**Exhibit 10.47**

 

SECOND AMENDED ANDRESTATED

 

FRESH CHOICE, INC.

 

1988 STOCK OPTIONPLAN

 

(As AmendedThrough July 12, 2001)

 

 

# 1.         Purpose.  The Fresh Choice, Inc. 1988 Stock OptionPlan (the “Initial Plan”) was adopted on February 28, 1989.  The Initial Plan was amended from time totime and then subsequently amended and restated effective as of September 25,1992 (the “Prior Plan”).  The Prior Planis hereby amended and restated on March 20, 1993 in its entirety (the“Plan”) to establish a program of automatic option grants to certainindividuals who are members of the Board of Directors of Fresh Choice, Inc. whoare 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, andany successor corporation thereto (collectively referred to as the “Company”),and any present or future parent and/or subsidiary corporations of suchcorporation (all of whom along with the Company being individually referred toas a “Participating Company” and collectively referred to as the “ParticipatingCompany Group”), to promote the financial success and progress of theParticipating Company Group.  Forpurposes of the Plan, a parent corporation and a subsidiary corporation shallbe as defined in sections 424(e) and 424(f) of the Internal Revenue Code of1986, as amended (the “Code”).

# 2.         Administration.

## (a)     Administrationby Board and/or Committee.  The Planshall 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 shallbe specified by the Board.  Anysubsequent references herein to the Board shall also mean the committee if suchcommittee has been appointed and, unless the powers of the committee have beenspecifically limited, the committee shall have all of the powers of the Boardgranted herein, including, without limitation, the power to terminate or amendthe Plan at any time, subject to the terms of the Plan and any applicablelimitations imposed by law.  Allquestions of interpretation of the Plan or of any options granted under thePlan (an “Option”) shall be determined by the Board, and such determinationsshall be final and binding upon all persons having an interest in the Planand/or any Option.

## (b)     Limitationof Authority With Respect to Director Options.  Notwithstanding any provision herein to the contrary, the Boardshall have no authority, discretion, or power to select the Eligible Directors(as defined in paragraph 9 below) of the Company who will receive DirectorOptions (as defined in paragraph 9 below) under the Plan, to set the exerciseprice of Director Options granted under the Plan, to determine the number ofshares of Stock to be granted under a Director Option or the time at which suchoptions are to be granted, to establish the duration of Director Options, oralter any other terms or conditions specified in the Plan with respect toDirector Options, except in the sense of administering the Plan subject to theprovisions of the Plan.

## (c)     OptionsAuthorized.  Options may be eitherincentive stock options as defined in section 422 of the Code (“Incentive StockOptions”) or nonqualified stock options.

## (d)     Authorityof Officers.  Any officer of a ParticipatingCompany shall have the authority to act on behalf of the Company with respectto any matter, right, obligation, or election which is the responsibility of orwhich is allocated to the Company herein, provided the officer has apparentauthority with respect to such matter, right, obligation, or election.

## (e)     DisinterestedAdministration.  With respect to theparticipation in the Plan of employees who are also officers or directors ofthe Company subject to Section 16 of the Securities Exchange Act of 1934, asamended (the “Exchange Act”), the Plan shall be administered by the Board incompliance with the “disinterested administration” requirement of Rule 16b–3,as promulgated under the Exchange Act and amended from time to time or anysuccessor rule or regulation (“Rule 16b-3”).

## (f)      Compliancewith Section 162(m) of the Code.  Inthe event a Participating Company is a “publicly held corporation” as definedin paragraph (2) of section 162(m) of the Code, as amended by the RevenueReconciliation Act of 1993 (P.L. 103-66), and the regulations promulgatedthereunder (“Section 162(m)”), the Company may establish a committee of outsidedirectors meeting the requirements of paragraph 4(C)(i) of Section 162(m) toapprove the grant of Options which might reasonably be anticipated to result inthe payment of employee remuneration that would otherwise exceed the limit onemployee remuneration deductible for income tax purposes pursuant to Section162(m).

3.         Eligibility.  The Options may be granted only to full-timeemployees (including officers) and directors of the Participating Company Groupor to individuals who are rendering services as consultants or otherindependent 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 personsshall be granted Options (an “Optionee”). A director of the Company shall be eligible to be granted only anonqualified stock option unless the director is also an employee of theCompany.  Furthermore, a director of theCompany who is not an employee of the Company shall be eligible to be grantedonly a Director Option (as defined below) under the terms set forth inparagraph 9 below.  An individualwho is rendering services as a consultant or other independent contractor shallbe eligible to be granted only a nonqualified stock option.  An Optionee may, if otherwise eligible, begranted additional Options.

