EXHIBIT
10.48


 


AGREEMENT
AND RELEASE OF ALL CLAIMS


 


THIS Agreement and Release of All claims (the
“Agreement”) is made and entered into this 1st day of October, 2003 by and
between GARDENBURGER, INC., an Oregon corporation (“Gardenburger”), formerly
known as Wholesome and Hearty Foods, Inc., and Lorraine Crawford (“Employee”)
in order to provide for an orderly transition of the Employee’s
responsibilities in connection with her termination of employment with
Gardenburger and completely resolve any and all issues that employee might have
in connection with her employment with Gardenburger or the termination thereof.


 


NOW, THEREFORE, in consideration of the mutual
promises and conditions contained herein, the parties agree as follows:


 


1. Termination.


 


1.1 Termination.  Employee
is currently employed at Gardenburger. 
Employee’s position is being eliminated and, as a result of the
elimination of her position, Employee understands her employment will terminate
on December 31, 2003 (the “Termination Date”).


 


2.  Pay.


 


2.1  Wages. 
From the date of this Agreement through the Termination Date,
Gardenburger will continue to pay Employee, on Gardenburger’s normal bi-weekly
pay dates, all wages and other benefits associated with her employment.


 


2.2 Severance and Additional Severance Pay.  Gardenburger agrees to pay severance
outlined in the Memo received from Lyle Hubbard dated May 4, 2000 (the
“Memo”)(Attachment A), plus one month’s additional severance pay for each full
month worked from the date of this Agreement to the Termination Date, provided
that under no circumstances shall Employee be entitled to more than twelve (12)
month’s total severance pay calculated by adding severance due under the Memo
plus Additional Severance as here outlined. This Severance and Additional
Severance pay shall be paid on a pro-rated basis ($5500.00 per pay period) on
Gardenburger’s normal bi-weekly pay dates (beginning 2 weeks after termination)
until the full amount is paid. No additional severance pay payment will be made
to Employee until Employee executes and delivers this Agreement to
Gardenburger, the revocation period described in Section 9 of this Agreement
has expired, and Employee executes and delivers to Gardenburger a Release of
all Claims upon her separation from employment. As outlined in the Memo, the
last three (3) months of severance will only be paid if employee has not
obtained full time, permanent employment


 

















 


elsewhere.  Therefore, Employee
will be required to notify the Gardenburger Human Resources department on a
monthly basis of her employment status following the completion of nine (9)
months severance. Employee agrees that these Additional Severance payments
represent amounts to which she is not otherwise entitled but for this
Agreement.


 


2.3 Withholdings.  All compensation paid to Employee under this Section 2 shall
be subject to the customary withholding of federal and state income tax and
other deductions required by law, or otherwise authorized, with respect to
compensation paid by a corporation to an employee.


 


3.  Other Agreements.  Employee and Gardenburger are parties to other agreements
including the Memo, which remain in full force and effect except as expressly
modified herein.


 


4.  Benefits. In addition to any benefits included in the Letter,  Gardenburger agrees to provide Company-paid
COBRA medical benefits for the period that Severance and/or Additional
Severance is paid.


 


5.
Outplacement Assistance.  Upon
Employee’s request, Employee will be afforded outplacement assistance through a
career transition services provider of Gardenburger’s selection at a cost not
to exceed $5,500.  Employee must begin
using this service within 90 days after the Termination Date in order to be
eligible for this benefit.


 


6.
Release of Claims


 


6.1 In return for the benefits conferred by
this Agreement, which Employee acknowledges that Gardenburger had no legal
obligation to provide, Employee, hereby releases and forever discharges
Gardenburger, its predecessors, successors and assigns, and its past, present,
and future insurers, representatives, officers, trustees, shareholders,
directors, agents, attorneys, and employees, and their respective successors,
assigns, executors, and administrators (collectively, the “Releasees”), of and
from any and all claims, charges, complaints, actions, causes of action,
liability, damages, costs, attorney fees, expenses of whatever nature, and
demands of any kind (including without limitation those based in tort,
contract, or statue, including without limitation, applicable state civil rights
laws, Title VII of the Civil Rights Act of 1964, the Post-Civil War Rights Act,
the Age Discrimination in Employment Act, 29, USC 621 et seq, the Americans
with Disabilities Act, the Rehabilitation Act of 1973, the Equal Pay Act of
1963, and any regulations under such laws) up to and including the date set
forth below, whether known or unknown, foreseen or unforeseen, asserted or
unasserted.


