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EXHIBIT 10.3  


 
 

HEALTHETECH, INC.    
    
    2002 STOCK PLAN    
  


        1.    Purposes of the Plan.    The purposes of this 2002 Stock Plan are: 




	•
	to
attract and retain the best available personnel for positions of substantial responsibility,



	•
	to
provide additional incentive to Employees, Directors and Consultants, and



	•
	to
promote the success of the Company's business. 





        Options
granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options, as determined by the Administrator at the time of grant. Stock Purchase Rights may also be
granted under the Plan. 




        2.    Definitions.    As used herein, the following definitions shall apply: 



        (a)  "Administrator" means the Board or any of its Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan. 


        (b)  "Applicable Laws" means the requirements relating to the administration of stock option plans under U. S. state corporate
laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or
jurisdiction where Options or Stock Purchase Rights are, or will be, granted under the Plan. 


        (c)  "Board" means the Board of Directors of the Company. 


        (d)  "Change in Control" means the occurrence of any of the following events: 



          (i)  Any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company's then outstanding voting securities;
or 


        (ii)  A
change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent
Directors. "Incumbent Directors" will mean directors who either (A) are directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election of directors to the Company); or 


        (iii)  The
consummation of the sale or disposition by the Company of all or substantially all of the Company's assets; or 


        (iv)  The
consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its
parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or
consolidation. 




        (e)  "Code" means the Internal Revenue Code of 1986, as amended. 


        (f)    "Committee" means a committee of Directors appointed by the Board in accordance with Section 4 of the Plan. 






 




        (g)  "Common Stock" means the common stock of the Company. 


        (h)  "Company" means Healthetech, Inc., a Delaware corporation. 


        (i)    "Consultant" means any natural person, including an advisor, engaged by the Company or a Parent or Subsidiary to render
services to such entity. 


        (j)    "Director" means a member of the Board. 


        (k)  "Disability" means total and permanent disability as defined in Section 22(e)(3) of the Code. 


        (l)    "Employee" means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the
Company. A Service Provider shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company, or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any successor. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the
Company. 


        (m)  "Exchange Act" means the Securities Exchange Act of 1934, as amended. 


        (n)  "Fair Market Value" means, as of any date, the value of Common Stock determined as follows: 



          (i)  If
the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq
SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system
on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; 


        (ii)  If
the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share of Common Stock shall be
the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable; 


        (iii)  For
purposes of any awards granted on the first day the Company initially offers it equity securities to the public, the Fair Market Value shall be the initial price
to the public as set forth in the final prospectus included within the registration statement in Form S-1 filed with the Securities and Exchange Commission for the initial public
offering of the Company's Common Stock. 


        (iv)  In
the absence of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the Administrator. 




        (o)  "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated thereunder. 


        (p)  "Nonstatutory Stock Option" means an Option not intended to qualify as an Incentive Stock Option. 


        (q)  "Notice of Grant" means a written or electronic notice evidencing certain terms and conditions of an individual Option or
Stock Purchase Right grant. The Notice of Grant is part of the Option Agreement. 



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        (r)  "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder. 


        (s)  "Option" means a stock option granted pursuant to the Plan. 


        (t)    "Option Agreement" means an agreement between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan. 


        (u)  "Option Exchange Program" means a program whereby outstanding Options are surrendered in exchange for Options with a
lower exercise price. 


        (v)  "Optioned Stock" means the Common Stock subject to an Option or Stock Purchase Right. 


        (w)  "Optionee" means the holder of an outstanding Option or Stock Purchase Right granted under the Plan. 


        (x)  "Parent" means a "parent corporation," whether now or hereafter existing, as defined in Section 424(e) of the
Code. 


        (y)  "Plan" means this 2002 Stock Plan, as amended and restated. 


        (z)  "Restricted Stock" means Shares issued pursuant to a Stock Purchase Right or Shares of restricted stock issued pursuant
to an Option. 


        (aa) "Restricted Stock Purchase Agreement" means a written agreement between the Company and the Optionee evidencing the
terms and restrictions applying to stock purchased under a Stock Purchase Right. The Restricted Stock Purchase Agreement is subject to the terms and conditions of the Plan and the Notice of Grant. 



        (bb) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to
Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan. 


