tax benefit” means the sum of (a) the total amount received or
realized by Employee pursuant to this Agreement that would constitute a “parachute
payment” within the meaning of Section 280G of the Code and any
corresponding and applicable state law provision, plus (b) any and all
other payments or benefits that Employee receives or realizes or is then
entitled to receive or realize from the Company and any of its affiliates or
that are otherwise within the scope of payments and/or benefits provided for in
sub-clause (i) above that would constitute a “parachute payment” within
the meaning of Section 280G of the Code and any corresponding and
applicable state law provision, less (c) the amount of federal, state and
local and social security taxes payable with respect to the payments or
benefits described in (a) and (b) above calculated at the maximum
marginal individual income tax rate for each year in which payments or benefits
are realized by Employee (based upon the rate in effect for that year as set
forth in the Code at the time of the first receipt or realization of the
foregoing), less (d) the amount of excise taxes imposed with respect to
the payments or benefits described in (a) and (b) above by Section 4999
of the Code and any corresponding and applicable state law provision.


 


(iii)          As provided above, in the event that (a) Employee’s
net after tax benefit without the 280G Reduction is greater than the net after
tax benefit that he would receive if the 280G Reduction were made, and (b) it
shall be determined that any payment or distribution by the Company to or for
the benefit of Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section) (a “Payment”) would be subject to the Excise Tax, then the
Company will pay to Employee an additional payment (a “Gross-Up Payment”)
in an amount such that after payment by Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, both any income taxes (and any interest and penalties imposed with
respect thereto), and the Excise Tax imposed upon the Gross-Up


 


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Payment,
Employee retains and amount of the Gross-Up Payment equal to seventy-five
percent (75%) of the Excise Tax imposed upon the Payments.


 


A.            Subject to the provisions of this Section 6(f),
all determinations required to be made under this Section, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be
made by an outside nationally recognized accounting firm selected by the
Company or the Board of Directors of the Company, in its sole and absolute
discretion (the “Accounting Firm”), which shall provide detailed
supporting calculations both to the Company and Employee within 15 business
days of the receipt of notice from Employee that here has been a Payment, or
such earlier time as is requested by the Company.  In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company shall appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm
shall be borne solely by the Company. 
Any Gross-Up Payment, if applicable, as determined pursuant to this Section 6(f),
shall be paid by the Company to Employee within thirty (30) days of the receipt
of the Accounting Firm’s determination, but in no event later than the end of
the calendar year following the year in which the related taxes are remitted to
the taxing authority.  All determinations
made by the Accounting Firm shall be based on detailed supporting calculations
provided both to the Company and Employee at such time as is requested by
either Party.  Any determination by the
Accounting Firm shall be binding upon the Company and Employee.  In the event that the Company exhausts its
remedies pursuant to Section 6(f)(iii)(B) and Employee thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment (as defined below) that has occurred
and the Company’s pro rata portion of any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Employee.  In no event shall the Gross-Up
Payment be made later than the end of the service provider’s taxable year next
following the service provider’s taxable year in which the related taxes are
remitted to the taxing authority.


 


B.            Employee shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require an additional Payment or Payment, as the case may be, which have not
been made by the Company, but could have been made pursuant to this Section 6(f) (the
“Underpayment”).  Such
notification shall be given as soon as practicable but no later than ten
business days after Employee is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid.  Employee
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due).  If the Company notifies Employee
in writing prior to the expiration of such period that it desires to contest
such claims, Employee shall:


 


(i)                                     give the Company any
information reasonably requested by the Company relating to such claim;


 


(ii)                                  take such action in
connection with contesting such claim as the Company shall reasonably request
from time to time including, without limitation, accepting legal representation



 


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with
respect to such claim by an attorney reasonably selected by the Company;


 


(iii)          cooperate with the Company in good
faith in order to effectively contest such claim; and


 


