# **EXHIBIT 10.49**

 

**EMPLOYMENTAGREEMENT**

 

THIS AGREEMENT is entered into as of November 12,2003, by and between **GARDENBURGER, INC.,** an Oregon corporation(“the Company”) and Robert T. Trebing Jr. (“Executive”).

 

In consideration of the mutual covenants and the otherterms and conditions set forth in this Agreement, the parties agree as follows:

 

**1.****                                      EMPLOYMENT;POSITION**

 

The Company agrees to employ Executive and Executiveagrees to serve as Senior Vice President and Chief Financial Officer of theCompany.  Executive also agrees to serveas Secretary and Treasurer and, if elected, without separate compensation, as adirector of the Company or any subsidiary or affiliate of the Company.

 

**2.****                                      DUTIES**

 

As Senior Vice President and Chief Financial Officerof the Company, Executive will have such powers and duties appropriate to thatoffice (a) as may be provided by the articles and/or bylaws of the Companyand (b) as determined by the Board of Directors of the Company from timeto time.  Executive will at all timesdischarge his duties in consultation with and under the supervision anddirection of the Chief Executive Officer (“CEO”) of the Company.  Subject to the provisions of this Agreement,Executive’s duties may be changed from time to time, and Executive’s place ofwork may be relocated at the sole discretion of the Board of Directors of theCompany.

 

**3.****                                      OUTSIDEACTIVITIES**

 

During his employment by the Company under thisAgreement, Executive will devote all of his business time, attention, skill,and efforts to the faithful performance of his duties under thisAgreement.  Executive will obtain theconsent of the CEO of the Company before he engages in any other professionalor business activities that may require an appreciable portion of Executive’stime or effort to the detriment of the Company’s business.

 

**4.****                                      COMPENSATIONAND FRINGE BENEFITS**

 

**4.1          Base Salary.**  As compensation for services under thisAgreement, the Company will pay to Executive an annual salary of $200,000(“Base Salary”).  Executive’s BaseSalary will be payable in accordance with the usual payroll practices of theCompany.  During Executive’s employmentunder this Agreement, Executive’s Base Salary will be reviewed at leastannually by the CEO, and the Board of Directors of the Company may in its solediscretion adjust Executive’s Base Salary from time to time. 

 

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**4.2          Performance Bonus.**  Executive will be eligible to receive anannual performance bonus based on achieving strategic and financial goals to bedetermined for each year by the compensation committee of the Company’s Boardof Directors; provided, however, that for the 2004 fiscal year, such goals willbe determined jointly (and agreed upon in writing) by Executive and the CEO.  The target annual performance bonus forExecutive will be 40 percent of Base Salary.

 

**4.3          Benefit Plans.**  Executive will be entitled to receive orparticipate in all such other benefits, including without limitation pensionplans, stock option plans, and health and welfare plans, as may from time totime be made available to other senior management employees of the Company.

 

**4.4          Vacation.**  Executive will be entitled to three weeksannual paid vacation.

 

**4.5          Sale Bonus**

 

**(a)**           After the completion of a “SaleTransaction,” as defined below, the Company will pay Executive a “Sale Bonus,”as described below, provided Executive remains as Senior Vice President andChief Financial Officer of the Company during the negotiation of and throughthe closing of the Sale Transaction.  TheSale Bonus will be payable to Executive after all post-closing adjustments inconnection with the Sale Transaction have been determined.

 

**(b)**           For purposes of this paragraph 4.5:

 

**(i)**            A “Sale Transaction” means a singletransaction or a series of related transactions approved by the Board ofDirectors of the Company resulting in:

 

•              Asale or other disposition by the Company of all or substantially all itsassets; 

 

•              Asale, stock exchange, or other disposition of all or substantially all thecapital stock of the Company;

 

•              Amerger, consolidation, or other corporate transaction with a third party inwhich the Company’s shareholders receive cash, stock, securities, or any otherconsideration (or any combination of the foregoing) in exchange for their stockin the Company.

