EXHIBIT 99.13
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (this "Agreement") is hereby
entered into by and between Xxxx Xxxx, an individual (the "Executive"), and
Commerce Energy, Inc., a California corporation, formerly known as Commonwealth
Energy Corporation, (the "Company"), and Commerce Energy Group, Inc., a Delaware
corporation ("Commerce").
RECITALS
A. The Executive was employed as Senior Vice-President of Sales of Commerce
pursuant to at-will employment. The Executive was previously employed as a
principal in Skipping Stone, Inc which was acquired by the Company in April
2004; and
B. The Executive, the Company and Commerce have determined that it is in
their mutual best interests that the Executive resign his position with Commerce
and its Related Entities on the terms and conditions set forth in this
Agreement.
AGREEMENT
In consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement
shall be effective on the eighth day after it has been executed by each of
the parties (the "Effective Date").
2. Resignation as Employee. The Executive hereby voluntarily,
unconditionally and irrevocably resigns as an executive officer of Commerce
and any of its parents, direct or indirect subsidiaries, affiliates,
divisions or related entities (collectively referred to herein as "Commerce
and its Related Entities"), effective as of the close of business on December
1, 2005 (the "Resignation Date"). Commerce and the Company accept such
resignation.
3. No Continuation of Employee Benefits. Except as expressly provided in
this Agreement or in the plan documents governing Commerce's and the
Company's employee benefit plans, the Executive acknowledges that he no
longer is eligible to receive, accrue or participate in any employee benefits
or benefit plans provided by Commerce and its Related Entities for employees,
including, without limitation, medical, dental and life insurance benefits,
and Commerce's 401(k) retirement plan; provided, however, that nothing in
this Agreement shall waive the Executive's right to any vested amounts in
Commerce's 401(k) retirement plan, which amounts shall be handled as provided
in the plan.
4. COBRA Benefits. The Executive shall have the right to continue
coverage at his own expense in accordance with the provisions of COBRA.
5. Acknowledgement of Total Compensation and Indebtedness. The Executive
acknowledges and agrees that the payments referred to under this Agreement
extinguishes any and all obligations for monies or other compensation or
benefits that the Executive claims or could claim to have earned or claims or
could claim is owed to him as a result of his employment by Commerce and its
Related Entities through the Resignation Date, or otherwise, except as
expressly set forth herein.
6. Purchase of Shares.
(a) The Executive hereby represents and warrants that he beneficially
and of record currently holds a total of 174,926 shares (which number includes
the shares currently held in escrow relating to the Skipping Stone acquisition)
of the common stock of Commerce (the "Shares") and that, other than the options
referenced in Section 8 herein, he does not own, of record or beneficially any
other shares of the common stock of Commerce.
(b) Commerce will purchase from Executive all 174,926 of the Shares
(the "Acquired Shares") at the price of $1.50 per share for a total purchase
price of $262,389 (the "Total Purchase Price"). The Total Purchase Price shall
be paid as follows: (a) 50% paid one business day after the Effective Date, (the
"Closing Date") and (b) the remaining 50% paid on the first business day 90 days
after the first payment is made. Payment to be made by wire transfer to an
account designated by Executive. Commerce's obligation to purchase the Acquired
Shares shall be cancelled and Commerce shall have no obligation to purchase the
Acquired Shares if the Executive revokes the Agreement as provided in Section
13(c), below, or the Company and Commerce have not received a signed original of
this Agreement and the other documents required in connection with it.
(c) In connection with the sale of the Acquired Shares to Commerce,
the Executive hereby represents and warrants to Commerce that (i) the Executive
is, and will be on the Closing Date, the record owner of the Acquired Shares and
has, and will have on the Closing Date, good and marketable title thereto, with
full right and power to transfer and sell the Acquired Shares to Commerce on the
Closing Date in accordance with this Agreement, free and clear of all liens,
pledges, security interests, claims, charges, restrictions, prior assignments
and encumbrances of any nature whatsoever, other than restrictions which arise
under the securities laws; and (ii) the sale of the Acquired Shares to Commerce
does not violate any other restriction of any kind or character to which the
Executive is subject. As a condition precedent to the Company's and Commerce's
execution of this Agreement, the Executive's spouse shall execute a spousal
consent in the form attached hereto as Exhibit A consenting to the sale of the
Acquired Shares as specified in this Agreement.