(iv)                              permit the company to
participate in any proceedings relating to such claim; provided, however, that
the Company shall bear and pay directly all reasonable costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Employee harmless, on an after-tax basis,
for seventy-five percent (75%) of any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses.  In no
event shall the payment of any Excise Tax or income tax (including interest and
penalties related thereto) be made later than the end of the service provider’s
taxable year next following the service provider’s taxable year in which the
related taxes are remitted to the taxing authority.  Without limitation on the foregoing
provisions of this Section 6(f)(iii)(B), the Company shall control all
proceedings taken in connection with such contest and, at it sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
confdrences with the taxing authority in respect of such claim and may, at its
sole option, either direct Employee to pay the tax claimed and sue for a refund
or contest the claim in any permissible manner, and Employee agrees to
prosecute such contest tot a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine and subject to the Company covering all out of pocket
expenses incurred in such contest; provided, however, that if the Company
directs Employee to pay such claim and sue for a refund, the Company shall
advance the amount of such payment to Employee that represents the Company’s pro rata share of any payment, on an interest-free basis and
shall indemnify and hold Employee harmless, on an after-tax basis, from the
Company’s pro rata share of any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment
of taxes for the taxable year of Employee with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.


 


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Furthermore,
the company’s control of the contest shall be limited to issues and/or claims
that are materially related to the imposition of any Excise Tax or with respect
to which a Gross-Up Payment would otherwise be payable hereunder and Employee
shall be entitled to settle or context, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.  The Parties shall promptly deliver to each
other copies of any written communications and summaries of any verbal communications
with any taxing authority regarding the matters addressed herein.


 


C.            If, after the receipt by
Employee of an amount advanced by the Company pursuant to Section 6(f)(iii)(B),
Employee becomes entitled to receive any refund with respect to such claim,
Employee shall (subject to the Company’s complying with the requirements of Section 6(f)(iii)(B))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto).  If, after the receipt by Employee of an
amount advanced by the Company pursuant to Section 6(f)(iii)(B), a
determination is made that Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify Employee in writing of
its intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not be
require to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.


 


7.             Confidential
Information.


 


(a)           Employee acknowledges that the Confidential
Information relating to the business of the Company and its subsidiaries which
Employee has obtained or will obtain during the course of his association with
the Company and subsidiaries and his performance under this Agreement are the
property of the Company and its subsidiaries. 
Employee agrees that Employee will not disclose or use at any time, either
during or after the Employment period, any Confidential Information without the
written consent of the Board of Directors of the Company, other than proper
disclosure or use in the performance of his duties hereunder.  Employee agrees to deliver to the Company at
the end of the term of his employment, or at any other time that the Company
may request, all memoranda, notes, plans, records, documentation and other
materials (and copies thereof) containing Confidential Information relating to
the business of the Company and its subsidiaries, no matter where such material
is located and no matter what form the material may be in, which Employee may
then possess or have under his control. 
If requested by the Company, Employee shall provide to the Company written
confirmation that all such materials have been delivered to the Company or have
been destroyed.  Employee shall take all
reasonable steps to safeguard Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft.


 


(b)           “Confidential Information” shall mean
information which is not generally known to the public and which is used,
developed, or obtained by the Company or its subsidiaries relating to the
businesses of any of the Company and its subsidiaries or the business of any
customer thereof including, but not limited to: pricing models; products or
services; fees, costs and pricing 


 


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structure;
designs; analyses; formulae; drawings; photographs; reports; computer software,
including operating systems, applications, program listings, flow charts,
manuals and documentation; databases; accounting and business methods;
inventions and new developments and methods, whether patentable or unpatentable
and whether or not reduced to practice; all copyrightable works; the customers
of any of the Company and its subsidiaries and the Confidential Information of
any customer thereof; and all similar and related information in whatever
form.  Confidential Information shall not
include any information which (i) was rightfully known by Employee prior
to the beginning of his employment with the Company; (ii) is publicly
disclosed by law or in response to an order of a court or governmental agency; (iii) becomes
publicly available through no fault of Employee or (iv) has been published
in a form generally available to the public prior to the date upon which
Employee proposes to disclose such information. 
Information shall not be deemed to have been published merely because
individual portions of the information have been separately published, but only
if all the material features comprising such information have been published in
combination.


