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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of August 3, 1995
is
made and entered into by and between HINES NURSERIES INC., a
California
corporation ("Hines"), having its principal office at 12621 Jeffrey
Road,
Irvine, California 92720, and E.G. "BUD SUMMERS", an individual
("Employee").
A. Madison Dearborn Capital Partners, L.P. has recently acquired
a
majority of the voting common stock of Macluan Capital (Nevada)
Inc., which in
turn owns all of the stock of Hines (the "Acquisition");
B. Employee has been and on the date hereof continues to be a
valued
executive employee of Hines, pursuant to that certain EMPLOYMENT
AGREEMENT dated
July 16, 1990 as amended by AMENDMENT NO. 1 to EMPLOYMENT AGREEMENT
(such
agreement as amended is referred to herein as the "Prior Employment
Agreement");
C. Prior to the Acquisition, Hines maintained certain employee
benefit
programs which Hines has agreed to continue with certain
modifications agreeable
to Employee;
D. Hines desires to continue the employment of Employee and
Employee
desires to continue to perform the duties and obligations
hereinafter described
for Hines upon the terms and conditions hereinafter set forth;
and
E. The purpose of this Agreement is to supersede the Prior
Employment
Agreement from and after the date hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions
herein contained and their performance, Hines and Employee agree as
follows:
1. EMPLOYMENT. Hines hereby continues the employment of Employee
and
Employee agrees to serve Hines in the capacity of General Manager,
Houston (or
in such other capacity as may be assigned to Employee by the Board,
provided
that such other capacity is at least equal to or greater in rank
and
responsibility), subject to the direction of the Board of Directors
of Hines
(the "Board") and the further terms and conditions of this
Agreement. Employee
shall, during the term of this Agreement, in good faith perform
such duties as
may be assigned to him by the Board and shall implement the
policies of Hines
and directions provided by the Board from time to time.
2. EMPLOYMENT TERM. Commencing as of the date first written above,
this
Agreement is on an "at-will" basis and may be terminated by either
party in
accordance with the provisions of Section 7.
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3. COMPENSATION AND BENEFITS. From and after the date first
written
above and so long as Employee is employed by Hines, Employee shall
be entitled
to the following compensation and benefits:
(a) SALARY. Employee shall continue to receive an annual
salary from Hines at his current salary rate or such greater amount
as may be
determined by the Board from time to time (but no less frequently
than
annually), the same to be paid in periodic, but not less than
monthly,
installments in accordance with Hines' standard payroll practice.
Such amount,
as may be increased from time to time, shall be referred to herein
as the "base
salary."
(b) ADDITIONAL COMPENSATION. In addition to the salary
provided in Section 3(a) above, Employee shall participate in
Hines' Executive
Variable Compensation Plan (the "Bonus Plan"). The Bonus Plan and
Employee's
participation therein shall be an amount determined and paid by the
Board
annually no later than April 30 of each year (the "Bonus Date")
after
consultation with senior management, under which Bonus Plan an
amount equal to
six percent (6%) of Hines' Annual Net Cash Flow (as defined in the
Bonus Plan
and which shall not include the earnings of Agri Holdings Inc. and
its
subsidiaries) shall be available for bonuses to the Bonus Plan
participants. A
copy of the current Bonus Plan is attached hereto as Exhibit A.
Hines reserves
the right to modify or amend the Bonus Plan or substitute therefore
other bonus
compensation arrangements as shall be approved by the Board from
time to time.
(c) SENIOR MANAGEMENT EQUITY INCENTIVE PLAN. Employee shall
participate in any stock option, stock purchase, or other equity
ownership or
incentive plan which Hines may adopt for senior management, but not
including
the sale to certain employees of an aggregate of up to $1,000,000
of Junior
Preferred Stock and Class B Common Stock.
(d) DEATH BENEFITS. Employee shall be entitled to participate
in Hines employee's life insurance program to an extent appropriate
for his
level of employment.
(e) DISABILITY. In the event of a disability not constituting
a Long-Term Disability as defined in Section 7(c), Hines shall pay
to Employee
any difference between the actual receipts from disability
insurance paid for by
Hines and Employee's base salary as set forth in Section 3(a) above
for a
maximum period of three hundred sixty-five (365) days (whether or
not
consecutive) after the commencement of Employee's disability.
(f)
VACATION. Employee shall receive vacation in accordance
with Hines's standard vacation policy for executives employed at
Employee's
facility; provided, however, in no event shall Employee receive
less than the
greater of (i) three (3) weeks, or (ii) an amount in excess of
three (3) weeks
as may be granted from time to time and deemed "earned" pursuant to
the Hines
vacation policy in effect as of the date of this Agreement.
Employee shall not
be permitted to accumulate vacation from year to year but instead
must use all
vacation time during the year in which it is first accrued.
(g) AUTOMOBILE. Hines shall provide Employee an automobile
under the Hines automobile policy as established by the Board from
time to time.
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(h) EXPENSES. In addition to the base salary provided in
Section 3(a) above, Employee shall be entitled to reimbursement for
necessary
and reasonable business expenses incurred in connection with the
performance of
his duties hereunder pursuant to procedures and policies adopted by
the Board.
(i) SEVERANCE BENEFITS. Employee shall receive certain
severance benefits upon the termination of his employment hereunder
in
accordance with the provisions of Section 7 below ("Termination and
Severance
Benefits").
4. OTHER OBLIGATIONS OF HINES.
(a) Hines shall provide for Employee workspace, equipment and
supplies generally reasonable and sufficient for performance of the
tasks
assigned to Employee.
(b) Hines shall provide Employee with all such additional
benefits as are generally provided to employees of Hines.
5. RELOCATION. If Hines requires Employee to relocate to a
metropolitan
area outside the area in which he now lives, Hines will pay all
reasonable
relocation expenses incurred by Employee, including real estate
broker's fees,
costs of moving household goods and personal effects to a new
residence, and
travel, lodging and meal costs incurred while searching for a new
residence.
6. DUTIES. Employee shall (i) faithfully devote full-time
attention,
skill and ability to discharge the duties assigned to him by the
Board from time
to time, (ii) use best efforts to promote and protect the interests
of Hines,
(iii) comply with all reasonable and lawful instructions that the
Board gives
from time to time, and (iv) provide information and assistance as
requested by
the Board. During the term of this Agreement Employee shall not
engage in any
work, enterprise or activity which is, in the opinion of the Board,
not in the
best interests of Hines, or contrary to, or detracting from the due
performance
of the business of Hines or the discharge of Employee's duties for
Hines.
7. TERMINATION AND SEVERANCE BENEFITS.
(a) GENERAL. Commencing as of the date first written above,
continued employment pursuant to this Agreement shall be on a
"at-will" basis,
meaning that Hines may terminate Employee at any time for any
reason with or
without Cause (as defined below), and Employee may terminate his
employment with
Hines at any time for any reason with or without Cause, in either
case upon 30
days advance written notice; PROVIDED HOWEVER, that Employee shall
be entitled
to the Severance benefits specified in Section
