Prepared by MERRILL CORPORATION




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Exhibit 4.1    
  


 
 

VALENTIS, INC. 2001 NONSTATUTORY INCENTIVE PLAN    
  


	1.
	PURPOSES.



    (a) Eligible Stock Award Recipients. Only Eligible Participants may receive Stock Awards under this Plan. 



    (b) Available Stock Awards. The purpose of the Plan is to provide a means by which Eligible Participants may be given an
opportunity to benefit from increases in value of the Common Stock through the granting of the following Stock Awards: (i) Nonstatutory Stock Options, (ii) stock bonuses and
(iii) rights to acquire restricted stock. 


    (c) General Purpose. The Company, by means of the Plan, seeks to retain the services of the group of persons eligible to
receive Stock Awards, to secure and retain the services of new members of this group and to provide incentives for such persons to exert maximum efforts for the success of the Company and its
Affiliates. 


	2.
	DEFINITIONS.  



     (a) "Affiliate" means any parent corporation or subsidiary corporation of the Company, whether now or hereafter
existing, as those terms are defined in Sections 424(e) and (f), respectively, of the Code. 


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



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


    (d) "Committee" means a committee of one or more members of the Board appointed by the Board in
accordance with subsection 3(c). 


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


    (f)  "Company" means Valentis, Inc., a Delaware corporation. 



    (g) "Consultant" means any person, including an advisor, (i) engaged by the Company or an
Affiliate to render consulting or advisory services and who is compensated for such services or (ii) who is a member of the Board of Directors of an Affiliate. However, the term "Consultant"
shall not include Directors. 


    (h) "Continuous Service" means that the Holder's service with the Company or an Affiliate,
whether as an Employee or Consultant, is not interrupted or terminated. The Holder's Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the
Holder renders service to the Company or an Affiliate as an Employee or Consultant or a change in the entity for which the Holder renders such service, provided that there is no interruption or
termination of the Holder's service to the Company or an Affiliate. For example, a change in status without interruption from an Employee of the Company to a Consultant of an Affiliate will not
constitute an interruption of Continuous Service. The Board or the chief executive officer of the Company, in that party's sole discretion, may determine whether Continuous Service shall be considered
interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal leave. 


    (i)  "Director" means a member of the Board of Directors of the Company. 



    (j)  "Disability" means the permanent and total disability of a person within the meaning of
Section 22(e)(3) of the Code. 


    (k) "Eligible Participant" means any Employee or Consultant; provided,
however, that except as provided in the following sentence, no Employee or Consultant who is a Director or an Officer may be granted Stock Awards under this Plan. Notwithstanding the preceding
sentence, an Officer may be an 








Eligible Participant if he or she is granted a Stock Award in connection with his or her initial commencement of employment with the Company and such grant is an essential inducement to his or her
entering into a contract of employment with the Company.


    (l)  "Employee" means any person employed by the Company or an Affiliate. 


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



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



    (i)  If the Common Stock is listed on any established stock exchange or traded on the Nasdaq National Market or the
Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or
market (or the exchange or market with the greatest volume of trading in the Common Stock) on the last market trading day prior to the day of determination, as reported in The
Wall Street Journal or such other source as the Board deems reliable. 


    (ii) In the absence of such markets for the Common Stock, the Fair Market Value shall be determined in good faith by the
Board. 




    (o) "Holder" means a person to whom a Stock Award is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Stock Award. 


    (p) "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. Incentive Stock Options may not be granted under the Plan. 


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


    (r) "Officer" means a person who is either (i) an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder or (ii) an officer of the Company within the meaning of
Section 4310(c)(25)(G)(i) of the NASD Manual and Notices to Members (the "NASD Manual"), or any successor provision thereto. 


    (s) "Option" means a Nonstatutory Stock Option granted pursuant to the Plan. 


    (t) "Option Agreement" means a written or electronic agreement between the Company and an
Optionholder evidencing certain terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan. 


    (u) "Optionholder" means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option. 


    (v) "Plan" means this Valentis, Inc. 2001 Nonstatutory Incentive Plan. 



    (w) "Rule 16b-3" means Rule 16b-3 promulgated under the
Exchange Act or any successor to Rule 16b-3, as in effect from time to time. 


    (x) "Securities Act" means the Securities Act of 1933, as amended. 


    (y) "Stock Award" means any right granted under the Plan, including an Option, a stock bonus and
a right to acquire restricted stock. 