        (cc) "Section 16(b)" means Section 16(b) of the Exchange Act. 


        (dd) "Service Provider" means an Employee, Director or Consultant. 


        (ee) "Share" means a share of the Common Stock, as adjusted in accordance with Section 13 of the Plan. 



        (ff)  "Stock Purchase Right" means the right to purchase Common Stock pursuant to Section 11 of the Plan, as evidenced
by a Notice of Grant. 


        (gg) "Subsidiary" means a "subsidiary corporation", whether now or hereafter existing, as defined in Section 424(f) of
the Code. 




        3.    Stock Subject to the Plan.    Subject to the provisions of Section 13 of the Plan, the maximum aggregate
number of Shares that may be optioned and sold under the Plan is 3,333,333 Shares plus (a) any Shares which have been reserved but not issued under the Company's 1998 Stock Plan (the "1998
Plan") as of the date of stockholder approval of this Plan, (b) any Shares returned to the 1998 Plan as a result of termination of options or repurchase of Shares issued under the 1998 Plan and
(c) an annual increase to be added on the first day of the Company's fiscal year beginning in 2003, equal to the lesser of (i) 1,200,000 Shares, (ii) 5% of the outstanding shares
on such date or (iii) an amount determined by the Board. The Shares may be authorized, but unissued, or reacquired Common Stock. 



        If
an Option or Stock Purchase Right expires or becomes unexercisable without having been exercised in full, or is surrendered pursuant to an Option Exchange Program, the unpurchased
Shares 


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which were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated); provided, however, that
Shares that have actually been issued under the Plan, whether upon exercise of an Option or Right, shall not be returned to the Plan and shall not become available for future distribution under the
Plan, except that if Shares of Restricted Stock are repurchased by the Company at their original purchase price, such Shares shall become available for future grant under the Plan. 


        4.    Administration of the Plan.    



        (a)    Procedure.    



        (i)    Multiple Administrative Bodies.    Different Committees with respect to different groups of Service Providers
may administer the Plan. 


        (ii)    Section 162(m).    To the extent that the Administrator determines it to be desirable to qualify
Options granted hereunder as "performance-based compensation" within the meaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more "outside directors"
within the meaning of Section 162(m) of the Code. 


        (iii)    Rule 16b-3.    To the extent desirable to qualify transactions hereunder as exempt under
Rule 16b-3, the transactions contemplated hereunder shall be structured to satisfy the requirements for exemption under Rule 16b-3. 


        (iv)    Other Administration.    Other than as provided above, the Plan shall be administered by (A) the Board
or (B) a Committee, which committee shall be constituted to satisfy Applicable Laws. 




        (b)    Powers of the Administrator.    Subject to the provisions of the Plan, and in the case of a Committee, subject
to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discretion: 



          (i)  to
determine the Fair Market Value; 


        (ii)  to
select the Service Providers to whom Options and Stock Purchase Rights may be granted hereunder; 


        (iii)  to
determine the number of shares of Common Stock to be covered by each Option and Stock Purchase Right granted hereunder; 


        (iv)  to
approve forms of agreement for use under the Plan; 


        (v)  to
determine the terms and conditions, not inconsistent with the terms of the Plan, of any Option or Stock Purchase Right granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or times when Options or Stock Purchase Rights may be exercised (which may be based on performance criteria), any vesting acceleration or
waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or Stock Purchase Right or the shares of Common Stock relating thereto, based in each case on such factors as
the Administrator, in its sole discretion, shall determine; 


        (vi)  to
reduce the exercise price of any Option or Stock Purchase Right to the then current Fair Market Value if the Fair Market Value of the Common Stock covered by such
Option or Stock Purchase Right shall have declined since the date the Option or Stock Purchase Right was granted; 


      (vii)  to
institute an Option Exchange Program; 


      (viii)  to
construe and interpret the terms of the Plan and awards granted pursuant to the Plan; 




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        (ix)  to
establish, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the
purpose of satisfying applicable foreign laws; 


        (x)  to
modify or amend each Option or Stock Purchase Right (subject to Section 15(c) of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise provided for in the Plan; 


