Exhibit 10.77


 


May 3, 2010, as amended on May 4, 2010 and May 5,
2010 to reflect comments by and negotiation with Artman-Hodge


 


Ms. Carole
R. Artman-Hodge


61
Rye Road


Rye,
New York 10580


 


Dear
Robi:


 


As
we have discussed, your employment with MXenergy, Inc. (the “Company”)
will  terminate effective May 14,
2010 (the “Separation Date”).  This letter agreement (the “Agreement”)
outlines the benefits available to you and contains other details in connection
with your separation of employment.


 


1.             Severance.    As set
forth in your employment agreement dated April 1, 1999, as amended on December 31,
2008 (the “Employment Agreement”), you will be paid severance in the amount of
$1,170,000, which is equal to 36 months of your current base salary (the “Severance
Payment”), as partial consideration for your executed and effective release
and waiver of all claims as provided in Paragraph 5 of this Agreement.  Within 15 days following the Effective Date, you
will receive the Separation Payment in a lump sum (less applicable
withholdings).  In addition, on the
Effective Date, all unvested warrants, options and other securities or
evidences of equity ownership (other than the shares of the Company’s stock
which you shall retain) held by you as of your Separation Date, if any, will
vest and be paid to you in a lump sum within thirty (30) days.  All payments will be sent to your last known
address on file with the Company, or (if the Company elects) deposited by
direct deposit into your account on file. 
For purposes of this Agreement, the “Effective Date” is the
eighth (8th) day following your execution of this Agreement and delivery of it
to the Company, provided you do not revoke it during the 7-day period following
your execution.


 


2.             Payment of Salary and
Accrued, Unused Vacation   On or before the Company’s next regular
payday, you will receive payment of all wages (including any remaining accrued,
unused vacation as of your Separation Date) through your Separation Date, less
applicable withholdings.  In addition, within
15 days following the Effective Date, you will receive a bonus of $150,000
representing your pro-rated bonus for the 2009-2010 fiscal year.  Such payments represent all monetary amounts
to which you are entitled, other than as expressly set forth in Paragraph 1
above or otherwise referred to in the last paragraph of Paragraph 5 hereof.


 


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3.             Benefits   If you are a participant in the Company’s
health insurance plan, your Company-provided health insurance will end on the
last day of the month in which your Separation Date occurs.  However, as partial consideration for your
executed and effective release and waiver of all claims as provided in
Paragraph 5 of this Agreement, the Company will pay the full cost each month for
you to continue your health benefits under COBRA for eighteen (18) months, to
the extent that you elect to continue such coverage.  The terms of your health benefits are subject
to change from time to time in the same manner as affect the Company’s
executive officers.  Your COBRA rights
will be explained to you in greater detail under a separate letter from the
Company’s third party administrator.


 


4.             Consulting Arrangement.   You and
the Company will enter into a consulting agreement in the form attached hereto
as Exhibit A (the “Consulting Agreement”), which will commence on
the Separation Date.


 


5.             Release of Claims.   In return for the benefits provided in
Paragraph 1 of this Agreement, which benefits you acknowledge exceed anything
to which you would otherwise be entitled absent this release, you, for yourself
and your heirs and successors (“related parties”) hereby forever release,
remise and discharge, in all capacities, the Company and its members,
directors, officers, employees, agents, representatives, successors and assigns
(collectively, “Releasees”) from all covenants, obligations, liabilities and
agreements, and forever waive all claims, rights and causes of action
(hereinafter “claims”) whatsoever, in law or in equity, whether known or
unknown, asserted or unasserted, suspected or unsuspected, that you or any
related parties ever had, may have in the future which arose prior to your
Separation Date or now have in connection with or arising from your employment
relationship with the Company, including, without limitation, (a) claims
related to salary, bonuses, commissions, vacation pay, fringe benefits, expense
reimbursements, severance pay and/or any other form of compensation (except as
expressly provided under this Agreement; (b) claims arising under any
federal, state or local law, statute or ordinance, including without
limitation, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634,
including the Older Workers Benefit Protection Act, 29 U.S.C. § 826(f)(1) (the
“ADEA”); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e-2000e-17; the Civil Rights Act of 1991; the Americans with Disabilities
Act, 42 U.S.C. §§ 12101-12213; the Employee Retirement Income Security Act (“ERISA”),
the Family and Medical Leave Act of 1993; the Equal Pay Act of 1963; the
Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C. § 1514A,
also known as the Sarbanes-Oxley Act; and the Fair Labor Standards Act; and all
relevant state and local equivalent acts, including, but not limited to, the
Connecticut Fair Employment Practices Act, the Maryland Fair Employment
Practices Act, the New Jersey Law Against Discrimination, and Texas Labor Code
§§21.051. et seq.; and including, without
limitation, any and all claims for punitive damages, attorneys’ fees, expenses
and costs of litigation; and (d) claims for breach of contract, express or
implied, including any claim for breach of any implied covenant of good faith
and fair dealing, wrongful 


