Exhibit
4.1


 


2002
STOCK OPTION PLAN


1.             PURPOSES.


 


(a)            The purpose of the Plan is to
provide a means by which selected Employees and Directors of and Consultants to
the Company and its Affiliates may be given an opportunity to benefit from
increases in the value of the stock of the Company through the granting of
Options, as defined below.


 


(b)           The Company, by means of the Plan,
seeks to retain the services of persons who are now Employees or Directors of
or Consultants to the Company or its Affiliates, to secure and retain the
services of new Employees, Directors and Consultants, and to provide incentives
for such persons to exert maximum efforts for the success of the Company and
its Affiliates.


(c)           The Plan is intended to be a
“broad-based plan” within the meaning of applicable governance and listing
standards in effect as of the date of the adoption of the Plan.


2.             DEFINITIONS.


 


(a)            “Affiliate” means any parent corporation
or subsidiary corporation, 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)           “Cause” means (unless
otherwise expressly provided in the applicable Option Agreement, or another
applicable contract with the Option holder that defines such term for purposes
of determining the effect that a “for cause” termination has on the holder’s
Options granted under the Plan) that the Company, acting in good faith based
upon the information then known to the Company, determines that the Option
holder has:  (1) repeatedly failed to
perform in a material respect his obligations under any employment agreement
with the Company without proper reason and has not cured such failure in a
reasonable time after receiving notice from the Company, (2) willfully engaged
in illegal conduct or gross misconduct that is materially injurious to the
Company, or (3) breached the provisions of any confidentiality agreement or
confidentiality provisions of any employment agreement with the Company.


 For purposes of this provision, no act or failure to act, on the
part of the Option holder, shall be considered “willful” unless it is done, or
omitted to be done, by the Option holder in bad faith or without reasonable
belief that the Option holder’s action or omission was in the best interests of
the Company.  Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the chief executive officer or a senior
officer of the Company or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by the Option
holder in good faith and in the best interests of the Company.  No termination of the Option holder for
Cause will be effective unless adopted pursuant to a resolution duly adopted by
the affirmative vote of not less


 

















 


than a majority of
the entire membership of the Board at a meeting of the Board called and held
for such purpose, and communicated to the Option holder by written notice that
explains the basis on which Cause has been found.


(d)           “Change in Control”
means any of the following:


                        (i)    Approval
by the stockholders of the Company of the dissolution or liquidation of the
Company;


                       (ii)    Approval
by the stockholders of the Company of an agreement to merge or consolidate, or
otherwise reorganize, with or into one or more entities that are not
subsidiaries or other affiliates, as a result of which less than 50% of the
outstanding voting securities of the surviving or resulting entity immediately
after the reorganization are, or will be, owned, directly or indirectly, by
stockholders of the Company immediately before such reorganization (assuming
for purposes of such determination that there is no change in the record
ownership of the Company’s securities from the record date for such approval
until such reorganization and that such record owners hold no securities of the
other parties to such reorganization, but including in such determination any
securities of the other parties to such reorganization held by affiliates of
the Company);


                                                                      (iii)    Approval by the stockholders of the Company
of the sale of substantially all of the Company’s business and/or assets to a
person or entity which is not a subsidiary or other affiliate;


                                                                      (iv)    Any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”) but excluding any person described in and satisfying the conditions of
Rule 13d-1(b)(1) thereunder), becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing more than 40% of the combined voting power of the
Company’s then outstanding securities entitled to then vote generally in the
election of directors of the Company; or


                       (v)    During
any period not longer than two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
cease to constitute at least a majority thereof, unless the election, or the
nomination for election by the Corporation’s stockholders, of each new Board
member was approved by a vote of at least three-fourths of the Board members
then still in office who were Board members at the beginning of such period
(including for these purposes, new members whose election or nomination was so
approved.


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


(f)            “Committee” means a
Committee appointed by the Board in accordance with subsection 3(c) of the
Plan.


(g)           “Company” means
Versicor Inc., a Delaware corporation.


 


2

















 


(h)           “Consultant” means any
person, including an advisor, engaged by the Company or an Affiliate to render
consulting services and who is compensated for such services, provided that the
term “Consultant” shall not include Directors who are paid only a director’s
fee by the Company or who are not compensated by the Company for their services
as Directors.


(i)            “Continuous Status as an Employee,
Director or Consultant” means that the service of an individual
to the Company, whether as an Employee, Director or Consultant, is not
interrupted or terminated.  The Board or
the chief executive officer of the Company may determine, in that party’s sole
discretion, whether Continuous Status as an Employee, Director or Consultant
shall be considered interrupted in the case of:  (i) any leave of absence approved by the Board or the chief
executive officer of the Company, including sick leave, military leave, or any
other personal leave; or (ii) transfers between the Company, Affiliates or
their successors.