 

**(i)            The “SaleBonus” is an amount equal to the sum of 0.25 percent of the portion of the“Total Consideration” (as defined below) and**

 

**(ii)           The“Total Consideration” in connection with a Sale Transaction means:**

 

•              Theamount of cash and the aggregate market value of all other considerationreceived by the Company in connection with a sale or other disposition of itsassets (exclusive of any indebtedness or liabilities 

 

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of the Company to whichthe assets taken are subject or which are assumed by the purchaser or otheracquirer of the Company’s assets); or 

 

•              Theaggregate amount of cash and the aggregate market value of all otherconsideration received by the Company’s shareholders in any sale, shareexchange, or other disposition of the Company’s stock or any merger,consolidation, or similar transaction.

 

**4.6          Withholding and Payroll Taxes.**  All amounts payable by the Company toExecutive pursuant to this Agreement, including without limitation all cashcompensation, any Sale Bonus, and any settlement of stock options, are subjectto and will be reduced by amounts the Company is required to withhold for allapplicable federal, state, and local income and payroll taxes.

 

**5.****                                      EXPENSES**

 

The Company will reimburse Executive for allreasonable and necessary expenses incurred by Executive in carrying out hisduties under this Agreement.  Executivewill present to the Company from time to time an itemized account of suchexpenses in such form as may be required by the Company.

 

**6.****                                      PAYMENTSTO EXECUTIVE UPON AN EVENT OF TERMINATION**

 

**6.1          Severance Payment.**  Upon involuntary termination by the Companyof Executive’s employment (other than for “Cause,” or in connection withExecutive’s death or “Disability,” as those terms are defined below), theCompany will pay Executive his Base Salary through the date of termination andwill pay Executive severance pay equal to one year’s Base Salary (payable overa 12-month period in accordance with the Company’s normal payrollpractices).  Executive agrees, as acondition to payment and receipt of such severance pay, to execute a full andcomplete release, in form and substance satisfactory to the Company, of any andall claims of every kind and nature whatsoever against the Company.

 

**6.2          Definitions.**  For purposes of this Section 6:

 

**(a)**           “Cause” for termination ofExecutive’s employment means (i) any fraud or dishonesty by Executiveinvolving the Company; (ii) willful misconduct or gross negligence byExecutive in connection with Executive’s performance of his duties for theCompany; (iii) Executive’s conviction for having committed a felony;(iv) the commission by Executive of any act in direct competition with ormaterially detrimental to the best interests of the Company; or(v) willful and continued failure by Executive to substantially performhis duties provided herein after a written demand for substantial performanceis delivered to Executive by the CEO of the Company, which demand identifieswith reasonable specificity the manner in which Executive has not substantiallyperformed his duties.

 

**(b)**           “Disability” has the meaning in theCompany’s then current disability plan or program or, if no such plan orprogram is then in effect, Disability means the condition of being permanentlyunable to perform Executive’s duties for the Company by reason of a 

 

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medically determinable physical or mental impairment that can beexpected to result in death or that has lasted or can be reasonably expected tolast for a continuous period of at least 12 months.

 

**6.3          Nature of Employment Status.**  Notwithstanding the provisions of thisAgreement, including this Section 6, Executive will be an “at will”employee of the Company.  The provisionsof this Section 6 specify Executive’s contractual rights in the event oftermination, but are not intended to limit the Company’s right and power toterminate Executive’s employment at any time and for any reason (or for noreason).

 

**7.****                                      MATERIALSPREPARED AND INVENTIONS MADE DURING EMPLOYMENT**

 

The Company shall be the exclusive owner of allmaterials, concepts, and inventions Executive prepares, develops, or makes(whether alone or jointly with others) within the scope of his employment, and ofall related rights (including copyrights, trademarks, and patents) andproceeds.  Without limitation,materials, concepts, and inventions that (a) relate to the Company’sbusiness or actual or demonstrably anticipated research or development, or(b) result from any work performed by Executive for the Company, shall beconsidered within the scope of Executive’s employment.  Executive shall promptly disclose all suchmaterials, concepts, and inventions to the Company.  Executive shall take all action reasonably requested by theCompany to vest ownership of such materials, consents, and inventions in theCompany and to permit the Company to obtain copyright, trademark, patent, orsimilar protection in its name.

