Prepared by MERRILL CORPORATION









 




Exhibit 10.45




 




SEVERANCE

AGREEMENT




(Amended

and Restated August 14, 2001)




 




This Severance Agreement originally effective

as of _______ is hereby amended and restated in its entirety effective

_______________, is made by and between FRESH CHOICE, INC. (“Fresh Choice” or

the “Company”) and _____________________ (“the Employee”).




 




RECITALS




A.            The Employee presently serves as ________________________

of the Company and performs significant strategic and management

responsibilities necessary to the continued conduct of the Company’s business

and operations.




B.            The Board of Directors (the “Board”) has determined that

it is in the best interests of the Company and its stockholders to assure that

the Company will have the continued dedication and objectivity of the Employee,

notwithstanding the possibility or occurrence of an Involuntary Termination.




C.            The Company recognizes the possibility of a Transfer of

Control or Hostile Takeover exists.  The

Company also recognizes that economic events beyond its control may affect its

business and operations.  The Company

realizes that the Employee possesses an intimate knowledge of the Company and

its Board believes that it is necessary to be able to retain the Employee as

well as call on the Employee for advice upon the occurrence of a Transfer of

Control or Hostile Takeover.  The Board

also believes that the existence of this Agreement will enhance the Company’s

ability to call on and rely upon the Employee.




D.            The Board believes that it is imperative to provide the

Employee with certain severance benefits upon the Employee’s Involuntary

Termination, termination for Good Reason or Involuntary Termination of

employment following a Transfer of Control or upon consummation of a Hostile

Takeover that will provide the Employee with enhanced financial security and

provide sufficient incentive and encouragement to the Employee to remain with

the Company.




In consideration of and

inducement for the Employee’s continued employment with the Company, the

Company and the Employee agree to the following:




I.              Definitions.




A.            Cause. 

“Cause” shall mean any of the following: (i) the Employee’s theft,

dishonesty, or falsification of any Company documents or records; (ii) the

Employee’s improper use or disclosure of the Company’s confidential or proprietary

information; (iii) any action by the Employee which has a detrimental

effect on the Company’s reputation or business; (iv) the Employee’s

failure or inability to perform any reasonable assigned duties after written

notice from the Company of, and a reasonable opportunity to cure, such failure

or inability; (v) any material breach by the Employee of any employment

agreement between the Employee and the Company, which breach is not cured

pursuant to the terms of such agreement; or (vi) the Employee’s conviction

(including any plea of guilty or nolo contendere) of any criminal act which

impairs the Employee’s ability to perform his or her duties with the Company.





B.            Compensation. 

Compensation shall mean the Employee’s final base salary.




C.            Good Reason. 

“Good Reason” shall

mean any one or more of the following:




(i)            without the Employee’s express written consent, the

assignment to the Employee of any duties, or any limitation of the Employee’s

responsibilities, substantially inconsistent with the Employee’s positions,

duties, responsibilities and status with the Company immediately prior to the

date of the Transfer of Control;




(ii)           without the Employee’s express written consent, the

relocation of the principal place of the Employee’s employment to a location

that is more than fifty (50) miles from the Employee’s principal place of

employment immediately prior to the date of the Transfer of Control, or the

imposition of travel requirements substantially more demanding of the Employee

than such travel requirements existing immediately prior to the date of the

Transfer of Control;




(iii)          any failure by the Company to pay, or any reduction by the

Company of, (1) the Employee’s base salary in effect immediately prior to

the date of the Transfer of Control (unless reductions comparable in amount and

duration are concurrently made for all other employees of the Company with

responsibilities, organizational level and title comparable to the Employee’s),

or (2) the Employee’s bonus compensation, if any, in effect immediately

prior to the date of the Transfer of Control (subject to applicable performance

requirements with respect to the actual amount of bonus compensation earned by

the Employee); or




(iv)          any failure by the Company to (1) continue to provide

the Employee with the opportunity to participate, on terms no less favorable

than those in effect for the benefit of any employee or service provider group

which customarily includes a person holding the employment or service provider

position or a comparable position with the Company then held by the Employee,

in any benefit or compensation plans and programs, including, but not limited

to, the Company’s life, disability, health, dental, medical, savings, profit

sharing, stock purchase and retirement plans, if any, in which the Employee was

participating immediately prior to the date of the Transfer of Control, or

their equivalent, or (2) provide the Employee with all other fringe

benefits (or their equivalent) from time to time in effect for the benefit of

any employee or service provider group which customarily includes a person

holding the employment or service provider position or a comparable position

with the Company then held by the Employee.