    (z) "Stock Award Agreement" means a written agreement between the Company and a Holder of a
Stock Award evidencing the terms and conditions of an individual Stock Award grant (including a stock bonus agreement or restricted stock purchase agreement). Each Stock Award Agreement shall be
subject to the terms and conditions of the Plan. 





	3.
	ADMINISTRATION.  



    (a) Administration by Board. The Board shall administer the Plan unless and until the Board delegates administration to a Committee, as provided
in subsection 3(c). 


    (b) Powers of Board. The Board shall have the power, subject to, and within the limitations of, the express provisions
of the Plan: 



     (i) To determine from time to time which of the persons eligible under the Plan shall be granted Stock Awards; when and
how each Stock Award shall be granted; what type or combination of types of Stock Award shall be granted; the provisions of each Stock Award granted (which need not be identical), including the time
or times when a person shall be permitted to receive Common Stock pursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock Award shall be granted to each such
person. 


    (ii) To construe and interpret the Plan and Stock Awards granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the
extent it shall deem necessary or expedient to make the Plan fully effective. 


   (iii) To amend the Plan or a Stock Award as provided in Section 12. 


    (iv) To terminate or suspend the Plan as provided in Section 13. 


    (v) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the
best interests of the Company which are not in conflict with the provisions of the Plan. 




    (c) Delegation to Committee. The Board may delegate administration of the Plan to a Committee or Committees of one
(1) or more members of the Board. The term "Committee" shall apply to any person or persons to whom such authority has been delegated. 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, including the power to delegate to a subcommittee any of the administrative
powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to the Committee or subcommittee), 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. 


    (d) Effect of Board's Decision. All determinations, interpretations and constructions made by the Board in good faith
shall not be subject to review by any person and shall be final, binding and conclusive on all persons. 


	4.
	SHARES SUBJECT TO THE PLAN.  



     (a) Share Reserve. Subject to the provisions of Section 11 relating to adjustments upon changes in Common Stock, the Common Stock that
may be issued pursuant to Stock Awards shall not exceed in the aggregate three million (3,000,000) shares of Common Stock. 


    (b) Reversion of Shares to the Share Reserve. If any Stock Award shall for any reason expire or otherwise terminate, in
whole or in part, without having been exercised in full, the shares of Common Stock not acquired under such Stock Award shall revert to and again become available for issuance under the Plan. 


    (c) Source of Shares. The shares of Common Stock subject to the Plan may be unissued shares or reacquired shares, bought
on the market or otherwise. 





	5.
	ELIGIBILITY.  



     (a) Eligibility for Specific Stock Awards. Stock Awards may be granted only to Eligible Participants. 


    (b) Consultants. A Consultant shall not be eligible for the grant of a Stock Award if, at the time of grant, a
Form S-8 Registration Statement under the Securities Act ("Form S-8") is not available to register either the offer or the sale of the Company's securities to
such Consultant because of the nature of the services that the Consultant is providing to the Company, or because the Consultant is not a natural person, or as otherwise provided by the rules
governing the use of Form S-8, unless the Company determines both (i) that such grant (A) shall be registered in another manner under the Securities Act
(e.g., on a Form S-3 Registration Statement) or (B) does not require registration under the Securities Act in order to comply
with the requirements of the Securities Act, if applicable, and (ii) that such grant complies with the securities laws of all other relevant jurisdictions. 


	6.
	OPTION PROVISIONS.  



    Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The provisions of separate Options need not
be identical, but each Option shall
include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: 



    (a) Option Exercise Price. The exercise price of each Nonstatutory Stock Option shall be determined by the Board or
Committee, as applicable, in their sole discretion. 


    (b) Consideration. The purchase price of Common Stock acquired pursuant to an Option shall be paid, to the extent
permitted by applicable statutes and regulations, either (i) in cash (or cash equivalent) at the time the Option is exercised or (ii) at the discretion of the Board at the time of the
grant of the Option (or subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the Company of other Common Stock, (2) according to a deferred payment or other
similar arrangement with the Optionholder or (3) in any other form of legal consideration that may be acceptable to the Board. Unless otherwise specifically provided in the Option, the purchase
price of Common Stock acquired pursuant to an Option that is paid by delivery to the Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of
the Common Stock of the Company that have been held for more than six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting
purposes). At any time that the Company is incorporated in Delaware, payment of the Common Stock's "par value," as defined in the Delaware General Corporation Law, shall not be made by deferred
payment. 