 

# 4.         SharesSubject to Option.  Options shall befor the purchase of shares of the authorized but unissued common stock ortreasury shares of common stock of the Company (the “Stock”), subject toadjustment as provided in paragraph 11 below.  The maximum number of shares of Stock which may be issued underthe Plan shall be One Million Five Hundred Thousand (1,500,000) shares.  Subject to adjustment as provided inparagraph 11 below, at any such time as a Participating Company is a“publicly held corporation” as defined in paragraph 2 ofSection 162(m), no person shall be granted within any fiscal year of theCompany 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 isterminated or cancelled and/or shares of Stock subject to repurchase arerepurchased by the Company, the shares allocable to the unexercised portion ofsuch Option, or such repurchased shares, may again be subjected to anOption.  Notwithstanding the foregoing,any such shares shall be made subject to a new Option only if the grant of suchnew Option and the issuance of such shares pursuant to such new Option wouldnot cause the Plan or any Option granted under the Plan to contravene Rule16b-3.

 

# 5.         Timefor Granting Options.  All Options shallbe granted, if at all, by February 28, 2009; provided, however, that allIncentive 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, theBoard shall determine for each Option which is not a Director Option (whichneed not be identical) the number of shares of Stock for which the Option shallbe 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 anonqualified stock option and all other terms and conditions of the Option notinconsistent with the Plan.  Optionsgranted pursuant to the Plan shall be evidenced by written agreements specifyingthe number of shares of Stock covered thereby, in such form as the Board shallfrom time to time establish, and shall comply with and be subject to thefollowing terms and conditions:

## (a)     ExercisePrice.  The exercise price for eachOption shall be established in the sole discretion of the Board; provided,however, that (i) the exercise price per share for an Incentive StockOption shall be not less than the fair market value, as determined by theBoard, 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 shallnot be less than eighty-five percent (85%) of the fair market value, asdetermined by the Board, of a share of Stock on the date of the granting of theOption and (iii) no Incentive Stock Option granted to an Optionee who atthe 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 aParticipating 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 thanone hundred ten percent (110%) of the fair market value of a share of Stock onthe date the Option is granted. Notwithstanding the foregoing, an Option (whether an Incentive StockOption or a nonqualified stock option) may be granted with an exercise pricelower than the minimum exercise price set forth above if such Option is grantedpursuant to an assumption or substitution for another option in a mannerqualifying with the provisions of section 424(a) of the Code.

## (b)     ExercisePeriod of Options.  The Board shallhave the power to set the time or times within which each Option shall beexercisable or the event or events upon the occurrence of which all or aportion of each Option shall be exercisable and the term of each Option;provided, however, that (i) no Incentive Stock Option shall be exercisableafter the expiration of ten (10) years after the date such Option is granted,(ii) no nonqualified stock option shall be exercisable after theexpiration of ten (10) years and one (1) month after the date such Option isgranted and (iii) no Incentive Stock Option granted to a Ten Percent OwnerOptionee shall be exercisable after the expiration of five (5) years after thedate such Option is granted.

## (c)     Paymentof Exercise Price.  Payment of theexercise price for the number of shares of Stock being purchased pursuant toany 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 bythe Optionee having a value, as determined by the Board (but without regard toany restrictions on transferability applicable to such stock by reason offederal or state securities laws or agreements with an underwriter for theCompany), not less than the exercise price, (iii) by the Optionee’srecourse promissory note, (iv) by the assignment of the proceeds of a saleof 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 byamendment to either of the standard forms of stock option agreement describedin paragraph 7 below, or by other means, grant Options which do not permitall of the foregoing forms of consideration to be used in payment of theexercise price and/or which otherwise restrict one (1) or more forms ofconsideration.  Notwithstanding theforegoing, an Option may not be exercised by tender to the Company of shares ofthe Company’s stock to the extent such tender of stock would constitute aviolation of the provisions of any law, regulation and/or agreement restrictingthe redemption of the Company’s stock. Furthermore, no promissory note shall be permitted if an exercise usinga promissory note would be a violation of any law.  Any permitted promissory note shall be due and payable not morethan five (5) years after the Option is exercised, and interest shall bepayable at least annually and be at least equal to the minimum interest ratenecessary to avoid imputed interest pursuant to all applicable sections of theCode.  The Board shall have theauthority to permit or require the Optionee to secure any promissory note usedto exercise an Option with the shares of Stock acquired on exercise of theOption 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, declineto approve and/or terminate any program and/or procedures for the exercise ofOptions by means of an assignment of the proceeds of a sale of some or all ofthe shares of Stock to be acquired upon such exercise.

