**Exhibit 10.46**

 

**FRESH CHOICE, INC.**

**2001EMPLOYEE STOCK PURCHASE PLAN**

1.             **ESTABLISHMENT, PURPOSE AND TERM OF PLAN**.

## 1.1           **Establishment.**  The Fresh Choice, Inc. 2001 Employee StockPurchase Plan (the *“**Plan**”*) is hereby establishedeffective as of December 3, 2001 (the *“**Effective Date**”*), subject to theapproval by Company stockholders.

## 1.2           **Purpose.**  The purpose of the Plan is to advance theinterests of the Company and its stockholders by providing an incentive toattract, retain and reward Eligible Employees of the Participating CompanyGroup and by motivating such persons to contribute to the growth andprofitability of the Participating Company Group.  The Plan provides such Eligible Employees with an opportunity toacquire a proprietary interest in the Company through the purchase ofStock.  The Company intends that thePlan qualify as an “employee stock purchase plan” under Section 423 of theCode (including any amendments or replacements of such section), and the Planshall be so construed.

## 1.3           **Term of Plan.**  The Plan shall continue in effect until theearlier of its termination by the Board or the date on which all of the sharesof Stock available for issuance under the Plan have been issued.

2.             **DEFINITIONS AND CONSTRUCTION.**

## 2.1           **Definitions.**  Any term not expressly defined in the Planbut defined for purposes of Section 423 of the Code shall have the samedefinition herein.  Whenever usedherein, the following terms shall have their respective meanings set forth below:

### (a)           *“**Board**”* means the Board ofDirectors of the Company.  If one ormore Committees have been appointed by the Board to administer the Plan,“Board” also means such Committee(s).

### (b)           *“**Code**”* means the Internal RevenueCode of 1986, as amended, and any applicable regulations promulgatedthereunder.

### (c)           *“**Committee**”* means a committee ofthe Board duly appointed to administer the Plan and having such powers asspecified by the Board.  Unless thepowers of the Committee have been specifically limited, the Committee shallhave all of the powers of the Board granted herein, including, withoutlimitation, the power to amend or terminate the Plan at any time, subject tothe terms of the Plan and any applicable limitations imposed by law.

### (d)           *“**Company**”* means Fresh Choice,Inc., a Delaware corporation, or any successor corporation thereto.

### (e)           *“**Compensation**”* means, withrespect to any Offering Period, base salary and commissions, including any basesalary or commissions deferred under any program or plan established by aParticipating Company, including, without limitation, any plan described inSection 401(k) or Section 125 of the Code. Compensation shall be limited to amounts actually payable in cashdirectly to the Participant or deferred by the Participant during the OfferingPeriod.  Compensation shall not includeovertime, bonuses, annual awards, profit sharing, other incentive payments,shift premiums, long-term disability, workers’ compensation, moving allowances,payments pursuant to a severance agreement, termination pay, relocationpayments, sign-on bonuses, expense reimbursements, the cost of employeebenefits paid by a Participating Company, tuition reimbursements, imputedincome arising under any benefit program, contributions made by a ParticipatingCompany under any employee benefit plan, income directly or indirectly receivedpursuant to the Plan or any other stock purchase or stock option plan, or anyother compensation not included in base salary and commissions.

### (f)            *“**EligibleEmployee**”* means an Employee who meets the requirementsset forth in Section 5 for eligibility to participate in the Plan.

### (g)           *“**Employee**”* means a person treatedas an employee of a Participating Company for purposes of Section 423 of theCode.  A Participant shall be deemed tohave ceased to be an Employee either upon an actual termination of employmentor upon the corporation employing the Participant ceasing to be a ParticipatingCompany.  For purposes of the Plan, anindividual shall not be deemed to have ceased to be an Employee while on anymilitary leave, sick leave, or other bona fide leave of absence approved by theCompany of ninety (90) days or less.  Ifan individual’s leave of absence exceeds ninety (90) days, the individual shallbe deemed to have ceased to be an Employee on the ninety-first (91st) day ofsuch leave unless the individual’s right to reemployment with the ParticipatingCompany Group is guaranteed either by statute or by contract.

### (h)           *“**Fair MarketValue**”* means, as of any date:

#### (i)            Ifthe Stock is then listed on a national or regional securities exchange ormarket system or is regularly quoted by a recognized securities dealer, theclosing sale price of a share of Stock (or the mean of the closing bid andasked prices if the Stock is so quoted instead) as quoted on the NasdaqNational Market, the Nasdaq SmallCap Market or such other national or regionalsecurities exchange or market system constituting the primary market for theStock, or by such recognized securities dealer, as reported in The WallStreet Journal or such other source as the Company deems reliable.  If the relevant date does not fall on a dayon which the Stock has traded on such securities exchange or market system orhas been quoted by such securities dealer, the date on which the Fair MarketValue is established shall be the last day on which the Stock was so traded orquoted prior to the relevant date, or such other appropriate day as determinedby the Board, in its discretion.

#### (ii)           If,on the relevant date, the Stock is not then listed on a national or regionalsecurities exchange or market system or regularly quoted by a recognizedsecurities dealer, the Fair Market Value of a share of Stock shall be asdetermined in good faith by the Board.