 


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discharge,
discrimination, harassment, fraud, defamation, intentional tort, emotional
distress and negligence, as well as any claims for attorneys’ fees or costs.


 


By
signing this agreement, you do not waive any right to worker’s compensation
claims for injuries which were incurred while you were employed by the Company,
or to any rights or claims that may arise under the ADEA or otherwise after the Effective Date, or to your
right to enforce the terms of this Agreement. 
The Company and you agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released.  You acknowledge
and agree that any breach of any provision of this Section 5 shall
constitute a material breach of this Agreement and shall entitle the Company
immediately to recover the severance benefits provided to you under this
Agreement, to the fullest extent permitted by law.  The foregoing sentence is in addition to, and
shall not be construed as limiting or restricting in any way, all other
remedies available to the Company at law and in equity in the event of a breach
by you of any of the provisions of this Agreement.


 


The
foregoing release shall not apply to your rights (which shall remain in full
force and effect):


 


(a)           to indemnification and releases from liability
existing under the Employment Agreement, Certificates of Incorporation, Bylaws,
Delaware and other applicable state and federal laws, 401k Plans and director,
officer and trustee liability insurance relating to the Company, its
subsidiaries and their respective 401k plans, all on terms as are applicable to
the  Company’s other officers, directors
and trustees’


 


(b)          as have vested under the 401(k) Plan or under any
other “employee benefit plan” (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended) of the Company in
which you participated;


 


(c)           to reimbursement for claims that accrued and existed
prior to the Separation Date under any Company-sponsored health or other
benefits plan in which you participated, subject to the terms of such plans;


 


(d)          to reimbursement of outstanding expenses incurred by
you and submitted for reimbursement prior to the Separation Date, subject to
the terms of the Company’s existing travel and expense reimbursement policy;


 


(e)           as a stockholder and noteholder of the Company
and/or its affiliates, and as a party to the Shareholders Agreement, the Class A
and Class C Voting Rights Agreements, the Equity Registration Rights
Agreement, the Notes Registration Rights Agreement, all dated as of September 22,
2009; and


 


(f)             under this Agreement and the Consulting Agreement.


 


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6.             Company Property ;
Confidentiality.   (a)  We
remind you that any materials or property (other than personal effects) which
you have acquired or prepared while employed by the Company and in connection
with that employment are the exclusive property of the Company and must be
returned to the Company promptly, subject only to (b) below.  This includes all computer hardware,
software, documents (whether or not electronic), files, records, keys, and any
other Company equipment, materials or documents (collectively, “Company
Property”).


 


(b)           Notwithstanding anything to
the contrary in subparagraph (a), while the Consulting Agreement is in effect
the Company will permit your use of a BlackBerry, computer hardware and certain
Company software that belongs to (or is licensed by) the Company.  This permission is subject to change or
revocation in the Company’s sole discretion. 
You agree to comply with all Company security and other policies and
procedures relating to all such Company Property.  Promptly upon the termination or expiration
of the Consulting Agreement or otherwise if required by the Company, you will
return all Company Property (other than the Blackberry) then in your
possession.


 


(c)           Subject only to the express
terms of the Consulting Agreement, you are prohibited from using or conveying
confidential or proprietary information (except any information which has
become public other than through a breach of your or another party’s
confidentiality obligation and other than as required by law or legal process) gained
in the course of your employment and relating to the Company, its affiliates,
and their respective officers, employees, clients or prospective clients.


 


7.             Acknowledgement of Waiver of
Claims Under ADEA.   You
acknowledge that, upon signing this Agreement and not revoking it, you are
waiving and releasing any rights you may have under the Age Discrimination in
Employment Act of 1967 (“ADEA”) and that this waiver and release is knowing and
voluntary.  Nothing in this Agreement
precludes you from challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs for doing so, unless specifically authorized by
federal law.