# 7.         StandardForms of Stock Option Agreement for Options Which Are Not Director Options.

## (a)     IncentiveStock Options.  Unless otherwiseprovided for by the Board at the time an Option is granted, an Optiondesignated by the Board as an “Incentive Stock Option” shall comply with and besubject to the terms and conditions set forth in the form of incentive stockoption agreement attached hereto as Exhibit A and incorporatedherein by reference.

## (b)     NonqualifiedStock Options.  Unless otherwiseprovided for by the Board at the time an Option is granted or unless the Optionis a Director Option, an Option designated by the Board as a “NonqualifiedStock Option” shall comply with and be subject to the terms and agreementattached hereto as Exhibit B and incorporated herein by reference.

## (c)     StandardTerm for Options.  Unless otherwiseprovided for by the Board in the grant of an Option and under the terms of thePlan, any Incentive Stock Option granted hereunder shall be exercisable for aterm of ten (10) years and any nonqualified stock option granted hereundershall be exercisable for a term of ten (10) years and one (1) month.

 

# 8.         Authorityto Vary Terms.  The Board shall havethe authority from time to time to vary the terms of either of the standardforms of stock option agreement described in paragraph 7 above either inconnection with the grant of an individual Option or in connection with theauthorization of a new standard form or forms; provided, however, that theterms and conditions of such revised or amended standard form or forms ofagreements shall be in accordance with the terms of the Plan.  Such authority shall include, but not by wayof limitation, the authority to grant Options which are not immediatelyexercisable.

# 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 evidencedby written agreements specifying the number of shares of Stock covered thereby,in substantially the form attached hereto as Exhibit C, which writtenagreement may incorporate all or any of the terms of the Plan by reference andshall comply with and be subject to the following terms and conditions:

## (a)     EligibleDirectors.  A member of the Board ofDirectors of the Company who is not an employee of the Company and who is notan individual who performs services, whether as an employee, partner,principal, sole proprietor, director, trustee, independent contractor, orconsultant for any entity which owns more than 5% of the total combined votingpower of all classes of stock of the Company is eligible to receive one or moreDirector Options (“Eligible Director”). No member of the Company’s Board of Directors who is not an employee ofthe Company is eligible to receive the grant of an option under the Plan exceptunder the terms of this paragraph 9.

## (b)     SharesSubject to a Director Option.  Thenumber of shares of Stock subject to the initial grant to an Eligible Directorshall be the number of shares of Stock equal to $100,000 divided by the fairmarket value of the Stock on the date of the grant of the option, rounded tothe nearest whole share of Stock, up to a maximum of Ten Thousand (10,000)shares of Stock.  Each Eligible Directorshall also be entitled to an annual grant with the number of shares of Stocksubject to such Director Option equal to $50,000 divided by the fair marketvalue of the Stock on the date of the option grant, rounded to the nearestwhole share of Stock, up to a maximum of Three Thousand (3,000) shares ofStock.  The number of shares of Stocksubject to the first annual grant to an Eligible Director who has not served asa director of the Company for the full twelve–month period preceding thedate of grant of that Director Option shall be pro rated to reflect the actual periodof time during that year actually served as a director, rounded to the nearestwhole share of Stock.

## (c)     Timingof Automatic Grants of Director Options. The initial grant of a Director Option to an Eligible Director who hasnot previously received the grant of an Option under the Plan shall occur onthe later of (i) the date that the stockholders of the Company approve theprovisions of this paragraph 9, or (ii) the date that an individualbecomes an Eligible Director.  Theannual grant of a Director Option shall be made automatically to all thoseEligible Directors continuing to serve as directors of the Company on thefollowing dates: (i) the date that the stockholders of the Company approvethe provisions of this paragraph 9, and (ii) the date of the Company’smeeting of the Board of Directors in the month of December, beginning withDecember 1993, and if no meeting of the Board of Directors is held in themonth of December, the date of grant shall be December 15.  The grant shall occur automatically withoutthe need for any action by the Board of Directors of the Company or any otherbody.

