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VERSICOR INC.
EMPLOYEE STOCK PURCHASE PLAN
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TABLE OF CONTENTS
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1. PURPOSE.................................................................................................1
2. DEFINITIONS.............................................................................................1
3. ELIGIBILITY.............................................................................................4
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS...........................................................4
5. OFFERING PERIODS........................................................................................4
6. PARTICIPATION...........................................................................................5
7. METHOD OF PAYMENT OF CONTRIBUTIONS......................................................................5
8. GRANT OF OPTION.........................................................................................7
9. EXERCISE OF OPTION......................................................................................7
10. DELIVERY................................................................................................8
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS....................................................8
12. ADMINISTRATION..........................................................................................9
13. DESIGNATION OF BENEFICIARY.............................................................................10
14. TRANSFERABILITY........................................................................................11
15. USE OF FUNDS; INTEREST.................................................................................11
16. REPORTS................................................................................................11
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK................................................................11
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS.........................................................12
19. TERM OF PLAN; AMENDMENT OR TERMINATION.................................................................12
20. NOTICES................................................................................................13
21. CONDITIONS UPON ISSUANCE OF SHARES.....................................................................13
22. PLAN CONSTRUCTION......................................................................................13
23. EMPLOYEES' RIGHTS......................................................................................14
24. MISCELLANEOUS..........................................................................................14
25. EFFECTIVE DATE.........................................................................................15
26. TAX WITHHOLDING........................................................................................15
27. NOTICE OF SALE.........................................................................................16
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VERSICOR INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Versicor Inc. Employee
Stock Purchase Plan (the "PLAN").
1. PURPOSE
The purpose of this Plan is to assist Eligible Employees in acquiring a
stock ownership interest in the Corporation, at a favorable price and
upon favorable terms, pursuant to a plan which is intended to qualify
as an "employee stock purchase plan" under Section 423 of the Code.
This Plan is also intended to encourage Eligible Employees to remain in
the employ of the Corporation (or a Subsidiary which may be designated
by the Committee as "Participating Subsidiary") and to provide them
with an additional incentive to advance the best interests of the
Corporation.
2. DEFINITIONS
Capitalized terms used herein which are not otherwise defined shall
have the following meanings.
"ACCOUNT" means the bookkeeping account maintained by the
Corporation, or by a recordkeeper on behalf of the
Corporation, for a Participant pursuant to Section 7(a).
"BOARD" means the Board of Directors of the Corporation.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITTEE" means the committee appointed by the Board to
administer this Plan pursuant to Section 12.
"COMMON STOCK" means the Common Stock, par value $.001 per
share, of the Corporation, and such other securities or
property as may become the subject of Options pursuant to an
adjustment made under Section 17.
"COMPANY" means, collectively, the Corporation, its Parent and
its Subsidiaries (if any).
"COMPENSATION" means an Eligible Employee's regular gross pay
for a 40-hour week. Compensation includes any amounts
contributed as salary reduction contributions to a plan
qualifying under Section 401(k), 125 or 129 of the Code. Any
other form of remuneration is excluded from Compensation,
including (but not limited to) the following: overtime
payments, commissions, prizes, awards, relocation or housing
allowances, stock option exercises, stock appreciation rights,
restricted stock exercises, performance awards, auto
allowances, tuition reimbursement and other forms of imputed
income, bonuses, incentive
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compensation, special payments, fees and allowances.
Notwithstanding the foregoing, Compensation shall not include
any amounts deferred under or paid from any nonqualified
deferred compensation plan maintained by the Company.
"CONTRIBUTIONS" means all bookkeeping amounts credited to the
Account of a Participant pursuant to Section 7(a).
"CORPORATION" means Versicor Inc., a Delaware corporation, and
its successors.
"EFFECTIVE DATE" means [____________], the date this Plan was
adopted by the Board.
"ELIGIBLE EMPLOYEE" means any employee of the Corporation, or
of any Subsidiary which has been designated in writing by the
Committee as a "Participating Subsidiary" (including any
Subsidiaries which have become such after the date that this
Plan is approved by the stockholders of the Corporation).
Notwithstanding the foregoing, "Eligible Employee" shall not
include any employee:
(a) whose customary employment is for 20 hours or less
per week; or
(b) whose customary employment is for not more than five
months in a calendar year.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"EXERCISE DATE" means, with respect to an Offering Period, the
last day of that Offering Period.
