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**Exhibit 10.45**

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**SEVERANCEAGREEMENT**

**(Amendedand Restated August 14, 2001)**

 

This Severance Agreement originally effectiveas of _______ is hereby amended and restated in its entirety effective_______________, is made by and between FRESH CHOICE, INC. (“Fresh Choice” orthe “Company”) and _____________________ (“the Employee”).

 

RECITALS

A.            The Employee presently serves as ________________________of the Company and performs significant strategic and managementresponsibilities necessary to the continued conduct of the Company’s businessand operations.

B.            The Board of Directors (the “Board”) has determined thatit is in the best interests of the Company and its stockholders to assure thatthe 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 ofControl or Hostile Takeover exists.  TheCompany also recognizes that economic events beyond its control may affect itsbusiness and operations.  The Companyrealizes that the Employee possesses an intimate knowledge of the Company andits Board believes that it is necessary to be able to retain the Employee aswell as call on the Employee for advice upon the occurrence of a Transfer ofControl or Hostile Takeover.  The Boardalso believes that the existence of this Agreement will enhance the Company’sability to call on and rely upon the Employee.

D.            The Board believes that it is imperative to provide theEmployee with certain severance benefits upon the Employee’s InvoluntaryTermination, termination for Good Reason or Involuntary Termination ofemployment following a Transfer of Control or upon consummation of a HostileTakeover that will provide the Employee with enhanced financial security andprovide sufficient incentive and encouragement to the Employee to remain withthe Company.

In consideration of andinducement for the Employee’s continued employment with the Company, theCompany 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) theEmployee’s improper use or disclosure of the Company’s confidential or proprietaryinformation; (iii) any action by the Employee which has a detrimentaleffect on the Company’s reputation or business; (iv) the Employee’sfailure or inability to perform any reasonable assigned duties after writtennotice from the Company of, and a reasonable opportunity to cure, such failureor inability; (v) any material breach by the Employee of any employmentagreement between the Employee and the Company, which breach is not curedpursuant to the terms of such agreement; or (vi) the Employee’s conviction(including any plea of guilty or nolo contendere) of any criminal act whichimpairs 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***”*** shallmean any one or more of the following:

### (i)            without the Employee’s express written consent, theassignment to the Employee of any duties, or any limitation of the Employee’sresponsibilities, substantially inconsistent with the Employee’s positions,duties, responsibilities and status with the Company immediately prior to thedate of the Transfer of Control;

### (ii)           without the Employee’s express written consent, therelocation of the principal place of the Employee’s employment to a locationthat is more than fifty (50) miles from the Employee’s principal place ofemployment immediately prior to the date of the Transfer of Control, or theimposition of travel requirements substantially more demanding of the Employeethan such travel requirements existing immediately prior to the date of theTransfer of Control;

### (iii)          any failure by the Company to pay, or any reduction by theCompany of, (1) the Employee’s base salary in effect immediately prior tothe date of the Transfer of Control (unless reductions comparable in amount andduration are concurrently made for all other employees of the Company withresponsibilities, organizational level and title comparable to the Employee’s),or (2) the Employee’s bonus compensation, if any, in effect immediatelyprior to the date of the Transfer of Control (subject to applicable performancerequirements with respect to the actual amount of bonus compensation earned bythe Employee); or

### (iv)          any failure by the Company to (1) continue to providethe Employee with the opportunity to participate, on terms no less favorablethan those in effect for the benefit of any employee or service provider groupwhich customarily includes a person holding the employment or service providerposition or a comparable position with the Company then held by the Employee,in any benefit or compensation plans and programs, including, but not limitedto, the Company’s life, disability, health, dental, medical, savings, profitsharing, stock purchase and retirement plans, if any, in which the Employee wasparticipating immediately prior to the date of the Transfer of Control, ortheir equivalent, or (2) provide the Employee with all other fringebenefits (or their equivalent) from time to time in effect for the benefit ofany employee or service provider group which customarily includes a personholding the employment or service provider position or a comparable positionwith 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 beginningon or after the date hereof, the persons who were members of the Boardimmediately before the beginning of such period (the “Incumbent Directors”)cease (for any reason other than death) to constitute at least a majority ofthe Board or the board of directors of any successor to the Company, providedthat, any director who was not a director as of the date hereof shall be deemedto be an Incumbent Director if such director was elected to the Board by, or onthe recommendation of or with the approval of, at least two-thirds of thedirectors who then qualified as Incumbent Directors either actually or by prioroperation of the foregoing unless such election, recommendation or approvaloccurs as a result of an actual or threatened election contest or other actualor threatened solicitation of proxies or contests by or on behalf of a personother than a member of the Board; or