    In
the case of any deferred payment arrangement, interest shall be compounded at least annually and shall be charged at no less than the minimum rate of interest necessary to avoid
the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement. 


    (c) Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall be transferable to the extent
provided in the Option Agreement. If the Nonstatutory Stock Option does not provide for transferability, then the Nonstatutory Stock Option shall not be transferable except by will or by the laws of
descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to
the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option. 


    (d) Vesting Generally. The total number of shares of Common Stock subject to an Option may, but need not, vest and
therefore become exercisable in periodic installments that may, but need not, be equal. Notwithstanding anything in this Plan to the contrary, under no circumstances shall an Option be exercisable
later than ten years after its date of grant. The Option may be subject to further terms and conditions on the time or times when it may be exercised (which may be based on performance or 







other criteria) as the Board may deem appropriate. The vesting provisions of individual Options may vary. The provisions of this subsection 6(d) are subject to any Option provisions governing the
minimum number of shares of Common Stock as to which an Option may be exercised. 


    (e) Termination of Continuous Service. In the event an Optionholder's Continuous Service terminates (other than upon the
Optionholder's death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination) but only
within such period of time ending on the earlier of (i) the date three (3) months following the termination of the Optionholder's Continuous Service (or such longer or shorter period
specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her
Option within the time specified in the Option Agreement, the Option shall terminate. 


    (f)  Extension of Termination Date. An Optionholder's Option Agreement may also provide that if the exercise of the
Option following the termination of the Optionholder's Continuous Service (other than upon the Optionholder's death or Disability) would be prohibited at any time solely because the issuance of shares
of Common Stock would violate the registration requirements under the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option set forth in
the Option Agreement or (ii) the expiration of a period of three (3) months after the termination of the Optionholder's Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements provided that the Option shall not terminate later than ten years after the date of grant of the Option. 


    (g) Disability of Optionholder. In the event that an Optionholder's Continuous Service terminates as a result of the
Optionholder's Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), but only within
such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period specified in the Option Agreement) or
(ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified herein,
the Option shall terminate. 


    (h) Death of Optionholder. In the event (i) an Optionholder's Continuous Service terminates as a result of the
Optionholder's death or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder's Continuous Service for a reason other
than death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder's estate, by a person who acquired the
right to exercise the Option by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder's death pursuant to subsection 6(e) or 6(f), but only within the period
ending on the earlier of (1) the date eighteen (18) months following the date of death (or such longer or shorter period specified in the Option Agreement) or (2) the expiration
of the term of such Option as set forth in the Option Agreement. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate. 



    (i)  Early Exercise. The Option may, but need not, include a provision whereby the Optionholder may elect at any time
before the Optionholder's Continuous Service terminates to exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior to the full vesting of the Option. Any
unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company or to any other restriction the Board determines to be appropriate. The Company will not
exercise its repurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed
following exercise of the Option unless the Board otherwise specifically provides in the Option. 


	7.
	PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS.  



     (a) Stock Bonus Awards. Each stock bonus agreement shall be in such form and shall contain such terms and conditions as the Board shall deem
appropriate. The terms and conditions of stock bonus agreements may change from time to time, and the terms and conditions of separate stock bonus 








agreements need not be identical, but each stock bonus agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the
following provisions: 



     (i) Consideration. A stock bonus may be awarded in consideration for past services actually rendered to the Company or
an Affiliate for its benefit. 


    (ii) Vesting. Shares of Common Stock awarded under the stock bonus agreement may, but need not, be subject to a share
repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board. 


   (iii) Termination of Holder's Continuous Service. In the event a Holder's Continuous Service terminates, the Company may
reacquire any or all of the shares of Common Stock held by the Holder which have not vested as of the date of termination under the terms of the stock bonus agreement. 


    (iv) Transferability. Rights to acquire shares of Common Stock under the stock bonus agreement shall be transferable by
the Holder only upon such terms and conditions as are set forth in the stock bonus agreement, as the Board shall determine in its discretion, so long as Common Stock awarded under the stock bonus
agreement remains subject to the terms of the stock bonus agreement. 




    (b) Restricted Stock Awards. Each restricted stock purchase agreement shall be in such form and shall contain such terms
and conditions as the Board shall deem appropriate. The terms and conditions of the restricted stock purchase agreements may change from time to time, and the terms and conditions of separate
restricted stock purchase agreements need not be identical, but each restricted stock purchase agreement shall include (through incorporation of provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions: 



     (i) Purchase Price. The purchase price under each restricted stock purchase agreement shall be such amount as the Board
shall determine and designate in such restricted stock purchase agreement. 