### (i)            *“**Offering**”*means an offering of Stock as provided in Section 6.1.

### (j)            *“**OfferingDate**”* means, for any Offering, the first day of theOffering Period.

### (k)           *“**Offering Period**”* means a periodestablished in accordance with Section 6.

### (l)            *“**ParentCorporation**”* means any present or future “parentcorporation” of the Company, as defined in Section 424(e) of the Code.

### (m)          *“**Participant**”* means an EligibleEmployee who has become a participant in an Offering Period in accordance withSection 7 and remains a participant in accordance with the Plan.

### (n)           *“**Participating Company**”* means theCompany or any Parent Corporation or Subsidiary Corporation designated by theBoard as a corporation the Employees of which may, if Eligible Employees,participate in the Plan.  The Boardshall have the sole and absolute discretion to determine from time to timewhich Parent Corporations or Subsidiary Corporations shall be ParticipatingCompanies.

### (o)           *“**Participating Company Group**”*means, at any point in time, the Company and all other corporationscollectively which are then Participating Companies.

### (p)           *“**Purchase Date**”* means, for anyPurchase Period, the last day of such period.

### (q)           *“**Purchase Period**”* means a periodestablished in accordance with Section 6.2.

### (r)            *“**PurchasePrice**”* means the price at which a share of Stock may bepurchased under the Plan, as determined in accordance with Section 9.

### (s)           *“**Purchase Right**”* means an optiongranted to a Participant pursuant to the Plan to purchase such shares of Stockas provided in Section 8, which the Participant may or may not exerciseduring the Offering Period in which such option is outstanding.  Such option arises from the right of aParticipant to withdraw any accumulated payroll deductions of the Participantnot previously applied to the purchase of Stock under the Plan and to terminateparticipation in the Plan at any time during an Offering Period.

### (t)            *“**Stock**”*means the common stock of the Company, as adjusted from time to time inaccordance with Section 4.2.

### (u)           *“**Subscription Agreement**”* means awritten agreement in such form as specified by the Company, stating anEmployee’s election to participate in the Plan and authorizing payrolldeductions under the Plan from the Employee’s Compensation.

### (v)           *“**Subscription Date**”* means thelast business day prior to the Offering Date of an Offering Period or suchearlier date as the Company shall establish.

### (w)          *“**Subsidiary Corporation**”* meansany present or future “subsidiary corporation” of the Company, as defined inSection 424(f) of the Code.

## 2.2           **Construction.**  Captions and titles contained herein are forconvenience only and shall not affect the meaning or interpretation of anyprovision of the Plan.  Except whenotherwise indicated by the context, the singular shall include the plural andthe plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the contextclearly requires otherwise.

3.             **ADMINISTRATION.**

## 3.1           **Administration by the Board.**  The Plan shall be administered by theBoard.  All questions of interpretationof the Plan, of any form of agreement or other document employed by the Companyin the administration of the Plan, or of any Purchase Right shall be determinedby the Board, and such determinations shall be final, binding and conclusiveupon all persons having an interest in the Plan or the Purchase Right, unlessfraudulent or made in bad faith. Subject to the provisions of the Plan, the Board shall determine all ofthe relevant terms and conditions of Purchase Rights; provided, however, thatall Participants granted Purchase Rights pursuant to an Offering shall have thesame rights and privileges within the meaning of Section 423(b)(5) of theCode.  Any and all actions, decisionsand determinations taken or made by the Board in the exercise of its discretionpursuant to the Plan or any agreement thereunder (other than determiningquestions of interpretation pursuant to the second sentence of thisSection 3.1) shall be final, binding and conclusive upon all personshaving an interest therein.  Allexpenses incurred in connection with the administration of the Plan shall bepaid by the Company.

## 3.2           **Authority of Officers.**  Any officer of the Company shall have theauthority to act on behalf of the Company with respect to any matter, right,obligation, determination or election that is the responsibility of or that isallocated to the Company herein, provided that the officer has apparentauthority with respect to such matter, right, obligation, determination orelection.

## 3.3           **Policies and Procedures Established bythe Company.**  The Companymay, from time to time, consistent with the Plan and the requirements ofSection 423 of the Code, establish, change or terminate such rules, guidelines,policies, procedures, limitations, or adjustments as deemed advisable by theCompany, in its discretion, for the proper administration of the Plan,including, without limitation, (a) a minimum payroll deduction amountrequired for participation in an Offering, (b) a limitation on thefrequency or number of changes permitted in the rate of payroll deductionduring an Offering, (c) an exchange ratio applicable to amounts withheldin a currency other than United States dollars, (d) a payroll deductiongreater than or less than the amount designated by a Participant in order toadjust for the Company’s delay or mistake in processing a SubscriptionAgreement or in otherwise effecting a Participant’s election under the Plan oras advisable to comply with the requirements of Section 423 of the Code, and(e) determination of the date and manner by which the Fair Market Value ofa share of Stock is determined for purposes of administration of the Plan.  All such actions by the Company shall betaken consistent with the requirement under Section 423(b)(5) of the Codethat all Participants granted Purchase Rights pursuant to an Offering shallhave the same rights and privileges within the meaning of such section.