 

## (d)     Electionto Decline Director Option. Notwithstanding the foregoing, any Eligible Director may elect not toreceive a Director Option granted pursuant to this paragraph 9 by deliveringwritten notice of such election to the Board (i) in the case of a personwho is not, prior to the date on which a Director Option would otherwise begranted to such person, subject to the provisions of Section 16 of the ExchangeAct with respect to the equity securities of the Company, no later than thedate preceding the date on which the Director Option would otherwise begranted, or (2) in any other case, no later than six (6) months prior tothe date on which the Director Option would otherwise be granted.

## (e)     Typeof Options for Tax Purposes.  AllDirector Options shall be nonqualified stock options.

## (f)      ExercisePrice.  All Director Options shallbe granted with an exercise price per share of Stock equal to 100% of the fairmarket value of a share of Stock on the date of grant.  For purposes of this paragraph 9(f), wherethere is a public market for the Stock, the fair market value per share ofStock shall be the mean of the bid and asked prices of the Stock on the date ofthe granting of the Director Option, as reported in the Wall Street Journal(or, if not so reported, as otherwise reported by the National Association ofSecurities Dealers Automated Quotation (“NASDAQ”) system) or, in the event theStock is listed on the NASDAQ National Market System or a national or regionalsecurities exchange, the fair market value per share of Stock shall be theclosing price on such National Market System or exchange constituting theprimary market for the Stock on the date of the granting of the DirectorOption, as reported in the Wall Street Journal.  If the date of the granting of a Director Option does not fall ona day on which the Stock is trading on NASDAQ, the NASDAQ National Market Systemor other national or regional securities exchange, the date on which theDirector Option exercise price per share shall be established shall be the lastday on which the Stock was so traded prior to the date of the granting of theDirector Option.

## (g)     Paymentof Exercise Price.  All shares of theStock 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 stockowned by the Eligible Director exercising a Director Option having a value notless than the exercise price, (iii) if such an arrangement would notsubject the Eligible Director to short–swing trading profits liabilityunder section 16(b) of the Securities Exchange Act of 1934, as amended (the“Exchange Act”), the assignment of proceeds to the Company from the immediatesale of the shares acquired upon exercise of the Director Option, or (iv) byany combination thereof. Notwithstanding the foregoing, a Director Option may not be exercised bytender to the Company of shares of the Company’s stock to the extent suchtender of stock would constitute a violation of the provisions of any law,regulation and/or agreement restricting the redemption of the Company’sstock.  Furthermore, the Companyreserves, at any and all times, the right, in the Company’s sole and absolutediscretion, to establish, decline to approve and/or terminate any programand/or procedures for the exercise of Director Options by means of anassignment of the proceeds of a sale of some or all of the shares of Stock tobe acquired upon such exercise.

 

## (h)     Vestingof Director Options.  The shares ofStock subject to a Director Option may only be acquired by the EligibleDirector who is granted such Director Option to the extent such shares of Stockare Vested Shares.  The shares of Stocksubject to a Director Option become Vested Shares as follows:  1/5th of the total number of shares of Stocksubject to a Director Option become Vested Shares one year after the date suchoption was granted (the “Initial Vesting Date”), provided that the EligibleDirector has served continuously as a director of the Company from the date ofgrant of such Director Option to the Initial Vesting Date, and an additional1/60th of the total number of shares of Stock subject to a Director Optionbecome Vested Shares for each full calendar month of continuous service by theEligible Director as a director following the Initial Vesting Date.  In no event shall the calculation of thenumber of Vested Shares under a Director Option exceed the number of shares ofStock subject to such Director Option. Notwithstanding the foregoing, in the event of a Transfer of Control asdefined in paragraph 12 below, all shares of Stock subject to anoutstanding Director Option shall become Vested Shares immediately prior to thetime of such Transfer of Control.  AnyDirector Option which is not exercised as of the date of the Transfer ofControl shall terminate and cease to be outstanding effective as of the date ofthe Transfer of Control.

## (i)      ExercisePeriod of Director Options.  AllDirector Options shall be exercisable only as to Vested Shares for a period of10 years from the date of grant of the Director Option, subject to earliertermination in the event that (i) the individual ceases to serve as a member ofthe Board of Directors of the Company under the terms set forth in theagreement between the Company and the Eligible Director documenting theDirector Option or (ii) a Transfer of Control occurs with respect to theCompany.