(j)            “Director” means a
member of the Board.


(k)           “Employee” means any
person, including officers and Directors, employed by the Company or any
Affiliate of the Company.  Neither
service as a Director nor payment of a director’s fee by the Company shall be
sufficient to constitute “employment” by the Company.


(l)            “Exchange Act” means
the Securities Exchange Act of 1934, as amended.


(m)          “Fair Market Value”
means the last reported sales price on the relevant date of a share of the
Company’s common stock as listed in the Western Edition of the Wall Street
Journal, or if there are no reported sales on such date, then the last reported
sales price on the next preceding day on which such a sale is transacted.


(n)           “Nonstatutory Stock Option”
means an Option not intended to qualify as an Incentive Stock Option under
Section 422 of the Code.


(o)           “Option” means a stock
option granted pursuant to the Plan. 
Each Option granted pursuant to the Plan shall be a Nonstatutory Stock
Option.


(p)           “Optionee” means a
person to whom an Option is granted pursuant to the Plan or, if applicable,
such other person who holds an outstanding Option.


(q)           “Plan” means this 2002
Stock Option Plan.


(r)            “Rule 16b–3”
means Rule 16b–3 of the Exchange Act or any successor to Rule 16b–3,
as in effect with respect to the Company at the time discretion is being
exercised regarding the Plan.


(s)           “Securities Act” means
the Securities Act of 1933, as amended.


(t)            “Option Agreement”
means a written agreement between the Company and the recipient of an Option
evidencing the terms and conditions of the particular Option grant.  Each Option Agreement shall be subject to
the terms and conditions of the Plan.


 


3

















 


3.             ADMINISTRATION.


 


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


 


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


(1)           To determine from time to time which
of the persons eligible under the Plan shall be granted Options; when and how
each Option will be granted; when and how each Option shall be granted; and the
provisions of each Option granted (which need not be identical), including the
time or times when a person shall be permitted to receive stock pursuant to an
Option and the number of shares with respect to which an Option shall be
granted to each such person.


(2)           To construe and interpret the Plan
and Options 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 Option Agreement, in a manner and to the
extent it shall deem necessary or expedient to make the Plan fully effective.


(3)           To amend the Plan or an Option as
provided in Section 11; provided, however, that the Board shall not have the power
to reprice any Option once granted, except for adjustments resulting from a
stock split, reverse stock split, or similar change to the outstanding capital
stock, as provided in Section 10.


(4)           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 that are not in conflict with the provisions
of the Plan.


(c)           The Board may delegate administration
of the Plan to a committee of the Board composed of not fewer than two (2)
members (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, including the power to delegate to a subcommittee of
two (2) or more members any of the administrative powers the Committee is
authorized to exercise (any references in this Plan to the Board shall
thereafter be to the Committee or such a 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. 
Notwithstanding anything in this Section 3 to the contrary, the Board or
the Committee may delegate to a committee of one or more members of the Board
the authority to grant Options to eligible persons who are not then subject to
Section 16 of the Exchange Act.


4.             SHARES SUBJECT TO THE
PLAN.


 


(a)            Subject to the provisions of Section
10 relating to adjustments upon changes in stock, the stock that may be issued
pursuant to Options shall not exceed in the aggregate 844,720 shares of the
Company’s common stock.  If any Option
shall for any reason expire or otherwise


 


4

















 


terminate, in whole or in
part, without having been exercised in full, the stock not acquired under such
Option shall revert to and again become available for issuance under the Plan.


(b)           The stock subject to the Plan may be
unissued shares or reacquired shares, bought on the market or otherwise.


5.             ELIGIBILITY.


 


                Options may be
granted only to Employees, Directors and Consultants.


 


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)           Term.  No Option shall be exercisable after the
expiration of ten (10) years from the date it was granted.


(b)           Price.  The exercise price of each Option shall be
not less than one hundred percent (100%) of the fair market value of the stock
subject to the Option on the date the Option is granted.  For this purpose, “fair market value” shall
mean Fair Market Value unless, as to any particular Option granted to a
non-U.S. Employee, Director or Consultant, the Board or Committee determines
that another definition of fair market value is necessary or advisable in order
to qualify the option for favorable tax treatment under applicable foreign law
(an alternative definition of fair market value for this purpose could, without
limitation, be based on the closing price of the stock underlying the Option on
a different day than the day relevant for purposes of determining Fair Market
Value, or be based on an average of trading or closing prices of the stock
underlying the Option for a particular day or other period of time).  Notwithstanding the foregoing, an Option may
be granted with an exercise price lower than the fair market value of the stock
subject to the Option if such Option is granted pursuant to an assumption or
substitution for another option.


(c)           Consideration.  The purchase price of stock acquired
pursuant to an Option shall be paid either in cash or by check at the time the
Option is exercised.