 


8.             Intellectual
Property.  In the
event that Employee, as a part of Employee’s activities on behalf of the
Company, generates, authors or contributes to any invention, new development or
method, whether or not patentable and whether or not reduced to practice, any
copyrightable work, any trade secret, any other Confidential Information, or
any information that gives any of the Company and its subsidiaries an advantage
over any competitor, or similar or related developments or information related
to the present or future business of any of the Company and its subsidiaries
(collectively “Developments and Information”), Employee acknowledges
that all Developments and Information are “work for hire” and the exclusive
property of the Company.  Employee hereby
assigns to the Company, its nominees, successors or assigns, all rights, title
and interest to Developments and Information. 
Employee shall cooperate with the Company’s Board of Directors to
protect the interests of the Company and its subsidiaries in Developments and
Information.  Employee shall execute and
file any document related to any Developments and Information requested by the
Company’s Board of Directors including applications, powers of attorney,
assignments or other instruments which the Company’s Board of Directors deems
necessary to apply for any patent, copyright or other proprietary right in any
and all countries or to convey any right, title or interest therein to any of
the Company’s nominees, successors or assigns.


 


9.             No Conflicts.


 


(a)           Employee agrees that in his
individual capacity he will not enter into any agreement, arrangement or
understanding, whether written or oral, with any supplier, contractor,
distributor, wholesaler, sales representative, representative group or
customer, relating to the business of the Company or any of its subsidiaries,
without the express written consent of the Board, Chief Executive Officer or
Chief Financial Officer.


 


(b)       As long as Employee is
employed by the Company or any of its subsidiaries, Employee agrees that
Employee will not, except with the express written consent of the Board, become
engaged in, render services for, or permit his name to be used in connection
with, any for-profit business other than the business of the Company, any of
its subsidiaries or any corporation or partnership in which the Company or any
of its subsidiaries have an equity interest.


 


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10.           Non-Competition Agreement.


 


(a)       Employee acknowledges that
Employee’s services are of a special, unique and extraordinary value to the
Company and that Employee has access to the Company’s trade secrets,
Confidential Information and strategic plans of the most valuable nature and
develops goodwill on behalf of the Company. 
Accordingly, Employee agrees that during the Restricted Term (as defined
below), Employee shall not directly or indirectly own, manage, control, participate
in, consult with, render strategic, managerial sales, marketing, investment,
financial, or other non-administrative services for, or in any manner engage in
any business Competing (as defined below) with the businesses of the Company or
any of its subsidiaries as such businesses exist or are in process of
development on the Termination Date (as evidenced by written proposals, market
research or similar materials).  A
business is a Competing business if it engages in the deregulated retail
marketing of natural gas or electricity in markets in which the Company has
operated at any time during the two-year period ending on the Termination
Date.  Nothing herein shall prohibit
Employee from being a passive owner of not more than 5% of the outstanding
stock of any class of a corporation that is publicly traded, so long as
Employee has no active participation in the business of such corporation.  For purposes of this Agreement, the “Restricted
Term” shall run through the duration of the Employment Period, and if Employee
has received a severance payment under Section 6(b), one year thereafter.


 


(b)               In addition, during the
Restricted Term, Employee shall not (i) directly or indirectly induce or
attempt to induce any employee of the Company or any subsidiary (other than his
own assistant) to leave the employ of the Company or such subsidiary, or in any
way interfere with the relationship between the Company or any subsidiary and
any employee thereof, (ii) hire directly or through another entity any
person who was an employee of the Company or any subsidiary at any time during
the then-preceding 12 months (unless such employee contacts the Employee on an
unsolicited bases), (iii) directly or indirectly induce or attempt to
induce any customer, supplier, licensee or other business relation of the
Company or any subsidiary to cease doing business with the Company or such
subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any subsidiary,
or (iv) disparage the Company, its executive officers, or its directors.


 


(c)       If any court or tribunal of
competent jurisdiction shall determine any of the foregoing covenants to be
unenforceable with respect to the term thereof or the scope of the subject
matter or geography covered thereby, such remaining covenants shall nonetheless
be enforceable by such court or tribunal against such other party or parties or
upon such shorter term or within such lesser scope as may be determined by the
court or tribunal to be enforceable.


 


(d)       Because Employee’s services
are unique and because Employee has access to Confidential Information and
strategic plans of the Company of the most valuable nature and will help the
Company develop goodwill, the parties agree that the covenants contained in
this Section 10 are necessary to protect the value of the business of the
Company and that a breach of any such covenant would result in irreparable and
continuing damage for which there would be no adequate remedy at law.  The Parties agree therefore that in the event
of a breach or threatened breach of this Agreement, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific 


 


10

















 


performance and/or injunctive or other relief in
order to enforce, or prevent any violations of, the provisions hereof.  The Parties further agree that in the event
the Company is granted any such injunctive or other relief, the Company shall
not be required to post any bond or security that may otherwise normally be
associated with such relief.


