Exhibit 10.42


 


AMENDMENT
TO THE


EMPLOYMENT
AGREEMENT


 


This AMENDMENT to
the Employment Agreement (as defined below), effective January 1, 2009, is
hereby entered into as of the 31st day of December, 2008 by and between
MxEnergy Inc. (the “Company”) and Gina Goldberg (the “Employee”).


 


WHEREAS,
the Company and the Employee entered into an Employment agreement setting forth
the details of the Employee’s employment with the Company on June 13, 2007 (the
“Employment Agreernent”); and


 


WHEREAS,
the Company and Employee desire and agree to amend the provisions of the
Employment Agreement as provided below in order to reduce the risk of potential
adverse tax consequences to the Employee under Section 409A of the  Internal
Revenue Code of 1986, as amended.


 


NOW THEREFORE,
in consideration of the foregoing and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the  undersigned
parties agree to amend the Employment Agreement, effective January 1, 2009,
as follows:


 


1.             Section 3
of the Employment Agreement is amended as follows, with bold and italicized text highlighting
the additions:


 


3.             Bonus.
The Company shall pay Employee a bonus based on  Employee’s and the Company’s
performance, such bonus to be determined and paid annually in a manner
consistent with the determination and payment of bonuses paid to other
executives of the Company; provided,
however, such bonus shall not be paid later than two and one-half (21/2)
months following the end of the year 10 which the performance objectives
relate. Subject  to
the Company’s discretion, such bonus is expected to range between 50 and 100%
of Employee’s Base Salary for satisfactory and outstanding performance,
respectively.


 


2.             Section 4(f) of
the Employment Agreement is  amended as follows,
with  bold and italicized text highlighting the
additions:


 


(f)            Expense
Reimbursement. Employee shall be reimbursed for all items of travel,
entertainment and miscellaneous expenses, including high speed home Internet
access which the Employee reasonably incurs in connection with the performance
of her duties hereunder, provided that (i) the Employee submits to the Company
on proper forms provided by the Company, such Statements  and other
evidence supporting such expenses as the Company may require and provided such
expenses meet the Company’s policy concerning such matters, and (ii) Employee’s request for
reimbursement and the Company’s payment both occur not later than the last day
of Employee’s taxable year ending after the taxable year in which the expense
is incurred. The
reimbursement of expenses pursuant to this section shall not affect any
expenses eligible for reimbursement in any other calendar year, and shall not
be liquidated or exchanged for any other benefit.


 

















 


3.             Section 5(b)
of the Employment Agreement is amended as follows, with bold and italicized text highlighting
the additions:


 


(b)           Constructive
Termination or Termination without Business Reasons. If at any time during
the Employment Term (i) Employee terminates her employment as a result of
a Constructive Termination, or (ii) the Company terminates Employee’s
employment without Business Reasons then subject to Employee signing and not
revoking a general release of claims against the Company and its Successors (using a form of release that the
Company provides to Employee not later than 10 business days after Employee’s
Termination Date) and such release becoming irrevocable within sixty (60) days
after Employee’s Termination Date, Employee shall be entitled to
receive upon the expiration
of such sixty (60) day period (A) a lump sum payment equal
to the greater of (i) her Base Salary for the remainder of the Employment Term
or (ii) her Base Salary for a 12 month period, and (B) all other benefits
under Sections 5(a)(C) and 5(a)(D) above. For purposes of determining severance
for the remainder of the Employment Term under this Section 5(b). the parties agree  that the Employment Term shall be deemed
to be two (2) years from the date of this Agreement. The Employment Term
shall be extended for additional one year periods unless Company provides
Executive with at least 90 days prior written notice of nonextension before the
end of the then current Employment Term. In the event the Company provides the Executive with a
notice of nonextension, Employee shall be entitled to a lump sum
payment equal to 12 months of her Base Salary at the end of the then current
Employment Term, which amount shall, subject to Section 5(d) below, be paid upon the
next business day following the Employee’s Termination Date.