"FAIR MARKET VALUE" on any date means:
(a) if the Common Stock is listed or admitted to trade on
a national securities exchange, the closing price of
a Share on the Composite Tape, as published in the
Western Edition of The Wall Street Journal, of the
principal national securities exchange on which such
stock is so listed or admitted to trade, on such
date, or, if there is no trading of the Common Stock
on such date, then the closing price of a Share as
quoted on such Composite Tape on the next preceding
date on which there was trading in the Shares;
(b) if the Common Stock is not listed or admitted to
trade on a national securities exchange, the
last/closing price for a Share on such date, as
furnished by the National Association of Securities
Dealers, Inc. ("NASD") through the NASDAQ National
Market Reporting System or a similar organization if
the NASD is no longer reporting such information;
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(c) if the Common Stock is not listed or admitted to
trade on a national securities exchange and is not
reported on the National Market Reporting System, the
mean between the bid and asked price for a Share on
such date, as furnished by the NASD or a similar
organization; or
(d) if the Common Stock is not listed or admitted to
trade on a national securities exchange, is not
reported on the National Market Reporting System and
if bid and asked prices for the Common Stock are not
furnished by the NASD or a similar organization, the
value as established by the Committee at such time
for purposes of this Plan.
"GRANT DATE" means the first day of each Offering Period, as
determined by the Committee and announced to potential
Eligible Employees.
"OFFERING PERIOD" means the six-consecutive month period
commencing on each Grant Date; provided, however, that the
Committee may declare, as it deems appropriate and in advance
of the applicable Offering Period, a shorter (not to be less
than three months) Offering Period or a longer (not to exceed
27 months) Offering Period; provided further that the Grant
Date for an Offering Period may not occur on or before the
Exercise Date for the immediately preceding Offering Period.
"OPTION" means the stock option to acquire Shares granted to a
Participant pursuant to Section 8.
"OPTION PRICE" means the per share exercise price of an Option
as determined in accordance with Section 8(b).
"PARENT" means any corporation (other than the Corporation) in
an unbroken chain of corporations ending with the Corporation
in which each corporation (other than the Corporation) owns
stock possessing 50% or more of the total combined voting
power of all classes of stock in one or more of the other
corporations in the chain.
"PARTICIPANT" means an Eligible Employee who has elected to
participate in this Plan and who has filed a valid and
effective Subscription Agreement to make Contributions
pursuant to Section 6.
"PLAN" means this Versicor Inc. Employee Stock Purchase Plan,
as amended from time to time.
"RULE 16b-3" means Rule 16b-3 as promulgated by the Commission
under Section 16, as amended from time to time.
"SHARE" means a share of Common Stock.
"SUBSCRIPTION AGREEMENT" means the written agreement filed by
an Eligible Employee with the Corporation pursuant to Section
6 to participate in this Plan.
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"SUBSIDIARY" means any corporation (other than the
Corporation) in an unbroken chain of corporations (beginning
with the Corporation) in which each corporation (other than
the last corporation) owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one or
more of the other corporations in the chain.
3. ELIGIBILITY
Any person employed as an Eligible Employee as of a Grant Date shall be
eligible to participate in this Plan during the Offering Period in
which such Grant Date occurs, subject to the Eligible Employee
satisfying the requirements of Section 6.
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS
(a) Subject to the provisions of Section 17, the capital stock
that may be delivered under this Plan will be shares of the
Corporation's authorized but unissued Common Stock and any of
its shares of Common Stock held as treasury shares. The
maximum number of Shares that may be delivered pursuant to
Options granted under this Plan is [___________] Shares,
subject to adjustments pursuant to Section 17.
In the event that all of the Shares made available under this
Plan are subscribed prior to the expiration of this Plan, this
Plan shall terminate at the end of that Offering Period and
the Shares available shall be allocated for purchase by
Participants in that Offering Period on a pro-rata basis
determined with respect to Participants' Account balances.
(b) The maximum number of Shares that any one individual may
acquire upon exercise of his or her Option with respect to any
one Offering Period is 3,000, subject to adjustments pursuant
to Section 17 (the "INDIVIDUAL LIMIT"); provided, however,
that the Committee may amend such Individual Limit, effective
no earlier than the first Offering Period commencing after the
adoption of such amendment, without stockholder approval. The
Individual Limit shall be proportionately adjusted for any
Offering Period of less than twelve months, and may, at the
discretion of the Committee, be proportionately increased for
any Offering Period of greater than twelve months.