(d)           Transferability.  An Option shall only be transferable by the
Optionee upon such terms and conditions as are set forth in the Option
Agreement for such Option, as the Board or the Committee shall determine in its
discretion or pursuant to a domestic relations order.  The person to whom the Option is granted 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 Optionee, shall thereafter
be entitled to exercise the Option.


(e)           Vesting.  The total number of shares of stock subject
to an Option may, but need not, be allotted in periodic installments (which
may, but need not, be equal).  The
Option Agreement may provide that from time to time during each of such
installment periods, the Option may become exercisable (“vest”) with respect to
some or all of the shares allotted to that


 


5

















 


period, and may be
exercised with respect to some or all of the shares allotted to such period
and/or any prior period as to which the Option became vested but was not fully
exercised.  The Option may be subject to
such other 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 provisions of this subsection 6(e) are
subject to any Option provisions governing the minimum number of shares as to
which an Option may be exercised.


(f)            Termination
of Employment or Relationship as a Director or Consultant.  In the event an Optionee’s Continuous Status
as an Employee, Director or Consultant terminates (other than upon the
Optionee’s death or disability), the Optionee may exercise his or her Option
(to the extent that the Optionee was entitled to exercise it 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 Optionee’s
Continuous Status as an Employee, Director or Consultant (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, at the date of termination, the Optionee
is not entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan.  If, after
termination, the Optionee does not exercise his or her Option within the time
specified in the Option Agreement, the Option shall terminate, and the shares covered
by such Option shall revert to and again become available for issuance under
the Plan.


An Optionee’s Option
Agreement may also provide that if the exercise of the Option following the
termination of the Optionee’s Continuous Status as an Employee, Director, or
Consultant (other than upon the Optionee’s death or disability) would result in
liability under Section 16(b) of the Exchange 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 tenth (10th) day after the last date
on which such exercise would result in such liability under Section 16(b) of
the Exchange Act.  Finally, an
Optionee’s Option Agreement may also provide that if the exercise of the Option
following the termination of the Optionee’s Continuous Status as an Employee,
Director or Consultant (other than upon the Optionee’s death or disability)
would be prohibited at any time solely because the issuance of shares 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 first paragraph of this subsection 6(f), or (ii) the
expiration of a period of three (3) months after the termination of the
Optionee’s Continuous Status as an Employee, Director or Consultant during
which the exercise of the Option would not be in violation of such registration
requirements.


(g)           Disability
of Optionee.  In the event an
Optionee’s Continuous Status as an Employee, Director or Consultant terminates
as a result of the Optionee’s disability, the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it 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, at the date of termination, the Optionee
is not entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan.  If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and


 


6

















 


the shares covered by
such Option shall revert to and again become available for issuance under the
Plan.


(h)           Death
of Optionee.  In the event of
the death of an Optionee during, or within a period specified in the Option
Agreement after the termination of, the Optionee’s Continuous Status as an
Employee, Director or Consultant, the Option may be exercised (to the extent
the Optionee was entitled to exercise the Option as of the date of death) by
the Optionee’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 Optionee’s death pursuant to subsection 6(d), but only within
the period ending on the earlier of (i) the date eighteen (18) months following
the date of death (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of such Option as set forth in
the Option Agreement.  If, at the time
of death, the Optionee was not entitled to exercise his or her entire Option,
the shares covered by the unexercisable portion of the Option shall revert to
and again become available for issuance under the Plan.  If, after death, the Option is not exercised
within the time specified herein, the Option shall terminate, and the shares
covered by such Option shall revert to and again become available for issuance
under the Plan.


7.             COVENANTS OF THE
COMPANY.


 


(a)            During the terms of the Options, 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 Option; provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any Option or any
stock issued or issuable pursuant to any such Option.  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 stock under the
Plan, the Company shall be relieved from any liability for failure to issue and
sell stock upon exercise of such Options unless and until such authority is
obtained.


8.             USE OF PROCEEDS FROM
STOCK.


 


                Proceeds from the
sale of stock pursuant to Options shall constitute general funds of the
Company.


 


9.             MISCELLANEOUS.


 


                (a)           The Board shall have the power to
accelerate the time at which an Option may first be exercised or the time
during which an Option or any part thereof will vest notwithstanding the
provisions in the Option stating the time at which it may first be exercised or
the time during which it will vest.


 


(b)           Neither an Employee, Director or
Consultant nor any person to whom an Option is transferred (to the extent such
a transfer is otherwise permitted) 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


 


7

















 


Option unless and until
such person has satisfied all requirements for exercise of the Option pursuant
to its terms.