## 3.4           **Indemnification.**  In addition to such other rights ofindemnification as they may have as members of the Board or officers oremployees of the Participating Company Group, members of the Board and anyofficers or employees of the Participating Company Group to whom authority toact for the Board or the Company is delegated shall be indemnified by theCompany against all reasonable expenses, including attorneys’ fees, actuallyand necessarily incurred in connection with the defense of any action, suit orproceeding, or in connection with any appeal therein, to which they or any ofthem may be a party by reason of any action taken or failure to act under or inconnection with the Plan, or any right granted hereunder, and against allamounts paid by them in settlement thereof (provided such settlement isapproved by independent legal counsel selected by the Company) or paid by themin satisfaction of a judgment in any such action, suit or proceeding, except inrelation to matters as to which it shall be adjudged in such action, suit orproceeding that such person is liable for gross negligence, bad faith orintentional misconduct in duties; provided, however, that within sixty (60)days after the institution of such action, suit or proceeding, such personshall offer to the Company, in writing, the opportunity at its own expense tohandle and defend the same.

4.             **SHARES SUBJECT TO PLAN**.

## 4.1           **Maximum Number of Shares Issuable.**  Subject to adjustment as provided in Section4.2, the maximum aggregate number of shares of Stock that may be issued underthe Plan shall be two hundred ninety thousand (290,000), and shall consist ofauthorized but unissued or reacquired shares of Stock, or any combinationthereof.  If an outstanding PurchaseRight for any reason expires or is terminated or canceled, the shares of Stockallocable to the unexercised portion of that Purchase Right shall again beavailable for issuance under the Plan.

## 4.2           **Adjustments for Changes in CapitalStructure.**  In the event ofany stock dividend, stock split, reverse stock split, recapitalization,combination, reclassification or similar change in the capital structure of theCompany, or in the event of any merger (including a merger effected for thepurpose of changing the Company’s domicile), sale of assets or otherreorganization in which the Company is a party, appropriate adjustments shallbe made in the number and class of shares subject to the Plan and each PurchaseRight, and in the Purchase Price.  If amajority of the shares of the same class as the shares subject to outstandingPurchase Rights are exchanged for, converted into, or otherwise become (whetheror not pursuant to an Ownership Change Event) shares of another corporation(the *“**New Shares**”*),the Board may unilaterally amend the outstanding Purchase Rights to providethat such Purchase Rights are exercisable for New Shares.  In the event of any such amendment, thenumber of shares subject to, and the Purchase Price of, the outstandingPurchase Rights shall be adjusted in a fair and equitable manner, as determinedby the Board, in its discretion. Notwithstanding the foregoing, any fractional share resulting from anadjustment pursuant to this Section 4.2 shall be rounded down to the nearestwhole number, and in no event may the Purchase Price be decreased to an amountless than the par value, if any, of the stock subject to the PurchaseRight.  The adjustments determined bythe Board pursuant to this Section 4.2 shall be final, binding and conclusive.

5.             **ELIGIBILITY**.

## 5.1           **Employees Eligible to Participate. **Each Employee of a ParticipatingCompany who has been employed by a Participating Company for at least six (6)consecutive months is eligible to participate in the Plan and shall be deemedan Eligible Employee.

## 5.2           **Exclusion of Certain Stockholders.**  Notwithstanding any provision of the Plan tothe contrary, no Employee shall be treated as an Eligible Employee and granteda Purchase Right under the Plan if, immediately after such grant, the Employeewould own or hold options to purchase stock of the Company or of any ParentCorporation or Subsidiary Corporation possessing five percent (5%) or more ofthe total combined voting power or value of all classes of stock of suchcorporation, as determined in accordance with Section 423(b)(3) of theCode.  For purposes of this Section 5.2,the attribution rules of Section 424(d) of the Code shall apply in determiningthe stock ownership of such Employee.

## 5.3           **Determination by Company.**  The Company shall determine in good faithand in the exercise of its discretion whether an individual has become or hasceased to be an Employee or an Eligible Employee and the effective date of suchindividual’s attainment or termination of such status, as the case may be.  For purposes of an individual’sparticipation in or other rights, if any, under the Plan as of the time of theCompany’s determination, all such determinations by the Company shall be final,binding and conclusive, notwithstanding that the Company or any court of law orgovernmental agency subsequently makes a contrary determination.

6.             **OFFERINGS**.

## 6.1           **Offering Periods.**  The Plan shall be implemented on and afterthe Effective Date by sequential and overlapping Offerings of approximatelytwelve (12) months duration or such other duration as the Board shall determine(an *“**OfferingPeriod**”*); provided, however, that the first OfferingPeriod shall commence on the Effective Date and end on or aboutNovember 29, 2002.  SubsequentOffering Periods shall commence on or about June 1 and December 1 ofeach year and end on or about the last days of the next May and November,respectively, occurring thereafter. Notwithstanding the foregoing, the Board may establish a different durationfor one or more Offering Periods or different commencing or ending dates forsuch Offering Periods; provided, however, that no Offering Period may have aduration exceeding twenty-seven (27) months. If the first or last day of an Offering Period is not a day on which thenational securities exchanges or Nasdaq Stock Market are open for trading, theCompany shall specify the trading day that will be deemed the first or lastday, as the case may be, of the Offering Period.

