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EXHIBIT 99.2
OSTEX INTERNATIONAL, INC.
AMENDED AND RESTATED DIRECTORS' NONQUALIFIED STOCK OPTION PLAN
This Nonqualified Stock Option Plan (the "Plan") provides for the grant of
options to acquire shares of Common Stock, $.01 par value (the "Common Stock"),
of Ostex International, Inc., a Washington corporation (the "Company").
1. PURPOSE
The purpose of this Plan is to compensate certain directors of the Company
(the "Optionees" or "Optionee").
2. ELIGIBILITY
Persons eligible to receive options under this Plan shall be all directors
of the Company who are not otherwise employed by the Company or any Related
Corporation, as defined below (the "Directors" or "Director"). Options may be
granted in substitution for outstanding Options of another corporation in
connection with the merger, consolidation, acquisition of property or stock or
other reorganization between such other corporation and the Company or any
subsidiary of the Company. Options also may be granted in exchange for
outstanding Options.
As used in this Plan, the term "Related Corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time of
the granting of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock of one of the
other corporations in such chain. When referring to a parent corporation, the
term "Related Corporation" shall mean any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, at the time of
granting of the Option, each of the corporations other than the Company owns
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock of one of the other corporations in such chain.
3. STOCK
Options to purchase an aggregate of 600,000 shares of Common Stock (subject
to adjustment as provided in Section 4.12) may be issued pursuant to the Plan.
As of the date that a person is initially elected or appointed as a Director,
the Company shall automatically grant to such person options to purchase 25,000
shares of the Company's authorized but unissued, or reacquired, Common Stock
(subject to adjustment as provided in Section 4.12). In addition, each Director
who was in office immediately following the annual meeting of the Company's
shareholders on June 2, 1997 and whose initial grant was for less than a total
of 25,000 shares shall be granted, as of March 4, 1998 (the date of amendment),
an amount of shares, which when added to such initial grant equals 25,000
shares, such grant to vest from the date of the initial grant over the following
three years as provided in Section 4.4. In addition, for each Director who is in
office the day following any annual meeting of shareholders of the Company (at
which meeting such Director was re-elected or continued in office) and who has
been in office for at least five months prior to such annual meeting, the
Company will automatically grant options to purchase 10,000 shares of Common
Stock (subject to adjustment as provided in Section 4.12). In the event that any
outstanding Option expires or is terminated for any reason, those shares of
Common Stock allocable to the unexercised portion of such Option may be subject
to one or more other Options issued pursuant to the Plan.
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4. TERMS AND CONDITIONS OF OPTIONS
Each Option shall be evidenced by a written agreement (the "Agreement") in
the form approved by the Company. Agreements may contain such additional
provisions, not inconsistent herewith, as the Company in its discretion may deem
advisable. All Options shall also comply with the following requirements:
4.1 NUMBER OF SHARES
Each Agreement shall state the number of shares to which it pertains.
4.2 DATE OF GRANT
Each Option shall state the date the Company and the Director entered into
the Agreement (the "Date of Grant"), which shall be (i) in the case of new
Directors, the date the individual becomes a Director, or (ii) in the case of
Directors in office the day after any annual meeting of shareholders, the date
after such meeting whichever is applicable.
4.3 OPTION PRICE
The exercise price for all Options granted hereunder shall be the fair
market value on Date of Grant. Such fair market value shall be the closing price
at which it was traded on a national securities exchange or the last sale price
quoted on the National Association of Securities Dealers Automated Quotation
System or any successor or substantially similar market thereto on the Date of
Grant. If the Common Stock shall be traded on more than one such market, the
exercise price shall be determined on the basis of the most active market. If no
such market exists, the exercise price shall be established at fair market value
based on the most recent arms-length transaction occurring within eighteen (18)
months preceding the Date of Grant by or among the Company or any
greater-than-ten-percent (>10%) shareholders of the Company or, if unavailable,
by a qualified appraiser selected by the Company.