## (j)      Authorityto Establish Additional Terms and Standard Forms of Agreement.  The Board shall have the authority from timeto time in connection with the grant or amendment of Director Options toestablish additional terms and conditions for the grant of such options and toapprove one or more standard forms of agreement between an Eligible Directorand the Company documenting the terms of a Director Option; provided, however,that such additional terms and conditions and such standard forms of agreementmust be in accordance with the provisions set forth in this paragraph 9and of the Plan in general.

# 10.       FairMarket Value Limitation.  To theextent that the aggregate fair market value (determined at the time the Optionis granted) of stock with respect to which Incentive Stock Options areexercisable by an Optionee for the first time during any calendar year (underall stock option plans of the Company, including the Plan) exceeds One HundredThousand Dollars ($100,000) (the “fair market value limitation”), such optionsshall be treated as nonqualified stock options.  This paragraph shall be applied by taking Incentive Stock Optionsinto account in the order in which they were granted.  In the event of an amendment to section 422 of the Code, theBoard shall have the authority to amend this paragraph 10 to make thisprovision no more restrictive to the Optionee than necessary to insurequalification of the Incentive Stock Option as meeting the requirements ofsection 422 of the Code, as amended.  Inthe event an Optionee receives an Option intended to be an Incentive StockOption which is subsequently determined to have exceeded the fair market valuelimitation, the Option shall be amended, if necessary, in accordance withapplicable Treasury Regulations and rulings to preserve, as the first priority,to the maximum possible extent, the status of the Option as an Incentive StockOption 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 toIncentive Stock Options and shall not apply to an Option which has beendesignated as a nonqualified stock option.

 

# 11.       Effectof Change in Stock Subject to Plan. Appropriate adjustments shall be made in the number and class of sharesof 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 anyoutstanding Options and in the exercise price of any outstanding Options in theevent of a stock dividend, stock split, recapitalization, reverse stock split,combination, reclassification, or like change in the capital structure of theCompany.

# 12.       Transferof Control and Hostile Takeover.

## (a)     A“Transfer of Control” shall be deemed to have occurred in the event any of thefollowing occurs with respect to the Control Company.  For purposes of applying this paragraph 12, the “ControlCompany” shall mean the Participating Company whose stock is subject to theOption.

### (i)    the director indirect sale or exchange by the stockholders of the Control Company of allor substantially all of the stock of the Control Company where the stockholdersof the Control Company before such sale or exchange do not retain, directly orindirectly, at least a majority of the beneficial interest in the voting stockof the Control Company;

### (ii)   a mergerin which the stockholders of the Control Company before such merger do notretain, directly or indirectly, at least a majority of the beneficial interestin the voting stock of the Control Company; or

### (iii)  the sale,exchange, or transfer (including, without limitation, pursuant to a liquidationor 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 wherethe stockholders of the Control Company before such sale, exchange, or transferretain, directly or indirectly, at least a majority of the beneficial interestin the voting stock of the corporation(s) to which the assets weretransferred).

              In the event of a Transfer of Control, the Board, inits sole discretion, may arrange with the surviving, continuing, successor, orpurchasing corporation, as the case may be (the “Acquiring Corporation”), forthe Acquiring Corporation to either assume the Company’s rights and obligationsunder outstanding stock option agreements or substitute options for theAcquiring Corporation’s stock for such outstanding Options.  Any Options which are neither assumed orsubstituted for by the Acquiring Corporation nor exercised as of the date ofthe Transfer of Control shall terminate and cease to be outstanding effectiveas of the date of the Transfer of Control.

 

## (b)     A“Hostile Takeover” shall mean the occurrence of the following:

### (i)    during anyperiod of two (2) consecutive years beginning on or after the date hereof, thepersons who were members of the Board immediately before the beginning of suchperiod (the “Incumbent Directors”) cease (for any reason other than death) toconstitute at least a majority of the Board or the board of directors of any successorto the Company, provided that, any director who was not a director as of thedate hereof shall be deemed to be an Incumbent Director if such director waselected 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 Directorseither actually or by prior operation of the foregoing unless such election,recommendation or approval occurs as a result of an actual or threatenedelection contest or other actual or threatened solicitation of proxies orcontests 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 inSections 13(d) and 14(d) thereof), excluding the Company, any subsidiaryof the Company and any employee benefit plan sponsored or maintained by theCompany or any subsidiary of the Company (including any trustee of any suchplan acting in his capacity as trustee), becomes the “beneficial owner” (asdefined in Rule 13d-3 under the Exchange Act) of securities of the Companyrepresenting thirty percent (30%) of the total combined voting power of theCompany’s then outstanding securities other than pursuant to a transactionapproved by at least two-thirds of the directors who then qualify as IncumbentDirectors.