 


4.             Section 5(c) of
the Employment Agreement is amended as follows, with  bold and italicized text highlighting
the additions:


 


(C)           Constructive
Termination. For purposes of this Agreement, a “Constructive Termination”
shall be deemed to occur if 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 her place of
employment, other than a relocation within thirty (30) miles of the Company’s
Stamford offices, (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) there
occurs any other material breach of this Agreement by the Company,
(iv) Employee’s duties and/or responsibilities are materially diminished,
or (v) Employee no longer reports directly to the Company’s COO and/or the
CEO. Notwithstanding the foregoing, an event shall not constitute a
“Constructive Termination” unless Employee’s resignation occurs after a written
demand for substantial performance is delivered to the Company by Employee
which specifically identifies the condition which Employee believes constitutes
grounds for “Constructive Termination”  within thirty (30) days of the
occurrence of such condition, and


 

















 


the Company has failed to cure such condition to the reasonable
satisfaction of Employee within thirty-one (31) days following the delivery of
such notice.


 


5.             Section 5(d) of
the Employment Agreement is amended as follows, with bold
and italicized text highlighting the additions:


 


(d)           Section 409A
Compliance. Notwithstanding anything in Section 5 to the contrary, if
and to the extent that any payments or benefits otherwise payable to Employee
under this Section involves a “deferral of compensation” under Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) (as determined
both after consideration of any reasonably applicable exemptions and as set
forth in applicable treasury regulations or binding administrative notices or
rulings issued by the Internal Revenue Service), payment
of such amounts and benefits shall commence when you incur 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 foregoin, if at the time of your Separation from Service,
you are a “specified employee” within the meaning of Code
Section 409A(a)(2)(B)(i), then the Company shall suspend such payments or
benefits until the earlier of (i) the first business day
of the seventh month following your Separation from Service, or (ii) the
date of your death (the “409A Suspension Period”).  As soon as reasonably practical after the end
of the 409A Suspension Period, the Company will make a lump sum payment to
Employee, in cash, in an amount equal to any payments and benefits that the
Company does not make during the 409A Suspension Period as if
there had not been a six-month delay imposed by this paragraph.  Thereafter, Employee will receive any
remaining payments and benefits due pursuant to this Agreement in accordance
with its terms (as if there had not been any suspension beforehand). Employee
shall be solely responsible for all taxes arising from payments and benefits
provided under this Agreement. For the purposes 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.


 


6.             All
Employment Agreement references to section numbers and defined terms are
amended to reflect the above modifications.


 


7.             Nothing
herein shall be held to alter, vary or otherwise affect the terms, conditions,
and provisions of the Employment Agreement, except as noted above.


 


[Signature Page to Follow]


 

















 


IN WITNESS
WHEREOF, the parties hereto have agreed upon this
Amendment and such Amendment shall be effective as of the date first written
above.


 


	
   

  	
   

  	
  THE
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MxEnergy
  Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ S.J. Murry

  	
   

  	
  /s/ Jeffrey
  A. Mayer

  
	
   

  	
   

  	
  Its:

  	
  COO

  	
   

  	
  CEO
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gina
  Goldberg

  
	
   

  	
   

  	
  Name:

  	
  Gina
  Goldberg

  



 

















 


January 6, 2009


 


Ms. Gina Goldberg 


[Address]


[City, State]


 


Re:        Correction
to Employment Agreement Amendment dated December 31, 2008


 


Dear Ms. Goldberg:


 


This letter responds to your understandable
concern that there is a mistaken reference to your outdated letter agreement
within the amendment, dated December 31, 2008 (the “Amendment”), to
your current employment agreement with MxEnergy Inc., dated June 13, 2007
(the “Employment Agreement”). There is good news in that the content of
the Amendment is specifically addressed to your Employment Agreement, with the
reference to your letter agreement being a mere mistake. To straighten this
out, we have signed this letter and ask that you do the same in order to
express our agreement that –


 


·              each
reference in the Amendment to “letter agreement” or “Letter Agreement” shall be
replaced with “employment agreement” or “Employment Agreement”, respectively;
and


 


·              the
first “Whereas” clause shall be modified by replacing “February 1, 2004” with
“June 13, 2007.”


 


For your convenience, a copy of the Amendment
is attached hereto as Exhibit A, and a copy of the Employment
Agreement is attached hereto as Exhibit B.


 


If you are comfortable with these changes
effective as of December 31, 2008, please sign below, and return a signed
copy to MxEnergy at your earliest convenience.


 

















 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MxEnergy Inc.

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


AGREED TO AND
ACCEPTED this


21 day of
January, 2009:


 


Gina Goldberg


 


	
  /s/ Gina Goldberg