Prepared by MERRILL CORPORATION









Exhibit 10.47




 




SECOND AMENDED AND

RESTATED




 




FRESH CHOICE, INC.




 




1988 STOCK OPTION

PLAN




 




(As Amended

Through July 12, 2001)




 




 




1.         Purpose.  The Fresh Choice, Inc. 1988 Stock Option

Plan (the “Initial Plan”) was adopted on February 28, 1989.  The Initial Plan was amended from time to

time and then subsequently amended and restated effective as of September 25,

1992 (the “Prior Plan”).  The Prior Plan

is hereby amended and restated on March 20, 1993 in its entirety (the

“Plan”) to establish a program of automatic option grants to certain

individuals who are members of the Board of Directors of Fresh Choice, Inc. who

are not employees of Fresh Choice, Inc. 

The Plan is established to create additional incentive for key employees,

directors and consultants of Fresh Choice, Inc., a Delaware corporation, and

any successor corporation thereto (collectively referred to as the “Company”),

and any present or future parent and/or subsidiary corporations of such

corporation (all of whom along with the Company being individually referred to

as a “Participating Company” and collectively referred to as the “Participating

Company Group”), to promote the financial success and progress of the

Participating Company Group.  For

purposes of the Plan, a parent corporation and a subsidiary corporation shall

be as defined in sections 424(e) and 424(f) of the Internal Revenue Code of

1986, as amended (the “Code”).




2.         Administration.




(a)     Administration

by Board and/or Committee.  The Plan

shall be administered by the Board of Directors of the Company (the “Board”)

and/or by a duly appointed committee of the Board having such powers as shall

be specified by the Board.  Any

subsequent references herein to the Board shall also mean the committee if such

committee has been appointed and, unless the powers of the committee have been

specifically limited, the committee shall have all of the powers of the Board

granted herein, including, without limitation, the power to terminate or amend

the Plan at any time, subject to the terms of the Plan and any applicable

limitations imposed by law.  All

questions of interpretation of the Plan or of any options granted under the

Plan (an “Option”) shall be determined by the Board, and such determinations

shall be final and binding upon all persons having an interest in the Plan

and/or any Option.




(b)     Limitation

of Authority With Respect to Director Options.  Notwithstanding any provision herein to the contrary, the Board

shall have no authority, discretion, or power to select the Eligible Directors

(as defined in paragraph 9 below) of the Company who will receive Director

Options (as defined in paragraph 9 below) under the Plan, to set the exercise

price of Director Options granted under the Plan, to determine the number of

shares of Stock to be granted under a Director Option or the time at which such

options are to be granted, to establish the duration of Director Options, or

alter any other terms or conditions specified in the Plan with respect to

Director Options, except in the sense of administering the Plan subject to the

provisions of the Plan.





(c)     Options

Authorized.  Options may be either

incentive stock options as defined in section 422 of the Code (“Incentive Stock

Options”) or nonqualified stock options.




(d)     Authority

of Officers.  Any officer of a Participating

Company shall have the authority to act on behalf of the Company with respect

to any matter, right, obligation, or election which is the responsibility of or

which is allocated to the Company herein, provided the officer has apparent

authority with respect to such matter, right, obligation, or election.




(e)     Disinterested

Administration.  With respect to the

participation in the Plan of employees who are also officers or directors of

the Company subject to Section 16 of the Securities Exchange Act of 1934, as

amended (the “Exchange Act”), the Plan shall be administered by the Board in

compliance with the “disinterested administration” requirement of Rule 16b–3,

as promulgated under the Exchange Act and amended from time to time or any

successor rule or regulation (“Rule 16b-3”).




(f)      Compliance

with Section 162(m) of the Code.  In

the event a Participating Company is a “publicly held corporation” as defined

in paragraph (2) of section 162(m) of the Code, as amended by the Revenue

Reconciliation Act of 1993 (P.L. 103-66), and the regulations promulgated

thereunder (“Section 162(m)”), the Company may establish a committee of outside

directors meeting the requirements of paragraph 4(C)(i) of Section 162(m) to

approve the grant of Options which might reasonably be anticipated to result in

the payment of employee remuneration that would otherwise exceed the limit on

employee remuneration deductible for income tax purposes pursuant to Section

162(m).