 


6.2 Without limitation on the foregoing,
Employee hereby accepts the payments set forth herein in full settlement and
satisfaction of all claims, charges, complaints, actions, causes of action, and
demands against Gardenburger or any of the Releasees of every nature and kind
whatsoever, known or unknown, suspected or unsuspected, past, present, or
future on account of or in any way related to or arising from


 


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the employment relationship existing between them or the termination of
that relationship.  Employee agrees that
she is lawfully entitled to no payments, wages, compensation, or benefits from
Gardenburger except as set forth in this Agreement and the Memo, and except for
any amounts to which she is entitled under the terms of Gardenburger’s 401(k)
plan and under the stock option agreements entered into between Gardenburger
and Employee.


 


6.3 Employee represents that she has no
claims against or relating to Gardenburger pending or filed with any local,
state, or federal agency as of the date this Agreement is signed; and that if
any such claims are pending or filed, they will be immediately withdrawn or
dismissed.  Employee agrees that she
will not assert any court action, lawsuit, or any to her claims against
Gardenburger or any other Releases arising out of or in connection with any of
the foregoing released claims, including without limitation any action,
lawsuit, or claim arising out of or in connection with the employment
relationship existing between Gardenburger and Employee or the termination of
that relationship other than one based upon an alleged violation of this
Agreement.


 


6.4 Gardenburger hereby releases and forever discharges Employee and
her heirs, successors, beneficiaries, agents, and attorneys, and their
respective successors, assigns, executors, and administrators, of and from any
and all charges, complaints, actions, causes of action, liability, damages,
costs, attorney fees, expenses of whatever nature, and demands of any kind
(including without limitation those based in tort, contract, or statute)
arising from or based on claims of which any current member of Gardenburger’s
Board of Directors has actual knowledge as of the date of this Agreement.


 


6.5  Indemnification. The Company hereby agrees to hold
harmless and indemnify Employee and the estate or personal representative of
Employee from and against all liability and expenses actually and necessarily
incurred by Employee in any threatened, pending, or completed actions, suits,
or proceedings, whether civil, criminal, administrative, or investigative,
involving Employee by reason of the fact that he or she is or was an officer or
agent of the Company in the broadest and maximum extent permitted by Oregon
law.


 


7.  No Admission of
Liability.  Nothing in
this Agreement shall operate or be interpreted as an admission of liability as
to any of the claims, charges, actions, or lawsuits released hereby.


 


8. Employee Given 21 days to Consider Agreement.  Gardenburger hereby advises Employee in
writing to consult with an attorney before signing this Agreement and that she
has a period of at least 21 days to consider whether to execute this
Agreement.  For purposes of this 21-day
waiting period, Employee acknowledges that a form of this Agreement was
delivered to her on September 24, 2003. Employee understands that she may
accept this agreement at any time during the 21-day waiting period by signing
and delivering it to Gardenburger.


 


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9. Revocation.  After signing the Agreement and delivering it to Peggy Noteboom,
Employee may revoke this Agreement by written notice, delivered to Mrs.
Noteboom, within seven days following her date of signature as set forth on
page 5 of this Agreement.  This
Agreement becomes effective and enforceable after the seven-day period has expired,
without revocation.


 


10.
Confidentiality. 
Employee agrees that she will not disclose, disseminate, or publicize,
or cause or permit to be disclosed, disseminated, or publicized any of the
terms of this Agreement, subject only to the following exceptions only.  Employee may disclose the terms of this
Agreement (i) to the extent necessary to represent Gardenburger’s interests in
claims or litigation where Gardenburger authorizes disclosure; (ii) to tax
advisers and taxing authorities to the extent necessary to report income to
appropriate taxing authorities, provided any non-government person to whom the
information is disclosed shall also be bound by this confidentiality provision;
(iii) in response to an order or subpoena of a court or governmental agency of
competent jurisdiction, provided, however, that notice of receipt of such order
or subpoena shall be immediately communicated to Gardenburger telephonically
and in writing, so that Gardenburger shall have an opportunity to intervene and
assert what rights it has to nondisclosure prior to Employee’s response to such
order or subpoena; (iv) to the extent necessary to enforce this Agreement
according to its terms; (v) to the extent necessary to comply with legal
obligations; and (vi) to her spouse, if any, (vii) to any attorney of record; and/or
(viii) to a confidential, personal Human Resource consultant for purposes of
reviewing the draft Agreement.