        (xi)  to
allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option or Stock
Purchase Right that number of Shares having a Fair Market Value equal to the minimum amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date
that the amount of tax to be withheld is to be determined. All elections by an Optionee to have Shares withheld for this purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; 


      (xii)  to
authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Option or Stock Purchase Right previously granted by the
Administrator; 


      (xiii)  to
correct any defect, supply any omission, or reconcile any inconsistency in the Plan, or in any Option Agreement, in a manner and to the extent it shall deem
necessary, all of which determinations and interpretations made by the Administrator shall be conclusive and binding on all Optionees, any other holders of Options and on their legal representatives
and beneficiaries; and 


      (xiv)  except
to the extent prohibited by, or impermissible in order to obtain treatment desired by the Administrator under, applicable law or rule, to allocate or delegate
all or any portion of its powers and
responsibilities to any one or more of its members or to any person(s) selected by it, subject to revocation or modification by the Administrator of such allocation or delegation. 


      (xv)  to
make all other determinations deemed necessary or advisable for administering the Plan. 




        (c)    Effect of Administrator's Decision.    The Administrator's decisions, determinations and interpretations shall
be final and binding on all Optionees and any other holders of Options or Stock Purchase Rights. 




        5.    Eligibility.    Nonstatutory Stock Options and Stock Purchase Rights may be granted to Service Providers.
Incentive Stock Options may be granted only to Employees. 


        6.    Limitations.    



        (a)  Each
Option shall be designated in the Option Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to
the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar year (under all plans
of the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted. The Fair Market Value of the Shares shall be determined as of the time the Option with respect to such Shares is granted. 


        (b)  Neither
the Plan nor any Option or Stock Purchase Right shall confer upon an Optionee any right with respect to continuing the Optionee's relationship as a Service
Provider with the 



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Company, nor shall they interfere in any way with the Optionee's right or the Company's right to terminate such relationship at any time, with or without cause. 


        (c)  The
following limitations shall apply to grants of Options: 



          (i)  No
Service Provider shall be granted, in any fiscal year of the Company, Options to purchase more than 666,666 Shares. 


        (ii)  In
connection with his or her initial service, a Service Provider may be granted Options to purchase up to an additional 1,333,333 Shares, which shall not count against
the limit set forth in subsection (i) above. 


        (iii)  The
foregoing limitations shall be adjusted proportionately in connection with any change in the Company's capitalization as described in Section 13. 


        (iv)  If
an Option is cancelled in the same fiscal year of the Company in which it was granted (other than in connection with a transaction described in Section 13),
the cancelled Option will be counted against the limits set forth in subsections (i) and (ii) above. For this purpose, if the exercise price of an Option is reduced, the transaction will
be treated as a cancellation of the Option and the grant of a new Option. 





        7.    Term of Plan.    Subject to Section 19 of the Plan, the Plan shall become effective upon its adoption by
the Board. It shall continue in effect for a term of ten (10) years unless terminated earlier under Section 15 of the Plan. 


        8.    Term of Option.    The term of each Option shall be stated in the Option Agreement. In the case of an Incentive
Stock Option, the term shall be ten (10) years from the date of grant or such shorter term as may be provided in the Option Agreement. Moreover, in the case of an Incentive Stock Option granted
to an Optionee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or
any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of grant or such shorter term as may be provided in the Option Agreement. 


        9.    Option Exercise Price and Consideration.    



        (a)    Exercise Price.    The per share exercise price for the Shares to be issued pursuant to exercise of an Option
shall be determined by the Administrator, subject to the following: 



          (i)  In
the case of an Incentive Stock Option 



        (A)  granted
to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant. 



        (B)  granted
to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price shall be no less than 100% of the Fair
Market Value per Share on the date of grant. 




        (ii)  In
the case of a Nonstatutory Stock Option, the per Share exercise price shall be determined by the Administrator. In the case of a Nonstatutory Stock Option intended
to qualify as "performance-based compensation" within the meaning of Section 162(m) of the Code, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant. 


        (iii)  Notwithstanding
the foregoing, Options may be granted with a per Share exercise price of less than 100% of the Fair Market Value per Share on the date of grant
pursuant to a merger or other corporate transaction. 




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        (b)    Waiting Period and Exercise Dates.    At the time an Option is granted, the Administrator shall fix the period
within which the Option may be exercised and shall determine any conditions that must be satisfied before the Option may be exercised. 


