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EXHIBIT 10.1
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement ("Agreement") is made by
and
between Hines Horticulture, Inc., a Delaware Corporation
("Employer"), and Mike
Trebing, an individual ("Employee").
RECITALS
A. Employer currently employs Employee. Employer plans to
eliminate
Employee's position. As a result, Employer will provide Employee
with severance
benefits as set forth below.
B. For and in consideration of the mutual promises and covenants
in
this Agreement, and for other good and valuable consideration, the
receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
1.0 TERMINATION OF EMPLOYMENT. Employee's employment shall
terminate on
March 30, 2007. (the "Termination Date").
2.0 COMPENSATION.
2.1. SEVERANCE. Employer shall pay Employee severance pay in
the amount of Eighty Thousand dollars ($80,000.00), less statutory
wage
deductions and any deductions which Employee has authorized. This
payment shall
be made to Employee in one lump sum within five (5) business days
after the
Termination Date and after the expiration of the Revocation Period
provided for
in Section 7.0 below, whichever is later. Because employment will
end on
Employee's Termination Date, these payments are not eligible for
deferral to
Employee's account in Employer's 401(k) plan. Employee acknowledges
that this
severance amount is a special benefit provided to Employee in
return for
Employee's execution of this Agreement and is more than Employee
would normally
receive upon separation from employment.
2.2. INSURANCE BENEFITS. Employee's health, dental and vision
insurance benefits shall terminate on March 31, 2007. Thereafter,
Employee will
be eligible to continue these benefits through COBRA. Employer
shall pay
Employer a lump sum amount equal to the cost of six months of COBRA
continuation
coverage. This payment shall be made to Employee in one lump sum
within five (5)
business days after the Termination Date and after the expiration
of the
Revocation Period provided for in Section 7.0 below, whichever is
later.
Employee may use these funds to pay the cost of COBRA continuation
coverage.
However, whether to do so is in Employee's discretion.
2.3. VACATION. Employer shall pay Employee on Employee's
Termination Date all of Employee's accrued and unused vacation
through the
Termination Date.
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3.0 SUFFICIENCY OF CONSIDERATION. Employer and Employee
specifically
agree that the consideration provided to Employee pursuant to
Sections 2.1 and
2.2 is good and sufficient consideration for this Agreement.
4.0 NO ACTIONS BY EMPLOYEE. In consideration of the promises
and
covenants made by Employer in this Agreement Employee agrees:
4.1. FILING OF ACTIONS. That Employee has not filed and will
refrain from filing any action or proceeding against Employer, its
subsidiaries
or parents, its Board of Directors, any members of the Board of
Directors in any
of their capacities, including individually, its present or former
employees,
officers, directors, agents or affiliates (hereinafter "Released
Parties") with
any administrative agency, board, or court relating to the
termination of
Employee's employment effective March 30, 2007, or any acts related
to
Employee's employment with Employer occurring prior to March 30,
2007.
4.2. DISMISSAL. That if any agency, board or court assumes
jurisdiction of any action against the Released Parties arising out
of the
termination of Employee's employment or any acts related to
Employee's
employment with Employer occurring prior to March 30, 2007,
Employee will direct
that agency, board or court to withdraw or dismiss the matter, with
prejudice,
and will execute any necessary paperwork to effect the withdrawal
or dismissal,
with prejudice.
4.3. DISCRIMINATION. Employee acknowledges that the Age
Discrimination in Employment Act ("ADEA") (29 U.S.C. ss.621 ET
SEQ.), Title VII
of the Civil Rights Act of 1964, and as amended, the Americans with
Disabilities
Act and the California Fair Employment and Housing Act ("FEHA")
provide Employee
the right to bring action against the Released Parties if Employee
believes
Employee has been discriminated against on the basis of race,
ancestry, age,
color, religion, sex, sexual orientation, medical condition,
national origin, or
physical or mental disability. Employee understands the rights
afforded to
Employee under these Acts and agrees Employee will not file any
action against
the Released Parties based upon any alleged violation of these
Acts. Employee
irrevocably and unconditionally waives any rights to assert a claim
for relief
available under these Acts, or any other federal, state or local
laws regarding
employment discrimination, against the Released Parties including,
but not
limited to, present or future wages, mental or emotional distress,
attorney's
fees, reinstatement or injunctive relief.
5.0 COMPROMISE AND SETTLEMENT. Employee, in consideration of
the
promises and covenants made by Employer in this Agreement, hereby
compromises,
settles and releases Employer and Released Parties from any and all
past,
present, or future claims, demands, obligations or causes of
action, whether
based on tort, contract, violation of statute or other theories of
recovery
arising from the employment relationship between Employer and
Employee, and the
termination of the employment relationship. Such claims include
those Employee
may have or has against Employer or Released Parties.
6.0 WAIVER. Employee acknowledges that this Agreement applies to
all
known or unknown, foreseen or unforeseen, injury or damage arising
out of or
pertaining to Employee's employment relationship with Employer, its
termination
and any other acts occurring prior to execution of this Agreement,
and Employee
expressly waives any benefits Employee may have under Section 1542
of the
California Civil Code, which provides:
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"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 or her settlement with
the debtor."
Employee understands and acknowledges that the significance
and consequence of this waiver of California Civil Code Section
1542 is that
even if Employee should eventually suffer injury arising out of or
pertaining to
the employment relationship, its termination or any other acts
occurring prior
to the execution of this Agreement, Employee will not be able to
make any claim
for those injuries. Furthermore, Employee acknowledges that
Employee consciously
intends these consequences even as to claims for injuries that may
exist as of
the date of the Agreement but which Employee does not know exist
and which, if
known, would materially affect Employee's decision to execute this
Agreement,
regardles
