**EXHIBIT10.48**

 

**AGREEMENTAND 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 andbetween GARDENBURGER, INC., an Oregon corporation (“Gardenburger”), formerlyknown as Wholesome and Hearty Foods, Inc., and Lorraine Crawford (“Employee”)in order to provide for an orderly transition of the Employee’sresponsibilities in connection with her termination of employment withGardenburger and completely resolve any and all issues that employee might havein connection with her employment with Gardenburger or the termination thereof.

 

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

 

**1. Termination.**

 

**1.1 Termination. **Employeeis currently employed at Gardenburger. Employee’s position is being eliminated and, as a result of theelimination of her position, Employee understands her employment will terminateon 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-weeklypay dates, all wages and other benefits associated with her employment.

 

**2.2 Severance and Additional Severance Pay**.  Gardenburger agrees to pay severanceoutlined in the Memo received from Lyle Hubbard dated May 4, 2000 (the“Memo”)(Attachment A), plus one month’s additional severance pay for each fullmonth worked from the date of this Agreement to the Termination Date, providedthat under no circumstances shall Employee be entitled to more than twelve (12)month’s total severance pay calculated by adding severance due under the Memoplus Additional Severance as here outlined. This Severance and AdditionalSeverance pay shall be paid on a pro-rated basis ($5500.00 per pay period) onGardenburger’s normal bi-weekly pay dates (beginning 2 weeks after termination)until the full amount is paid. No additional severance pay payment will be madeto Employee until Employee executes and delivers this Agreement toGardenburger, the revocation period described in Section 9 of this Agreementhas expired, and Employee executes and delivers to Gardenburger a Release ofall Claims upon her separation from employment. As outlined in the Memo, thelast three (3) months of severance will only be paid if employee has notobtained full time, permanent employment

 

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elsewhere.  Therefore, Employeewill be required to notify the Gardenburger Human Resources department on amonthly basis of her employment status following the completion of nine (9)months severance. Employee agrees that these Additional Severance paymentsrepresent amounts to which she is not otherwise entitled but for thisAgreement.

 

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

 

**3.****Other Agreements.**  Employee and Gardenburger are parties to other agreementsincluding the Memo, which remain in full force and effect except as expresslymodified herein.

 

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

 

**5.Outplacement Assistance. **UponEmployee’s request, Employee will be afforded outplacement assistance through acareer transition services provider of Gardenburger’s selection at a cost notto exceed $5,500.  Employee must beginusing this service within 90 days after the Termination Date in order to beeligible for this benefit.

 

**6.Release of Claims**

 

**6.1** In return for the benefits conferred bythis Agreement, which Employee acknowledges that Gardenburger had no legalobligation to provide, Employee, hereby releases and forever dischargesGardenburger, 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 andfrom any and all claims, charges, complaints, actions, causes of action,liability, damages, costs, attorney fees, expenses of whatever nature, anddemands of any kind (including without limitation those based in tort,contract, or statue, including without limitation, applicable state civil rightslaws, 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 Americanswith Disabilities Act, the Rehabilitation Act of 1973, the Equal Pay Act of1963, and any regulations under such laws) up to and including the date setforth below, whether known or unknown, foreseen or unforeseen, asserted orunasserted.

 

**6.2** Without limitation on the foregoing,Employee hereby accepts the payments set forth herein in full settlement andsatisfaction of all claims, charges, complaints, actions, causes of action, anddemands against Gardenburger or any of the Releasees of every nature and kindwhatsoever, known or unknown, suspected or unsuspected, past, present, orfuture 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 ofthat relationship.  Employee agrees thatshe is lawfully entitled to no payments, wages, compensation, or benefits fromGardenburger except as set forth in this Agreement and the Memo, and except forany amounts to which she is entitled under the terms of Gardenburger’s 401(k)plan and under the stock option agreements entered into between Gardenburgerand Employee.

 

**6.3** Employee represents that she has noclaims 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 ifany such claims are pending or filed, they will be immediately withdrawn ordismissed.  Employee agrees that shewill not assert any court action, lawsuit, or any to her claims againstGardenburger or any other Releases arising out of or in connection with any ofthe foregoing released claims, including without limitation any action,lawsuit, or claim arising out of or in connection with the employmentrelationship existing between Gardenburger and Employee or the termination ofthat relationship other than one based upon an alleged violation of thisAgreement.

 

**6.4** Gardenburger hereby releases and forever discharges Employee andher heirs, successors, beneficiaries, agents, and attorneys, and theirrespective successors, assigns, executors, and administrators, of and from anyand 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’sBoard of Directors has actual knowledge as of the date of this Agreement.

 

**6.5****Indemnification****.**The Company hereby agrees to holdharmless and indemnify Employee and the estate or personal representative ofEmployee from and against all liability and expenses actually and necessarilyincurred 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 oragent of the Company in the broadest and maximum extent permitted by Oregonlaw.

