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EXHIBIT 10.37
FORM OF SEVERANCE AGREEMENT
AMENDED 3/11/99
This Severance Agreement, effective _________, is made by and between FRESH
CHOICE, INC. ("Fresh Choice") and ______ ("Employee").
1. Employee is currently an employee of Fresh Choice in a key management
position. Fresh Choice recognizes that the possibility of a Transfer of
Control(1) exists. Fresh Choice also recognizes that economic events beyond its
control may affect its business and operations. Fresh Choice realizes that
Employee possesses an intimate knowledge of the Company and its Board of
Directors (the "Board") believes that it is necessary to be able to retain
Employee as well as call on Employee for advice upon the occurrence of a
Transfer of Control. The Board also believes that the existence of this
Agreement will enhance the Company's ability to call on and rely upon Employee.
In consideration of Employee's continued employment with Fresh Choice, Fresh
Choice agrees to the following:
a) Severance Pay. In the event Employee's employment with Fresh Choice
is terminated due to either (i) a layoff, approved by the President and/or
Chairman, of the Employee; (ii) an involuntary separation as a result of a
"Transfer of Control"; or (iii) a termination without "cause" as defined below,
Fresh Choice shall pay "Severance Pay" to the Employee beginning as of
Employee's actual last day of work (the "Separation Date") in the amount of nine
months continuation of current/final base salary payable in equal bi-weekly
installments, less applicable state and federal taxes, through payroll
(hereinafter, the "Severance Period"). 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.
For purposes of this Severance Plan, termination for "cause" shall be defined as
termination for any of the following reasons: (i) any act of theft or
dishonesty; (ii) conviction of any crime of moral turpitude; (iii) failure to
follow Fresh Choice policies and procedures; or (iv) consistent poor performance
as determined in the sole discretion of the company.
b) Medical and Dental Insurance Benefits. Insurance benefits will end
the last day of the month in which the Separation Date occurs. Should Employee
be eligible for and elect COBRA coverage for medical and/or dental benefits,
Fresh Choice will pay
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(1) Transfer of Control shall mean an Ownership Change in which
the shareholders of the Control 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 Control Company.
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the cost of the COBRA premiums, less the amount Employee paid as an active
employee, for the applicable Severance Period. Thereafter, the Employee is
responsible for the timely payment of full cost of the COBRA premium for the
remainder of the applicable COBRA period.
It is intended by the parties hereto that the provisions of this Agreement shall
become effective as of the date of approval by the Board's Compensation
Committee and shall terminate on the sixth month anniversary of the Transfer of
Control Event.
2. Employee acknowledges that the events which shall result in Severance
Pay for the Employee pursuant to this Agreement are limited to either a (i)
layoff, approved by the President and/or Chairman, of the Employee; (ii) an
involuntary separation as a result of a "Transfer of Control"; or (iii) a
termination without "cause" as defined above. The Employee shall not be eligible
for Severance Pay for all other separations of employment, including but not
necessarily limited to voluntary resignations, mutually agreeable separations,
or separations for performance issues or any other separation for cause.
3. During the Severance Period, it is understood by Fresh Choice and
Employee that Employee shall not be considered an employee of Fresh Choice 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 Fresh Choice may
participate.
4. The execution of this Severance Agreement does not constitute an
employment contract between Fresh Choice and Employee or an agreement by Fresh
Choice to continue to employ Employee. By signing this Severance Agreement,
Employee acknowledges that his employment with Fresh Choice is and continues to
be "at-will", and that such employment may be terminated at any time with or
without cause.
5. Subject to Paragraph 1 above, Employee shall be entitled to no
further compensation for any damage or injury arising out of the termination of
Employee's employment by the Company in the event of a layoff or Transfer of
Control.
6. 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 ▇▇▇▇▇ County, California.
7. This Agreement constitutes the entire agreement of Fresh Choice and
Employee regarding Severance Pay upon separation of employment, as defined
herein, 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.
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8. 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.
IN WITNESS WHEREOF, Fresh Choice and Employee have executed this
Agreement on (date) to be effective as of the day and year first above written.
"FRESH CHOICE": "EMPLOYEE"
FRESH CHOICE, INC.,
a Delaware Corporation
by: ____________________________ ________________________