 

**8.****                                      CONFIDENTIALINFORMATION**

 

**8.1          Defined.**  “Confidential Information” is all nonpublicinformation relating to the Company or its business that is disclosed toExecutive, that Executive produces, or that Executive otherwise obtains duringemployment.  “Confidential Information”also includes information received from third parties that the Company hasagreed to treat as confidential. Examples of Confidential Information are:

 

**(a)**           Marketing plans.

 

**(b)**           Customer lists.

 

**(c)**           Product design and manufacturinginformation.

 

**(d)**           Financial information.

 

“Confidential Information” does not includeinformation which (a) is or becomes generally available to the publicother than as a result of a disclosure by Executive; (b) becomes availableto Executive on a nonconfidential basis from a source other than the Company orits representatives, provided that such source is not known by Executive to bebound by a confidentiality agreement with the Company or its representatives orotherwise prohibited from transmitting the information to Executive by acontractual, legal, or fiduciary obligation; (c) can be demonstrated bywritten evidence or other convincing evidence to have been known by Executiveon a nonconfidential basis prior to its disclosure to Executive by the Companyor one 

 

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of its representatives; or (d) can be demonstrated by written orother convincing evidence to have been developed by Executive in good faith andindependent of Confidential Information.

 

**8.2          Access to Information.**  Executive acknowledges that in the course ofhis employment he will have access to Confidential Information, that suchinformation is a valuable asset of the Company, and that its disclosure orunauthorized use will cause the Company substantial harm.

 

**8.3          Ownership.**  Executive acknowledges that all ConfidentialInformation shall continue to be the exclusive property of the Company (or thethird party that disclosed it to the Company), whether or not prepared in wholeor in part by Executive and whether or not disclosed to Executive or entrustedto his custody in connection with his employment by the Company.

 

**8.4          Nondisclosure and Nonuse.**  Unless authorized or instructed in writingby the Company, or required by legally constituted authority, Executive willnot, except as required in the course of the Company’s business, during orafter his employment, disclose to others or use any Confidential Information,unless and until, and then only to the extent that, such items become availableto the public through no fault of Executive.

 

**8.5          Return of Confidential Information.**  Upon request by the Company during or afterhis employment, and without request upon termination of employment pursuant tothis Agreement, Executive will deliver immediately to the Company all writtenor tangible materials containing Confidential Information without retaining anyexcerpts or copies.

 

**8.6          Duration.**  The obligations set forth in thisSection 8 will continue beyond the term of employment of Executive by theCompany and for so long as Executive possesses Confidential Information.

 

**9.****                                      NONCOMPETITION**

 

**9.1          Covenants.**  Executive covenants, in consideration of hisinitial employment by the Company, that the Executive will not, throughout theUnited States or in any other country in which the Company sells its productsor services, either individually or as a director, officer, partner, employee,agent, representative, or consultant with any business, directly or indirectlyduring the term of employment and for two years thereafter:

 

**(a)**           Engage or prepare to engage in anybusiness that sells products or services competing with those sold by theCompany as of the date of Executive’s termination of employment with theCompany;

 

**(b)**           Induce or attempt to induce anyperson who is an employee of the Company to leave the employ of the Company; or

 

**(c)**           Solicit, divert, or accept orders forproducts or services that are substantially competitive with the products orservices sold by the Company from any customer of the Company, or suggest,request, or encourage any suppliers or customers of the Company to 

 

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curtail, reduce, or cancel their business done with the Company, orotherwise solicit for himself or any other person or entity any business of theCompany.

 

**9.2          Severability.**  While Executive acknowledges that therestrictions contained herein are reasonable, if any term or condition of thisSection 9 is determined to be unenforceable because of its scope,duration, geographical area or similar factor, the court or arbitrator makingsuch determination will have the power to reduce or limit such scope, duration,area, or other factor, and such covenant will then be enforceable in itsreduced or limited form.