3.         Eligibility.  The Options may be granted only to full-time

employees (including officers) and directors of the Participating Company Group

or to individuals who are rendering services as consultants or other

independent contractors to the Participating Company Group.  Except as provided in paragraph 2(b)

above, the Board shall, in the Board’s sole discretion, determine which persons

shall be granted Options (an “Optionee”). 

A director of the Company shall be eligible to be granted only a

nonqualified stock option unless the director is also an employee of the

Company.  Furthermore, a director of the

Company who is not an employee of the Company shall be eligible to be granted

only a Director Option (as defined below) under the terms set forth in

paragraph 9 below.  An individual

who is rendering services as a consultant or other independent contractor shall

be eligible to be granted only a nonqualified stock option.  An Optionee may, if otherwise eligible, be

granted additional Options.




 




4.         Shares

Subject to Option.  Options shall be

for the purchase of shares of the authorized but unissued common stock or

treasury shares of common stock of the Company (the “Stock”), subject to

adjustment as provided in paragraph 11 below.  The maximum number of shares of Stock which may be issued under

the Plan shall be One Million Five Hundred Thousand (1,500,000) shares.  Subject to adjustment as provided in

paragraph 11 below, at any such time as a Participating Company is a

“publicly held corporation” as defined in paragraph 2 of

Section 162(m), no person shall be granted within any fiscal year of the

Company Options which in the aggregate cover more than One Hundred Thousand

(100,000) shares (the “Per Optionee Limit”). 

In the event that any outstanding Option for any reason expires or is

terminated or cancelled and/or shares of Stock subject to repurchase are

repurchased by the Company, the shares allocable to the unexercised portion of

such Option, or such repurchased shares, may again be subjected to an

Option.  Notwithstanding the foregoing,

any such shares shall be made subject to a new Option only if the grant of such

new Option and the issuance of such shares pursuant to such new Option would

not cause the Plan or any Option granted under the Plan to contravene Rule

16b-3.











 




5.         Time

for Granting Options.  All Options shall

be granted, if at all, by February 28, 2009; provided, however, that all

Incentive Stock Options shall be granted, if at all, by February 29, 2008.




6.         Terms,

Conditions and Form of Options Which Are Not Director Options.  Subject to the provisions of the Plan, the

Board shall determine for each Option which is not a Director Option (which

need not be identical) the number of shares of Stock for which the Option shall

be granted, the exercise price of the Option, the exercisability of the Option,

whether the Option is to be treated as an Incentive Stock Option or as a

nonqualified stock option and all other terms and conditions of the Option not

inconsistent with the Plan.  Options

granted pursuant to the Plan shall be evidenced by written agreements specifying

the number of shares of Stock covered thereby, in such form as the Board shall

from time to time establish, and shall comply with and be subject to the

following terms and conditions:




(a)     Exercise

Price.  The exercise price for each

Option shall be established in the sole discretion of the Board; provided,

however, that (i) the exercise price per share for an Incentive Stock

Option shall be not less than the fair market value, as determined by the

Board, of a share of Stock on the date of the granting of the Option,

(ii) the exercise price per share for a nonqualified stock option shall

not be less than eighty-five percent (85%) of the fair market value, as

determined by the Board, of a share of Stock on the date of the granting of the

Option and (iii) no Incentive Stock Option granted to an Optionee who at

the time the Option is granted owns stock possessing more than ten percent

(10%) of the total combined voting power of all classes of stock of a

Participating Company within the meaning of section 422(b)(6) of the Code (a

“Ten Percent Owner Optionee”) shall have an exercise price per share less than

one hundred ten percent (110%) of the fair market value of a share of Stock on

the date the Option is granted. 

Notwithstanding the foregoing, an Option (whether an Incentive Stock

Option or a nonqualified stock option) may be granted with an exercise price

lower than the minimum exercise price set forth above if such Option is granted

pursuant to an assumption or substitution for another option in a manner

qualifying with the provisions of section 424(a) of the Code.




(b)     Exercise

Period of Options.  The Board shall

have the power to set the time or times within which each Option shall be

exercisable or the event or events upon the occurrence of which all or a

portion of each Option shall be exercisable and the term of each Option;

provided, however, that (i) no Incentive Stock Option shall be exercisable

after the expiration of ten (10) years after the date such Option is granted,

(ii) no nonqualified stock option shall be exercisable after the

expiration of ten (10) years and one (1) month after the date such Option is

granted and (iii) no Incentive Stock Option granted to a Ten Percent Owner

Optionee shall be exercisable after the expiration of five (5) years after the

date such Option is granted.