## 6.2           **Purchase Periods.**  Each Offering Period shall consist of two(2) consecutive purchase periods of approximately six (6) months duration, orsuch other number or duration as the Board shall determine (individually, a **“*PurchasePeriod*”**).  APurchase Period commencing on or about December 1 shall end on or aboutthe next May 31.  A Purchase Periodcommencing on or about June 1 shall end on or about the nextNovember 30.  Notwithstanding theforegoing, the Board may establish a different duration for one or morePurchase Periods or different commencing or ending dates for such Purchase Periods.  If the first or last day of a PurchasePeriod is not a day on which the national securities exchanges or Nasdaq StockMarket are open for trading, the Company shall specify the trading day thatwill be deemed the first or last day, as the case may be, of the PurchasePeriod.

7.             **PARTICIPATION IN THE PLAN**.

## 7.1           **Initial Participation.**  An Eligible Employee may become aParticipant in an Offering Period by delivering a properly completedSubscription Agreement to the office designated by the Company not later thanthe close of business for such office on the Subscription Date established bythe Company for that Offering Period. An Eligible Employee who does not deliver a properly completedSubscription Agreement to the Company’s designated office on or before theSubscription Date for an Offering Period shall not participate in the Plan forthat Offering Period or for any subsequent Offering Period unless the EligibleEmployee subsequently delivers a properly completed Subscription Agreement tothe appropriate office of the Company on or before the Subscription Date forsuch subsequent Offering Period.  AnEmployee who becomes an Eligible Employee after the Offering Date of anOffering Period shall not be eligible to participate in that Offering Period butmay participate in any subsequent Offering Period provided the Employee isstill an Eligible Employee as of the Offering Date of such subsequent OfferingPeriod.

## 7.2           **Continued Participation.**  A Participant shall automaticallyparticipate in the next Offering Period commencing immediately after the finalPurchase Date of each Offering Period in which the Participant participatesprovided that the Participant remains an Eligible Employee on the Offering Dateof the new Offering Period and has not either (a) withdrawn from the Planpursuant to Section 12.1 or (b) terminated employment as provided inSection 13.  A Participant who mayautomatically participate in a subsequent Offering Period, as provided in thisSection, is not required to deliver any additional Subscription Agreement forthe subsequent Offering Period in order to continue participation in thePlan.  However, a Participant maydeliver a new Subscription Agreement for a subsequent Offering Period in accordancewith the procedures set forth in Section 7.1 if the Participant desires tochange any of the elections contained in the Participant’s then effectiveSubscription Agreement.

8.             **RIGHT TO PURCHASE SHARES**.

## 8.1           **Grant of Purchase Right.**  Except as set forth below, on the OfferingDate of each Offering Period, each Participant in that Offering Period shall begranted automatically a Purchase Right consisting of an option to purchase thelesser of (a) that number of whole shares of Stock determined by dividingTwenty-Five Thousand Dollars ($25,000) by the Fair Market Value of a share ofStock on such Offering Date or (b) seven thousand five hundred (7,500)shares of Stock.  No Purchase Rightshall be granted on an Offering Date to any person who is not, on such OfferingDate, an Eligible Employee.

## 8.2           **Pro Rata Adjustment of Purchase Right.**  Notwithstanding the provisions of Section8.1, if the Board establishes an Offering Period of any duration other thantwelve months, then (a) the dollar amount in Section 8.1 shall be determined bymultiplying $2,083.33 by the number of months (rounded to the nearest wholemonth) in the Offering Period and rounding to the nearest whole dollar, and (b)the share amount in Section 8.1 shall be determined by multiplying 625 sharesby the number of months (rounded to the nearest whole month) in the OfferingPeriod and rounding to the nearest whole share**.**

## 8.3           **Calendar Year Purchase Limitation.**  Notwithstanding any provision of the Plan tothe contrary, no Participant shall be granted a Purchase Right which permitshis or her right to purchase shares of Stock under the Plan to accrue at a ratewhich, when aggregated with such Participant’s rights to purchase shares underall other employee stock purchase plans of a Participating Company intended tomeet the requirements of Section 423 of the Code, exceeds Twenty-Five ThousandDollars ($25,000) in Fair Market Value (or such other limit, if any, as may beimposed by the Code) for each calendar year in which such Purchase Right isoutstanding at any time.  For purposesof the preceding sentence, the Fair Market Value of shares purchased during agiven Offering Period shall be determined as of the Offering Date for suchOffering Period.  The limitationdescribed in this Section shall be applied in conformance with applicable regulationsunder Section 423(b)(8) of the Code.

9.             **PURCHASE PRICE**.

The Purchase Price at which each share of Stock may beacquired in an Offering Period upon the exercise of all or any portion of aPurchase Right shall be established by the Board; provided, however, that thePurchase Price on each Purchase Date shall not be less than eighty–fivepercent (85%) of the lesser of (a) the Fair Market Value of a share ofStock on the Offering Date of the Offering Period or (b) the Fair MarketValue of a share of Stock on the Purchase Date.  Unless otherwise provided by the Board prior to the commencementof an Offering Period, the Purchase Price on each Purchase Date during thatOffering Period shall be eighty–five percent (85%) of the lesser of(a) the Fair Market Value of a share of Stock on the Offering Date of theOffering Period, or (b) the Fair Market Value of a share of Stock on thePurchase Date.

10.           **ACCUMULATION OF PURCHASE PRICE THROUGH PAYROLLDEDUCTION**.