 


12.           Miscellaneous Provisions.


 


(a)       Notice.  Notices and all other communications
contemplated by this Agreement shall be in writing, shall be effective when
given, and in any event shall be deemed to have been duly given (i) when
delivered, if personally delivered, (ii) three (3) business days
after deposit in the U.S. mail, if mailed by U.S. registered or certified mail,
return receipt requested, or (iii) one (1) business day after the
business day of deposit with Federal Express or similar overnight courier, if
so delivered, freight prepaid.  In the
case of Employee, notices shall be addressed to him at the home address which
he most recently communicated to the Company in writing which, as of the
Effective Date, is 6509 Edloe Street, Houston, TX 77005.  In the case of the Company, notices shall be
addressed to its corporate headquarters, and all notices shall be directed to
the attention of its Corporate Secretary.


 


(b)       Notice of Termination.  Any termination by the Company or Employee
shall be communicated by a notice of termination to the other Party hereto
given in accordance with paragraph (a) hereof.  Such notice shall indicate the specific
termination provision in this Agreement relied upon.


 


(c)       Successors.


 


(i)    Company’s Successors.  Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company’s business and/or
assets shall be entitled to assume the rights and shall be obligated to assume
the obligations of the Company under this Agreement and shall agree to perform
the Company’s obligations under this Agreement in the same manner and to the
same extent as the Company would be required to perform such obligations in the
absence of a succession.  For all
purposes under this Agreement, the term “Company” shall include any successor
to the Company’s business and/or assets which executes and delivers the
assumption agreement described in this subsection (i) or which becomes
bound by the terms of this Agreement by operation of law.


 


(ii)   Employee’s Successors.  The terms of this Agreement and all rights of
Employee hereunder shall inure to the benefit of, and be enforceable by,
Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.


 


(iii)  No Other Assignment of
Benefits.  Except as
provided in this Section 11(c) and in Section 6
above, the rights of any person to payments or benefits under this Agreement
shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor’s process, and any action
in violation of this subsection (iii) shall be void.


 


11

















 


(d)       Waiver.  No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by Employee and by an authorized officer of the
Company (other than Employee).  No waiver
by either Party of any breach of, or of compliance with, any condition or
provision of this Agreement by the other Party shall be considered a waiver of
any other condition or provision or of the same condition or provision at
another time.


 


(d)   Entire Agreement.  This Agreement shall supersede any and all
prior agreements, representations or understandings (whether oral or written
and whether express or implied) between the Parties with respect to the subject
matter hereof, including without limitation that certain Employment Agreement
entered into between the Parties on August 14, 2006, as amended (the “Prior
Employment Agreement”).  The Parties
expressly acknowledge and agree that this Agreement supersedes the Prior
Employment Agreement in its entirety.


 


(e)   Severability.  The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.


 


(f)    Arbitration.  Except for injunctive or other equitable
relief in aid of arbitration, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Houston, Texas, in accordance with the rules of the American Arbitration
Association then in effect.  Judgment may
be entered on the arbitrator’s award in any court having jurisdiction.  No Party shall be entitled to seek or be
awarded punitive damages. All attorneys fees and costs shall be allocated or
apportioned as agreed by the Parties or, in the absence of an agreement, in
such manner as the arbitrator or court shall determine to be appropriate to
reflect the final decision of the deciding body as compared to the initial
positions in arbitration of each party.  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK AS THEY APPLY TO CONTRACTS ENTERED INTO AND
WHOLLY TO BE PERFORMED WITHIN SUCH STATE BY RESIDENTS THEREOF.


 


(g)   Withholding of Taxes.  All payments made pursuant to this Agreement
will be subject to withholding of applicable taxes.


 


(h)   Indemnification.  Employee will be covered under the Company’s
insurance policies and, subject to applicable law, will be provided
indemnification to the maximum extent permitted by the Company’s bylaws and Certificate
of Incorporation, with such insurance coverage and indemnification to be in
accordance with the Company’s standard practices for senior executive officers
but on terms no less favorable than provided to any Company senior executive
officer or director.  Indemnification
shall not be awarded for any conduct that is found to be breach by a Court or
tribunal of competent jurisdiction to violate this agreement.