7. Cancellation of Stock Options. The Executive acknowledges that he has
been granted options to purchase 133,333 shares of the common stock of
Commerce with an exercise price of $1.92 per share (the "Options"), all of
which are currently subject to exercise. The parties hereto agree that the
Options or other rights to purchase securities of Commerce shall be cancelled
as of the Effective Date.
8. Tax Consequences. The Executive acknowledges that (a) the Company has
not made any representations to him about, and that he has not relied upon
any statement in
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this Agreement with respect to, any individual tax consequences that may
arise by virtue of the special payment provided under this Agreement and/or
his sale of the Shares and (b) he has consulted or will consult with his own
tax advisors as to any such tax consequences.
9. Mutual Releases.
(a) Release by the Executive. Except as otherwise expressly provided
in this Agreement, the Executive, for himself and his heirs, executors,
administrators, assigns, affiliates, successors and agents (collectively, the
"Executive's Affiliates") hereby fully and without limitation releases and
forever discharges Commerce and its Related Entities, and each of their
respective agents, representatives, shareholders, owners, officers, directors,
employees, consultants, attorneys, auditors, accountants, investigators,
affiliates, successors and assigns (collectively, the "Commerce Releasees"),
both individually and collectively, from any and all rights, claims, demands,
liabilities, actions, causes of action, damages, losses, costs, expenses and
compensation, of whatever nature whatsoever, known or unknown, fixed or
contingent, which the Executive or any of the Executive's Affiliates has or may
have or may claim to have against the Commerce Releasees by reason of any
matter, cause, or thing whatsoever, from the beginning of time to the Effective
Date ("Claims"), including, without limiting the generality of the foregoing,
any Claims arising out of, based upon, or relating to the recruitment, hiring,
employment, relocation, remuneration, investigation or termination of the
Executive by any of the Commerce Releasees, the Executive's tenure as an
employee and/or an officer of any of the Commerce Releasees, any agreement or
compensation arrangement between the Executive and any of the Commerce
Releasees, or any act or occurrence in connection with any actual, existing,
proposed, prospective or claimed ownership interest of any nature of the
Executive or the Executive's Affiliates in equity capital or rights in equity
capital or other securities of any of the Commerce Releasees, or in connection
with the Agreement and Plan of Merger dated March 29, 2004, by and among the
Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the
holders of Skipping Stone, Inc. common stock (the "Skipping Stone Merger
Agreement") and any other document or agreement referenced in the Skipping Stone
Merger Agreement (the "Skipping Stone Agreements"), including, without
limitation, the delivery of the shares of Commerce's common stock due to him
under the Skipping Stone Agreements, to the maximum extent permitted by law. The
Executive specifically and expressly releases any Claims arising out of or based
on: the California Fair Employment and Housing Act, as amended; Title VII of the
Civil Rights Act of 1964, as amended; the Americans With Disabilities Act; the
National Labor Relations Act, as amended; the Equal Pay Act; ERISA; any
provision of the California Labor Code; the California common law on fraud,
misrepresentation, negligence, defamation, infliction of emotional distress or
other tort, breach of contract or covenant, violation of public policy or
wrongful termination; state or federal wage and hour laws; or any other state or
federal law, rule or regulation dealing with the employment relationship or
operating a publicly held business. Nothing contained in this Section 9 or any
other provision of this Agreement shall release or waive any right that
Executive has to reimbursement of expenses by Commerce or the Company with
respect to which the Executive may be eligible.
(b) Release by Commerce and its Related Entities. Commerce and its
Related Entities hereby fully and without limitation release and forever
discharge the Executive and Executive's Affiliates, as well as their respective
heirs, assigns, agents and attorneys ("Executive Releasees"), individually and
collectively, from any and all rights, claims, demands,
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liabilities, actions, causes of action, damages, losses, costs, expenses and
compensation, of whatever nature, known or unknown, fixed or contingent, which
Commerce and its Related Entities has or may have or may claim to have against
the Executive Releasees by reason of any matter, cause or thing whatsoever from
the first date the Executive was an employee, officer or director of Commerce
and its Related Entities, or the predecessors of Commerce and its Related
Entities, to the Effective Date, including, without limitation, any claims
arising from the Executive's performance of his duties as an officer or
employee.