Shares of Stock acquired pursuant to the exercise ofall or any portion of a Purchase Right may be paid for only by means of payrolldeductions from the Participant’s Compensation accumulated during the OfferingPeriod for which such Purchase Right was granted, subject to the following:

## 10.1         **Amount of Payroll Deductions.**  Except as otherwise provided herein, theamount to be deducted under the Plan from a Participant’s Compensation on eachpayday during an Offering Period shall be determined by the Participant’sSubscription Agreement.  TheSubscription Agreement shall set forth the percentage of the Participant’sCompensation to be deducted on each payday during an Offering Period in wholepercentages of not less than one percent (1%) (except as a result of anelection pursuant to Section 10.3 to stop payroll deductions effectivefollowing the first payday during an Offering) or more than ten percent(10%).  The Board may change theforegoing limits on payroll deductions effective as of any Offering Date.

## 10.2         **Commencement of Payroll Deductions.**  Payroll deductions shall commence on thefirst payday following the Offering Date and shall continue to the end of theOffering Period unless sooner altered or terminated as provided herein.

## 10.3         **Election to Change or Stop PayrollDeductions.**  During anOffering Period, a Participant may elect to increase or decrease the rate of orto stop deductions from his or her Compensation by delivering to the Company’sdesignated office an amended Subscription Agreement authorizing such change onor before the Change Notice Date, as defined below.  A Participant who elects, effective following the first payday ofan Offering Period, to decrease the rate of his or her payroll deductions tozero percent (0%) shall nevertheless remain a Participant in the currentOffering Period unless such Participant withdraws from the Plan as provided inSection 12.1.  The *“**Change Notice Date**”* shall be theday immediately prior to the beginning of the first pay period for which suchelection is to be effective, unless a different date is established by theCompany and announced to the Participants.

## 10.4         **Administrative Suspension of PayrollDeductions.**  The Company may,in its sole discretion, suspend a Participant’s payroll deductions under thePlan as the Company deems advisable to avoid accumulating payroll deductions inexcess of the amount that could reasonably be anticipated to purchase themaximum number of shares of Stock permitted (a) under the Participant’sPurchase Right or (b) during a calendar year under the limit set forth inSection 8.3.  Payroll deductions shallbe resumed at the rate specified in the Participant’s then effectiveSubscription Agreement at the beginning, respectively, of (a) the next OfferingPeriod the first Purchase Date of which falls in the following calendar year,provided that the individual is a Participant in such Offering Period or (b)the next Purchase Period the Purchase Date of which falls in the followingcalendar year, unless the Participant has either withdrawn from the Plan asprovided in Section 12.1 or has ceased to be an Eligible Employee.

## 10.5         **Participant Accounts.**  Individual bookkeeping accounts shall bemaintained for each Participant.  Allpayroll deductions from a Participant’s Compensation shall be credited to suchParticipant’s Plan account and shall be deposited with the general funds of theCompany.  All payroll deductionsreceived or held by the Company may be used by the Company for any corporatepurpose.

## 10.6         **No Interest Paid.**  Interest shall not be paid on sums deductedfrom a Participant’s Compensation pursuant to the Plan.

## 10.7         **Voluntary Withdrawal from Plan Account.**  A Participant may withdraw all or anyportion of the payroll deductions credited to his or her Plan account and notpreviously applied toward the purchase of Stock by delivering to the Company’sdesignated office a written notice on a form provided by the Company for suchpurpose.  A Participant who withdrawsthe entire remaining balance credited to his or her Plan account shall be deemedto have withdrawn from the Plan in accordance with Section 12.1.  Amounts withdrawn shall be returned to theParticipant as soon as practicable after the Company’s receipt of the notice ofwithdrawal and may not be applied to the purchase of shares in any Offeringunder the Plan.  The Company may fromtime to time establish or change limitations on the frequency of withdrawalspermitted under this Section, establish a minimum dollar amount that must beretained in the Participant’s Plan account, or terminate the withdrawal rightprovided by this Section.

11.           **PURCHASE OF SHARES**.

## 11.1         **Exercise of Purchase Right.**  On each Purchase Date of an Offering Period,each Participant who has not withdrawn from the Plan and whose participation inthe Offering has not otherwise terminated before such Purchase Date shallautomatically acquire pursuant to the exercise of the Participant’s PurchaseRight the number of whole shares of Stock determined by dividing (a) the totalamount of the Participant’s payroll deductions accumulated in the Participant’sPlan account during the Offering Period and not previously applied toward thepurchase of Stock by (b) the Purchase Price. However, in no event shall the number of shares purchased by theParticipant during an Offering Period exceed the number of shares subject tothe Participant’s Purchase Right.  Noshares of Stock shall be purchased on a Purchase Date on behalf of aParticipant whose participation in the Offering or the Plan has terminatedbefore such Purchase Date.

## 11.2         **Pro Rata Allocation of Shares.**  If the number of shares of Stock which mightbe purchased by all Participants in the Plan on a Purchase Date exceeds thenumber of shares of Stock available in the Plan as provided in Section 4.1, theCompany shall make a pro rata allocation of the remaining shares in as uniforma manner as practicable and as the Company determines to be equitable.  Any fractional share resulting from such prorata allocation to any Participant shall be disregarded.