### (ii)           any person (as defined in Section 3(a)(9) of the ExchangeAct and as used in Sections 13(d) and 14(d) thereof), excluding theCompany, any subsidiary of the Company and any employee benefit plan sponsoredor maintained by the Company or any subsidiary of the Company (including anytrustee of any such plan acting in his capacity as trustee), becomes the“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) ofsecurities of the Company representing thirty percent (30%) of the totalcombined voting power of the Company’s then outstanding securities other thanpursuant to a transaction approved by at least two-thirds of the directors whothen qualify as Incumbent Directors.

## E.             Involuntary Termination.  “Involuntary Termination” shall mean(i) a layoff of the Employee that is approved by the President and/orChairman, or (ii) a termination without Cause.

## F.             Ownership Change.  An “Ownership Change” shall be deemed to have occurred in theevent any of the following occurs with respect to the Company:

### (i)            the direct or indirect sale or exchange by theshareholders of the Company of all or substantially all of the stock of theCompany;

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

### (iii)          the sale, exchange, or transfer (including, withoutlimitation, pursuant to a liquidation or dissolution) of all or substantiallyall 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 suchsale, exchange, or transfer retain, directly or indirectly, at least a majorityof the beneficial interest in the voting stock of the corporation(s) to whichthe assets were transferred).

## G.            Severance Pay. Severance Pay shall mean Compensation paid to the Employee during theSeverance Period.  Severance Pay shallbe payable in equal bi-weekly installments, less applicable state and federaltaxes, through payroll. If the Employee’s Separation Date does not coincidewith the end of a payroll period, then the first and last installment may beprorated to reflect the partial pay period.

## H.            Separation Date. Separation Date shall mean the Employee’s last day of active employmentwith the Company.

## I.              Severance Period.  Severance Period shall mean the period commencing on theEmployee’s Separation Date and ending twelve (12) months thereafter.

## J.             Transfer of Control.  A “Transfer of Control” shall mean an Ownership Change in whichthe shareholders of the Company before such Ownership Change do not retain,directly or indirectly, at least a majority of the beneficial interest in thevoting 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 formsatisfactory to the Company, the Company shall pay Severance Pay to theEmployee for the Severance Period.

## B.            Medical and Dental Insurance Benefits.  Medical and dental insurance benefits willend the last day of the month in which the Separation Date occurs.  Should the Employee be eligible for andproperly 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 amountthe Company paid toward the Employee’s medical and/or dental benefits as of theSeparation Date.  The Employee shall paythe remaining COBRA premium (i.e., the total COBRA premium less the Companycontribution), including any subsequent COBRA premium increases.  The Company’s obligation to contributetowards the COBRA premiums shall cease upon the earlier of (i) the applicableSeverance Period; (ii) the actual COBRA continuation period; or (iii) theEmployee’s failure to timely remit any COBRA premium or contributions towardsuch premiums.

## C.            No Severance Benefits Upon Voluntary or OtherTerminations.  Employee acknowledgesthat Severance Pay pursuant to this Article I shall only be payable upon anInvoluntary Termination.  The Employeeshall not be eligible for Severance Pay for any other separation of employment,including but not limited to termination for Cause, voluntary resignations, ormutually agreeable separations.

# III.           Severance Benefits Upon Termination Following aTransfer of Control.  If, withintwelve (12) months following a Transfer of Control, the Employee’s Employmentis Involuntarily Terminated or the Employee resigns for Good Reason, theEmployee shall be entitled to receive the Severance Pay and medical and dentalinsurance benefits as set forth in Article II.A and Article II.B.