10. Waiver of Civil Code Section 1542.
(a) The Executive and Commerce and its Related Entities understand and
agree that their releases provided herein extend to all Claims released above
whether known or unknown, suspected or unsuspected. The Executive and Commerce
and its Related Entities expressly waive and relinquish any and all rights he/it
may have under California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
(b) The Executive expressly waives and releases any rights and
benefits which he has or may have under any similar law or rule of any other
jurisdiction. It is the intention of each party through this Agreement to fully,
finally and forever settle and release the Claims as set forth above. In
furtherance of such intention, the release herein given shall be and remain in
effect as a full and complete release of such matters notwithstanding the
discovery of any additional Claims or facts relating thereto.
(c) To the extent that Section 1542 may be deemed to apply to the
Company's and/or Commerce's release set forth in Section 10(b), the Company and
Commerce, on behalf of themselves and their Related Entities, expressly waive
and relinquish any and all rights it or they may have under such Section, and
any rights and benefits which it or they may have under any similar law or rule
of any other jurisdiction.
11. Release of Federal Age Discrimination Claims by the Executive. The
Executive hereby knowingly and voluntarily waives and releases all rights and
claims, known or unknown, arising under the Age Discrimination In Employment
Act of 1967, as amended ("ADEA"), which he might otherwise have had against
Commerce or the Company or any of the Commerce Releasees regarding any
actions which occurred prior to the Effective Date.
12. Rights Under the Older Workers Benefit Protection Act. In accordance
with the Older Workers Benefit Protection Act of 1990, the Executive hereby
is advised of the following:
(a) The Executive has the right to consult with an attorney before
signing this Agreement and is encouraged by Commerce and the Company to do so;
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(b) The Executive has twenty-one (21) days from his receipt of this
Agreement to consider it; and
(c) The Executive has seven (7) days after signing this Agreement to
revoke Sections 5, 9 and 11 of this Agreement (which must be revoked in their
entirety and as a group), and such Sections of this Agreement (as a group) will
not be effective until that revocation period has expired without exercise. The
Executive agrees that in order to exercise his right to revoke this Agreement
within such seven (7) day period, he must do so in a signed writing delivered to
Commerce's Chief Executive Officer before the close of business on the seventh
calendar day after he signs this Agreement.
13. Confidentiality of Agreement. After the execution of this Agreement
by the Executive, neither the Executive, his attorney, nor any person acting
by, through, under or in concert with them, shall disclose any of the terms
of or amount paid under this Agreement (other than to state that Commerce has
filed this Agreement and/or agreements related thereto as public documents)
or the negotiation thereof to any individual or entity; provided, however,
that the foregoing shall not prevent such disclosures by the Executive to his
attorneys, tax advisors and/or spouse, or as may be required by law.
14. No Filings. The Executive represents that he has not filed any
lawsuits, claims, charges or complaints against Commerce, the Company or the
Commerce Releasees with any local, state or federal agency or court from the
beginning of time to the date of execution of this Agreement; that he will
not do so at any time hereafter based upon events prior to the date of
execution of this Agreement; that he will not induce, encourage, solicit or
assist any other person or entity to file or pursue any proceeding of any
kind against Commerce, the Company or the Commerce Releasees or voluntarily
appear or invite a subpoena to testify in any such legal proceeding; and
that, if any such agency or court ever assumes jurisdiction over any such
lawsuit, claim, charge or complaint and/or purports to bring any legal
proceeding, in whole or in part, on behalf of the Executive based upon events
occurring prior to the execution of this Agreement, the Executive will
request such agency or court to withdraw from and/or to dismiss the lawsuit,
claim, charge or complaint with prejudice. This Section 14 shall not prohibit
the Executive from challenging the validity of the ADEA release in Section 11
of this Agreement. It shall not be a breach of this Section 14 for the
Executive to testify truthfully in any judicial or administrative proceeding.
15. Confidential and Proprietary Information. The Executive acknowledges
that certain information, observations and data obtained by him during the
course of or related to his employment with Commerce and its Related Entities
(including, without limitation, projection programs, business plans, business
matrix programs (i.e., measurement of business), strategic financial
projections, certain financial information, shareholder information, product
design information, marketing plans or proposals, personnel information,
customer lists and other customer information) are the sole property of
Commerce and its Related Entities and constitute Confidential Information as
defined the Commerce Energy Group Code of Business Conduct and Ethics. The
Executive represents and warrants that he has returned all files, customer
lists, financial information and other property of Commerce and its Related
Entities that were in the Executive's possession or control without retaining
copies thereof. The Executive further represents and warrants that he does
not have in his possession or control any
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files, customer lists, financial information or other property of Commerce
and its Related Entities. In addition to his promises in the Commerce Energy
Group Code of Business Conduct and Ethics, the Executive agrees that he will
not disclose to any person or use any such information, observations or data
without the written consent of the Board of Directors of Commerce. If the
Executive is served with a deposition subpoena or other legal process calling
for the disclosure of such information, or if he is contacted by any third
person requesting such information, he will notify Commerce's Chief Executive
Officer as soon as is reasonably practicable after receiving notice and will
reasonably cooperate with Commerce and its Related Entities in minimizing the
disclosure thereof.