## 11.3         **Delivery of Certificates.**  As soon as practicable after each PurchaseDate, the Company shall arrange the delivery to each Participant of acertificate representing the shares acquired by the Participant on suchPurchase Date; provided that the Company may deliver such shares to a brokerdesignated by the Company that will hold such shares for the benefit of theParticipant.  Shares to be delivered toa Participant under the Plan shall be registered in the name of theParticipant, or, if requested by the Participant, in the name of theParticipant and his or her spouse, or, if applicable, in the names of the heirsof the Participant.

## 11.4         **Return of Cash Balance.**  Any cash balance remaining in aParticipant’s Plan account following any Purchase Date shall be refunded to theParticipant as soon as practicable after such Purchase Date.  However, if the cash balance to be returnedto a Participant pursuant to the preceding sentence is less than the amountthat would have been necessary to purchase an additional whole share of Stockon such Purchase Date, the Company may retain the cash balance in theParticipant’s Plan account to be applied toward the purchase of shares of Stockin the subsequent Purchase Period or Offering Period, as the case may be.

## 11.5         **Tax Withholding.**  At the time a Participant’s Purchase Rightis exercised, in whole or in part, or at the time a Participant disposes ofsome or all of the shares of Stock he or she acquires under the Plan, theParticipant shall make adequate provision for the federal, state, local andforeign tax withholding obligations, if any, of the Participating Company Groupwhich arise upon exercise of the Purchase Right or upon such disposition ofshares, respectively.  The ParticipatingCompany Group may, but shall not be obligated to, withhold from theParticipant’s compensation the amount necessary to meet such withholdingobligations.

## 11.6         **Expiration of Purchase Right.**  Any portion of a Participant’s PurchaseRight remaining unexercised after the end of the Offering Period to which thePurchase Right relates shall expire immediately upon the end of the OfferingPeriod.

## 11.7         **Provision of Reports and StockholderInformation to Participants.** Each Participant who has exercised all or part of his or her PurchaseRight shall receive, as soon as practicable after the Purchase Date, a reportof such Participant’s Plan account setting forth the total payroll deductionsaccumulated prior to such exercise, the number of shares of Stock purchased,the Purchase Price for such shares, the date of purchase and the cash balance,if any, remaining immediately after such purchase that is to be refunded orretained in the Participant’s Plan account pursuant to Section 11.4.  The report required by this Section may bedelivered in such form and by such means, including by electronic transmission,as the Company may determine.  Inaddition, each Participant shall be provided information concerning the Companyequivalent to that information provided generally to the Company’s commonstockholders.

12.           **WITHDRAWAL FROM PLAN OR OFFERING**.

## 12.1         **Voluntary Withdrawal from the Plan.**  A Participant may withdraw from the Plan bysigning and delivering to the Company’s designated office a written notice ofwithdrawal on a form provided by the Company for this purpose.  Such withdrawal may be elected at any time priorto the end of an Offering Period; provided, however, that if a Participantwithdraws from the Plan after a Purchase Date, the withdrawal shall not affectshares of Stock acquired by the Participant on such Purchase Date.  A Participant who voluntarily withdraws fromthe Plan is prohibited from resuming participation in the Plan in the sameOffering from which he or she withdrew, but may participate in any subsequentOffering by again satisfying the requirements of Sections 5 and 7.1.  The Company may impose, from time to time, arequirement that the notice of withdrawal from the Plan be on file with theCompany’s designated office for a reasonable period prior to the effectivenessof the Participant’s withdrawal.

## 12.2         **Automatic Withdrawal from an Offering. **If the Fair Market Value of ashare of Stock on a Purchase Date other than the final Purchase Date of anOffering is less than the Fair Market Value of a share of Stock on the OfferingDate of the Offering, then every Participant automatically shall be (a)withdrawn from such Offering after the acquisition of shares of Stock on thePurchase Date and (b) enrolled in the new Offering commencing immediatelyfollowing such Purchase Date.  AParticipant may elect not to be automatically withdrawn from an from anOffering pursuant to this Section 12.2 by delivering to the Company’sdesignated office not later than the close of business on the Purchase Date awritten notice indicating such election.

## 12.3         **Return of Payroll Deductions.**  Upon a Participant’s voluntary withdrawalfrom the Plan pursuant to Section 12.1 or automatic withdrawal from an Offeringpursuant to Section 12.2, the Participant’s accumulated payroll deductionswhich have not been applied toward the purchase of shares of Stock (except, inthe case of an automatic withdrawal pursuant to Section 12.2, for an amountnecessary to purchase an additional whole share of Stock as provided in Section11.4) shall be refunded to the Participant as soon as practicable after thewithdrawal, without the payment of any interest, and the Participant’s interestin the Plan or the Offering, as applicable, shall terminate.  Such accumulated payroll deductions to berefunded in accordance with this Section may not be applied to any otherOffering under the Plan.

13.           **TERMINATION OF EMPLOYMENT OR ELIGIBILITY**.