              In the event of a Hostile Takeover, each outstandingOption shall become immediately vested and exercisable in full effectiveimmediately prior to the consummation of the Hostile Takeover.

 

# 13.       Provisionof Information.  At least annually,copies of the Company’s balance sheet and income statement for the justcompleted fiscal year shall be made available to each Optionee and purchaser ofshares of Stock upon the exercise of an Option.  The Company shall not be required to provide such information topersons whose duties in connection with the Company assure them access toequivalent information.  Each Optioneeshall be given access to information concerning the Company equivalent to thatinformation generally made available to the Company’s common stockholders.

# 14.       OptionsNon-Transferable.  During thelifetime of the Optionee, the Option shall be exercisable only by theOptionee.  No Option shall be assignableor transferable by the Optionee, except by will or by the laws of descent anddistribution.

# 15.       Transferof Company’s Rights.  In the eventany Participating Company assigns, other than by operation of law, to a thirdperson, other than another Participating Company, any of the ParticipatingCompany’s rights to repurchase any shares of Stock acquired on the exercise ofan Option, the assignee shall pay to the assigning Participating Company thevalue of such right as determined by the Company in the Company’s solediscretion.  Such consideration shall bein such form, including, without limitation, the performance of futureservices, as the Company shall determine in the Company’s sole discretion.  In the event such repurchase right isexercisable at the time of such assignment, the value of such right shall benot less than the fair market value of the shares of Stock which may berepurchased under such right (as determined by the Company) minus therepurchase price of such shares.  Therequirements of this paragraph 15 regarding the minimum consideration tobe received by the assigning Participating Company shall not inure to thebenefit of the Optionee whose shares of Stock are being repurchased.  Failure of a Participating Company to complywith the provisions of this paragraph 15 shall not constitute a defense orotherwise prevent the exercise of the repurchase right by the assignee of suchright.

 

# 16.       Terminationor Amendment of Plan or Option.  TheBoard, including any duly appointed committee of the Board, may terminate oramend the Plan or an Option granted under the Plan at any time; provided,however, that without the approval of the Company’s stockholders, there shallbe (a) no increase in the total number of shares of Stock covered by thePlan (except by operation of the provisions of paragraph 11 above), (b) nochange in the class of persons eligible to receive Incentive Stock Options,(c) no expansion in the class of persons eligible to receive nonqualifiedstock options, and (d) no amendment to the Plan or an Option which in theopinion of the Board would cause the Plan to cease to comply with therequirements of Rule 16b–3. Furthermore, the provisions of the Plan addressing eligibility forDirector Options and the amount, price and timing of grants of Director Optionsshall not be amended more than once every six (6) months, other than to comportto changes in the Code, or the regulations thereunder.  In any event, no amendment may adverselyaffect any then outstanding Option or any unexercised portion thereof, withoutthe consent of the Optionee, unless such amendment is required to enable anOption designated as an Incentive Stock Option to qualify as an Incentive StockOption.

# 17.       Continuationof Initial Plan and Prior Plan. Notwithstanding any other provision of the Plan to the contrary, theterms of the Initial Plan and Prior Plan shall remain in effect and apply toOptions granted pursuant to the Initial Plan and Prior Plan, respectively.

IN WITNESS WHEREOF, the undersigned Secretary of theCompany certifies that the foregoing is the Second Amended and Restated FreshChoice, Inc. 1988 Stock Option Plan as duly adopted by the Board on March24, 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.                                                                                                                                                                                                                                                                                                                                                                                        |
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| 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.                                                  |
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| May 24, 1994                             |   | Stockholders approve foregoing amendments and share  reserve increase to 800,000 shares.                                                                                                                                                                                                                                                                                                                                                                         |
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| 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 |
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| August 28, 1996                          |   | Stockholders approve foregoing amendments and share  reserve increase to 1,500,000 shares.                                                                                                                                                                                                                                                                                                                                                                       |
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| March 31, 1998                           |   | Board amends Plan to extend term until February 28,  2009.                                                                                                                                                                                                                                                                                                                                                                                                       |
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| May 21, 1998                             |   | Stockholders approve amendment to extend the term of  the Plan.                                                                                                                                                                                                                                                                                                                                                                                                  |
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| July 12, 2001                            |   | Board amends Plan to include Hostile Takeover  provision as Section 12(b)                                                                                                                                                                                                                                                                                                                                                                                   |