16. Remedies. The Executive acknowledges that any unfair competition or
misuse of trade secret or Confidential Information belonging to Commerce and
its Related Entities, or any violation of Commerce Energy Group Code of
Business Conduct and Ethics, and any violation of Sections 13 and 15 of this
Agreement, will result in irreparable harm to Commerce and its Related
Entities, and therefore, Commerce and its Related Entities shall, in addition
to any other remedies, be entitled to immediate injunctive relief. To the
extent there is any conflict between the Commerce Energy Group Code of
Business Conduct and Ethics and this Section 16, the provision providing the
greatest protection to Commerce and its Related Entities shall control.
17. Cooperation Clause.
(a) To facilitate the orderly conduct of Commerce and its Related
Entities' businesses, for twelve (12) months after the Effective Date, the
Executive agrees to cooperate with Commerce's and its Related Entities'
reasonable requests for information or assistance related to the time of his
employment.
(b) For twelve (12) months after the Effective Date, the Executive
agrees to cooperate with Commerce's and its Related Entities' and its or their
counsel's reasonable requests for information or assistance related to (i) any
investigations (including internal investigations) and audits of Commerce and
its Related Entities' management's current and past conduct and business and
accounting practices and (ii) Commerce and its Related Entities' defense of, or
other participation in, any administrative, judicial, or other proceeding
arising from any charge, complaint or other action which has been or may be
filed relating to the period during which the Executive was engaged in
employment with Commerce and its Related Entities. Except as required by law,
court or administrative order or authorized in advance by the Board of Directors
of Commerce, the Executive will not communicate, directly or indirectly, with
any third party, including any person or representative of any group of people
or entity who is suing or has indicated that a legal action against Commerce and
its Related Entities or any of their directors or officers is being
contemplated, concerning the management or governance of Commerce and its
Related Entities, the operations of Commerce and its Related Entities, the legal
positions taken by Commerce and its Related Entities, or the financial status of
Commerce and its Related Entities. If asked about any such individuals or
matters, the Executive shall say: "I have no comment," or words to that general
effect, and shall direct the inquirer to Commerce. The Executive acknowledges
that any material violation of this Section 18 will result in irreparable harm
to Commerce and its Related Entities and will give rise to an immediate action
by Commerce and its Related Entities for injunctive relief.
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(c) Commerce agrees to reimburse the Executive for all reasonable
expenses the Executive incurs in providing information and/or assistance under
this Section as long as the expenses have been authorized by Commerce's Chief
Executive Officer or its Board of Directors in advance. Further, the Executive
shall not be required to provide any information or assistance under this
Section that exceeds twenty (20) hours in the aggregate, unless the parties
hereto shall agree upon a commercially reasonable rate of compensation for the
additional assistance. The Executive shall be in compliance with this Section as
long as he provides reasonable cooperation, upon reasonable notice and so long
as Commerce's requests for information and/or assistance are in a commercially
reasonable time, place and manner.
18. No Future Employment/No Appointment as a Director. The Executive
understands that his employment and status as an officer with Commerce and
its Related Entities irrevocably ended as of the Resignation Date and will
not be resumed at any time in the future. The Executive agrees that he will
not apply for, seek or accept employment by Commerce and its Related Entities
at any time and will not apply for, seek or accept the nomination for or
appointment as a director of Commerce and its Related Entities, unless
invited to do so by Commerce and its Related Entities.