Upon a Participant’s ceasing, prior to a PurchaseDate, to be an Employee of the Participating Company Group for any reason,including retirement, disability or death, or upon the failure of a Participantto remain an Eligible Employee, the Participant’s participation in the Planshall terminate immediately.  In suchevent, the Participant’s accumulated payroll deductions which have not beenapplied toward the purchase of shares shall, as soon as practicable, be returnedto the Participant or, in the case of the Participant’s death, to theParticipant’s beneficiary designated in accordance with Section 20, ifany, or legal representative, and all of the Participant’s rights under thePlan shall terminate.  Interest shallnot be paid on sums returned pursuant to this Section 13.  A Participant whose participation has beenso terminated may again become eligible to participate in the Plan bysatisfying the requirements of Sections 5 and 7.1.

14.           **CHANGE IN CONTROL**.

## 14.1         **Definitions.**

### (a)           An *“**OwnershipChange Event**”* shall be deemed to have occurred if any ofthe following occurs with respect to the Company: (i) the direct orindirect sale or exchange in a single or series of related transactions by thestockholders of the Company of more than fifty percent (50%) of the votingstock of the Company; (ii) a merger or consolidation in which the Companyis a party; (iii) the sale, exchange, or transfer of all or substantiallyall of the assets of the Company; or (iv) a liquidation or dissolution ofthe Company.

### (b)           A *“**Change inControl**”* shall mean an Ownership Change Event or a seriesof related Ownership Change Events (collectively, the *“**Transaction**”*) wherein thestockholders of the Company immediately before the Transaction do not retainimmediately after the Transaction, in substantially the same proportions astheir ownership of shares of the Company’s voting stock immediately before theTransaction, direct or indirect beneficial ownership of more than fifty percent(50%) of the total combined voting power of the outstanding voting securitiesof the Company or, in the case of a Transaction described inSection 14.1(a)(iii), the corporation or other business entity to whichthe assets of the Company were transferred (the *“**Transferee**”*), as the case maybe.  For purposes of the precedingsentence, indirect beneficial ownership shall include, without limitation, aninterest resulting from ownership of the voting securities of one or morecorporations or other business entities which own the Company or theTransferee, as the case may be, either directly or through one or moresubsidiary corporations or other business entities.  The Board shall have the right to determine whether multiple salesor exchanges of the voting securities of the Company or multiple OwnershipChange Events are related, and its determination shall be final, binding andconclusive.

## 14.2         **Effect of Change in Control on PurchaseRights.**  In the event of aChange in Control, the surviving, continuing, successor, or purchasingcorporation or other business entity or parent thereof, as the case may be (the*“**AcquiringCorporation**”*), may, without the consent of anyParticipant, assume the Company’s rights and obligations under the Plan.  If the Acquiring Corporation elects not toassume the Company’s rights and obligations under the Plan, the Purchase Dateof the then current Purchase Period shall be accelerated to a date before thedate of the Change in Control specified by the Board, but the number of sharesof Stock subject to outstanding Purchase Rights shall not be adjusted.  All Purchase Rights which are neitherassumed by the Acquiring Corporation in connection with the Change in Controlnor exercised as of the date of the Change in Control shall terminate and ceaseto be outstanding effective as of the date of the Change in Control.

15.           **NONTRANSFERABILITY OF PURCHASE RIGHTS**.

Neither payroll deductions credited to a Participant’sPlan account nor a Participant’s Purchase Right may be assigned, transferred,pledged or otherwise disposed of in any manner other than as provided by thePlan or by will or the laws of descent and distribution.  (A beneficiary designation pursuant toSection 20 shall not be treated as a disposition for this purpose.)  Any such attempted assignment, transfer,pledge or other disposition shall be without effect, except that the Companymay treat such act as an election to withdraw from the Plan as provided inSection 12.1.  A Purchase Right shall beexercisable during the lifetime of the Participant only by the Participant.

16.           **COMPLIANCE WITH SECURITIES LAW**.

The issuance of shares under the Plan shall be subjectto compliance with all applicable requirements of federal, state and foreignlaw with respect to such securities.  APurchase Right may not be exercised if the issuance of shares upon suchexercise would constitute a violation of any applicable federal, state orforeign securities laws or other law or regulations or the requirements of anysecurities exchange or market system upon which the Stock may then belisted.  In addition, no Purchase Rightmay be exercised unless (a) a registration statement under the SecuritiesAct of 1933, as amended, shall at the time of exercise of the Purchase Right bein effect with respect to the shares issuable upon exercise of the PurchaseRight, or (b) in the opinion of legal counsel to the Company, the sharesissuable upon exercise of the Purchase Right may be issued in accordance withthe terms of an applicable exemption from the registration requirements of saidAct.  The inability of the Company toobtain from any regulatory body having jurisdiction the authority, if any,deemed by the Company’s legal counsel to be necessary to the lawful issuanceand sale of any shares under the Plan shall relieve the Company of anyliability in respect of the failure to issue or sell such shares as to whichsuch requisite authority shall not have been obtained.  As a condition to the exercise of a PurchaseRight, the Company may require the Participant to satisfy any qualificationsthat may be necessary or appropriate, to evidence compliance with anyapplicable law or regulation, and to make any representation or warranty withrespect thereto as may be requested by the Company.

17.           **RIGHTS AS A STOCKHOLDER AND EMPLOYEE**.