 

**10.          GENERALTERMS AND CONDITIONS**

 

**10.1        Effect on Prior Agreements.**  This Agreement contains the entireunderstanding between the parties concerning the subject matter of thisAgreement and supersedes any prior agreements (express or implied, oral orwritten) concerning the subject matter of this Agreement.

 

**10.2        Successors and Assigns.**  This Agreement will inure to the benefit ofany successors or assigns of the Company.

 

**10.3        Modification and Waiver.**

 

**(a)**           This Agreement may be modified oramended only by a written instrument signed by both parties.

 

**(b)**           No term or condition of thisAgreement will be deemed to have been waived, nor will there be any estoppelagainst the enforcement of any provision of this Agreement, except by a writteninstrument signed by the party charged with such waiver or estoppel.  No such written waiver will be deemed acontinuing waiver unless specifically stated therein, and each such waiver willoperate only as to the specific term or condition waived and will notconstitute a waiver of such term or condition for the future as to any act otherthan that specifically waived.

 

**10.4        Severability.**  If, for any reason, any provision of thisAgreement, or any part of any provision, is held invalid, such invalidity willnot affect any other provision of this Agreement or any part of such provisionnot held so invalid, and each such other provision and part thereof will to thefull extent consistent with law continue in full force and effect.

 

**10.5        Headings for Reference Only.**  The headings of sections herein are includedsolely for convenience of reference and will not control the meaning orinterpretation of any of the provisions of this Agreement.

 

**10.6        Governing Law.**  This Agreement will be governed by the lawsof the state of California.

 

**10.7        Arbitration**

 

**(a)**           All claims, disputes, or controversies,except for those excluded by Section 10.7(b), whether or not arising outof Executive’s employment (or its termination), that the Company may haveagainst the Executive or that Executive may have against the Company 

 

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or against its officers, directors, employees or agents, in theircapacity as such or otherwise, shall be resolved by mandatory arbitration inaccordance with the then effective arbitration rules of American ArbitrationAssociation, whichever organization is selected by the party that firstinitiates arbitration by filing a claim in accordance with the filing rules ofthe organization selected, and any judgment upon the award rendered pursuant tosuch arbitration may be entered in any court having jurisdiction thereof.  Unless otherwise agreed, arbitration shallbe conducted in Orange County, California, before a single arbitrator.

 

**(b)**           Claims arising out of Sections 8and 9 of this Agreement or relating to workers’ compensation or unemploymentcompensation benefits are excluded from mandatory arbitration underSection 10.7(a).  Such excludedclaims may include but are not limited to claims by the Company for injunctiveand/or other equitable relief for unfair competition and/or the use and/orunauthorized disclosure of trade secrets or Confidential Information, as towhich Executive understands and agrees that the Company may seek and obtainrelief from a court of competent jurisdiction.

 

**10.8        Attorney Fees.**  In the event of any suit or action orarbitration proceeding to enforce or interpret any provision of this Agreement(or which is based on this Agreement), the prevailing party will be entitled torecover, in addition to other costs, the reasonable attorney fees incurred bythe prevailing party in connection with such suit, action, or arbitration, andin any appeal therefrom.  Thedetermination of who is the prevailing party and the amount of reasonableattorney fees to be paid to the prevailing party will be decided by thearbitrator or arbitrators (with respect to attorney fees incurred prior to andduring the arbitration proceedings) and by the court or courts, including anyappellate courts, in which the matter is tried, heard, or decided, includingthe court which hears any exceptions made to an arbitration award submitted toit for confirmation as a judgment (with respect to attorney fees incurred insuch confirmation proceedings).

 

**10.9        Initial Employment.**  Executive acknowledges that he signed thisagreement upon his initial employment with the Company.

 

The parties have executed this Employment Agreement asof the date stated above.

 

 
|   |                      |   | **GARDENBURGER, INC.** |
|--------|---------------------------|--------|------------------------|
|   |                      |   |                   |
|   |                      |   |                   |
| By:    | /s/ROBERT T. TREBING, JR. |   | By:                    | /s/SCOTT C. WALLACE |   |
|   | Robert T. Trebing Jr.     |   |                   | Scott C. Wallace |
|   |                      |   |                   | Chair of the Board of Directors |

 

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