        (c)    Form of Consideration.    The Administrator shall determine the acceptable form of consideration for exercising
an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at the time of grant. Such consideration
may consist entirely of: 



          (i)  cash; 


        (ii)  check; 


        (iii)  promissory
note; 


        (iv)  other
Shares, provided Shares acquired directly or indirectly from the Company, (A) have been owned by the Optionee for more than six (6) months on the
date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall be exercised; 



        (v)  consideration
received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; 


        (vi)  a
reduction in the amount of any Company liability to the Optionee, including any liability attributable to the Optionee's participation in any Company-sponsored
deferred compensation program or arrangement; 


      (vii)  any
combination of the foregoing methods of payment; or 


      (viii)  such
other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws. 





        10.    Exercise of Option.    



        (a)    Procedure for Exercise; Rights as a Stockholder.    Any Option granted hereunder shall be exercisable according
to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. Unless the Administrator provides otherwise, vesting of
Options granted hereunder shall be suspended during any unpaid leave of absence. An Option may not be exercised for a fraction of a Share. 


        An
Option shall be deemed exercised when the Company receives: (i) written or electronic notice of exercise (in accordance with the Option Agreement) from the person entitled to
exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if requested by the Optionee, in the name of
the Optionee and his or her spouse or in the name of a family trust of which the Optionee is a trustee. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised; provided that if the Company shall be advised by counsel that certain
requirements under the Federal, state or foreign securities laws must be met before Shares may be issued under this Plan, the Company shall notify all persons who have been issued Options, and the
Company shall have no liability for failure to issue Shares under any exercise of Options because of delay while such requirements are being met or the inability of the Company to comply with such
requirements. No adjustment will be made for a dividend or other 



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right for which the record date is prior to the date the Shares are issued, except as provided in Section 13 of the Plan. 


        Exercising
an Option in any manner shall decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to
which the Option is exercised. 


        (b)    Termination of Relationship as a Service Provider.    If an Optionee ceases to be a Service Provider, other
than upon the Optionee's death or Disability, the Optionee may exercise his or her Option within such period of time as is specified in the Option Agreement to the extent that the Option is vested on
the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for three (3) months following the Optionee's termination. If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the
Option shall terminate, and the Shares covered by such Option shall revert to the Plan. 


        (c)    Disability of Optionee.    If an Optionee ceases to be a Service Provider as a result of the Optionee's
Disability, the Optionee may exercise his or her Option within such period of time as is specified in the Option Agreement to the extent the Option is vested on the date of termination (but in no
event later than the expiration of the term of such Option as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for
twelve (12) months following the Optionee's termination. If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of
the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan. 


        (d)    Death of Optionee.    If an Optionee dies while a Service Provider, the Option may be exercised following the
Optionee's death within such period of time as is specified in the Option Agreement to the extent that the Option is vested on the date of death (but in no event may the Option be exercised later than
the expiration of the term of such Option as set forth in the Option Agreement), by the Optionee's designated beneficiary, provided such beneficiary has been designated prior to the Optionee's death
in a form acceptable to the Administrator. If no such beneficiary has been designated by the Optionee, then such Option may be exercised by the personal representative of the Optionee's estate or by
the person(s) to whom the Option is transferred pursuant to the Optionee's will or in accordance with the laws of descent and distribution. In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for twelve (12) months following the Optionee's death. If, at the time of death, the Optionee is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall immediately revert to the Plan. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan. 


        (e)    Leaves of Absence.    



          (i)  Unless
the Administrator provides otherwise, vesting of Options granted hereunder shall be suspended during any unpaid leave of absence. 



        (ii)  A
Service Provider shall not cease to be an Employee in the case of (A) any leave of absence approved by the Company or (B) transfers between locations of
the Company or between the Company, its Parent, any Subsidiary, or any successor. 




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        (iii)  For
purposes of Incentive Stock Options, no leave may exceed ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then three (3) months following the 91st day of such leave, any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory Stock Option. 