(c)     Payment

of Exercise Price.  Payment of the

exercise price for the number of shares of Stock being purchased pursuant to

any Option shall be made (i) in cash, by check, or cash equivalent,

(ii) by tender to the Company of shares of the Company’s stock owned by

the Optionee having a value, as determined by the Board (but without regard to

any restrictions on transferability applicable to such stock by reason of

federal or state securities laws or agreements with an underwriter for the

Company), not less than the exercise price, (iii) by the Optionee’s

recourse promissory note, (iv) by the assignment of the proceeds of a sale

of some or all of the shares being acquired upon the exercise of an Option, or

(v) by any combination thereof. 

The Board may at any time or from time to time, by adoption of or by

amendment to either of the standard forms of stock option agreement described

in paragraph 7 below, or by other means, grant Options which do not permit

all of the foregoing forms of consideration to be used in payment of the

exercise price and/or which otherwise restrict one (1) or more forms of

consideration.  Notwithstanding the

foregoing, an Option may not be exercised by tender to the Company of shares of

the Company’s stock to the extent such tender of stock would constitute a

violation of the provisions of any law, regulation and/or agreement restricting

the redemption of the Company’s stock. 

Furthermore, no promissory note shall be permitted if an exercise using

a promissory note would be a violation of any law.  Any permitted promissory note shall be due and payable not more

than five (5) years after the Option is exercised, and interest shall be

payable at least annually and be at least equal to the minimum interest rate

necessary to avoid imputed interest pursuant to all applicable sections of the

Code.  The Board shall have the

authority to permit or require the Optionee to secure any promissory note used

to exercise an Option with the shares of Stock acquired on exercise of the

Option and/or with other collateral acceptable to the Company.  The Company reserves, at any and all times,

the right, in the Company’s sole and absolute discretion, to establish, decline

to approve and/or terminate any program and/or procedures for the exercise of

Options by means of an assignment of the proceeds of a sale of some or all of

the shares of Stock to be acquired upon such exercise.




7.         Standard

Forms of Stock Option Agreement for Options Which Are Not Director Options.




(a)     Incentive

Stock Options.  Unless otherwise

provided for by the Board at the time an Option is granted, an Option

designated by the Board as an “Incentive Stock Option” shall comply with and be

subject to the terms and conditions set forth in the form of incentive stock

option agreement attached hereto as Exhibit A and incorporated

herein by reference.




(b)     Nonqualified

Stock Options.  Unless otherwise

provided for by the Board at the time an Option is granted or unless the Option

is a Director Option, an Option designated by the Board as a “Nonqualified

Stock Option” shall comply with and be subject to the terms and agreement

attached hereto as Exhibit B and incorporated herein by reference.




(c)     Standard

Term for Options.  Unless otherwise

provided for by the Board in the grant of an Option and under the terms of the

Plan, any Incentive Stock Option granted hereunder shall be exercisable for a

term of ten (10) years and any nonqualified stock option granted hereunder

shall be exercisable for a term of ten (10) years and one (1) month.











 




8.         Authority

to Vary Terms.  The Board shall have

the authority from time to time to vary the terms of either of the standard

forms of stock option agreement described in paragraph 7 above either in

connection with the grant of an individual Option or in connection with the

authorization of a new standard form or forms; provided, however, that the

terms and conditions of such revised or amended standard form or forms of

agreements shall be in accordance with the terms of the Plan.  Such authority shall include, but not by way

of limitation, the authority to grant Options which are not immediately

exercisable.




9.         Terms,

Conditions and Form of Director Options. 

The terms and conditions of an Option granted to an Eligible Director (a

“Director Option”) shall be as set forth below.  Director Options granted pursuant to the Plan shall be evidenced

by written agreements specifying the number of shares of Stock covered thereby,

in substantially the form attached hereto as Exhibit C, which written

agreement may incorporate all or any of the terms of the Plan by reference and

shall comply with and be subject to the following terms and conditions:




(a)     Eligible

Directors.  A member of the Board of

Directors of the Company who is not an employee of the Company and who is not

an individual who performs services, whether as an employee, partner,

principal, sole proprietor, director, trustee, independent contractor, or

consultant for any entity which owns more than 5% of the total combined voting

power of all classes of stock of the Company is eligible to receive one or more

Director Options (“Eligible Director”). 

