Exhibit 10.27


EMPLOYMENT AGREEMENT


 


This Employment Agreement (the “Agreement”) is
entered into on June 13, 2007 (the “Effective Date”) by and between Gina
Goldberg, an individual (“Employee”), and MxEnergy Inc., a Delaware
corporation (the “Company”).  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.  Employment.  Employee shall serve as Vice President, Sales
and Marketing, will report to the Chief Operating Officer (“COO”) and/or the
Chief Executive Officer (“CEO”) and will render such services consistent with
the foregoing role.  Employee’s office
shall be located at the Employee offices of the Company in Stamford,
Connecticut.  


1.             Term.  Company’s employment of Employee pursuant to
this Agreement shall commence on the Effective Date and end on the Termination
Date (as defined below).  The Employee’s
employment shall be “at will” and either the Company or Employee may terminate
this agreement and Employee’s employment at any time, for any reason or no
reason, in its or her sole discretion, upon sixty (60) days’ prior written
notice of termination.  “Termination
Date” shall mean (i) if this Agreement is terminated on account of death,
the date of death; (ii) 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 10(b); or (iii) 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
10(b).  The period between the Effective
Date and the Termination Date is the “Employment Term”; subject,
however, to the provisions of Section 6(b) below.


2.             Salary.  The Company shall pay Employee base salary (“Base
Salary”) at an annual rate of $238,000. 
Employee’s Base Salary shall be paid in conformity with the Company’s
salary payment practices generally applicable to similarly situated Company
Employees.  


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.  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.  


4.             Employee Benefits.


(a)           Equity Compensation.  Company has granted Employee warrants and
options to acquire its common stock.  The
terms of such warrants, options and the relevant option plans shall not be
impacted by this Agreement.  Employee
shall be entitled to participate 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 on the same basis as other
similarly situated employees of the Company. 


 

















 


(b)           Business Reasons.  The term “Business Reasons” means (i) gross
negligence, willful misconduct or other willful malfeasance by Employee in the
performance of her duties provided that, the Board provides written notice of
such conduct to the Employee and such conduct continues for five (5) days after
the Employee's receipt of such notice, (ii) Employee's conviction of, plea of
novo contendere to, or written admission of the commission of, a felony, or an
other criminal offense involving moral turpitude, (iii) any act by the Employee
involving moral turpitude, fraud or material misrepresentation with respect to
her duties for the Company or its affiliates, (iv) any act by the Employee
constituting a failure to follow the lawful directions of the either the CEO,
the COO, or the Board (or anyone else whom any of them may appoint to supervise
the Employee), provided that, the Board provides written notice of such failure
to the Employee and the failure continues for five (5) days after the
Employee's receipt of such notice, or (v) Employee's material breach of this
Agreement, including without limitation any breach of Sections 7 through 10
hereof, provided that, in the case of any such breach, the Board provides
written notice of breach to the Employee, specifically identifying the manner in
which the Board believes that Employee has breached this Agreement, and
Employee shall have the opportunity to cure such breach (but only if it is
reasonably capable of being cured) to the reasonable satisfaction of the Board
within thirty (30) days following the delivery of such notice, unless such
breach is incapable of cure.  For purpose
of this paragraph, no act or failure to act by Employee shall be considered
"willful" if such act or failure to act occurred at the direction of
the Board.  


(c)           Repurchase of Common Stock.  In the event that the Employee’s employment
terminates for any reason, the Company shall have the right (but not the
obligation) to purchase all of the shares of Common Stock that the Employee
owns, whether such shares were acquired before or after the Effective Date of
this Agreement,  for their then fair
market value as determined by the Company in its sole and reasonable
discretion; provided that (i) if the total amount payable to the Employee for
such shares exceeds $200,000, the Company may pay the excess to the Employee in
quarterly installment payments, plus interest at the prime rate announced by
Citibank NA, from time to time, on unpaid balances, over a period of three
years; and (ii) the Company’s obligation to make any payment shall be suspended
during any period for which payment would cause the Company to violate a loan
or similar financial covenant (with such suspension only applying to the
portion of the payment that would cause violation of the loan or similar financial
covenant).  The Company shall have the
opportunity to exercise this repurchase right only within the ninety (90) day
period following the Employee’s termination of employment and the repurchase
right shall expire immediately upon an initial public offering of the Company’s
stock.  The repurchase price of the
shares being repurchased shall equal the fair market value as established
through an independent valuation, by a valuation firm selected by the Board.   


(d)           Other Employee Benefits.  During the Employment Term, the Employee
shall be entitled to receive all benefits provided to employees of the Company
generally from time to time, including health, life insurance and disability,
and all other benefits provided to the Company’s 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.  


(e)           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 for senior
executives.  PTO not used during any
calendar year will not roll over to the following year.


                (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.


5.             Termination
Pay.  


(a)           Resignation
or Termination for Business Reasons. 
If (i) Employee voluntarily terminates her employment, other than as a
result of a Constructive Termination (as defined below), or (ii) the Company
terminates Employee’s employment for Business Reasons, then in any such event (A)
all further vesting of Employee’s stock options and other equity arrangements,
if any, whether such stock options or other equity arrangements were acquired
before or after the Effective Date of this Agreement, will cease immediately
and such awards will expire in accordance with the terms of this Agreement and
the applicable award agreement(s) to the extent they are not inconsistent with
this Agreement, (B) all payments of compensation by the Company to
Employee hereunder will terminate immediately, (C) Employee will be paid all
accrued but unpaid PTO, expense reimbursements and other benefits due to
Employee through her termination date under any Company-provided or paid plans,
policies, and arrangements, and (D) Employee will be paid all accrued and unpaid
salary.


(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 in a form reasonably acceptable to
Employee and the Company, Employee shall be entitled to receive (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 6(a)(C) and 6(a)(D) above.  For purposes of determining severance for the
remainder of the Employment Term under this Section 6(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 that event, 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.


(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,” 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.


(d)           Delayed
Payment for Section 409A Compliance. 
Notwithstanding anything in Section 5 to the contrary, if and to the
extent that (i) 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), and (ii) Employee
is 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 end of the six-month period following termination of Employee’s
employment (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.
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.


6.             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
her association with the Company and subsidiaries and her 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 her
duties hereunder.  Employee agrees to
deliver to the Company at the end of the Employment Term, 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 her 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 appropriate 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 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
Employment Term; (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.


7.             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.


8.             No Conflicts.


(a)           Employee agrees that in her
individual capacity she 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.


(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 her 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.


9.             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 3% 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 be the period during
which Employee is employed by the Company and if Employee has received a
severance payment under Section 5(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 her 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 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.


10.           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 her at the home address which she most recently
communicated to the Company in writing. 
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), 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.


(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.


(e)           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.


(f)            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.


(g)           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
Stamford, Connecticut, 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.


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


(i)            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 employees in similar
positions.  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.


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


 

















 


(k)           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.


(l)            Non-Disclosure.  Unless required by law or to enforce this
Agreement, the parties hereto 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.


(m)          Legal Fees.  The Company shall promptly pay the reasonable
legal fees incurred in 2007 by the Employee in connection with the negotiation
of this Agreement in an amount not to exceed $2,500; provided that Employee’s
request for reimbursement and the Company’s payment must both occur not later
than the last day of 2008.  


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 Mayer

  
	
   

  	
  Name:

  	
  Jeffrey Mayer

  
	
   

  	
  Title:

  	
  President/CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gina Goldberg

  
	
   

  	
   

  	
  Gina Goldberg