 


(i)    Compliance with Company
Policies.  During the
Employment Term, Employee will comply with all Company policies generally
applicable to the Company’s similarly situated employees.


 


12

















 


(j)    Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.


 


(k)   Non-Disclosure.  Unless required by law or to enforce this
Agreement, the Parties shall not disclose the existence of this Agreement or
the underlying terms to any third party, other than their representatives who
have a need to know such matters.


 


(l)    Legal Fees.  Within thirty (30) days of the Effective
Date, the Company shall pay the reasonable legal fees incurred by Employee in
connection with the negotiation and drafting of this Agreement in an amount not
to exceed $7,500.00.


 


13
















 


IN
WITNESS WHEREOF, each of the Parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.


 


 


	
   

  	
  MxENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey A. Mayer

  
	
   

  	
  Name:
  

  	
  Jeffrey
  A. Mayer

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Robert
  Werner

  
	
   

  	
   

  	
  Robert
  Werner

  



 

















 


EXHIBIT A


 


FORM OF RELEASE AGREEMENT


 


This Release
Agreement (this “Agreement”)
constitutes the release referred to in that certain Employment Agreement (the “Employment Agreement”)
dated as of April 1, 2010, by and among Robert Werner (“Employee”) and MXEnergy, Inc. (the “Company”).


 


(a)  For good and valuable consideration,
including the Company’s provision of certain severance payments in accordance
with Section 6 of the Employment Agreement, Employee hereby releases the
Company from liability for, and hereby waives, any and all claims, damages, or
causes of action of any kind related to Employee’s employment with the Company
or the termination thereof, including without limitation all claims, damages
and cuases of action arising out of the Age Discrimination in Employment Act of
1967, as amended (collectively, the “Released Claims”).  In no event shall
the Released Claims include (a) any claim which arises after the date of
this Agreement, (b) any claim to vested benefits under an employee benefit
plan, (c) any claims for contractual payments under the Employment
Agreement, or (d) any claims to Company stock or otherwise relating to any
equity interest that Employee may have.


 


(b)   By signing this Agreement, Employee is bound
by it.  Anyone who succeeds to Employee’s rights and responsibilities,
such as heirs or the executor of Employee’s estate, is also bound by this
Agreement.


 


(c)           Employee agrees not to bring or join any
lawsuit in any court relating to any of the Released Claims.  Employee
represents that Employee has not brought or joined any lawsuit or filed any
charge or claim against the Company in any court or before any government agency
or arbitratror and has made no assignment of any rights Employee has asserted
or may have against the Company to any person or entity, in each case, with
respect to any Released Claim.


 


(d)           By executing and delivering this Agreement,
Employee acknowledges that:


 


(i)            Employee has carefully read this Agreement;


 


(ii)                                  Employee has had at least [twenty-one (21)]
[forty-five (45)] days to consider this Agreement before the execution and
delivery hereof to the Company;


 


(iii)                               Employee has been and hereby is advised in
writing that Employee may, at Employee’s option, discuss this Agreement with an
attorney of Employee’s choice and that Employee has had adequate opportunity to
do so; and


 


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(iv)                              Employee fully understands the final and
binding effect of this Agreement; the only promises made to Employee to sign
this Agreement are those stated in the Employment Agreement and herein; and
Employee is signing this Agreement voluntarily and of Employee’s own free will,
and that Employee understands and agrees to each of the terms of this
Agreement.


 


Notwithstanding
the initial effectiveness of this Agreement, Employee may revoke the delivery
(and therefore the effectiveness) of this Agreement within the seven day period
beginning on the date Employee delivers this Agreement to the Company (such
seven day period being referred to herein as the “Release Revocation Period”).  To
be effective, such revocation must be in writing signed by Employee and must be
delivered to the Chairman of the Board of Directors of the Company before 11:59 p.m.,
Houston, Texas time, on the last day of the Release Revocation Period.  If
an effective revocation is delivered in the foregoing manner and timeframe,
this Agreement shall be of no force or effect and shall be null and void ab
initio.  No consideration shall be paid if this Agreement is revoked
by Employee in the foregoing manner.


 


Executed on this
                      
day of
                          ,
              .


 


 


	
   

  	
   

  
	
   

  	
  Robert
  Werner

  



 


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