    (ii) Consideration. The purchase price of Common Stock acquired pursuant to the restricted stock purchase agreement
shall be paid either: (i) in cash (or cash equivalent) at the time of purchase; (ii) at the discretion of the Board, according to a deferred payment or other similar arrangement with the
Holder; or (iii) in any other form of legal consideration that may be acceptable to the Board in its discretion; provided, however, that at any time that the Company is incorporated in
Delaware, then payment of the Common Stock's "par value," as defined in the Delaware General Corporation Law, shall not be made by deferred payment. 


   (iii) Vesting. Shares of Common Stock acquired under the restricted stock purchase agreement shall be subject to a share
repurchase option in favor of the Company pursuant to a vesting schedule to be determined by the Board in accordance with the following guidelines: (A) the vesting period for shares of Common
Stock acquired under restricted stock purchase agreements shall be no less than three (3) years unless based upon performance milestones, in which event the vesting period shall be no less than
one (1) year; and (B) notwithstanding the provisions of Section 10(a), the Board may not accelerate such vesting except under extraordinary circumstances, such as the death,
disability or divorce of the Holder, or a change in corporate structure of the Company. 


    (iv) Termination of Holder's Continuous Service. In the event a Holder's Continuous Service terminates, the Company may
repurchase or otherwise reacquire any or all of the shares of Common Stock held by the Holder which have not vested as of the date of termination under the terms of the restricted stock purchase
agreement. 


    (v) Transferability. Rights to acquire shares of Common Stock under the restricted stock purchase agreement shall be
transferable by the Holder only upon such terms and conditions as are set forth in the restricted stock purchase agreement, as the Board shall determine in its 








discretion, so long as Common Stock awarded under the restricted stock purchase agreement remains subject to the terms of the restricted stock purchase agreement. 



	8.
	COVENANTS OF THE COMPANY.  



     (a) Availability of Shares. During the terms of the Stock Awards, the Company shall keep available at all times the number of shares of Common
Stock required to satisfy such Stock Awards. 


    (b) Securities Law Compliance. The Company shall seek to obtain from each regulatory commission or agency having
jurisdiction over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards; provided, however, that this
undertaking shall not require the Company to register under the Securities Act the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable
efforts, 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 Common Stock
under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Stock Awards unless and until such authority is obtained. 


	9.
	USE OF PROCEEDS FROM STOCK.  



    Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds of the Company. 


	10.
	MISCELLANEOUS.  



     (a) Acceleration of Exercisability and Vesting. The Board shall have the power to accelerate the time at which a Stock Award may first be
exercised or the time during which a Stock Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Stock Award stating the time at which it may first be
exercised or the time during which it will vest. 


    (b) Stockholder Rights. No Holder shall be deemed to be the holder of, or to have any of the rights of a holder with
respect to, any shares of Common Stock subject to such Stock Award unless and until such Holder has satisfied all requirements for exercise of the Stock Award pursuant to its terms. 


    (c) No Employment or Other Service Rights. Nothing in the Plan or any instrument executed or Stock Award granted
pursuant thereto shall confer upon any Holder any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect the right of
the Company or an Affiliate to terminate (i) the employment of an Employee with or
without notice and with or without cause or (ii) the service of a Consultant pursuant to the terms of such Consultant's agreement with the Company or an Affiliate. 


    (d) Investment Assurances. The Company may require a Holder, as a condition of exercising or acquiring Common Stock
under any Stock Award, (i) to give written assurances satisfactory to the Company as to the Holder's knowledge and experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating that the Holder is acquiring Common Stock
subject to the Stock Award for the Holder's own account and not with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances given
pursuant to such requirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of Common Stock under the Stock Award has been registered
under a then currently effective registration statement under the Securities Act or (2) 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. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the
Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock. 







    (e) Withholding Obligations. To the extent provided by the terms of a Stock Award Agreement, the Holder may satisfy any
federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under a Stock Award by any of the following means (in addition to the Company's right to
withhold from any compensation paid to the Holder by the Company) or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold shares of
Common Stock from the shares of Common Stock otherwise issuable to the Holder as a result of the exercise or acquisition of Common Stock under the Stock Award, provided, however, that no shares of
Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (iii) delivering to the Company owned and unencumbered shares of Common Stock. 