4.4 VESTING SCHEDULE
All Options shall vest according to the following schedule:
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF YEARS TOTAL OPTION TO
FOLLOWING DATE OF GRANT BE EXERCISABLE
----------------------- ---------------
<S> <C>
1 33 1/3%
2 33 1/3%
3 33 1/3%
</TABLE>
4.5 ACCELERATION OF VESTING
Options granted pursuant to the Plan shall become immediately vested and
fully exercisable upon the Director's termination as a director of the Company
by reason of the death or Disability (as defined in Section 4.6 below) of the
Director. The vesting of Options shall also be accelerated under the
circumstances described in Sections 4.12 and 4.13 below.
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4.6 TERMINATION OF OPTION
A vested Option shall terminate, to the extent not previously exercised,
upon the occurrence of the first of the following events:
(i) ten (10) years from the Date of Grant;
(ii) the expiration of ninety (90) days from the date of Optionee's
termination as a Director of the Company for any reason other than death or
Disability (as defined below); or
(iii) the expiration of one (1) year from the date of death of
Optionee or the cessation of Optionee's service as a Director by reason of
Disability (as defined below).
"Disability" shall mean that a person is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than twelve (12)
months. If Optionee's service as a Director is terminated by death, any Option
held by Optionee shall be exercisable only by the person or persons to whom such
Optionee's rights under such Option shall pass by Optionee's will or by the laws
of descent and distribution of the state or country of Optionee's domicile at
the time of death. Each unvested Option granted pursuant hereto shall terminate
upon Optionee's termination as a Director for any reason whatsoever, including
death or Disability.
4.7 EXERCISE OF OPTIONS
Options shall be exercisable, either all or in part, at any time after
vesting. If less than all of the shares included in the vested portion of any
Option are purchased, the remainder may be purchased at any subsequent time
prior to the expiration of the Option term. No portion of any Option of less
than one (1) share (as adjusted pursuant to Section 4.12 hereof) may be
exercised; PROVIDED, that if the vested portion of any Option is less than fifty
(50) shares, it may be exercised with respect to all shares for which it is
vested. Only whole shares may be issued pursuant to an Option, and to the extent
that an Option covers less than one share, it is unexercisable. Options or
portions thereof may be exercised by giving to the Company an executed notice of
election to exercise, which notice shall specify the number of shares to be
purchased, and be accompanied by payment in the amount of the aggregate option
price for the Common Stock so purchased and in the form specified in Section 4.8
below. The Company shall not be obligated to issue, transfer or deliver a
certificate of Common Stock to any Director, or to his personal representative,
until the aggregate option price has been paid for all shares for which the
Option shall have been exercised and adequate provision has been made by the
Optionee for the satisfaction of any tax withholding obligations associated with
such exercise. During the lifetime of an Optionee, Options are exercisable only
by Optionee.
4.8 PAYMENT UPON EXERCISE OF OPTION
Upon exercise of any option, the aggregate option price shall be paid to
the Company in cash or by certified or cashier's check. Alternatively, a
Director may pay for all or any portion of the aggregate option exercise price
(i) by delivering to the Company shares of Common Stock previously held by such
Director, (ii) having shares withheld from the amount of shares of Common Stock
to be received by the Director or (iii) delivering an irrevocable subscription
agreement obligating the Director to take and pay for the shares of Common Stock
to be purchased within one (1) year of the date of exercise. The shares of
Common Stock received or withheld by the Company as payment for shares of Common
Stock purchased upon the exercise of Options shall have a fair market value at
the date of exercise (as determined in accordance with Section 4.3 above) equal
to the aggregate option exercise price (or portion thereof) to be paid by the
Director upon exercise.
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4.9 RIGHTS AS A SHAREHOLDER
An Optionee shall have no rights as a shareholder with respect to any
shares covered by the Option until such Optionee becomes a record holder of such
shares, irrespective of whether such Optionee has given notice of exercise.
Subject to the provisions of Sections 4.12 and 4.13 below, no rights shall
accrue to an Optionee and no adjustments shall be made on account of dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights declared on, or created in, the Common Stock for
which the record date is prior to the date the Optionee becomes a record holder
of the shares of Common Stock covered by the Option, irrespective of whether
such Optionee has given notice of exercise.