(c)           Nothing in the Plan or any instrument
executed or Option granted pursuant thereto shall confer upon any Employee,
Director, Consultant or other holder of Options any right to continue in the
employ of the Company or any Affiliate (or to continue acting as a Director or
Consultant) or shall affect the right of the Company or any Affiliate to
terminate the employment of any Employee with or without cause the right of the
Company’s Board of Directors and/or the Company’s stockholders to remove any
Director as provided in the Company’s By–Laws and the provisions of the
Delaware General Corporation Law, or the right to terminate the relationship of
any Consultant subject to the terms of such Consultant’s agreement with the
Company or Affiliate.


(d)           To the extent provided by the terms
of an Option Agreement, the person to whom an Option is granted may satisfy any
federal, state or local tax withholding obligation relating to the exercise or
acquisition of stock under an Option by any of the following means or by a
combination of such means: (1) tendering a cash payment; (2) authorizing the
Company to withhold shares from the shares of the common stock otherwise
issuable to the participant as, a result of the exercise or acquisition of
stock under the Option; or (3) delivering to the Company owned and unencumbered
shares of the common stock of the Company.


10.          ADJUSTMENTS UPON
CHANGES IN STOCK.


 


(a)           If any change is made in the stock
subject to the Plan, or subject to any Option (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 type(s) and maximum number of securities subject
to the Plan pursuant to subsection 4(a) and the outstanding Options will be
appropriately adjusted in the type(s) and number of securities and price per
share of stock subject to such outstanding Options.  Such adjustments shall be made by the Board or the Committee, the
determination of which shall be final, binding and conclusive.  (The conversion of any convertible
securities of the Company shall not be treated as a “transaction not involving
the receipt of consideration by the Company.”)


 


(b)           In the event of: (1) a dissolution,
liquidation or sale of all or substantially all of the assets of the Company;
(2) a merger or consolidation in which the Company is not the surviving
corporation; or (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; then: (i) any surviving
corporation or acquiring corporation shall assume any Options outstanding under
the Plan or shall substitute similar stock awards (including an award to
acquire the same consideration paid to the stockholders in the transaction
described in this subsection 10(b)) for those outstanding under the Plan, or
(ii) in the event any surviving corporation or acquiring corporation refuses to
assume such Options or to substitute similar stock awards for those outstanding
under the Plan, (A) with respect to Options held by persons then performing
services as Employees, Directors or Consultants, the vesting of such Options
(and, if


 


8

















 


applicable, the time
during which such Options may be exercised) shall be accelerated prior to such
event and the Options terminated if not exercised (if applicable) after such
acceleration and at or prior to such event, and (B) with respect to any other
Options outstanding under the Plan, such Options shall be terminated if not
exercised (if applicable) prior to such event.


(c)           Change in Control Vesting.  Unless otherwise provided in the applicable
Option Agreement, each Option shall be subject to the special change in control
vesting provisions set forth in clause (1) below if the conditions set forth
therein are satisfied (notwithstanding any other Continuous Status as an
Employee, Director or Consultant vesting provisions herein to the contrary, but
subject to any limited exercise period following a termination of such status
as may be provided for herein or in the applicable Option Agreement).


                (1)           If an Option holder’s Continuous Status as an Employee,
Director or Consultant is terminated by the Company or an Affiliate upon or
within one year after a Change in Control, and the termination is not the
result of the holder’s death or disability and is not a termination by the
Company or an Affiliate for Cause, then, subject to the other provisions of
this Section 10, all outstanding Options held by the holder shall be deemed
fully vested immediately prior to such termination.


11.          AMENDMENT OF THE PLAN
AND OPTIONS.


 


                (a)           The Board at any time, and from time
to time, may amend the Plan.  However,
except as provided in Section 10 relating to adjustments upon changes in stock,
no amendment shall be effective unless approved by the stockholders of the Company
to the extent approval is necessary for the Plan to satisfy the requirements of
Rule 16b–3 or any Nasdaq or securities exchange listing requirements.


 


(b)           The Board may in its sole discretion
submit any other amendment to the Plan for stockholder approval.


(c)           Rights and obligations under any
Option 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 person
to whom the Option was granted and (ii) such person consents in writing.


(d)           The Board at any time, and from time
to time, may amend the terms of any one or more Option; provided, however, that
the rights and obligations under any Option shall not be impaired by any 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; provided further,
that the Board shall not have the power to reprice any Option once granted,
except for adjustments resulting from a stock split, reverse stock split, or
similar change to the outstanding capital stock, as provided in Section 10.


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 ten (10) years from the date the Plan is
adopted by the Board.  No Options may be
granted under the Plan while the Plan is suspended or after it is terminated.


 


9

















 


(b)           Rights and obligations under any
Option granted while the Plan is in effect shall not be impaired by suspension
or termination of the Plan, except with the written consent of the person to
whom the Option was granted.


13.          EFFECTIVE DATE OF PLAN.


 


                The Plan shall
become effective as of the date it is approved by the Board.


 


10