 

**7.  No Admission ofLiability**.  Nothing inthis Agreement shall operate or be interpreted as an admission of liability asto any of the claims, charges, actions, or lawsuits released hereby.

 

**8. Employee Given 21 days to Consider Agreement**.  Gardenburger hereby advises Employee inwriting to consult with an attorney before signing this Agreement and that shehas a period of at least 21 days to consider whether to execute thisAgreement.  For purposes of this 21-daywaiting period, Employee acknowledges that a form of this Agreement wasdelivered to her on September 24, 2003. Employee understands that she mayaccept this agreement at any time during the 21-day waiting period by signingand 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 onpage 5 of this Agreement.  ThisAgreement 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 theterms of this Agreement, subject only to the following exceptions only.  Employee may disclose the terms of thisAgreement (i) to the extent necessary to represent Gardenburger’s interests inclaims or litigation where Gardenburger authorizes disclosure; (ii) to taxadvisers and taxing authorities to the extent necessary to report income toappropriate taxing authorities, provided any non-government person to whom theinformation is disclosed shall also be bound by this confidentiality provision;(iii) in response to an order or subpoena of a court or governmental agency ofcompetent jurisdiction, provided, however, that notice of receipt of such orderor subpoena shall be immediately communicated to Gardenburger telephonicallyand in writing, so that Gardenburger shall have an opportunity to intervene andassert what rights it has to nondisclosure prior to Employee’s response to suchorder or subpoena; (iv) to the extent necessary to enforce this Agreementaccording to its terms; (v) to the extent necessary to comply with legalobligations; 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 ofreviewing the draft Agreement.

 

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

 

**12.  EmployeeProprietary Rights and Confidentiality Agreement; Employee Non-CompetitionAgreement. **Employeeacknowledges and reaffirms her obligations under the Employee ProprietaryRights and Confidentiality Agreement and the Employee Non-Competition Agreementexecuted by her in conjunction with her employment at Gardenburger.  The terms ofsuch Employee Proprietary Rights and Confidentiality Agreement andNon-Competition Agreement are hereby incorporated herein and made a part ofthis Agreement.  Employee agrees tostrictly comply with the terms of such Agreements.

 

**13.  Return ofProperty**.  Employeeagrees to and hereby represents that she has returned to Gardenburger all ofGardenburger’s property in her possession or under her control except to theextent 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 beentitled to keep as her personal property.

 

**14.  Non-disclosure toPublic or Media. **Employeeagrees that for the duration of her employment and the twelve (12) monthsfollowing the Termination Date she will not discuss Gardenburger, its businessplans or operations, or its personnel with any members of the Public orrepresentatives of the print or broadcast or electronic media.

 

**15.  Right toRescind. **If employeeshould violate any of provisions of this Agreement governing confidentiality,disparagement, return of property, or non-disclosure to media, Employeeacknowledges that Gardenburger shall not have received the benefit of thebargain and that it may at its sole option elect to rescind and declare thisAgreement void.  Should Gardenburgermake such an election and declare this Agreement void, Employee shall not beentitled to any further severance payments under this Agreement and shallimmediately upon demand repay to Gardenburger the sum of all monies paid to herand the value of benefits paid on her behalf under to this agreement.

 

**16.  Waiver.**  No waiver of any provision of this Agreementshall be deemed, or shall constitute, a waiver of any other provisions, whetheror not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executedin writing by the party making the waiver.

 

**17.** **Amendment**.  No supplement, modification or amendment ofthis Agreement shall be valid, unless the same is in writing and signed by allparties hereto.

 

**18.** **Severability.**  In the event any provision or portion ofthis Agreement is held to be unenforceable or invalid by any court of competentjurisdiction, the remainder of this Agreement shall remain in full force andeffect 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 ofPortland, Inc., and the rules and procedures thereof.  The arbitration shall be conducted in Portland, Oregon, before asingle arbitrator.  A partysubstantially prevailing in the arbitration shall also be entitled to recoversuch amount for its costs and reasonable attorneys fees incurred in connectionwith the arbitration as shall be determined by the arbitrator.  Judgement upon the arbitration award may beentered in any court having jurisdiction. Nothing herein, however, shall prevent either party from resorting to acourt of competent jurisdiction in those instances where injunctive relief maybe appropriate.  In the event of suchlitigation in the courts, the prevailing party shall be entitled to recover itsreasonable attorney fees and other costs incurred in connection with thataction or proceeding, including such costs and attorney fees incurred inconnection 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 theonly consideration for this Agreement is the consideration expressly describedherein, that she has carefully read the entire Agreement, that she has had theopportunity to review this Agreement and to have it reviewed and explained toher by an attorney and financial counsel of her choosing, that she fullyunderstands it’s final and binding effect, and that she is signing thisAgreement voluntarily, with the full intent of releasing Gardenburger from allclaims, 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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