D.            Hostile Takeover. 

A “Hostile Takeover” shall mean the occurrence of the following:





(i)            during any period of two (2) consecutive years beginning

on or after the date hereof, the persons who were members of the Board

immediately before the beginning of such period (the “Incumbent Directors”)

cease (for any reason other than death) to constitute at least a majority of

the Board or the board of directors of any successor to the Company, provided

that, any director who was not a director as of the date hereof shall be deemed

to be an Incumbent Director if such director was elected to the Board by, or on

the recommendation of or with the approval of, at least two-thirds of the

directors who then qualified as Incumbent Directors either actually or by prior

operation of the foregoing unless such election, recommendation or approval

occurs as a result of an actual or threatened election contest or other actual

or threatened solicitation of proxies or contests by or on behalf of a person

other than a member of the Board; or




(ii)           any person (as defined in Section 3(a)(9) of the Exchange

Act and as used in Sections 13(d) and 14(d) thereof), excluding the

Company, any subsidiary of the Company and any employee benefit plan sponsored

or maintained by the Company or any subsidiary of the Company (including any

trustee of any such plan acting in his capacity as trustee), becomes the

“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of

securities of the Company representing thirty percent (30%) of the total

combined voting power of the Company’s then outstanding securities other than

pursuant to a transaction approved by at least two-thirds of the directors who

then qualify as Incumbent Directors.




E.             Involuntary Termination.  “Involuntary Termination” shall mean

(i) a layoff of the Employee that is approved by the President and/or

Chairman, or (ii) a termination without Cause.




F.             Ownership Change.  An “Ownership Change” shall be deemed to have occurred in the

event any of the following occurs with respect to the Company:




(i)            the direct or indirect sale or exchange by the

shareholders of the Company of all or substantially all of the stock of the

Company;




(ii)           a merger in which the Company is a party; or




(iii)          the sale, exchange, or transfer (including, without

limitation, pursuant to a liquidation or dissolution) of all or substantially

all of the Company’s assets (other than a sale, exchange, or transfer to one

(1) or more corporations where the shareholders of the Company before such

sale, exchange, or transfer retain, directly or indirectly, at least a majority

of the beneficial interest in the voting stock of the corporation(s) to which

the assets were transferred).




G.            Severance Pay. 

Severance Pay shall mean Compensation paid to the Employee during the

Severance Period.  Severance Pay shall

be payable in equal bi-weekly installments, less applicable state and federal

taxes, through payroll. If the Employee’s Separation Date does not coincide

with the end of a payroll period, then the first and last installment may be

prorated to reflect the partial pay period.




H.            Separation Date. 

Separation Date shall mean the Employee’s last day of active employment

with the Company.





I.              Severance Period.  Severance Period shall mean the period commencing on the

Employee’s Separation Date and ending twelve (12) months thereafter.




J.             Transfer of Control.  A “Transfer of Control” shall mean an Ownership Change in which

the shareholders of the Company before such Ownership Change do not retain,

directly or indirectly, at least a majority of the beneficial interest in the

voting stock of the Company.




II.            Severance Benefits Upon an Involuntary Termination.




A.            Severance Pay. 

If the Employee’s employment is Involuntarily Terminated by the Company,

and if the Employee signs a general release of known and unknown claims in form

satisfactory to the Company, the Company shall pay Severance Pay to the

Employee for the Severance Period.




B.            Medical and Dental Insurance Benefits.  Medical and dental insurance benefits will

end the last day of the month in which the Separation Date occurs.  Should the Employee be eligible for and

properly and timely elect COBRA coverage for medical and/or dental benefits,

the Company will pay a portion of the COBRA premiums equal to the dollar amount

the Company paid toward the Employee’s medical and/or dental benefits as of the

Separation Date.  The Employee shall pay

the remaining COBRA premium (i.e., the total COBRA premium less the Company

contribution), including any subsequent COBRA premium increases.  The Company’s obligation to contribute

towards the COBRA premiums shall cease upon the earlier of (i) the applicable

Severance Period; (ii) the actual COBRA continuation period; or (iii) the

Employee’s failure to timely remit any COBRA premium or contributions toward

such premiums.