No member of the Company’s Board of Directors who is not an employee of

the Company is eligible to receive the grant of an option under the Plan except

under the terms of this paragraph 9.




(b)     Shares

Subject to a Director Option.  The

number of shares of Stock subject to the initial grant to an Eligible Director

shall be the number of shares of Stock equal to $100,000 divided by the fair

market value of the Stock on the date of the grant of the option, rounded to

the nearest whole share of Stock, up to a maximum of Ten Thousand (10,000)

shares of Stock.  Each Eligible Director

shall also be entitled to an annual grant with the number of shares of Stock

subject to such Director Option equal to $50,000 divided by the fair market

value of the Stock on the date of the option grant, rounded to the nearest

whole share of Stock, up to a maximum of Three Thousand (3,000) shares of

Stock.  The number of shares of Stock

subject to the first annual grant to an Eligible Director who has not served as

a director of the Company for the full twelve–month period preceding the

date of grant of that Director Option shall be pro rated to reflect the actual period

of time during that year actually served as a director, rounded to the nearest

whole share of Stock.




(c)     Timing

of Automatic Grants of Director Options. 

The initial grant of a Director Option to an Eligible Director who has

not previously received the grant of an Option under the Plan shall occur on

the later of (i) the date that the stockholders of the Company approve the

provisions of this paragraph 9, or (ii) the date that an individual

becomes an Eligible Director.  The

annual grant of a Director Option shall be made automatically to all those

Eligible Directors continuing to serve as directors of the Company on the

following dates: (i) the date that the stockholders of the Company approve

the provisions of this paragraph 9, and (ii) the date of the Company’s

meeting of the Board of Directors in the month of December, beginning with

December 1993, and if no meeting of the Board of Directors is held in the

month of December, the date of grant shall be December 15.  The grant shall occur automatically without

the need for any action by the Board of Directors of the Company or any other

body.











 




(d)     Election

to Decline Director Option. 

Notwithstanding the foregoing, any Eligible Director may elect not to

receive a Director Option granted pursuant to this paragraph 9 by delivering

written notice of such election to the Board (i) in the case of a person

who is not, prior to the date on which a Director Option would otherwise be

granted to such person, subject to the provisions of Section 16 of the Exchange

Act with respect to the equity securities of the Company, no later than the

date preceding the date on which the Director Option would otherwise be

granted, or (2) in any other case, no later than six (6) months prior to

the date on which the Director Option would otherwise be granted.




(e)     Type

of Options for Tax Purposes.  All

Director Options shall be nonqualified stock options.




(f)      Exercise

Price.  All Director Options shall

be granted with an exercise price per share of Stock equal to 100% of the fair

market value of a share of Stock on the date of grant.  For purposes of this paragraph 9(f), where

there is a public market for the Stock, the fair market value per share of

Stock shall be the mean of the bid and asked prices of the Stock on the date of

the granting of the Director Option, as reported in the Wall Street Journal

(or, if not so reported, as otherwise reported by the National Association of

Securities Dealers Automated Quotation (“NASDAQ”) system) or, in the event the

Stock is listed on the NASDAQ National Market System or a national or regional

securities exchange, the fair market value per share of Stock shall be the

closing price on such National Market System or exchange constituting the

primary market for the Stock on the date of the granting of the Director

Option, as reported in the Wall Street Journal.  If the date of the granting of a Director Option does not fall on

a day on which the Stock is trading on NASDAQ, the NASDAQ National Market System

or other national or regional securities exchange, the date on which the

Director Option exercise price per share shall be established shall be the last

day on which the Stock was so traded prior to the date of the granting of the

Director Option.




(g)     Payment

of Exercise Price.  All shares of the

Stock acquired upon the exercise of a Director Option may be paid for with

(i) cash, a check, or cash equivalent, (ii) shares of the Company’s stock

owned by the Eligible Director exercising a Director Option having a value not

less than the exercise price, (iii) if such an arrangement would not

subject the Eligible Director to short–swing trading profits liability

under section 16(b) of the Securities Exchange Act of 1934, as amended (the

“Exchange Act”), the assignment of proceeds to the Company from the immediate

sale of the shares acquired upon exercise of the Director Option, or (iv) by

any combination thereof. 

