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EXHIBIT 10.2    
  


 
 

HEALTHETECH, INC.
  1998 STOCK PLAN    
    
    As Amended                        , 2002
   
  


        1.    Purposes of the Plan.    The purposes of this Stock Plan are to attract and retain the best available personnel
for positions of substantial responsibility, to provide additional incentive to Employees and Consultants of the Company and its Subsidiaries and to promote the success of the Company's business.
Options granted under the Plan may be incentive stock options (as defined under Section 422 of the Code) or non-statutory stock options, as determined by the Administrator at the
time of grant of an option and subject to the applicable provisions of Section 422 of the Code, as amended, and the regulations promulgated thereunder. 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 appointed pursuant to Section 4 of the Plan. 


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


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


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


        (e)  "Common Stock" means the Common Stock of the Company. 



        (i)    "Company" means HEALTHETECH, INC., a Delaware corporation. 




        (f)    "Consultant" means any person, including an advisor, who is engaged by the Company or any Parent or Subsidiary to render
services and is compensated for such services, and any director of the Company whether compensated for such services or not provided that if and in the event the Company registers any class of any
equity security pursuant to the Exchange Act, the term Consultant shall thereafter not include directors who are not compensated for their services or are paid only a director's fee by the Company. 


        (g)  "Continuous Status as an Employee" means the absence of any interruption or termination of the employment relationship by
the Company or any Subsidiary. Continuous Status as an Employee shall not be considered interrupted in the case of: (i) sick leave, military leave or any other leave of absence approved by the
Board, provided that such leave is for a period of not more than ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided
otherwise pursuant to Company policy adopted from time to time; or (ii) in the case of transfers between locations of the Company or between the Company, its Subsidiaries or its successor. 


        (h)  "Employee" means any person, including officers and directors, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be sufficient to constitute "employment" by the Company. 


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



        (j)    "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, 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 system or exchange for the last market trading day prior to the time of determination) as reported in the Wall Street Journal or such other source as the Administrator deems reliable; 


        (ii)  If
the Common Stock is quoted on the Nasdaq System (but not on the Nasdaq National Market) or regularly quoted by a recognized securities dealer but selling prices are
not reported, its Fair Market Value shall be the mean between the high and low asked prices for the Common Stock; or 


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




        (k)  "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code. 


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


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


        (n)  "Optioned Stock" means the Common Stock subject to an Option. 


        (o)  "Optionee" means an Employee or Consultant who receives an Option. 


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


        (q)  "Plan" means this 1998 Stock Plan, as amended from time to time. 


        (r)  "Purchaser" means an Employee or Consultant who exercises a Stock Purchase Right. 


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


        (t)    "Stock Purchase Right" means the right to purchase Restricted Stock granted pursuant to Section 11 of the Plan. 



        (u)  "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 which may be optioned and sold under the Plan is 3,000,000 shares of Common Stock. The shares may be authorized, but unissued, or reacquired Common Stock. 



        If
an Option or Stock Purchase Right should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for future grant under the Plan. 


        4.    Administration of the Plan.    



        (a)    Procedure.    



        (i)    Administration With Respect to Directors and Officers.    With respect to grants of Options or Stock Purchase
Rights to Employees who are also officers or directors of the Company, the Plan shall be administered by (A) the Board if the Board may administer the Plan in compliance with
Rule 16b-3 promulgated under the Exchange Act or any successor thereto ("Rule 16b-3") with respect to a plan intended to qualify thereunder as a discretionary
plan, or (B) a Committee designated by the Board to administer the Plan, which Committee shall be constituted in such a manner as to permit the Plan to comply with Rule 16b-3
with respect to a plan intended to qualify thereunder as a discretionary plan. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board.
From time to time the Board may increase the size of the Committee and appoint additional members thereof, remove members (with or without cause) and appoint new 










members in substitution therefor, fill vacancies, however caused, and remove all members of the Committee and thereafter directly administer the Plan, all to the extent permitted by
Rule 16b-3 with respect to a plan intended to qualify thereunder as a discretionary plan. 


        (ii)    Multiple Administrative Bodies.    If permitted by Rule 16b-3, the Plan may be administered
by different bodies with respect to directors, non-director officers and Employees who are neither directors nor officers. 


        (iii)    Administration With Respect to Consultants and Other Employees.    With respect to grants of Options or Stock
Purchase Rights to Employees or Consultants who are neither directors nor officers of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to satisfy the legal requirements relating to
the administration of incentive stock option plans, if any, of state corporate and securities laws and of the Code (the "Applicable Laws"). Once appointed, such Committee shall continue to serve in
its designated capacity until otherwise directed by the Board. From time to time the Board may increase the size of the Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill vacancies, however caused, and remove all members of the Committee and thereafter directly administer the Plan, all to the extent
permitted by the Applicable Laws. 




        (b)    Powers of the Administrator.    Subject to the provisions of the Plan and in the case of a Committee, 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 of the Common Stock, in accordance with Section 2(j) of the Plan; 


        (ii)  to
select the officers, Consultants and Employees to whom Options and Stock Purchase Rights may from time to time be granted hereunder; 



        (iii)  to
determine whether and to what extent Options and Stock Purchase Rights or any combination thereof, are granted hereunder; 


        (iv)  to
determine the number of shares of Common Stock to be covered by each such award granted hereunder; 


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


        (vi)  to
determine the terms and conditions, not inconsistent with the terms of the Plan, of any award granted hereunder (including, but not limited to the share price and
any restriction or limitation, based in each case on such factors as the Administrator shall determine, in its sole discretion); 



        (vii)   to
determine the terms and restrictions applicable to Stock Purchase Rights and the Restricted Stock purchased by exercising such Stock Purchase Rights;
and 


        (viii)    to
make any other such determinations with respect to awards under the Plan as it shall deem appropriate. 




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




        5.    Eligibility for Options.    



        (a)  Nonstatutory
Stock Options may be granted to Employees and Consultants. Incentive Stock Options may be granted only to Employees. An Employee or Consultant who has been
granted an Option may, if he is otherwise eligible, be granted an additional Option or Options. 







        (b)  Each
Option shall be designated in the written option agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such
designations, to the extent that the aggregate Fair Market Value of the Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock Options. 


        (c)  For
purposes of Section 5(b), Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Shares
shall be determined as of the time the Option with respect to such Shares is granted. 



        (d)  The
Plan shall not confer upon any Optionee any right with respect to continuation of employment or consulting relationship with the Company, nor shall it interfere in
any way with his right or the Company's right to terminate his employment or consulting relationship at any time, with or without cause. 




        6.    Term of Plan.    The Plan shall become effective upon the earlier to occur of its adoption by the Board of
Directors or its approval by the shareholders of the Company as described in Section 19 of the Plan. It shall continue in effect for a term of ten (10) years unless sooner terminated
under Section 15 of the Plan. 


        7.    Term of Option.    The term of each Option shall be the term stated in the Option Agreement; provided, however,
that the term shall be no more than ten (10) years from the date of grant thereof or such shorter term as may be provided in the Option Agreement. However, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the 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 term of such Incentive Stock Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the Option Agreement. 



        8.    Option Exercise Price and Consideration.    



        (a)  The
per share exercise price for the Shares to be issued pursuant to exercise of an Option shall be such price as is determined by the Board, but shall be subject to the
following: 



        (i)    In
the case of an Incentive Stock Option 



        (A)  granted
to an Employee who, at the time of the grant of such Incentive Stock Option, 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, 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 



        (A)  granted
to a person who, at the time of the grant of such Option, 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 the grant. 


        (B)  granted
to any person, the per Share exercise price shall be no less than 85% of the Fair Market Value per Share on the date of grant. 





        (b)  The
consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Administrator (and, in
the case of an Incentive Stock Option, shall be determined at the time of grant) and may consist entirely of (i) cash, (ii) check, (iii) other Shares which (x) in the case
of Shares acquired upon exercise of an Option either have been owned by the Optionee for more than six months on the date of surrender or were not acquired, directly or indirectly, from the Company,
and (y) 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, (iv) authorization from the Company to retain from the
total number of Shares as to which the Option is exercised that number of Shares having a Fair Market Value on the date of exercise equal to the exercise price for the total number of Shares as to
which the Option is exercised, (v) delivery of a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company the amount of sale or
loan proceeds required to pay the exercise price, (vi) by delivering an irrevocable subscription agreement for the Shares which irrevocably obligates the option holder to take and pay for the
Shares not more than twelve months after the date of delivery of the subscription agreement, (vii) any combination of the foregoing methods of payment, (viii) or such other consideration
and method of payment for the issuance of Shares to the extent permitted under Applicable Laws. In making its determination as to the type of consideration to accept, the Board shall consider if
acceptance of such consideration may be reasonably expected to benefit the Company under the California General Corporation Law. 




        9.    Exercise of Option.    



        (a)    Procedure for Exercise; Rights as a Shareholder.    Any Option granted hereunder shall be exercisable at such
times and under such conditions as determined by the Board, including performance criteria with respect to the Company and/or the Optionee, and as shall be permissible under the terms of the Plan.
Except in the case of Options granted to officers, directors and Consultants, Options shall become exercisable at a rate of no less than 20% per year over five (5) years from the date the
Options are granted. 




        An
Option may not be exercised for a fraction of a Share. 


        An
Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option by the person entitled to exercise
the Option and full payment for the Shares with respect to which the Option is exercised has been received by the Company. Full payment may, as authorized by the Board, consist of any consideration
and method of payment allowable under Section 8(b) of the Plan. 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 stock certificate evidencing such 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 Company shall issue (or cause to be issued) such stock certificate promptly upon 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 the stock certificate is issued, except as provided in Section 13 of the Plan. 



        Exercise
of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be 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 Employment.    In the event of termination of an Optionee's consulting relationship or
Continuous Status as an Employee with the Company (as the case may be), such Optionee may, but only within the period stated in the Option Agreement (which shall be at least thirty (30) days
from the date of such termination and, in the case of an Incentive Stock Option, shall be no more than ninety (90) days after the date of such termination and in the case of any Option, shall
be no later than the expiration date of the term of such Option as set forth in the Option Agreement), exercise the Option to the extent that Optionee was entitled to exercise it at the date of such
termination. To the extent that Optionee was not entitled to exercise the Option at the date of such termination, or if Optionee does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate. 


        (c)    Disability of Optionee.    Notwithstanding the provisions of Section 9(b) above, in the event of
termination of an Optionee's Consulting relationship or Continuous Status as an Employee as a result of his or her total and permanent disability (as defined in Section 22(e)(3) of the Code),
Optionee may, but only within twelve (12) months from the date of such termination 











(but in no event later than the expiration date of the term of such Option as set forth in the Option Agreement), exercise the Option to the extent otherwise entitled to exercise it at the date of
such termination. Notwithstanding the provisions of Section 9(b) above and the preceding sentence, in the event of termination of an Optionee's Consulting relationship or Continuous Status as
an Employee as a result of his disability, Optionee may, but only within six months (6) months from the date of such termination (but in no event later than the expiration date of the term of
such Option as set forth in the Option Agreement), exercise the Option to the extent otherwise so entitled at the date of such termination; provided, however, that if any Incentive Stock Option is
exercised after 90 days of such termination, such option will be treated as a Nonstatutory Stock Option. To the extent that Optionee was not entitled to exercise the Option at the date of
termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate. 



        (d)    Death of Optionee.    In the event of the death of an Optionee, the Option may be exercised, at any time within
twelve (12) months following the date of death (but in no event later than the expiration date of the term of such Option as set forth in the Option Agreement), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent the Optionee was entitled to exercise the Option at the date of death. To the extent that
Optionee was not entitled to exercise the Option at the date of termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall
terminate. 


        (e)    Rule 16b-3.    Options granted to persons subject to Section 16(b) of the Exchange
Act must comply with Rule 16b-3 and shall contain such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from
Section 16 of the Exchange Act with respect to Plan transactions. 




        10.    Non-Transferability of Options.    The Option 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. 


        11.    Stock Purchase Rights.    



        (a)    Rights to Purchase Restricted Stock.    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 of the terms, conditions and restrictions related to the offer, including the number of Shares that such person shall be entitled to purchase, the price to be paid, and the time
within which such person must accept such offer, which shall in no event exceed one-hundred twenty (120) days from the date of grant of the Stock Purchase Right. The purchase price
of any Stock Purchase Right shall be no less than 85% of the Fair Market Value per Share on the date of grant, unless such Stock Purchase Right is granted to a person who, at the time of grant of such
Stock Purchase Right owns stock representing more than 10% of the voting power of all classes of stock of the Company or any Parent or Subsidiary, in which case the purchase price shall be no less
than 100% of the Fair Market Value per Share on the date of grant. The offer shall be accepted by execution of a Restricted Stock agreement in the form determined by the Administrator. Shares
purchased pursuant to the grant of a Stock Purchase Right shall be referred to herein as "Restricted Stock." 


        (b)    Repurchase Option.    Unless the Administrator determines otherwise, the Restricted Stock agreement shall grant
the Company a repurchase option exercisable upon the voluntary or involuntary termination of the Purchaser's employment with the Company for any reason (including death or Disability). The purchase
price for Shares repurchased pursuant to the Restricted Stock 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 with respect to the Restricted Stock shall lapse at such rate as the Committee may determine, but in no 











event as to less than 20% of the total shares granted annually and must be exercised within 90 days of termination of employment. 


        (c)    Other Provisions.    The Restricted Stock 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. In addition, the provisions of Restricted Stock agreements need not be the same with respect to each
purchaser. 


