AGREEMENT NOT TO ENGAGE IN PROHIBITED ACTIVITIES
EXHIBIT 10.1
This Agreement not to Engage in Prohibited Activities (the “Agreement”) is entered into as of
October 8, 2005 by and among by and among Commerce Energy, Inc., formerly known as Commonwealth
Energy Corporation (“Commonwealth”), Commerce Energy Group, Inc. (“CEG,” and together with
Commonwealth, the “Company”) and Xxxxx Xxxxxxx, an individual (the “Executive”)(hereinafter
collectively referred to as “the parties”).
WHEREAS, the parties entered into a certain Executive Employment Agreement dated as of April
1, 2004 (the “Employment Agreement,” the defined terms of which shall be used in this Agreement
unless otherwise defined herein);
WHEREAS, pursuant to Section 5(d) of the Employment Agreement, Executive’s employment with the
Company has been terminated without Cause, effective as of October 8, 2005 (the “Termination
Date”);
WHEREAS, as a result of the termination of Executive’s employment without Cause, Executive is
entitled to certain severance payments under Section 7(c) of the Employment Agreement if Executive
voluntarily elects and agrees not to engage in Prohibited Activities (as defined in the Employment
Agreement) for a period of six (6) months after the date of such termination of employment;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by each of the parties hereto, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Agreement Not to Engage in Prohibited Activities. Employee hereby voluntarily
elects and agrees not to engage in Prohibited Activities (as defined in the Employment Agreement)
for a period of six (6) months after the Termination Date.
2. Severance Payments. The Company hereby acknowledges its obligation to make
severance payments to Executive in accordance with Section 7(c) of the Employment Agreement.
3. Effect of Agreement. The Employment Agreement remains in full force and effect
without any changes, amendments or modifications. Nothing in this Agreement shall be construed to
change, amendment or modify that certain Agreement Not to Compete, dated as of April 1, 2004, by
and among Commonwealth, CEG and Executive, which remains in full force and effect in accordance
with its terms.
4. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
5. Further Acts. The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year
first above written.
| COMMERCE ENERGY, INC. |
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| By: | /S/ XXXXXX X. BOSS | |||
| Name: | Xxxxxx X. Boss | |||
| Title: | Chief Executive Officer | |||
| COMMERCE ENERGY GROUP, INC. |
||||
| By: | /S/ XXXXXX X. BOSS | |||
| Name: | Xxxxxx X. Boss | |||
| Title: | Chief Executive Officer | |||
| /S/ XXXXX XXXXXXX | ||||
| Xxxxx Xxxxxxx | ||||
| 10-7-05 | ||||
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