Notwithstanding the foregoing, a Director Option may not be exercised by

tender to the Company of shares of the Company’s stock to the extent such

tender of stock would constitute a violation of the provisions of any law,

regulation and/or agreement restricting the redemption of the Company’s

stock.  Furthermore, the Company

reserves, at any and all times, the right, in the Company’s sole and absolute

discretion, to establish, decline to approve and/or terminate any program

and/or procedures for the exercise of Director Options by means of an

assignment of the proceeds of a sale of some or all of the shares of Stock to

be acquired upon such exercise.











 




(h)     Vesting

of Director Options.  The shares of

Stock subject to a Director Option may only be acquired by the Eligible

Director who is granted such Director Option to the extent such shares of Stock

are Vested Shares.  The shares of Stock

subject to a Director Option become Vested Shares as follows:  1/5th of the total number of shares of Stock

subject to a Director Option become Vested Shares one year after the date such

option was granted (the “Initial Vesting Date”), provided that the Eligible

Director has served continuously as a director of the Company from the date of

grant of such Director Option to the Initial Vesting Date, and an additional

1/60th of the total number of shares of Stock subject to a Director Option

become Vested Shares for each full calendar month of continuous service by the

Eligible Director as a director following the Initial Vesting Date.  In no event shall the calculation of the

number of Vested Shares under a Director Option exceed the number of shares of

Stock subject to such Director Option. 

Notwithstanding the foregoing, in the event of a Transfer of Control as

defined in paragraph 12 below, all shares of Stock subject to an

outstanding Director Option shall become Vested Shares immediately prior to the

time of such Transfer of Control.  Any

Director Option which is not exercised as of the date of the Transfer of

Control shall terminate and cease to be outstanding effective as of the date of

the Transfer of Control.




(i)      Exercise

Period of Director Options.  All

Director Options shall be exercisable only as to Vested Shares for a period of

10 years from the date of grant of the Director Option, subject to earlier

termination in the event that (i) the individual ceases to serve as a member of

the Board of Directors of the Company under the terms set forth in the

agreement between the Company and the Eligible Director documenting the

Director Option or (ii) a Transfer of Control occurs with respect to the

Company.




(j)      Authority

to Establish Additional Terms and Standard Forms of Agreement.  The Board shall have the authority from time

to time in connection with the grant or amendment of Director Options to

establish additional terms and conditions for the grant of such options and to

approve one or more standard forms of agreement between an Eligible Director

and the Company documenting the terms of a Director Option; provided, however,

that such additional terms and conditions and such standard forms of agreement

must be in accordance with the provisions set forth in this paragraph 9

and of the Plan in general.




10.       Fair

Market Value Limitation.  To the

extent that the aggregate fair market value (determined at the time the Option

is granted) of stock with respect to which Incentive Stock Options are

exercisable by an Optionee for the first time during any calendar year (under

all stock option plans of the Company, including the Plan) exceeds One Hundred

Thousand Dollars ($100,000) (the “fair market value limitation”), such options

shall be treated as nonqualified stock options.  This paragraph shall be applied by taking Incentive Stock Options

into account in the order in which they were granted.  In the event of an amendment to section 422 of the Code, the

Board shall have the authority to amend this paragraph 10 to make this

provision no more restrictive to the Optionee than necessary to insure

qualification of the Incentive Stock Option as meeting the requirements of

section 422 of the Code, as amended.  In

the event an Optionee receives an Option intended to be an Incentive Stock

Option which is subsequently determined to have exceeded the fair market value

limitation, the Option shall be amended, if necessary, in accordance with

applicable Treasury Regulations and rulings to preserve, as the first priority,

to the maximum possible extent, the status of the Option as an Incentive Stock

Option and to preserve, as a second priority, to the maximum possible extent,

the total number of shares of Stock subject to the Option.  The foregoing provision shall apply only to

Incentive Stock Options and shall not apply to an Option which has been

designated as a nonqualified stock option.











 




11.       Effect

of Change in Stock Subject to Plan. 

Appropriate adjustments shall be made in the number and class of shares

of Stock subject to the Plan, to the Per Optionee Limit in paragraph 4 above,

to Director Options pursuant to paragraph 9(b) above, and to any

outstanding Options and in the exercise price of any outstanding Options in the

event of a stock dividend, stock split, recapitalization, reverse stock split,

combination, reclassification, or like change in the capital structure of the

Company.




12.       Transfer

of Control and Hostile Takeover.




