Exhibit 99.4
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 herein after referred to as "Commerce" and, together with CEG, the
"Company") and Xxxxx Xxxxxxx ("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 five hundred
sixty-six thousand six hundred sixty-six dollars and sixty-six cents
($566,666.66) in cash, which is equal to Executive's annual Base
Salary of $400,000, 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 6, 12 and 14 of the
Settlement Agreement and General Release (the "Settlement Agreement") by
and between the Executive, CEG and Commerce dated November 17, 2005
pursuant to Section 15(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
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Xxxxxx X. Boss
Chief Executive Officer
EXECUTIVE
/S/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
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