 


You
acknowledge that you have been advised by this writing that (a) you are
advised to consult with an attorney prior to executing this Agreement; (b) you
have been given twenty-one (21) days within which to consider this Agreement;
and (c) you have seven (7) days following your execution of this
Agreement to revoke it, and neither your obligations nor the Company’s
obligations under this Agreement will be effective until the revocation period
has expired without any revocation by you.


 


If
you are in agreement with the foregoing, please sign in the space provided
below, NO EARLIER THAN ON YOUR SEPARATION DATE.  Date it on the day you sign it, and deliver
it to Teresa L. Naylor, VP Human Resources, 711 Louisiana Street, Suite 1000,
Houston,


 


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TX  77002, no later than 5:00pm CDT on
May 24, 2010.   If not signed and returned by
such time, the offer of benefits contained in Paragraphs 1, 3 and 4 of this
Agreement shall expire and be of no further force and effect.


 


We
wish you the very best in all of your future endeavors.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  /s/
  Teresa Naylor

  
	
   

  	
   

  
	
   

  	
  Teresa
  L. Naylor

  
	
   

  	
  Vice
  President Human Resources

  



 


 


I
expressly agree and acknowledge that I was given a copy of this Agreement on May 3,
2010 as amended on May 4, 2010 and May 5, 2010 as the result of my
comments and subsequent negotiation with the Company.  I acknowledge that the benefits contained
herein include benefits that exceed anything to which I would otherwise be
entitled.  I have been advised to, and
have had an opportunity to, consult an attorney before signing this Agreement
and I have been allowed a period of not less than 21 days to consider signing.  I am signing of my own free will, and I have
relied only on the promises written in this Agreement and not on any other
promise made by the Company.  I
understand that I have seven (7) days after signing this Agreement to
revoke it (my revocation must be in writing and sent to Teresa Naylor within
such 7-day period), and this Agreement will not be enforceable or effective
until such 7-day period has expired without my having so revoked it.


 


SIGN
NO EARLIER THAN YOUR SEPARATION DATE OF MAY 14, 2010.


 


Agreed
this 14th day of May, 2010 by:


 


	
  /s/
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  
	
  Carole
  R. Artman-Hodge

  	
   

  



 


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EXHIBIT A


FORM OF


CONSULTING AGREEMENT


 


This CONSULTING AGREEMENT (“Agreement”) dated as of May 14,
2010, is made by and between Carole R. Artman-Hodge (“Artman-Hodge”),
having an address at 61 Rye Road, Rye, New York 10580, and MXenergy, Inc.,
having an office at 595 Summer Street, Suite 300, Stamford, CT 06901 (the “Company”).


 


For mutual consideration, the receipt and sufficiency of
which are acknowledged by the parties:


 


1.               Consulting Services.


 


(a)   For a
period of eighteen (18) months commencing on May 14, 2010 (the “Term”),
Artman-Hodge (together with any entity formed by her for the purpose of
providing consulting services, “Consultant”) agrees to provide
consulting services to the Company (“Services”) on matters relating to
transition matters, mergers and acquisitions, finance, and other areas mutually
agreed between Consultant and the Company.


 


(b)   Services
may be requested from time to time by the Company in its sole discretion.  And performance thereof shall be subject to
Consultant’s reasonable availability. 
Consultant will be directed by, and responsible to, the Company’s
President or any individual designated by him or her.


 


2.   Compensation
and Expenses.


 


(a)  The Company
will pay Consultant (i) an hourly rate of $500 for Services; and (ii) in
lieu of the above-stated hourly rate, a flat, per diem rate of $5000 for any
day requiring at least four (4) hours of Services and/or travel by
Consultant; or on such other basis as mutually agreed in writing by Consultant
and the Company.  For purposes hereof, “travel”
means pre-approved, business-related travel of at least 50 miles one-way if by
train/car, or any distance if by air, and excludes travel between Consultant’s
home and the Company’s Stamford, CT office.


 


(b)  The Company
will reimburse Consultant for reasonable, out-of-pocket business expenses
incurred by Consultant in providing the Services, all in accordance with the
Company’s expense policy and procedures, as may be amended by it from time to
time.  For purposes of travel expense
reimbursement, trips are deemed to originate from the Company’s Stamford, CT
office (or from Consultant’s home office, if cost is less).