4.10 TRANSFER OF OPTION
Options granted under this Plan and the rights and privileges conferred by
this Plan may not be transferred, assigned, pledged or hypothecated in any
manner (whether by operation of law or otherwise) other than by will or by
applicable laws of descent and distribution, as defined by the Code, or the
Employee Retirement Income Security Act, or the rules and regulations
thereunder, and shall not be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of any Option or of any right or privilege conferred by this Plan
contrary to the provisions hereof, or upon the sale, levy or any attachment or
similar process upon the rights and privileges conferred by this Plan, such
Option shall thereupon terminate and become null and void.
4.11 SECURITIES REGULATION AND TAX WITHHOLDING
4.11.1 Shares shall not be issued with respect to an Option unless the
exercise of such Option and the issuance and delivery of such shares shall
comply with all relevant provisions of law, including, without limitation, any
applicable state securities laws, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
thereunder and the requirements of any stock exchange upon which such shares may
then be listed, and such issuance shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability of an exemption from registration for the issuance and sale of such
shares. The inability of the Company to obtain from any regulatory body the
authority deemed by the Company to be necessary for the lawful issuance and sale
of any shares under this Plan, or the unavailability of an exemption from
registration for the issuance and sale of any shares under this Plan, shall
relieve the Company of any liability with respect to the non-issuance or sale of
such shares.
As a condition to the exercise of an Option, the Company may require the
Optionee to represent and warrant in writing at the time of such exercise that
the shares are being purchased only for investment and without any then-present
intention to sell or distribute such shares. At the option of the Company, a
stop-transfer order against such shares may be placed on the stock books and
records of the Company, and a legend indicating that the stock may not be
pledged, sold or otherwise transferred unless an opinion of counsel is provided
stating that such transfer is not in violation of any applicable law or
regulation, may be stamped on the certificates representing such shares in order
to assure an exemption from registration. The Company also may require such
other documentation as may from time to time be necessary to comply with federal
and state securities laws. THE COMPANY HAS NO OBLIGATION TO UNDERTAKE
REGISTRATION OF OPTIONS OR THE SHARES OF STOCK ISSUABLE UPON THE EXERCISE OF
OPTIONS.
4.11.2 As a condition to the exercise of any Option granted under this
Plan, the Optionee shall make such arrangements as the Company may require for
the satisfaction of any federal, state or local withholding tax obligations that
may arise in connection with such exercise.
4.11.3 The issuance, transfer or delivery of certificates of Common
Stock pursuant to the exercise of Options may be delayed, at the discretion of
the Board, until the Company is satisfied that the applicable requirements of
the federal and state securities laws and the withholding provisions of the Code
have been met.
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4.12 STOCK DIVIDEND, REORGANIZATION OR LIQUIDATION
4.12.1 If (i) the Company shall at any time be involved in a
transaction described in Section 424(a) of the Code (or any successor provision)
or any "corporate transaction" described in the regulations thereunder; (ii) the
Company shall declare a dividend payable in, or shall subdivide or combine, its
Common Stock or (iii) any other event with substantially the same effect shall
occur, the number of shares of Common Stock and/or the exercise price per share
of each outstanding Option shall be proportionately adjusted so as to preserve
the rights of the Optionee substantially proportionate to the rights of the
Optionee prior to such event, and to the extent that such action shall include
an increase or decrease in the number of shares of Common Stock subject to
outstanding Options, the number of shares available under Section 4 of this Plan
shall automatically be increased or decreased, as the case may be,
proportionately, without further action on the part of the Company or the
Company's shareholders.
4.12.2 If the Company is liquidated or dissolved, the holders of any
outstanding Options may exercise all or any part of the unvested portion of the
Options held by them; PROVIDED, that such Options must be exercised prior to the
effective date of such liquidation or dissolution. If the Option holders do not
exercise their Options prior to such effective date, each outstanding Option
shall terminate as of the effective date of the liquidation or dissolution.
4.12.3 The grant of an Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure, to merge, consolidate or dissolve,
to liquidate or to sell or transfer all or any part of its business or assets.