        11.    Stock Purchase Rights.    



        (a)    Rights to Purchase.    Stock Purchase Rights may be issued either alone, in addition to, or in tandem with
other awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan, it shall advise the offeree
in writing or electronically, by means of a Notice of Grant, of the terms, conditions and restrictions related to the offer, including the number of Shares that the offeree shall be entitled to
purchase, the price to be paid, and the time within which the offeree must accept such offer. The offer shall be accepted by execution of a Restricted Stock Purchase Agreement in the form determined
by the Administrator. 


        (b)    Repurchase Option.    Unless the Administrator determines otherwise, the Restricted Stock Purchase Agreement
shall grant the Company a repurchase option exercisable upon the voluntary or involuntary termination of the purchaser's service with the Company for any reason (including death or Disability). The
purchase price for Shares repurchased pursuant to the Restricted Stock Purchase Agreement shall be the original price paid by the purchaser and may be paid by cancellation of any indebtedness of the
purchaser to the Company. The repurchase option shall lapse at a rate determined by the Administrator. 


        (c)    Other Provisions.    The Restricted Stock Purchase Agreement shall contain such other terms, provisions and
conditions not inconsistent with the Plan as may be determined by the Administrator in its sole discretion. 



        (d)    Rights as a Stockholder.    Once the Stock Purchase Right is exercised, the purchaser shall have the rights
equivalent to those of a stockholder, and shall be a stockholder when his or her purchase is entered upon the records of the duly authorized transfer agent of the Company. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 13 of the Plan. 




        12.    Transferability of Options and Stock Purchase Rights.    Unless determined otherwise by the Administrator, an
Option or Stock Purchase Right may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee. If the Administrator makes an Option or Stock Purchase Right transferable, such Option or Stock Purchase Right shall contain such
additional terms and conditions as the Administrator deems appropriate. 


        13.    Adjustments; Dissolution; Merger or Change in Control.    



        (a)    Adjustments.    In the event that any dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or
exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or
enlargement of the benefits or potential benefits intended to be made available under the Plan, may (in its sole discretion) adjust the number and class of Shares that may be delivered under the Plan
and/or the number, class, and price of Shares covered by each outstanding Option or Stock Purchase Right, as well as the Share limits in Sections 3 and 6 of the Plan. 



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        (b)    Dissolution or Liquidation.    In the event of the proposed dissolution or liquidation of the Company, the
Administrator shall notify each Optionee as soon as practicable prior to the effective date of such proposed transaction. The Administrator in its discretion may provide for an Optionee to have the
right to exercise his or her Option until ten (10) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option would not otherwise be
exercisable. In addition, the Administrator may provide that any Company repurchase option applicable to any Shares purchased upon exercise of an Option or Stock Purchase Right shall lapse as to all
such Shares, provided the proposed dissolution or liquidation takes place at the time and in the manner contemplated. To the extent it has not been previously exercised, an Option or Stock Purchase
Right will terminate immediately prior to the consummation of such proposed action. 


        (c)    Merger or Change in Control.    In the event of a merger of the Company with or into another corporation, or a
Change in Control, each outstanding Option and Stock Purchase Right shall be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to assume or substitute for the Option or Stock Purchase Right, the Optionee shall fully vest in and have the right to
exercise the Option or Stock Purchase Right as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If an Option or Stock Purchase Right becomes
fully vested and exercisable in lieu of assumption or substitution in the event of a merger or Change in Control, the Administrator shall notify the Optionee in writing or electronically that the
Option or Stock Purchase Right shall be fully vested and exercisable for a period of fifteen (15) days from the date of such notice, and the Option or Stock Purchase Right shall terminate upon
the expiration of such period. 


        For
the purposes of this subsection (c), the Option or Stock Purchase Right shall be considered assumed if, following the merger or Change in Control, the option or right confers the
right to purchase or receive, for each Share of Optioned Stock subject to the Option or Stock Purchase Right immediately prior to the merger or Change in Control, the consideration (whether stock,
cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered
a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in
Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon
the exercise of the Option or Stock Purchase Right, for each Share of Optioned Stock subject to the Option or Stock Purchase Right, to be solely common stock of the successor corporation or its Parent
equal in fair market value to the per share consideration received by holders of Common Stock in the merger or Change in Control. 