 


11. 
Non-Disparagement. 
Employee agrees to not make any derogatory remarks of any nature
whatsoever at any time about Gardenburger, its past or present employees or its
products either, publicly or privately, unless required by law, during or after
her employment with Gardenburger. 
Gardenburger agrees to not make any derogatory remarks of any nature whatsoever
at any time about Employee either publicly or privately, unless required by law
during or after Employee’s employment with Gardenburger.


 


12.  Employee
Proprietary Rights and Confidentiality Agreement; Employee Non-Competition
Agreement.  Employee
acknowledges and reaffirms her obligations under the Employee Proprietary
Rights and Confidentiality Agreement and the Employee Non-Competition Agreement
executed by her in conjunction with her employment at Gardenburger.  The terms of
such Employee Proprietary Rights and Confidentiality Agreement and
Non-Competition Agreement are hereby incorporated herein and made a part of
this Agreement.  Employee agrees to
strictly comply with the terms of such Agreements.


 


13.  Return of
Property.  Employee
agrees to and hereby represents that she has returned to Gardenburger all of
Gardenburger’s property in her possession or under her control except to the
extent that property is required for the ongoing performance of her job duties,
and agrees that upon termination she will immediately return all Gardenburger 


 


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property with the exception of one laptop computer which she will be
entitled to keep as her personal property.


 


14.  Non-disclosure to
Public or Media.  Employee
agrees that for the duration of her employment and the twelve (12) months
following the Termination Date she will not discuss Gardenburger, its business
plans or operations, or its personnel with any members of the Public or
representatives of the print or broadcast or electronic media.


 


15.  Right to
Rescind.  If employee
should violate any of provisions of this Agreement governing confidentiality,
disparagement, return of property, or non-disclosure to media, Employee
acknowledges that Gardenburger shall not have received the benefit of the
bargain and that it may at its sole option elect to rescind and declare this
Agreement void.  Should Gardenburger
make such an election and declare this Agreement void, Employee shall not be
entitled to any further severance payments under this Agreement and shall
immediately upon demand repay to Gardenburger the sum of all monies paid to her
and the value of benefits paid on her behalf under to this agreement.


 


16.  Waiver.  No waiver of any provision of this Agreement
shall be deemed, or shall constitute, a waiver of any other provisions, whether
or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed
in writing by the party making the waiver.


 


17. 
Amendment.  No supplement, modification or amendment of
this Agreement shall be valid, unless the same is in writing and signed by all
parties hereto.


 


18. 
Severability.  In the event any provision or portion of
this Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the remainder of this Agreement shall remain in full force and
effect and shall in no way be affected or invalidated thereby.


 


19. 
Arbitration.  Any dispute between the parties, including,
without limitations, any dispute concerning or arising under this Agreement,
shall be settled by binding arbitration using the Arbitration Service of
Portland, Inc., and the rules and procedures thereof.  The arbitration shall be conducted in Portland, Oregon, before a
single arbitrator.  A party
substantially prevailing in the arbitration shall also be entitled to recover
such amount for its costs and reasonable attorneys fees incurred in connection
with the arbitration as shall be determined by the arbitrator.  Judgement upon the arbitration award may be
entered in any court having jurisdiction. 
Nothing herein, however, shall prevent either party from resorting to a
court of competent jurisdiction in those instances where injunctive relief may
be appropriate.  In the event of such
litigation in the courts, the prevailing party shall be entitled to recover its
reasonable attorney fees and other costs incurred in connection with that
action or proceeding, including such costs and attorney fees incurred in
connection with any appeal or petition for review.


 


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20.  Knowing and Voluntary Agreement; No Pressure or Coercion.  Employee acknowledges and agrees that the
only consideration for this Agreement is the consideration expressly described
herein, that she has carefully read the entire Agreement, that she has had the
opportunity to review this Agreement and to have it reviewed and explained to
her by an attorney and financial counsel of her choosing, that she fully
understands it’s final and binding effect, and that she is signing this
Agreement voluntarily, with the full intent of releasing Gardenburger from all
claims, without any undue pressure or coercion from Gardenburger.


 


 


	
   

  	
  GARDENBURGER, INC.

  
	
   

  	
   

  
	
  Signed:

  	
  /s/LORRAINE CRAWFORD

  	
   

  	
  By:

  	
  /s/SCOTT C. WALLACE

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: Chairman, President and CEO

  
	
   

  	
   

  
	
  Date:   October 2, 2003

  	
  Date:   October 2, 2003

  
						



 


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