SEVERANCE AND RELEASE AGREEMENT
Exhibit
10.47
This
Severance and Release Agreement ("Agreement") is made by and between Xxxxx
Horticulture, Inc., a Delaware Corporation (“Employer”), and Lincoln Xxxxxx, an
individual (“Employee”).
RECITALS
A. Employer
currently employs Employee. Employer plans to eliminate Employee’s position at a
future date due to reorganization. Due to his experience and knowledge, Employer
wishes to retain Employee’s services until the date of termination. As a result,
Employer will provide Employee with severance benefits and a retention bonus
should Employee remain employed until the date 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.
Employer acknowledges that he has been notified that his employment with
Employer will end due to position elimination on January 26, 2007. (the
“Termination Date”). Employee agrees to remain employed with Employer until the
Termination Date under the Retention Bonus provisions of Section 2.2 below.
Employer reserves the right to advance the Termination Date in the event
business conditions warrant an earlier termination. In such event Employer
will
pay Employee the compensation set forth in Section 2.0 below on the earlier
Termination Date.
2.0 Compensation.
2.1. Severance.
Employer shall pay Employee severance pay in the amount of nineteen thousand
eight hundred thirty eight dollars and no cents ($73,684.00), 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 8.0 below. 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. Should Employee’s employment with Employer terminate before the
Termination Date because of resignation, retirement or termination for cause,
Employee will not be eligible to receive this Retention Bonus.
2.2. Insurance
Benefits.
Employee’s health, dental and vision insurance benefits shall terminate
effective six months from the date of execution of this agreement and upon
receipt of the signed release and waiver. Thereafter, Employee will be eligible
to continue these benefits through COBRA. Any continuation of these benefits
beyond the six months from the date of execution of this agreement shall be
at
Employee’s sole expense.
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2.3. Vacation.
Employer shall pay Employee on Employee’s Termination Date all of Employee’s
accrued and unused vacation through Employee’s Termination
Date.
3.0 No
Guarantee of Future Employment.
Employee acknowledges that his employment with Employer through the Termination
Date continues to be covered by Employer’s normal policies. Nothing in this
Agreement precludes a termination by retirement, resignation or discharge
pursuant to Employer’s policies prior to the Termination Date.
4.0 Sufficiency
of Consideration.
Employer and Employee specifically agree that the consideration provided to
Employee pursuant to Sections 2.1and 2.2 is good and sufficient consideration
for this Agreement.
5.0 No
Actions by Employee.
In
consideration of the promises and covenants made by Employer in this Agreement
Employee agrees:
5.1. Filing
of
Actions. That Employee has not filed and will refrain from filing on
Employee’s own or from participating with any third party in 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 January 26, 2007, or any acts related to Employee's employment with
Employer occurring prior to January 26, 2007.
5.2. 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 January
26, 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.
5.3. Discrimination.
Employee acknowledges that the Age Discrimination in Employment Act ("ADEA")
(29
U.S.C. §621 et
seq.),
Title
VII of the Civil Rights Act of 1964, and as amended, the Americans with
Disabilities Act and the Texas Commission on Human Rights Act, Tex. Labor Code
Sec. 21.001, et. seq., 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.
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6.0 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.
7.0 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 and the termination of
Employee's employment.
8.0 Waiver
of Rights Under the Age Discrimination in Employment Act.
Employee specifically understands and acknowledges that the Age Discrimination
in Employment Act of 1967, as amended (the “ADEA”), provides Employee the right
to bring a claim against Employer if Employee believes that Employee has been
discriminated against on the basis of age. Employer specifically denies any
such
discrimination. Employee understands the rights afforded to Employee under
the
ADEA and agrees that Employee will not file any claim or action against Employer
or any of the entities released in Section 6.0 affiliated with Employer based
on
any alleged violations of the ADEA. Employee hereby knowingly and voluntarily
waives any right to assert a claim for relief under this Act, including but
not
limited to back pay, front pay, attorneys fees, damages, reinstatement or
injunctive relief. Notwithstanding the foregoing, Employee does not waive any
ADEA claim which may arise after this Agreement is executed.
Employee
also understands and acknowledges that the ADEA requires Employer to provide
Employee with at least twenty-one (21) calendar days to consider this Agreement
(“Consideration Period”) prior to its execution. Employee acknowledges that
Employee was provided with the required Consideration Period and hereby
knowingly and voluntarily, after the opportunity to consult with an attorney,
either has used the Consideration Period or waives the remainder of the
Consideration Period by executing the Waiver of Consideration Period attached
as
Exhibit A. Employee understands that Employee is entitled to revoke this
Agreement at any time during the seven (7) days following Employee’s execution
of this Agreement. Employee also understands that any revocation of this
Agreement must be in writing and delivered to the attention of Xxxxx Xxxxx
VP
Human Resources and Operational Excellence, at Employer’s office in Irvine,
California prior to the expiration of the revocation period. Delivery of the
revocation should be via facsimile to (000) 000-0000 with a hard copy to follow
via first class mail.
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9.0
No
Admission of Liability.
Employee acknowledges that neither this Agreement, nor payment of any
consideration pursuant to this Agreement, shall be taken or construed to be
an
admission or concession of any kind with respect to alleged liability or alleged
wrongdoing against Employee by Employer. Employer specifically asserts that
all
actions taken with regard to Employee were proper and lawful and affirmatively
denies any wrongdoing of any kind.