(a)     A

“Transfer of Control” shall be deemed to have occurred in the event any of the

following occurs with respect to the Control Company.  For purposes of applying this paragraph 12, the “Control

Company” shall mean the Participating Company whose stock is subject to the

Option.




(i)    the direct

or indirect sale or exchange by the stockholders of the Control Company of all

or substantially all of the stock of the Control Company where the stockholders

of the Control Company before such sale or exchange do not retain, directly or

indirectly, at least a majority of the beneficial interest in the voting stock

of the Control Company;




(ii)   a merger

in which the stockholders of the Control Company before such merger do not

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

in the voting stock of the Control Company; or




(iii)  the sale,

exchange, or transfer (including, without limitation, pursuant to a liquidation

or dissolution) of all or substantially all of the Control Company’s assets

(other than a sale, exchange, or transfer to one (1) or more corporations where

the stockholders of the Control 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).




              In the event of a Transfer of Control, the Board, in

its sole discretion, may arrange with the surviving, continuing, successor, or

purchasing corporation, as the case may be (the “Acquiring Corporation”), for

the Acquiring Corporation to either assume the Company’s rights and obligations

under outstanding stock option agreements or substitute options for the

Acquiring Corporation’s stock for such outstanding Options.  Any Options which are neither assumed or

substituted for by the Acquiring Corporation nor exercised as of the date of

the Transfer of Control shall terminate and cease to be outstanding effective

as of the date of the Transfer of Control.




 




(b)     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.




              In the event of a Hostile Takeover, each outstanding

Option shall become immediately vested and exercisable in full effective

immediately prior to the consummation of the Hostile Takeover.




 




13.       Provision

of Information.  At least annually,

copies of the Company’s balance sheet and income statement for the just

completed fiscal year shall be made available to each Optionee and purchaser of

shares of Stock upon the exercise of an Option.  The Company shall not be required to provide such information to

persons whose duties in connection with the Company assure them access to

equivalent information.  Each Optionee

shall be given access to information concerning the Company equivalent to that

information generally made available to the Company’s common stockholders.




14.       Options

Non-Transferable.  During the

lifetime of the Optionee, the Option shall be exercisable only by the

Optionee.  No Option shall be assignable

or transferable by the Optionee, except by will or by the laws of descent and

distribution.




15.       Transfer

of Company’s Rights.  In the event

any Participating Company assigns, other than by operation of law, to a third

person, other than another Participating Company, any of the Participating

Company’s rights to repurchase any shares of Stock acquired on the exercise of

an Option, the assignee shall pay to the assigning Participating Company the

value of such right as determined by the Company in the Company’s sole

discretion.  Such consideration shall be

in such form, including, without limitation, the performance of future

services, as the Company shall determine in the Company’s sole discretion.  In the event such repurchase right is

exercisable at the time of such assignment, the value of such right shall be

not less than the fair market value of the shares of Stock which may be

repurchased under such right (as determined by the Company) minus the

repurchase price of such shares.  The

requirements of this paragraph 15 regarding the minimum consideration to

be received by the assigning Participating Company shall not inure to the

benefit of the Optionee whose shares of Stock are being repurchased.  Failure of a Participating Company to comply

with the provisions of this paragraph 15 shall not constitute a defense or

otherwise prevent the exercise of the repurchase right by the assignee of such

right.











 




16.       Termination

or Amendment of Plan or Option.  The

Board, including any duly appointed committee of the Board, may terminate or

amend the Plan or an Option granted under the Plan at any time; provided,

however, that without the approval of the Company’s stockholders, there shall

be (a) no increase in the total number of shares of Stock covered by the

Plan (except by operation of the provisions of paragraph 11 above), (b) no

change in the class of persons eligible to receive Incentive Stock Options,

(c) no expansion in the class of persons eligible to receive nonqualified

stock options, and (d) no amendment to the Plan or an Option which in the

opinion of the Board would cause the Plan to cease to comply with the

requirements of Rule 16b–3. 

Furthermore, the provisions of the Plan addressing eligibility for

Director Options and the amount, price and timing of grants of Director Options

shall not be amended more than once every six (6) months, other than to comport

to changes in the Code, or the regulations thereunder.  In any event, no amendment may adversely

affect any then outstanding Option or any unexercised portion thereof, without

the consent of the Optionee, unless such amendment is required to enable an

Option designated as an Incentive Stock Option to qualify as an Incentive Stock

Option.