	11.
	ADJUSTMENTS UPON CHANGES IN STOCK.  



     (a) Capitalization Adjustments. If any change is made in the Common Stock subject to the Plan, or subject to any Stock Award, without the
receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split,
liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company), the Plan will be
appropriately adjusted in the class(es) and maximum number of securities subject to the Plan pursuant to subsection 4(a), and the outstanding Stock Awards will be appropriately adjusted in
the class(es) and number of securities and price per share of Common Stock subject to such outstanding Stock Awards. The Board shall make such adjustments, and its determination shall be final,
binding and conclusive. The conversion of any convertible securities of the Company shall not be treated as a transaction "without receipt of consideration" by the Company. 



    (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company, then all outstanding Stock
Awards shall terminate immediately prior to such event. 


    (c) Change of Control. (i) Subject to clause (ii) below, in the event of a Change of Control, to the
extent permitted by law, any surviving corporation or acquiring corporation may assume any Stock Awards outstanding under the Plan or substitute similar stock awards (including awards to acquire the
same consideration paid to the stockholders in the Change of Control) for those outstanding under the Plan. In the event any surviving corporation or acquiring corporation does not assume such Stock
Awards or substitute similar stock awards for those outstanding under the Plan, then with respect to Stock Awards held by Holders whose Continuous Service has not terminated, the vesting of such Stock
Awards (and, if applicable, the time during which such Stock Awards may be exercised) shall be accelerated in full, and the Stock Awards shall terminate if not exercised (if applicable) at or prior to
such event. With respect to any other Stock Awards outstanding under the Plan, such Stock Awards shall terminate if not exercised (if applicable) prior to such event. 



    (ii) In
the event of a Change of Control not approved by the Board, each outstanding Stock Award under the Plan shall become fully vested, and the Company's right of
repurchase shall lapse with respect to shares received upon exercise of a Stock Award prior to full vesting, notwithstanding the terms of the Stock Award or any early exercise stock purchase
agreement, immediately prior to the consummation of such Change of Control. 




    For
purposes of this Plan, "Change of Control" means: (i) a sale of substantially all of the assets of the Company; (ii) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger or consolidation in which shareholders immediately before the merger or consolidation have, immediately after the merger or consolidation, equal
or greater stock voting power); (iii) a reverse merger in which the Company is the surviving corporation but the shares of 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 (other than a reverse merger in which stockholders immediately before the merger have,
immediately after the merger, greater stock voting power); or (iv) any transaction or series of related transactions in which in excess of 50% of the Company's voting power is transferred. 





	12.
	AMENDMENT OF THE PLAN AND STOCK AWARDS.  



    (a) Amendment of Plan. The Board at any time, and from time to time, may amend the Plan. 


    (b) Contemplated Amendments. It is expressly contemplated that the Board may amend the Plan in any respect the Board
deems necessary or advisable to provide eligible Employees with the maximum benefits provided or to be provided under the provisions of the Code. 


    (c) No Impairment of Rights. Rights under any Stock Award granted before amendment of the Plan shall not be impaired by
any amendment of the Plan unless (i) the Company requests the consent of the Holder and (ii) the Holder consents in writing. 


    (d) Amendment of Stock Awards. The Board at any time, and from time to time, may amend the terms of any one or more
Stock Awards; provided, however, that the rights under any Stock Award shall not be impaired by any such amendment unless (i) the Company requests the consent of the Holder and (ii) the
Holder consents in writing. 


	13.
	TERMINATION OR SUSPENSION OF THE PLAN.  




    (a) Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on the day before the
tenth (10th) anniversary of the date the Plan is adopted by the Board. No Stock Awards may be granted under the Plan while the Plan is suspended or after it is terminated. 


    (b) No Impairment of Rights. Suspension or termination of the Plan shall not impair rights and obligations under any
Stock Award granted while the Plan is in effect except with the written consent of the Holder. 


	14.
	EFFECTIVE DATE OF PLAN.  



    The Plan shall become effective upon its adoption by the Board. 


	15.
	CHOICE OF LAW/INTERPRETATION.  



    The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such
state's conflict of laws rules. Notwithstanding the foregoing, it is expressly intended that approval of the Company's stockholders not be required as a condition of the effectiveness of the Plan, and
the Plan's provisions shall be interpreted in a manner consistent with such intent for all purposes (including without limitation, for purposes of determining whether stockholder approval of the Plan
is necessary pursuant to the NASD Manual or any successor provisions thereto). 









QuickLinks



Exhibit 4.1


VALENTIS, INC. 2001 NONSTATUTORY INCENTIVE PLAN