10.0 Confidentiality.
Employee agrees to keep the terms and amount of this Agreement completely
confidential, except that Employee may discuss this Agreement with Employee’s
attorney, accountant, or other professional advisor who may assist Employee
in
evaluating or reviewing this Agreement or the tax implications of this
Agreement. Employer agrees to keep the terms of this Agreement confidential
except as to those employees, officers, agents, or directors of Employer who
have a need to know the terms of this Agreement and except as required by
law.
11.0 Confidential
Information.
Employer has developed, compiled and owns certain proprietary techniques and
confidential information that have great value in its business. This information
includes but is not limited to any and all information (in any medium, including
but not limited to, written documents and electronic files) concerning
unpublished financial data, marketing and sales data, product and product
development information, customer lists, employee lists, equipment programs,
contracts, licensing agreements, processes, formulas, trade secrets, inventions,
discoveries, improvements, data, know-how, formats, marketing plans, business
plans, strategies, forecasts, and supplier and vendor identities,
characteristics and agreements (“Confidential Information”). Employee has had
access to confidential information of persons or entities for whom Employer
performs services, to whom Employer sells products, or from whom Employer or
Employee has obtained information (“Customers”). Confidential Information
includes not only information disclosed by Employer or its Customers to Employee
in the course of Employee’s employment with Employer, but also information
developed or learned by Employee during the course of Employee’s employment with
Employer. Confidential Information is to be broadly defined.
Employee
acknowledges that during Employee’s employment with Employer, Employee has had
access to such Confidential Information. Employee agrees that at all times
after
Employee’s employment with Employer is terminated, Employee will (i) hold in
trust, keep confidential, and not disclose to any third party or make any use
of
the Confidential Information of Employer or its Customers; (ii) not cause the
transmission, removal or transport of Confidential Information of Employer
or
its Customers; (iii) not publish, disclose, or otherwise disseminate
Confidential Information of Employer or its Customers.
12.0 Company
Property.
On or
before Employee’s Termination Date, Employee shall return to Employer all
Employer property in Employee’s possession including, but not limited to,
Employee’s company-provided computer, pager, cell phone and the original and all
copies of any written, recorded, or computer-readable information about
Employer’s practices, procedures, trade secrets, customer lists, product
cultivation or marketing associated with Employer’s business.
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13.0 Representation
by Attorney.
Employee acknowledges that Employee has carefully read this Agreement; that
Employee understands its final and binding effect; that Employee has been
advised to consult with an attorney; that Employee has been given the
opportunity to be represented by independent counsel in reviewing and executing
this Agreement and that Employee has either chosen to be represented by counsel
or has voluntarily declined such representation; and that Employee understands
the provisions of this Agreement and knowingly and voluntarily agrees to be
bound by them.
14.0 No
Reliance Upon Representations.
Employee hereby represents and acknowledges that in executing this Agreement,
Employee does not rely and has not relied upon any representation or statement
made by Employer or by any of Employer’s past or present shareholders, officers,
directors, employees, agents, representatives or attorneys with regard to the
subject matter, basis or effect of this Agreement.
15.0 Resolution
of Disputes.
Employer and Employee agree that any dispute that may arise under the provisions
of this Agreement shall be submitted to arbitration in accordance with the
Rules
of the American Arbitration Association. The written determination of the
arbitrator shall be final, binding and conclusive on the parties. However,
the
provisions of this paragraph shall not preclude any party from seeking
injunctive or other provisional relief in order to preserve the status quo
of
the parties pending resolution of the dispute by arbitration. The location
of
the arbitration shall be in Houston, Texas.
16.0 Attorney’s
Fees.
Each
party shall bear its own attorney’s fees in the preparation and review of this
Agreement. Should suit or action be instituted to enforce any provision of
this
Agreement, the prevailing party shall be entitled to recover its costs and
reasonable attorney’s fees.
17.0 Miscellaneous
17.1. Entire
Agreement, Modification.
This
Agreement contains the entire Agreement between the parties hereto and
supersedes all prior oral and/or written agreements if any. The terms of this
release are contractual and not a mere recital. This Agreement may be modified
only by the further written agreement of the parties.
17.2. Severability.
If any
part of this Agreement is determined to be illegal, invalid or unenforceable,
the remaining parts shall not be affected thereby and the illegal, unenforceable
or invalid part shall be deemed not to be part of this Agreement. The parties
further agree to replace any such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business, or other purposes of the void or
unenforceable provision.
17.3. Governing
Law.
Any
action to enforce this Agreement or any dispute concerning the terms and
conditions of this Agreement and the parties performance of the terms and
conditions of this Agreement shall be governed by the laws of the State of
Texas.
17.4. Construction.
The
language in all parts of the Agreement shall in all cases be construed as a
whole according to its fair meaning and not strictly for or against any of
the
parties.
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17.5. Captions.
All
paragraph captions are for reference only and shall not be considered in
construing this Agreement.
| Dated: December 29, 2006 |
XXXXX HORTICULTURE,
INC.
(“Employer”)
|
| /s/ Xxxxxxx Xxxxxxxx | |
| By: Xxxxxxx Xxxxxxxx | |
| Its: CFO | |
| Dated: December 29, 2006 | /s/ Lincoln Xxxxxx |
|
Lincoln
Xxxxxx
(“Employee”)
|
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EXHIBIT
“A”
[Omitted]
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