17.       Continuation

of Initial Plan and Prior Plan. 

Notwithstanding any other provision of the Plan to the contrary, the

terms of the Initial Plan and Prior Plan shall remain in effect and apply to

Options granted pursuant to the Initial Plan and Prior Plan, respectively.




IN WITNESS WHEREOF, the undersigned Secretary of the

Company certifies that the foregoing is the Second Amended and Restated Fresh

Choice, Inc. 1988 Stock Option Plan as duly adopted by the Board on March

24, 1993 and amended through July 12, 2001.




 




	

   


  	

   


  	

   


  	

   


  	

  /S/  Joan M. Miller


  
	

   


  	

   


  	

   


  	

   


  	

  Secretary


  





 




















 




Plan History




 




	

  February 28, 1989


  	

   


  	

  Board of predecessor

  California corporation adopts Plan with share reserve of 1,000,070 shares.


  
	

   


  	

   


  	

   


  
	

  November 1, 1989


  	

   


  	

  Shareholders of predecessor corporation approve Plan

  with share reserve of 1,000,070 shares.


  
	

   


  	

   


  	

   


  
	

  November 19, 1990


  	

   


  	

  Board of predecessor corporation amends Plan to

  increase share reserve to 1,107,564 shares.


  
	

   


  	

   


  	

   


  
	

  December 21, 1990


  	

   


  	

  Shareholders of predecessor corporation approve

  share reserve increase to 1,107,564 shares.


  
	

   


  	

   


  	

   


  
	

  September     , 1992


  	

   


  	

  Board of predecessor corporation amends Plan to

  increase share reserve to 2,152,656 shares.


  
	

   


  	

   


  	

   


  
	

  December 4, 1992


  	

   


  	

  Shareholders of predecessor corporation approve

  share reserve increase to 2,152,656 shares.


  
	

   


  	

   


  	

   


  
	

  December 4, 1992


  	

   


  	

  Share exchange of 1-for-4.1525 in connection with

  Delaware reincorporation results in share reserve of 518,400 shares.


  
	

   


  	

   


  	

   


  
	

  March 20, 1993


  	

   


  	

  Board amends and restates Plan as Second Amended and

  Restated 1988 Stock Option Plan to include a program of automatic option

  grants to non-employee directors intended to constitute a formula grant plan

  described in Rule 16b-3(c)(2)(ii) under the Exchange Act.


  
	

   


  	

   


  	

   


  
	

  May 24, 1993


  	

   


  	

  Stockholders approve Second Amended and Restated

  1988 Stock Option Plan.


  
	

   


  	

   


  	

   


  
	

  March 18, 1994


  	

   


  	

  Board amends Plan to (1) increase share reserve

  to 800,000 shares, (2) add Per Optionee Limit comporting with

  Section 162(m) of the Internal Revenue Code, (3) add provisions

  comporting with new Rule 16b–3 in anticipation of election to

  comply with such rule, and (4) make certain other desirable revisions as

  appropriate for a publicly traded Delaware corporation.


  
	

   


  	

   


  	

   


  
	

  May 24, 1994


  	

   


  	

  Stockholders approve foregoing amendments and share

  reserve increase to 800,000 shares.


  
	

   


  	

   


  	

   


  
	

  March 14, 1996


  	

   


  	

  Board amends Plan to (1) increase share reserve to

  1,500,000 shares and (2) limit the grants to non-employee Directors thereunder

  to a number of shares equal to $100,000 divided by the fair market value on

  the date of grant, up to a maximum of 10,000 shares for an initial grant, and

  to a number of shares equal to $50,000 divided by the fair market value on

  the date of grant, up to a maximum of 3,000 shares for the annual grants

  thereafter


  
	

   


  	

   


  	

   


  
	

  August 28, 1996


  	

   


  	

  Stockholders approve foregoing amendments and share

  reserve increase to 1,500,000 shares.


  
	

   


  	

   


  	

   


  
	

  March 31, 1998


  	

   


  	

  Board amends Plan to extend term until February 28,

  2009.


  
	

   


  	

   


  	

   


  
	

  May 21, 1998


  	

   


  	

  Stockholders approve amendment to extend the term of

  the Plan.


  
	

   


  	

   


  	

   


  
	

  July 12, 2001


  	

   


  	

  Board amends Plan to include Hostile Takeover

  provision as Section 12(b)