19. Non-disparagement. The Executive agrees not to disparage or
otherwise publish or communicate derogatory statements about Commerce and its
Related Entities and any director, officer or manager and/or the products and
services of these entities to any third party. Commerce and its Related
Entities will not authorize or tolerate any disparagement of, or the
publication or other communication of derogatory statements about, the
Executive and/or the Executive's knowledge, skill, abilities or managerial or
employment performance to any third party. It shall not be a breach of this
Section 19 for the Executive or an authorized representative of Commerce and
its Related Entities to testify truthfully in any judicial or administrative
proceeding, or to make factually accurate statements required in legal or
public filings.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
21. Venue and Waiver of Right to Jury Trial. The parties hereto agree
that all actions or proceedings arising directly or indirectly under or
related to this Agreement, whether instituted by the Executive or Commerce
and its Related Entities, shall be litigated in courts located within the
State of California, County of Orange, and each of the parties hereto
expressly consents to the jurisdiction of any local, state or federal court
located within said state and county, and consents that any service of
process in such action or proceeding may be made by personal service upon
him/it wherever he/it may be located, or by certified or registered mail
directed to his/its last known address. The parties hereby waive trial by
jury in connection with any future dispute between them, any objection based
on forum non conveniens, and/or any objection to venue of any action
instituted as provided in this Section 21.
22. Attorneys' Fees. In any action, litigation or proceeding between the
parties arising out of or in relation to this Agreement, including any
purported breach of this
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Agreement, the prevailing party shall be entitled to an award of its costs
and expenses, including reasonable pay its own attorneys' fees.
23. Non-Admission of Liability. The parties understand and agree that
neither the payment of any sum of money nor the execution of this Agreement
by the parties will constitute or be construed as an admission of any
wrongdoing or liability whatsoever by any party.
24. Severability. If any one or more of the provisions contained herein
(or parts thereof), or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof will not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to
the fullest extent permitted by law.
25. Entire Agreement. This Agreement, together with the attachments
hereto, represents the sole and entire agreement among the parties and,
except as expressly stated herein, supersedes all prior agreements,
negotiations and discussions among the parties with respect to the subject
matters contained herein.
26. Waiver. No waiver by any party hereto at any time of any breach of,
or compliance with, any condition or provision of this Agreement to be
performed by any other party hereto may be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or at any prior or
subsequent time.
27. Amendment. This Agreement may be modified or amended only if such
modification or amendment is agreed to in writing and signed by duly
authorized representatives of the parties hereto, which writing expressly
states the intent of the parties to modify this Agreement.
28. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original as against any
party that has signed it, but all of which together will constitute one and
the same instrument.
29. Assignment. This Agreement inures to the benefit of and is binding
upon the Company and its successors and assigns, but the Executive's rights
under this Agreement are not assignable, except to his estate.
30. Notice. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) if personally delivered; (b) if sent by telecopy or facsimile
(except for legal process); or (c) if mailed by overnight or by first class,
certified or registered mail, postage prepaid, return receipt requested, and
properly addressed as follows:
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If to the Executive: Xxxx Xxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Company Commerce Energy Group, Inc.
or Commerce: 000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the third day after being sent by first class,
certified or registered mail; or if given by Federal Express or other similar
overnight service, on the date of delivery; or if given by telecopy or facsimile
machine during normal business hours on a business day, when confirmation of
transmission is indicated by the sender's machine; or if given by telecopy or
facsimile machine at any time other than during normal business hours on a
business day, the first business day following when confirmation of transmission
is indicated by the sender's machine. Notices, requests, demands and other
communications delivered to legal counsel of any party hereto, whether or not
such counsel shall consist of in-house or outside counsel, shall not constitute
duly given notice to any party hereto.
31. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully
understand all of its terms; that they have conferred with their attorneys, or
have knowingly and voluntarily chosen not to confer with their attorneys about
this Agreement; that they have executed this Agreement without coercion or
duress of any kind; and that they understand any rights that they have or may
have and sign this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement
with the assistance of counsel to the extent they desired. The language in all
parts of this Agreement must be in all cases construed simply according to its
fair meaning and not strictly for or against any party. Whenever the context
requires, all words used in the singular must be construed to have been used in
the plural, and vice versa, and each gender must include any other gender. The
captions of the Sections of this Agreement are for convenience only and must not
affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto
is both a covenant and condition, and is a material consideration for the other
party's performance hereunder, and any breach thereof by the party will be a
material default hereunder. All rights, remedies, undertakings, obligations,
options, covenants, conditions and agreements contained in this Agreement are
cumulative and no one of them is exclusive of any other. Time is of the essence
in the performance of this Agreement.
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(d) Each party acknowledges that no representation, statement or
promise made by any other party, or by the agent or attorney of any other party,
except for those in this Agreement, has been relied on by him or it in entering
into this Agreement.
(e) Each party understands that the facts with respect to which this
Agreement is entered into may be materially different from those the parties now
believe to be true. Except in the case where the existence of any additional or
different facts constitutes the breach of a representation or warranty, each
party accepts and assumes this risk and agrees that this Agreement and the
releases in it shall remain in full force and effect, and legally binding,
notwithstanding the discovery or existence of any additional or different facts,
or of any claims with respect to those facts.