4.13 CHANGE IN CONTROL; DECLARATION OF EXTRAORDINARY DIVIDEND
4.13.1 CHANGE IN CONTROL
If at any time there is a Change in Control (as defined below) of the
Company, all Options shall accelerate and become fully vested and immediately
exercisable for the duration of the Option term. For purposes of this Subsection
4.13.1, "Change in Control" shall mean either one of the following: (i) When any
"person," as such term is used in sections 13(d) and 14(d) of the Exchange Act
(other than a shareholder of the Company on the date of this Plan, the Company,
a Subsidiary or an employee benefit plan of the Company, including any trustee
of such plan acting as trustee) becomes, after the date of this Plan, the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding securities;
or (ii) the occurrence of a transaction requiring shareholder approval, and
involving the sale of all or substantially all of the assets of the Company or
the merger of the Company with or into another corporation.
4.13.2 DECLARATION OF EXTRAORDINARY DIVIDEND
If at any time the Company declares an Extraordinary Dividend (as defined
below), all Options shall accelerate and thereupon become fully vested and
immediately exercisable for the duration of the Option term. For purposes of
this Subsection 4.13.2, "Extraordinary Dividend" shall mean a cash dividend
payable to holders of record of the Common Stock in an amount in excess of ten
percent (10%) of the then fair market value of the Company's Common Stock. The
fair market value of the Company's Common Stock shall be determined in good
faith by the Board.
5. EFFECTIVE DATE; TERM
Subject to approval of this Plan by shareholders of the Company, this Plan
shall be effective as of the date which is the first Date of Grant specified in
Section 4.2 above, and Options may be issued then and from time to time
thereafter until this Plan is terminated by the Company. Termination of this
Plan shall not terminate any Option granted prior to such termination.
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6. NO OBLIGATIONS TO EXERCISE OPTION
The granting of an Option shall impose no obligation upon the Optionee to
exercise such Option.
7. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Common Stock,
pursuant to the exercise of Options granted hereunder, will be used for general
corporate purposes.
8. INDEMNIFICATION OF BOARD
In addition to all other rights or indemnification they may have as
directors of the Company or as members of the Board, members of the Board shall
be indemnified by the Company for all reasonable expenses and liabilities of any
type and nature, including reasonable attorneys fees, incurred in connection
with any action, suit or proceeding to which they or any of them are a party by
reason of, or in connection with, the Plan or any Option granted hereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company), except to the
extent that such expenses relate to matters for which it is adjudged that such
Board members are liable for willful misconduct; PROVIDED, that within fifteen
(15) days after the institution of any such action, suit or proceeding,
member(s) of the Board shall, in writing, notify the Company of such action,
suit or proceeding, so that the Company may have the opportunity to make
appropriate arrangements to prosecute or defend the same.
9. AMENDMENT OF PLAN
The Company may, at any time, modify, amend or terminate this Plan and
Options granted under this Plan, including, without limitation, such
modifications or amendments as are necessary to maintain compliance with
applicable statutes, rules or regulations; PROVIDED, that no amendment with
respect to an outstanding Option shall be made over the objection of the
Optionee thereof and PROVIDED FURTHER, that: (i) the approval of the holders of
a majority of the Company's outstanding shares of voting capital stock
represented at a meeting at which a quorum is present is required within twelve
(12) months before or after the adoption by the Board of any amendment that will
permit the granting of Options to a class of persons other than those currently
eligible to receive Options under this Plan or that would cause this Plan to no
longer comply with Securities and Exchange Commission Rule 16b-3, as amended, or
any successor rule or other regulatory requirements and (ii) this Plan shall not
be amended more than once every six (6) months, other than to comport with
changes in the Code, the Employee Retirement Security Act, or the rules
thereunder.
Approved by the Company's Board of Directors, as Amended and Restated, as
of April 10, 1997.
Approved by the Company's shareholders, as Amended and Restated, on June 2,
1997.
Approved by the Company's Board of Directors, as Amended and Restated, as
of March 4, 1998.
Approved by the Company's shareholders, as Amended and Restated, as of May
24, 2000.
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