 


(c)  Unless
otherwise agreed in writing between the Company and Consultant at the time
Consultant is requested to provide Services, Consultant will earn a finder’s
fee (“Finder’s Fee”) of 1% of the purchase price (including assumed debt) or
financing amount on debt and equity raises and strategic alliances, upon the
consummation of any such transaction between the Company or its subsidiaries
and any of the parties listed on Exhibit 1 hereto (as updated periodically
in writing by mutual agreement) in which Consultant was actively engaged in
structuring or negotiating the transaction on behalf of the Company.
Notwithstanding the foregoing, the amount of the Finder’s Fee will be reduced
by the amount of all consulting fees received by Consultant in connection with
such transaction within the 12-month period preceding its consummation.


 


(d)  All payments
due hereunder will be made within 30 days of the date of invoice by wire
transfer and shall bear interest at the rate of 1% per month for late payment.


 


3.  Confidential
Information.  Except as may be
required and appropriate in connection with Consultant’s provision of the
Services, Consultant shall not, without the prior written consent of the
Company or as may otherwise be required or permitted in Consultant’s
performance of Services hereunder or as otherwise required by


 


6

















 


law or any legal process, or as is necessary in connection
with any adversarial proceeding by a third party against the Company (in which
case Consultant shall cooperate with the Company in obtaining a protective
order at the Company’s expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than the Company and those
designated by it or on behalf of it in the furtherance of its business or to
perform Consultant’s Services hereunder, any trade secrets, proprietary or confidential
information, knowledge or data relating in any way to the Company, its
affiliates, or their respective officers, employees and clients, obtained by or
known to Consultant at any time prior to or during the Term and not generally
available public knowledge (other than by acts by  Consultant in violation of this
Agreement).  Consultant acknowledges that
a breach of this Section will result in irreparable harm to the Company
that cannot be adequately compensated by monetary damages, and therefore
Consultant agrees that, in addition to all other available remedies at law and
in equity, the Company may seek and obtain, without objection by Consultant,
both preliminary and permanent injunctive relief for any actual or threatened
breach hereof.


 


4.   Waiver of
Non-Compete.   The Company hereby
waives any and all restrictions  that may
exist in any current or prior agreement between the Company and Artman-Hodge
with respect to Artman-Hodge’s provision of consulting or other services to or
for any person or entity engaged in the energy-efficiency business, provided,
however, that Consultant expressly agrees that Consultant will not provide
any services on a full-time basis to or for any person or entity for the first
twelve (12) months of the Term, other than MyEco Wizard (“MyEco”), a company
which is owned by Artman-Hodge.  For
purposes hereof, “energy efficiency business” includes the “MyEco” concept,
including:


 


(a)                                             Energy consulting;


(b)                                            Energy audits;


(c)                                             Energy efficiency upgrades and
retrofits;


(d)                                            Alternative energy source
installations and upgrades;


(e)                                             Technology associated or coupled
with home and business energy usage and efficiency;


(f)                                               Peak shaving activities and
products;


(g)                                            Eco-friendly products; and


(h)                                              Warranty and repair services.


 


The Non-Competition Agreement in the Employment Agreement
will otherwise expire on May 10, 2011; provided that such Non-Competition
Agreement shall not preclude Consultant from performing Services for the
Company as permitted or required by this Consulting Agreement.


 


5.   Independent
Contractor Relationship; Taxes. The relationship of Consultant to the
Company created by this Agreement is that of an independent contractor, and
nothing contained in this Agreement shall be deemed to create or continue an
employer-employee relationship between Consultant and the Company.  The Company shall have no right to control
the day-to-day affairs of Consultant. 
Consultant shall be directly responsible for payments to satisfy
Consultant’s obligations under all tax laws of every kind, workers’
compensation laws, disability and unemployment insurance laws and the Social
Security Act.  Because Consultant is not
an employee of the Company, but rather an independent contractor, the Company
shall not withhold taxes or any other payroll deductions from payments made to
Consultant hereunder, but instead shall report payments made to the Consultant
on IRS Form 1099.  Consultant agrees
to report all compensation received under this Agreement to the appropriate
federal, state or local taxing authorities, and Consultant will not take a
position with, or make any statement to, any governmental agency that is
contrary to or inconsistent with Consultant’s status as an independent
contractor hereunder.  Consultant further
agrees to pay, when and as due, any and all taxes incurred or owed by
Consultant as a result of the compensation hereunder,  including estimated taxes if applicable, and
shall provide the Company with proof of said payments upon request. Consultant
hereby agrees to indemnify, defend, and hold harmless the Company from and against
any and all claims, losses, costs, fines, assessments, fees, liabilities,
damage or injuries suffered by the Company arising out of any breach by
Consultant of this Section.