        14.    Date of Grant.    The date of grant of an Option or Stock Purchase Right shall be, for all purposes, the date
on which the Administrator makes the determination granting such Option or Stock Purchase Right, or such other later date as is determined by the Administrator. Notice of the determination shall be
provided to each Optionee within a reasonable time after the date of such grant. 


        15.    Amendment and Termination of the Plan.    



        (a)    Amendment and Termination.    The Board may at any time amend, alter, suspend or terminate the Plan. 


        (b)    Stockholder Approval.    The Company shall obtain stockholder approval of any Plan amendment to the extent
necessary and desirable to comply with Applicable Laws. 



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        (c)    Effect of Amendment or Termination.    No amendment, alteration, suspension or termination of the Plan shall
impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such
termination. 




        16.    Conditions Upon Issuance of Shares.    



        (a)    Legal Compliance.    Shares shall not be issued pursuant to the exercise of an Option or Stock Purchase Right
unless the exercise of such Option or Stock Purchase Right and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of counsel for
the Company with respect to such compliance. 


        (b)    Investment Representations.    As a condition to the exercise of an Option or Stock Purchase Right, the Company
may require the person exercising such Option or Stock Purchase Right to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required. 




        17.    Inability to Obtain Authority.    The inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained. 


        18.    Reservation of Shares.    The Company, during the term of this Plan, will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. 


        19.    Stockholder Approval.    The Plan shall be subject to approval by the stockholders of the Company within twelve
(12) months after the date the Plan is adopted. Such stockholder approval shall be obtained in the manner and to the degree required under Applicable Laws. 


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HEALTHETECH, INC.
  
    2002 STOCK PLAN
  
    STOCK OPTION AGREEMENT    
  



        Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement. 


I.    NOTICE OF STOCK OPTION GRANT  


        Name:  


        Address:



        You
have been granted an option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows: 



	Grant Number	 	 	 	 	 
	 	 	 	

	Date of Grant	 	 	 	 	 
	 	 	 	

	Vesting Commencement Date	 	 	 	 	 
	 	 	 	

	Exercise Price per Share	 	$	 	 	 
	 	 	 	

	Total Number of Shares Granted	 	 	 	 	 
	 	 	 	

	Total Exercise Price	 	$	 	 	 
	 	 	 	

	Type of Option:	 	 	 	 	Incentive Stock Option
	 	 	 	

	 	 	 	 	 	Nonstatutory Stock Option
	 	 	 	

	Term/Expiration Date:	 	 	 	 	 
	 	 	 	







 Vesting Schedule:  




        Subject to accelerated vesting as set forth below, this Option may be exercised, in whole or in part, in accordance with the following schedule: 


        12.5%
of the Shares subject to the Option shall vest six (6) months after the Vesting Commencement Date, and 1/48 of the Shares subject to the Option shall vest
each month thereafter on the same day of the month as the Vesting Commencement Date, subject to the Optionee continuing to be a Service Provider on such dates. 



 Termination Period:  




        This Option may be exercised for three (3) months after Optionee ceases to be a Service Provider. Upon the death or Disability of Optionee, this Option may
be exercised for twelve (12) months after Optionee ceases to be a Service Provider. In no event shall this Option be exercised later than the Term/Expiration Date as provided above. 


II.    AGREEMENT  


        A.    Grant of Option.    


        The
Plan Administrator of the Company hereby grants to the Optionee named in the Notice of Grant attached as Part I of this Agreement (the "Optionee") an option (the "Option") to
purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the "Exercise Price"), subject to the terms and conditions of the
Plan, which is incorporated herein by reference. Subject to Section 15(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of
this Option Agreement, the terms and conditions of the Plan shall prevail. 





 



        If
designated in the Notice of Grant as an Incentive Stock Option ("ISO"), this Option is intended to qualify as an Incentive Stock Option under Section 422 of the Code. However,
if this Option is intended to be an Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall be treated as a Nonstatutory Stock Option ("NSO"). 


        B.    Exercise of Option.    



        (a)    Right to Exercise.    This Option is exercisable during its term in accordance with the Vesting Schedule set
out in the Notice of Grant and the applicable provisions of the Plan and this Option Agreement. 



        (b)    Method of Exercise.    This Option is exercisable by delivery of an exercise notice, in the form attached as  Exhibit A
(the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is
being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed
by the Optionee and delivered to the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be
exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. 