# IV.           Severance Benefits Upon Consummation of HostileTakeover.  Upon the consummation ofa Hostile Takeover, the Employee shall be entitled to receive Severance Pay andmedical and dental insurance benefits as set forth in Article II.A and ArticleII.B.

# V.            Option Acceleration upon Transfer of Control orHostile Takeover.  In accordancewith the second Amended and Restated 1988 Stock Option Plan and the relatedIncentive Stock Option Agreement and/or Nonqualified Stock Option Agreementbetween the Company and the Employee, the Employee’s Options (as such term isdefined therein) shall become fully vested and exercisable upon (i) anInvoluntary Termination or resignation for Good Reason within twelve (12)months following a Transfer of Control or (ii) upon the consummation of aHostile Takeover.

# VI.           Limitation of Payments and Benefits.  To the extent that any of the payments andbenefits provided for in this Agreement or otherwise payable to Employeeconstitute “parachute payments” within the meaning of Section 280G of theInternal Revenue Code of 1986, as amended (the “Code”), and, but for thisArticle VI, would be subject to the excise tax imposed by Section 4999 ofthe Code or any similar or successor provision, the aggregate amount of suchpayments and benefits will be reduced, but only to the extent necessary so thatnone of such payments and benefits are subject to any excise tax.

# VII.          Miscellaneous Provisions.

## A.            It is intended by the parties hereto that the provisionsof this Agreement, as amended, shall become effective as of the date ofapproval by the Board’s Compensation Committee.

## B.            During the Severance Period, it is understood by theCompany and the Employee that the Employee shall not be considered an employeeof the Company and, therefore, shall not be eligible for any other employer-providedbenefits including but not limited to vacation accrual, sick days, disabilitybenefits, or any other benefit program in which active employees of the Companymay participate.

## C.            The execution of this Severance Agreement does notconstitute an employment contract between the Company and the Employee or anagreement by the Company to continue to employ the Employee.  By signing this Severance Agreement, theEmployee acknowledges that his employment with the Company is and continues tobe “at-will”, and that such employment may be terminated at any time with orwithout cause.

## D.            Subject to the benefits set forth above, the Employeeshall be entitled to no further compensation for any damage or injury arisingout of the termination of the Employee’s employment by the Company.

## E.             In the event of any dispute, claim or controversyarising out of or in any way related to this Agreement, the interpretation ofthis Agreement or the alleged breach thereof, such dispute, claim orcontroversy shall be submitted by the parties to binding arbitration providedby the American Arbitration Association in Santa Clara County, California.

## F.             This Agreement constitutes the entire agreement betweenthe Company and the Employee regarding Severance Pay and other benefits thatare the subject matter hereof, and supersedes all agreements prior to theeffective date of this Agreement, whether written or oral.  Fresh Choice reserves the right to amend orterminate this Agreement in whole or in part upon written notification to theEmployee.

## G.            This Agreement shall be governed by and construed inaccordance with the laws of the State of California applicable to contractsmade and to be performed herein.

## H.            This Agreement shall be binding on the Company’ssuccessors.

## I.              Amounts paid to the Employee shall be subject to allapplicable federal, state and local withholding taxes.

## J.             All payments provided under this Agreement, other thanpayments made pursuant to a plan which provides otherwise, shall be paid incash from the general funds of the Company.

IN WITNESS WHEREOF, theCompany and Employee have executed this Agreement on _______________ effectiveas of the day and year first above written. This Agreement may be executed in counter parts, each of which shall bedeemed to be an original but all of which shall constitute one and the sameinstrument.

 
| “FRESH CHOICE” |   | “EMPLOYEE” |
|--------------------------|--------|----------------------|
|                     |   |                 |   |
| FRESH CHOICE, INC.,      |   |                 |
| a Delaware Corporation   |   |                 |
|                     |   |                 |   |
|                     |   |                 |   |
| By:                      |   |                 |   |
|                     |   |                 |   |
|                     |   |                 |   |
|                     |   |                 |