 


6.  Indemnification.  The Company agrees to indemnify, defend and
hold harmless Consultant from and against all third party claims, losses,
liabilities and damages (collectively, “Claims”) and all related costs and
expenses, including reasonable legal fees (collectively, “Expenses”) incurred
by Consultant in connection with Consultant’s performance of Services for the
Company, other than those that may arise from Consultant’s gross negligence or
willful misconduct.  Consultant agrees to
indemnify, defend and hold harmless the Company from


 


7

















 


and against all Claims and Expenses incurred by the Company
as a result of Consultant’s gross negligence or willful misconduct.


 


7.  Termination.  (a)  
Either party shall have the right to terminate this Agreement,
immediately upon written notice to the other party, in the event such other
party breaches the terms of this Agreement and fails to cure such breach within
15 days following receipt of notice specifying the breach.


 


(b)  Either party
shall have the right to terminate this Agreement, immediately upon written
notice to the other party, in the event such other party has breached the terms
of the Separation Agreement dated May       ,
2010 between the parties (the “Separation Agreement”).


 


(c)  This
Agreement shall automatically terminate in the event Consultant does not
execute the Separation Agreement within the 21-day period provided thereunder
or executes the Separation Agreement but revokes it within 7 days after its
execution.


 


8.   Entire
Agreement.   This Agreement contains
the complete agreement between the parties hereto with respect to the subject
matter hereof and supersedes any and all prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.


 


9.  Successors and
Assigns.  This Agreement shall be
binding upon and inure to the benefit of the Company and its affiliates,
successors and assigns and shall be binding upon and inure to the benefit of
Consultant and Consultant’s legal representatives and assigns; provided that in
no event shall Consultant’s obligations to perform Services be delegated or
assigned, other than to an entity owned by Consultant, which shall be
permissible provided Artman-Hodge performs the Services.  The Company may assign or transfer its rights
hereunder to any of its affiliates or to a successor corporation in the event
of merger, consolidation or transfer or sale of all or substantially all of the
assets of the Company.


 


10.  Amendment and
Waiver.  This Agreement may be
amended, waived or terminated only in a writing signed by the Company and
Consultant; provided, however, that this Agreement shall automatically
terminate on November 10, 2011, unless the Company and Consultant
otherwise agree in writing.  No waiver of
any provision hereunder or any breach or default thereof shall extend to or
affect in any way any other provision or prior or subsequent breach or
default.  No course of dealing between
the parties shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Company or
Consultant in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by the Company
or Consultant of any such right or remedy shall preclude other or further
exercises thereof. A waiver of right or remedy on any one occasion, or with
regard to one provision, shall not be construed as a bar to, or waiver of, any
such right or remedy on any other occasion or with regard to any other
provision.


 


11.  Governing Law.  All matters relating to the interpretation,
construction, validity and enforcement of this Agreement shall be governed by
and construed in accordance with the domestic laws of the State of New York
without giving effect to any choice or conflict of law provision.


 


12.  Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.


 


13.  Notices.   All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery,
overnight courier, or registered or certified mail, return receipt requested,
postage prepaid, addressed to the parties at the addresses first set forth
above, or at such other address as one party notifies the other in accordance
with this Section.


 


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14.  Counterparts.  This Agreement may be executed in multiple counterparts,
any one of which need not contain the signatures of more than one party, but
all such counterparts taken together shall constitute one and the same
instrument.


 


15.  Survival.  The provisions of Sections 2 through 6 and 15
hereof shall survive the expiration or termination of this Agreement.


 


*                  *                  *                  *                  *


 


 


IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.


 


COMPANY:


 


MXENERGY, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Jeffrey A. Mayer

  	
   

  
	
   

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CONSULTANT:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Carole R. Artman-Hodge

  	
   

  



 


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