C.            No Severance Benefits Upon Voluntary or Other

Terminations.  Employee acknowledges

that Severance Pay pursuant to this Article I shall only be payable upon an

Involuntary Termination.  The Employee

shall not be eligible for Severance Pay for any other separation of employment,

including but not limited to termination for Cause, voluntary resignations, or

mutually agreeable separations.




III.           Severance Benefits Upon Termination Following a

Transfer of Control.  If, within

twelve (12) months following a Transfer of Control, the Employee’s Employment

is Involuntarily Terminated or the Employee resigns for Good Reason, the

Employee shall be entitled to receive the Severance Pay and medical and dental

insurance benefits as set forth in Article II.A and Article II.B.




IV.           Severance Benefits Upon Consummation of Hostile

Takeover.  Upon the consummation of

a Hostile Takeover, the Employee shall be entitled to receive Severance Pay and

medical and dental insurance benefits as set forth in Article II.A and Article

II.B.




V.            Option Acceleration upon Transfer of Control or

Hostile Takeover.  In accordance

with the second Amended and Restated 1988 Stock Option Plan and the related

Incentive Stock Option Agreement and/or Nonqualified Stock Option Agreement

between the Company and the Employee, the Employee’s Options (as such term is

defined therein) shall become fully vested and exercisable upon (i) an

Involuntary Termination or resignation for Good Reason within twelve (12)

months following a Transfer of Control or (ii) upon the consummation of a

Hostile Takeover.





VI.           Limitation of Payments and Benefits.  To the extent that any of the payments and

benefits provided for in this Agreement or otherwise payable to Employee

constitute “parachute payments” within the meaning of Section 280G of the

Internal Revenue Code of 1986, as amended (the “Code”), and, but for this

Article VI, would be subject to the excise tax imposed by Section 4999 of

the Code or any similar or successor provision, the aggregate amount of such

payments and benefits will be reduced, but only to the extent necessary so that

none of such payments and benefits are subject to any excise tax.




VII.          Miscellaneous Provisions.




A.            It is intended by the parties hereto that the provisions

of this Agreement, as amended, shall become effective as of the date of

approval by the Board’s Compensation Committee.




B.            During the Severance Period, it is understood by the

Company and the Employee that the Employee shall not be considered an employee

of the Company and, therefore, shall not be eligible for any other employer-provided

benefits including but not limited to vacation accrual, sick days, disability

benefits, or any other benefit program in which active employees of the Company

may participate.




C.            The execution of this Severance Agreement does not

constitute an employment contract between the Company and the Employee or an

agreement by the Company to continue to employ the Employee.  By signing this Severance Agreement, the

Employee acknowledges that his employment with the Company is and continues to

be “at-will”, and that such employment may be terminated at any time with or

without cause.




D.            Subject to the benefits set forth above, the Employee

shall be entitled to no further compensation for any damage or injury arising

out of the termination of the Employee’s employment by the Company.




E.             In the event of any dispute, claim or controversy

arising out of or in any way related to this Agreement, the interpretation of

this Agreement or the alleged breach thereof, such dispute, claim or

controversy shall be submitted by the parties to binding arbitration provided

by the American Arbitration Association in Santa Clara County, California.




F.             This Agreement constitutes the entire agreement between

the Company and the Employee regarding Severance Pay and other benefits that

are the subject matter hereof, and supersedes all agreements prior to the

effective date of this Agreement, whether written or oral.  Fresh Choice reserves the right to amend or

terminate this Agreement in whole or in part upon written notification to the

Employee.




G.            This Agreement shall be governed by and construed in

accordance with the laws of the State of California applicable to contracts

made and to be performed herein.




H.            This Agreement shall be binding on the Company’s

successors.





I.              Amounts paid to the Employee shall be subject to all

applicable federal, state and local withholding taxes.




J.             All payments provided under this Agreement, other than

payments made pursuant to a plan which provides otherwise, shall be paid in

cash from the general funds of the Company.




IN WITNESS WHEREOF, the

Company and Employee have executed this Agreement on _______________ effective

as of the day and year first above written. 

This Agreement may be executed in counter parts, each of which shall be

deemed to be an original but all of which shall constitute one and the same

instrument.




 




	

  “FRESH CHOICE”


  	

   


  	

  “EMPLOYEE”


  
	

   


  	

   


  	

   


  	

   


  
	

  FRESH CHOICE, INC.,


  	

   


  	

   


  
	

  a Delaware Corporation


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By: