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EXHIBIT 99.2
ANESTA CORP.
1993 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ADOPTED ON DECEMBER 22, 1993
APPROVED BY STOCKHOLDERS ON JANUARY 14, 1994
AMENDED BY THE BOARD ON FEBRUARY 26, 1998
APPROVED BY STOCKHOLDERS ON JUNE 23, 1998
AMENDED BY THE BOARD ON JUNE 23, 1998
AMENDED BY THE BOARD ON APRIL 6, 1999
APPROVED BY THE STOCKHOLDERS ON JUNE 29, 1999
1. PURPOSE
(a) The purpose of the 1993 Non-Employee Directors' Stock Option Plan
(the "Plan") is to provide a means by which each director of Anesta Corp. (the
"Company") who is not otherwise an employee of the Company or of any Affiliate
of the Company (each such person being hereafter referred to as a "Non-Employee
Director") will be given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now serving as Non-Employee Directors of the Company, to secure and
retain the services of persons capable of serving in such capacity, and to
provide incentives for such persons to exert maximum efforts for the success of
the Company.
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
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3. SHARES SUBJECT TO THE PLAN
(a) Subject to the provisions of paragraph 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to options granted
under the Plan shall not exceed in the aggregate three hundred fifty thousand
(350,000) shares of the Company's common stock. If any option granted under the
Plan shall for any reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option shall again become
available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
4. ELIGIBILITY
Options shall be granted only to Non-Employee Directors of the Company.
5. NON-DISCRETIONARY GRANTS
(a) Upon the effective date of the initial public offering of shares of
the Company's Common Stock (the "IPO Date"), each person who is then a
Non-Employee Director shall be granted an option to purchase ten thousand
(10,000) shares of common stock of the Company on the terms and conditions set
forth herein (the "Initial Option").
(b) Each person who is, after the IPO Date and on or before June 23,
1998, elected for the first time to be a Non-Employee Director shall, upon the
date of his initial election to be a Non-Employee Director by the Board or
stockholders of the Company, be granted an option to purchase ten thousand
(10,000) shares of common stock of the Company on the terms and conditions set
forth herein. Each person who is, after June 23, 1998, elected for the first
time to be a Non-Employee Director shall, upon the date of his initial election
to be a Non-Employee Director by the Board or stockholders of the Company, be
granted an option to purchase fifteen thousand (15,000) shares of common stock
of the Company on the terms and conditions set forth herein.
(c) On January 1 of each year, commencing with January 1, 1995 and
ending on January 1, 1997, each person who is then a Non-Employee Director and
has been a Non-Employee Director for at least three (3) months shall be granted
an option to purchase one thousand five hundred (1,500) shares of common stock
of the Company. In addition, each Non-Employee Director who received an option
grant hereunder on January 1, 1997 and who is reelected at the 1997 annual
meeting of the Company's stockholders shall, upon such reelection, be granted an
option to purchase three thousand five hundred (3,500) shares of Common Stock of
the Company. Furthermore, immediately following each annual meeting of the
Company's stockholders, commencing with the 1998 Annual Stockholders Meeting,
each person who is then a Non-Employee Director shall be granted an option to
purchase five thousand (5,000) shares of the Common Stock of the Company.
Collectively, the options granted pursuant to this subparagraph 5(c) are the
"Annual Options," and all such Annual Options shall be made on the terms and
conditions set forth in this Plan.
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(d) Effective with respect to Board meetings occurring after June 23,
1998, each Director who attends a meeting of the Board of Directors in person or
by conference telephone shall be granted an option to purchase 400 shares of
Common Stock. Such options shall be granted as of the date of such meeting.
(e) Each director who is serving as a chair of a committee of the Board
of Directors as of the date of each Stockholders Annual Meeting, commencing with
the Annual Meeting of Stockholders held on June 23, 1998, shall be granted an
option to purchase 2,000 shares of Common Stock. Such options shall be granted
as of the date of such annual meeting.
6. OPTION PROVISIONS
Each option shall contain the following terms and conditions:
(a) The term of each option commences on the date it is granted and,
unless sooner terminated as set forth herein, expires on the date ("Expiration
Date") five (5) years from the date of grant. If the optionee's service as a
Non-Employee Director of the Company terminates for any reason or for no reason,
the option shall terminate on the earlier of the Expiration Date or the date
three (3) months following the date of termination of service; provided,
however, that if such termination of service is due to the optionee's death, the
option shall terminate on the earlier of the Expiration Date or six (6) months
following the date of the optionee's death. In any and all circumstances, an
option may be exercised following termination of the optionee's service as a
Non-Employee Director of the Company only as to that number of shares as to
which it was exercisable on the date of termination of such service under the
provisions of subparagraph 6(e).
(b) Subject to subparagraph 4(b), the exercise price of each Initial
Option shall be equal to the price to the public of the stock in the Company's
initial public offering subject to such option. The exercise price of all other
options shall be equal to the fair market value of the stock subject to such
option at the close of the market on the day before the date such option is
granted.
(c) Payment of the exercise price of each option is due in full in cash
upon any exercise when the number of shares being purchased upon such exercise
is less than 1,000 shares; but when the number of shares being purchased upon an
exercise is 1,000 or more shares, the optionee may elect to make payment of the
exercise price under one of the following alternatives:
(i) Payment of the exercise price per share in cash at the time
of exercise; or
(ii) Provided that at the time of the exercise the Company's common
stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of shares of common stock of the Company already owned by
the optionee, held for the period required to avoid a charge to the Company's
reported earnings, and owned free and clear of any liens, claims, encumbrances
or security interest, which common stock shall be valued at fair market value on
the date preceding the date of exercise; or
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(iii) Payment by a combination of the methods of payment specified
in subparagraph 6(c)(i) and 6(c)(ii) above.
Notwithstanding the foregoing, this option may be exercised pursuant to a
program developed under Regulation T as promulgated by the Federal Reserve Board
which results in the receipt of cash (or check) by the Company prior to the
issuance of shares of the Company's common stock.
(d) Unless otherwise provided in an option, each option shall not be
transferable except by will or by the laws of descent and distribution, or
pursuant to a domestic relations order and shall be exercisable during the
lifetime of the person to whom the option is granted only by such person or by
his guardian or legal representative. Notwithstanding the foregoing, the
optionee may during his or her lifetime designate a person to receive and
exercise any of the options following the optionee's death.
(e) The Annual Options shall become exercisable in equal annual
installments over a period of three (3) years from the date of grant, commencing
on the date one year after the date of grant of the Annual Options, provided
that the optionee has, during the entire period prior to such vesting date,
continuously served as a Non-Employee Director or as an employee of or
consultant to the Company or any Affiliate of the Company, whereupon such option
shall become fully exercisable in accordance with its terms with respect to that
portion of the shares represented by that installment. All other options shall
become exercisable in installments over a period of four years from the date of
grant at the rate of two thousand five hundred (2,500) shares in four (4) equal
annual installments commencing on the date one year after the date of grant of
such option, provided that the optionee has, during the entire period prior to
such vesting date, continuously served as a Non-Employee Director or as an
employee of or consultant to the Company or any Affiliate of the Company,
whereupon such option shall become fully exercisable in accordance with its
terms with respect to that portion of the shares represented by that
installment.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of exercising any
such option: (i) to give written assurances satisfactory to the Company as to
the optionee's knowledge and experience in financial and business matters; and
(ii) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then-currently-effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii), as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then-applicable securities laws.
(g) Notwithstanding anything to the contrary contained herein, an option
may not be exercised unless the shares issuable upon exercise of such option are
then registered under the Securities Act or, if such shares are not then so
registered, the Company has determined that such exercise and issuance would be
exempt from the registration requirements of the Securities Act.
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7. COVENANTS OF THE COMPANY
(a) During the terms of the options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan, or any stock issued or issuable pursuant to any such option. If the
Company is unable to obtain from any such regulatory commission or agency the
authority which counsel for the Company deems necessary for the lawful issuance
and sale of stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell stock upon exercise of such options.
8. USE OF PROCEEDS FROM STOCK
Proceeds from the sale of stock pursuant to options granted under the Plan
shall constitute general funds of the Company.
9. MISCELLANEOUS
(a) Neither an optionee nor any person to whom an option is transferred
under subparagraph 6(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option unless
and until such person has satisfied all requirements for exercise of the option
pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant thereto
shall confer upon any Non-Employee Director any right to continue in the service
of the Company or any Affiliate or shall affect any right of the Company, its
Board or stockholders or any Affiliate to terminate the service of any
Non-Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a group,
and no beneficiary or other person claiming under or through him, shall have any
right, title or interest in or to any option reserved for the purposes of the
Plan except as to such shares of common stock, if any, as shall have been
reserved for him pursuant to an option granted to him.
(d) In connection with each option made pursuant to the Plan, it shall
be a condition precedent to the Company's obligation to issue or transfer shares
to a Non-Employee Director, or to evidence the removal of any restrictions on
transfer, that such Non-Employee Director make arrangements satisfactory to the
Company to insure that the amount of any federal or other withholding tax
required to be withheld with respect to such sale or transfer, or such removal
or lapse, is made available to the Company for timely payment of such tax.
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10. ADJUSTMENTS UPON CHANGES IN STOCK
(a) If any change is made in the stock subject to the Plan, or subject
to any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and price per
share of stock subject to outstanding options.
(b) For purpose of this Section 10(b), "Change of Control" means (1) a
dissolution or liquidation of the Company; (2) a merger or consolidation in
which the Company is not the surviving corporation; (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise; (4) if any person or group (as defined in Section 13(d)(3) of
the Securities and Exchange Act of 1934, as amended, and the regulations
promulgated thereunder) acquires voting securities representing 50% or more of
the voting power of the Company's outstanding voting securities; or (5) if any
person or group acquires voting securities representing 30% or more of the
voting power of the Company's outstanding voting securities and the Board of
Directors declares that a Change of Control has occurred. Upon the occurrence of
a Change of Control prior to June 1, 1999, any surviving corporation shall
assume any options outstanding under the Plan or, if the Company is the
surviving corporation, such options shall continue in full force and effect.
Upon the occurrence of a Change of Control on or after June 1, 1999, any
unvested options granted under this Plan that are then outstanding shall
accelerate and immediately become vested and exercisable.
11. AMENDMENT OF THE PLAN
(a) The Board at any time, and from time to time, may amend the Plan.
Except as provided in paragraph 10 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company to the extent such stockholder approval is required by any Nasdaq or
securities exchange listing requirements.
(b) Rights and obligations under any option granted before any amendment
of the Plan shall not be altered or impaired by such amendment unless (i) the
Company requests the consent of the person to whom the option was granted and
(ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on December 22, 2003. No options may
be granted under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted.
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(c) The Plan shall terminate upon the occurrence of any of the events
described in Section 10(b) above.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE
(a) The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is approved by the
stockholders of the Company.
(b) No option granted under the Plan shall be exercised or exercisable
unless and until the condition of subparagraph 13(a) above has been met.
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