(f) Unless expressly set forth otherwise, all references herein to a
"day" are deemed to be a reference to a calendar day. All references to
"business day" mean any day of the year other than a Saturday, Sunday or a
public or bank holiday in Orange County, California. Unless expressly stated
otherwise, cross-references herein refer to provisions within this Agreement and
are not references to the overall transaction or to any other document.
(g) Each party to this Agreement will cooperate fully in the execution
of any and all other documents and in the completion of any additional actions
that may be necessary or appropriate to give full force and effect to the terms
and intent of this Agreement.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/IT HAS READ THIS AGREEMENT,
UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, THAT IT INCLUDES A WAIVER OF
THE RIGHT TO A TRIAL BY JURY, AND THAT IT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO SETTLEMENT AGREEMENT AND GENERAL RELEASE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates indicated below.
"EXECUTIVE" /s/ XXXX XXXX
--------------------------------
Xxxx Xxxx
Dated: November 17, 2005
"COMPANY" COMMERCE ENERGY, INC.,
a California corporation
By: /S/ XXXXXX X. BOSS
--------------------------------
Xxxxxx X. Boss
Chief Executive Officer
Dated: November 17, 2005
"COMMERCE" COMMERCE ENERGY GROUP, INC.,
a Delaware corporation
By: /S/ XXXXXX X. BOSS
--------------------------------
Xxxxxx X. Boss
Chief Executive Officer
Dated: November 17, 2005
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
------------ --------------------------------------------------------------
A Spousal Consent
EXHIBIT A
SPOUSAL CONSENT
The undersigned hereby acknowledges as follows:
1. The undersigned has read the Settlement Agreement and General Release
(the "Settlement Agreement") by and among Xxxx Xxxx ("Xxxx"), Commerce Energy,
Inc (the "Company") and Commerce Energy Group Inc., ("Commerce"). The
undersigned understands the contents of the Agreement and is aware that by the
provisions of the Agreement, the undersigned's spouse agrees, among other
things, to transfer certain securities of Commerce (the "Commerce Securities"),
including the undersigned's community property interest therein (if any). THE
UDERSIGNED HAS BEEN ADVISED TO CONSULT WITH COUNSEL OF HER CHOOSING IN
CONNECTION WITH THIS SPOUSAL CONSENT AND HAS BEEN GIVEN AMPLE OPPORTUNITY TO DO
SO. IF THE UNDERSIGNED HAS NOT CONSULTED WITH COUNSEL IN CONNECTION WITH THIS
SPOUSAL CONSENT, THE UNDERSIGNED HAS KNOWINGLY AND WILLINGLY ELECTED NOT TO DO
SO.
2. The undersigned (a) consents to any such transfer or disposition of the
Commerce Securities; (b) agrees that the undersigned's spouse, Alam, shall have
the sole and exclusive management power with respect to the Commerce Securities;
(c) agrees that the undersigned will not effect or attempt to effect any
transfer or disposition of the Commerce Securities or any interest therein; (d)
agrees and directs that the residuary clause in the undersigned's will shall not
be deemed to apply to the undersigned's interest in the Commerce Securities; (e)
agrees that any bequests made by the undersigned in contravention of the above
requirements shall be null and void.
3. Should the spouse of the undersigned, Alam, die and bequeath to the
undersigned any interest in the Commerce Securities in such a manner that no
probate is required with respect thereto, or should the applicable probate laws
relating to the community property interest (if any) of the undersigned in the
Commerce Securities provide, upon the death of the undersigned's spouse, that
the undersigned is entitled to a portion of the Commerce Securities without such
portion being made subject to probate, or should the undersigned acquire any
interest in the Commerce Securities during the undersigned's spouse's life by
reason of any agreement, court order, judgment or decree, or for any reason
whatsoever, then the undersigned further agrees that the undersigned shall
perform all of the obligations of the undersigned's spouse, Alam, imposed under
the Agreement.
4. The undersigned shall perform any further acts and execute and deliver
any other documents or procure any court orders which may be reasonably
necessary or requested by Commerce or the Company to carry out the provisions of
this Spousal Consent.
SPOUSE OF XXXX XXXX
/S/ XXXXXX XXXXXXXX ALAM
-------------------------------
Name: Xxxxxx Xxxxxxxx Xxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Date: November 17, 2005
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