Exhibit 99.11
AMENDMENT NO. 1
TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 1 to Executive Employment Agreement (this "Amendment")
is entered into as of November 17, 2005, by and among Commerce Energy Group,
Inc. ("CEG"), Commerce Energy, Inc. (formerly, Commonwealth Energy Corporation,
and hereinafter referred to as "Commerce" and, together with CEG, the "Company")
and Xxxxxxx X. Xxxxxxxx ("Executive"). All capitalized terms used but not
defined herein shall have the meaning given to them in the Agreement (defined
below).
RECITALS
WHEREAS, the parties hereto desire to amend the Executive Employment
Agreement, dated as of April 1, 2004 (the "Agreement"), by and among the CEG,
Commerce and Executive, pursuant to the terms set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Section 7(c)(ii) of the Agreement is hereby amended and restated in its
entirety as follows:
If Executive voluntarily elects and agrees not to engage in
Prohibited Activities (as hereinafter defined) for a period of six (6)
months after the date of such termination of employment, the Company
shall pay Executive as additional compensation for the periods
subsequent to the termination date, the amount of four hundred
ninety-five thousand eight hundred thirty-three dollars and
thirty-three cents ($495,833.33) in cash, which is equal to
Executive's annual Base Salary of $350,000, divided by 12 and then
multiplied by 17 (the "Severance Amount"). The Severance Amount shall
be payable in a lump sum on April 10, 2006 (which is the first
business day after the expiration of the six month period commencing
on the day after the Termination Date, as defined in the Settlement
Agreement and General Release among Executive, CEG and Commerce). If
Executive does not so voluntarily elect and agree or otherwise engages
in such Prohibited Activities, then Executive's eligibility to receive
the post-employment benefits provided for in this Section 7(c)(ii)
shall immediately thereafter terminate. For purposes of this
Agreement, "Prohibited Activities" shall mean directly or indirectly
engaging as an owner, employee, consultant or agent of any company
that competes in deregulated markets with the Company in the marketing
of natural gas and/or electricity to retail customers. It is expressly
understood that direct employment by a regulated utility company with
or without an unregulated retail marketing subsidiary would not be a
Prohibited Activity, while employment by or engaging in such
activities with an
unregulated retail marketing subsidiary of the same utility company
would be a Prohibited Activity.
2. If Executive exercises his right to revoke Sections 5, 11 and 13 of the
Settlement Agreement and General Release (the "Settlement Agreement") by
and between Executive, Commerce and CEG pursuant to Section 14(c) thereof,
which exercise must be effected by a writing signed by Executive and
delivered to CEG's Chief Executive Officer before the close of business on
the seventh calendar day after Executive signs the Settlement Agreement,
then this Amendment shall simultaneously become null and void.
3. No other provisions of the Agreement are affected by this Amendment.
[Signatures to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
COMMERCE ENERGY GROUP, INC.
/s/ XXXXXX X. BOSS
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Xxxxxx X. Boss
Chief Executive Officer
COMMERCE ENERGY, INC.
(FORMERLY, COMMONWEALTH ENERGY
CORPORATION)
/s/ XXXXXX X. BOSS
----------------------------------------
Xxxxxx X. Boss
Chief Executive Officer
EXECUTIVE
/s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxxx
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