A Participant shall have no rights as a stockholder byvirtue of the Participant’s participation in the Plan until the date of theissuance of a certificate for the shares purchased pursuant to the exercise ofthe Participant’s Purchase Right (as evidenced by the appropriate entry on thebooks of the Company or of a duly authorized transfer agent of theCompany).  No adjustment shall be madefor dividends, distributions or other rights for which the record date is priorto the date such certificate is issued, except as provided in Section 4.2.  Nothing herein shall confer upon aParticipant any right to continue in the employ of the Participating CompanyGroup or interfere in any way with any right of the Participating Company Groupto terminate the Participant’s employment at any time.

18.           **LEGENDS**.

The Company may at any time place legends or otheridentifying symbols referencing any applicable federal, state or foreignsecurities law restrictions or any provision convenient in the administrationof the Plan on some or all of the certificates representing shares of Stockissued under the Plan.  The Participantshall, at the request of the Company, promptly present to the Company any andall certificates representing shares acquired pursuant to a Purchase Right inthe possession of the Participant in order to carry out the provisions of thisSection.  Unless otherwise specified bythe Company, legends placed on such certificates may include but shall not belimited to the following:

“THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUEDBY THE CORPORATION TO THE REGISTERED HOLDER UPON THE PURCHASE OF SHARES UNDERAN EMPLOYEE STOCK PURCHASE PLAN AS DEFINED IN SECTION 423 OF THE INTERNALREVENUE CODE OF 1986, AS AMENDED.  THETRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY SHALL NOTIFY THE CORPORATIONIMMEDIATELY OF ANY TRANSFER OF THE SHARES BY THE REGISTERED HOLDER HEREOF.  THE REGISTERED HOLDER SHALL HOLD ALL SHARESPURCHASED UNDER THE PLAN IN THE REGISTERED HOLDER’S NAME (AND NOT IN THE NAMEOF ANY NOMINEE).”

19.           **NOTIFICATION OF DISPOSITION OF SHARES**.

The Company may require the Participant to give theCompany prompt notice of any disposition of shares acquired by exercise of aPurchase Right.  The Company may requirethat until such time as a Participant disposes of shares acquired upon exerciseof a Purchase Right, the Participant shall hold all such shares in theParticipant’s name (or, if elected by the Participant, in the name of theParticipant and his or her spouse but not in the name of any nominee) until thelater of two years after the date of grant of such Purchase Right or one yearafter the date of exercise of such Purchase Right..  The Company may direct that the certificates evidencing sharesacquired by exercise of a Purchase Right refer to such requirement to giveprompt notice of disposition.

20.           **DESIGNATION OF BENEFICIARY**.

## 20.1         **Designation Procedure.**  A Participant may file a written designationof a beneficiary who is to receive (a) shares and cash, if any, from theParticipant’s Plan account if the Participant dies subsequent to a PurchaseDate but prior to delivery to the Participant of such shares and cash or (b)cash, if any, from the Participant’s Plan account if the Participant dies priorto the exercise of the Participant’s Purchase Right.  If a married Participant designates a beneficiary other than theParticipant’s spouse, the effectiveness of such designation shall be subject tothe consent of the Participant’s spouse. A Participant may change his or her beneficiary designation at any timeby written notice to the Company.

## 20.2         **Absence of Beneficiary Designation.**  If a Participant dies without an effectivedesignation pursuant to Section 20.1 of a beneficiary who is living at the timeof the Participant’s death, the Company shall deliver any shares or cashcredited to the Participant’s Plan account to the Participant’s legalrepresentative.

21.           **NOTICES**.

All notices or other communications by a Participantto the Company under or in connection with the Plan shall be deemed to havebeen duly given when received in the form specified by the Company at thelocation, or by the person, designated by the Company for the receipt thereof.

22.           **AMENDMENT OR TERMINATION OF THE PLAN**.

The Board may at any time amend or terminate the Plan,except that (a) no such amendment or termination shall affect PurchaseRights previously granted under the Plan unless expressly provided by the Boardand (b) no such amendment or termination may adversely affect a PurchaseRight previously granted under the Plan without the consent of the Participant,except to the extent permitted by the Plan or as may be necessary to qualifythe Plan as an employee stock purchase plan pursuant to Section 423 of theCode or to comply with any applicable law, regulation or rule.  In addition, an amendment to the Plan mustbe approved by the stockholders of the Company within twelve (12) months of theadoption of such amendment if such amendment would authorize the sale of moreshares than are then authorized for issuance under the Plan or would change thedefinition of the corporations that may be designated by the Board asParticipating Companies.

IN WITNESS WHEREOF, the undersigned Secretary of theCompany certifies that the foregoing Fresh Choice, Inc. 2001 Employee StockPurchase Plan was duly adopted by the Board of Directors of the Company onFebruary 21, 2001.

 

 

 
|   | /S/ Joan M. Miller |
|--------|--------------------|
|   | Secretary          |

 

 

 

**PLANHISTORY**
| February 21, 2001 |   | Board of Fresh Choice,  Inc., a Delaware corporation, adopts Plan, with an initial reserve of 290,000  shares. |
|-------------------|--------|----------------------------------------------------------------------------------------------------------------|
|              |   |                                                                                                           |
| May 24, 2001      |   | Stockholders of Fresh  Choice, Inc. approve the Plan.                                                          |
|              |   |                                                                                                           |
| December 3, 2001  |   | Effective Date (i.e.,  date on which initial Offering Period commenced).                                       |