        No
Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the
Exercised Shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such Exercised Shares. 




        C.    Method of Payment.    



        Payment
of the aggregate Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: 



        1.    cash;



        2.    check;



        3.    consideration
received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; or 


        4.    surrender
of other Shares, which in the case of Shares acquired from the Company, (i) have been owned by the Optionee for more than six (6) months on the
date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares. 




        D.    Non-Transferability of Option.    


        This
Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the
Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. 


        E.    Term of Option.    


        This
Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option
Agreement. 


        F.    Tax Obligations.    



        1.    Withholding Taxes.    Optionee agrees to make appropriate arrangements with the Company (or the Parent or
Subsidiary employing or retaining Optionee) for the satisfaction of all Federal, 



2





 


state, and local income and employment tax withholding requirements applicable to the Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered at the time of exercise. 



        2.    Notice of Disqualifying Disposition of ISO Shares.    If the Option granted to Optionee herein is an ISO, and if
Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year
after the date of exercise, the Optionee shall immediately notify the Company in writing of such disposition. Optionee agrees that Optionee may be subject to income tax withholding by the Company on
the compensation income recognized by the Optionee. 




        G.    Entire Agreement; Governing Law.    



        The
Plan is incorporated herein by reference. The Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in
their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee's interest except by means
of a writing signed by the Company and Optionee. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. 


        H.    NO GUARANTEE OF CONTINUED SERVICE.    



        OPTIONEE
ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT
INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE. 



        By
your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the
Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator
upon any questions relating to the Plan and Option Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below. 



	OPTIONEE:	 	HEALTHETECH, INC.
	



	
 	

 
	
 Signature	 	
 By
	




 Print Name	
 	

 Title
	




 Residence Address	
 	

 
	

	
 	

 




3







 
 

EXHIBIT A    
    
    HEALTHETECH, INC.    
    
    2002 STOCK PLAN    
    
    EXERCISE NOTICE    
  


HealtheTech, Inc.

523 Park Point Drive, 3rd Floor

Golden, CO 80401 


Attention:
[Title] 


        1.    Exercise of Option.    Effective as of today,
                        ,        , the undersigned ("Purchaser")
hereby elects to purchase                        shares (the "Shares") of the Common Stock of HealtheTech (the "Company") under
and pursuant to the 2002 Stock Plan (the "Plan") and the Stock Option Agreement
dated,            (the "Option Agreement"). The purchase price for the Shares shall be $            , as required by the Option
Agreement. 


        2.    Delivery of Payment.    Purchaser herewith delivers to the Company the full purchase price for the Shares any
required withholding taxes to be paid in connection with the exercise of the Option.. 



        3.    Representations of Purchaser.    Purchaser acknowledges that Purchaser has received, read and understood the
Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions. 


        4.    Rights as Shareholder.    Until the issuance (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Shares so acquired shall be issued to the Optionee as soon as practicable after exercise of the Option. No adjustment will be made for a dividend or
other right for which the record date is prior to the date of issuance, except as provided in Section 13 of the Plan. 


        5.    Tax Consultation.    Purchaser understands that Purchaser may suffer adverse tax consequences as a result of
Purchaser's purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with the purchase or disposition
of the Shares and that Purchaser is not relying on the Company for any tax advice. 



        6.    Entire Agreement; Governing Law.    The Plan and Option Agreement are incorporated herein by reference. This
Agreement, the Plan and the Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter hereof, and may not be modified adversely to the Purchaser's interest except by means of a writing signed by 





 




the Company and Purchaser. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. 



	Submitted by:	 	Accepted by:
	

PURCHASER:	
 	

HEALTHETECH, INC.
	

    
 Signature	
 	

    
 By
	

    
 Print Name	
 	

    
 Its
	
Address:	
 	

Address:
	

    
  

    
	
 	

523 Park Point Drive, 3rd Floor

Golden, CO 80401
	

 	
 	

    
 Date Received




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HEALTHETECH, INC. 2002 STOCK PLAN


HEALTHETECH, INC. 2002 STOCK PLAN STOCK OPTION AGREEMENT


EXHIBIT A HEALTHETECH, INC. 2002 STOCK PLAN EXERCISE NOTICE