        (d)    Rights as a Shareholder.    Once the Stock Purchase Right is exercised, the Purchaser shall have the rights
equivalent to those of a shareholder, and shall be a shareholder 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.    Stock Withholding to Satisfy Withholding Tax Obligations.    At the discretion of the Administrator, Optionees
or Purchasers may satisfy withholding obligations as provided in this paragraph. When an Optionee or Purchaser incurs tax liability in connection with an Option or Stock Purchase Right, which tax
liability is subject to tax withholding under applicable tax laws, and the Optionee or Purchaser is obligated to pay the Company an amount required to be withheld under applicable tax laws, the
Optionee or Purchaser may satisfy the withholding tax obligation by electing to have the Company withhold from the Shares to be issued upon exercise of the Option, or the Shares to be issued in
connection with the Stock Purchase Right, if any, that number of Shares having a Fair Market Value equal to the 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 (the "Tax Date"). 


        All
elections by an Optionee or Purchaser to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Administrator and shall be subject to the
following restrictions: 



        (a)  the
election must be made on or prior to the applicable Tax Date; 


        (b)  once
made, the election shall be irrevocable as to the particular Shares of the Option or Right as to which the election is made; 


        (c)  all
elections shall be subject to the consent or disapproval of the Administrator; 


        (d)  if
the Optionee is subject to Rule 16b-3, the election must comply with the applicable provisions of Rule 16b-3 and shall be
subject to such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions. 




        In
the event the election to have Shares withheld is made by an Optionee or Purchaser and the Tax Date is deferred under Section 83 of the Code because no election is filed under
Section 83(b) of the Code, the Optionee or Purchaser shall receive the full number of Shares with respect to which the Option or Stock Purchase Right is exercised but such Optionee or Purchaser
shall be unconditionally obligated to tender back to the Company the proper number of Shares on the Tax Date. 


        13.    Adjustments Upon Changes in Capitalization or Merger.    Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each outstanding Option or Stock Purchase Right, and the number of shares of Common Stock which have been authorized for issuance under the
Plan but as to which no Options or Stock Purchase Rights have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option or Stock Purchase Right, as well as
the price per share of Common Stock covered by each such
outstanding Option or Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be 









made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an
Option or Stock Purchase Right. 


        In
the event of the proposed dissolution or liquidation of the Company, or of a merger in which the successor corporation does not agree to assume the Option or Stock Purchase Right or
substitute an equivalent Option or Stock Purchase Right, the Board shall terminate the Plan and, at its discretion, permit Optionees to exercise their Options to the extent already vested or make a
determination to accelerate vesting of any outstanding Options or Stock Purchase Rights. The Board shall notify Optionees and Purchasers at least fifteen (15) days prior to such proposed action
and give such Optionees and Purchasers to exercise their rights to the extent so permitted. To the extent it has not been previously exercised, any Option or Stock Purchase Right will terminate
immediately prior to the consummation of such proposed action. 



        14.    Time of Granting Options.    The date of grant of an Option shall, for all purposes, be the date on which the
Administrator makes the determination granting such Option, or such other date as is determined by the Board. Notice of the determination shall be given to each Employee or Consultant to whom an
Option is so granted 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 discontinue the Plan, but no
amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee or Purchaser under any grant theretofore made, without his or her consent. In addition,
to the extent necessary and desirable to comply with Rule 16b-3 under the Exchange Act or with Section 422 of the Code (or any other applicable law or regulation, including
the requirements of the NASD or an established stock exchange), the Company shall obtain shareholder approval of any Plan amendment in such a manner and to such a degree as required. 



        (b)    Effect of Amendment or Termination.    Any such amendment or termination of the Plan shall not affect Options
and Stock Purchase Rights already granted and such Options and Stock Purchase Rights shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually
agreed otherwise between the Optionee or Purchaser and the Board, which agreement must be in writing and signed by the Optionee or Purchaser and the Company. 




        16.    Conditions Upon Issuance of Shares.    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 pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the
Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 


        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 by any of the aforementioned relevant provisions of law. 


        17.    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. 



        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.    Agreements.    Options and Stock Purchase Rights shall be evidenced by written agreements in such form as the
Board shall approve from time to time. 


        19.    Shareholder Approval.    Continuance of the Plan shall be subject to approval by the shareholders of the
Company within twelve (12) months before or after the date the Plan is adopted. Such shareholder approval shall be obtained in the degree and manner required under applicable state and federal
law. 











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EXHIBIT 10.2


HEALTHETECH, INC. 1998 STOCK PLAN As Amended , 2002