5. OFFERING PERIODS
During the term of this Plan, the Corporation will offer Options to
purchase Shares in each Offering Period to all Participants in that
Offering Period. Unless otherwise specified by the Committee in advance
of the Offering Period, an Offering Period that commences on or about
July 1 will end the following December 31 and an Offering Period that
commences on or about January 1 will end the following June 30. Each
Option shall become effective on the Grant Date. The term of each
Option shall be the duration of the related Offering Period and shall
end on the Exercise Date. The first Offering Period shall commence no
earlier than the Effective Date. Offering Periods
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shall continue until this Plan is terminated in accordance with
Section 18 or 19, or, if earlier, until no Shares remain available for
Options pursuant to Section 4.
6. PARTICIPATION
(a) An Eligible Employee may become a participant in this Plan by
completing a Subscription Agreement on a form approved by and
in a manner prescribed by the Committee (or its delegate). To
become effective, a Subscription Agreement must be signed by
the Eligible Person and filed with the Corporation at the time
specified by the Committee, but in all cases prior to the
start of the Offering Period with respect to which it is to
become effective, and must set forth a whole percentage (or,
if the Committee so provides, a stated amount) of the Eligible
Employee's Compensation to be credited to the Participant's
Account as Contributions each pay period.
(b) Notwithstanding the foregoing, a Participant's Contribution
election shall be subject to the following limitations:
(i) the $25,000 annual limitation set forth in
Section 8(c);
(ii) unless the Committee otherwise provides, an
election of a stated amount of Compensation must result in a
Plan Contribution of at least $10.00 each pay period;
(iii) a Participant may not elect to contribute more
than fifteen percent (15%) of his or her Compensation as Plan
Contributions; and
(iv) such other limits, rules, or procedures as the
Committee may prescribe.
(c) Subscription Agreements shall contain the Eligible Employee's
authorization and consent to the Corporation's withholding
from his or her Compensation the amount of his or her
Contributions. An Eligible Employee's Subscription Agreement,
and his or her participation election and withholding consent
thereon, shall remain valid for all Offering Periods until (i)
the Eligible Employee's participation terminates pursuant to
the terms hereof, (ii) the Eligible Employee files a new
Subscription Agreement that becomes effective, or (iii) the
Committee requires that a new Subscription Agreement be
executed and filed with the Corporation.
7. METHOD OF PAYMENT OF CONTRIBUTIONS
(a) The Corporation shall maintain on its books, or cause to be
maintained by a recordkeeper, an Account in the name of each
Participant. The percentage of Compensation elected to be
applied as Contributions by a Participant shall be deducted
from such Participant's Compensation on each payday during the
period for payroll deductions set forth below and such payroll
deductions shall be credited to that Participant's Account as
soon as administratively practicable after
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such date. A Participant may not make any additional
payments to his or her Account. A Participant's Account
shall be reduced by any amounts used to pay the Option Price
of Shares acquired, or by any other amounts distributed
pursuant to the terms hereof.
(b) Payroll deductions with respect to an Offering Period shall
commence as of the first day of the payroll period which
coincides with or immediately follows the applicable Grant
Date and shall end on the last day of the payroll period which
coincides with or immediately precedes the applicable Exercise
Date, unless sooner terminated by the Participant as provided
in this Section 7 or until his or her participation terminates
pursuant to Section 11.
(c) A Participant may terminate his or her Contributions during an
Offering Period (and receive a distribution of the balance of
his or her Account in accordance with Section 11) by
completing and filing with the Corporation, in such form and
on such terms as the Committee (or its delegate) may
prescribe, a written withdrawal form which shall be signed by
the Participant. Such termination shall be effective as soon
as administratively practicable after its receipt by the
Corporation. A withdrawal election pursuant to this Section
7(c) with respect to an Offering Period shall only be
effective, however, if it is received by the Corporation prior
to the Exercise Date of that Offering Period. Partial
withdrawals of Accounts, and other modifications or
suspensions of Subscription Agreements, except as provided in
Section 7(e) or 7(f), are not permitted.
(d) During leaves of absence approved by the Corporation and
meeting the requirements of Regulation Section 1.421-7(h)(2)
under the Code, a Participant may continue participation in
this Plan by cash payments to the Corporation on his normal
paydays equal to the reduction in his Plan Contributions
caused by his leave.
(e) A Participant may discontinue, increase, or decrease the level
of his or her Contributions (within Plan limits) by completing
and filing with the Corporation, on such terms as the
Committee (or its delegate) may prescribe, a new Subscription
Agreement which indicates such election. An election pursuant
to this Section 7(e) shall be effective no earlier than the
first Offering Period that commences after the Corporation's
receipt of such election.
(f) A Participant may discontinue (but not increase or otherwise
decrease) the level of his or her Contributions, by filing
with the Corporation, on such terms as the Committee (or its
delegate) may prescribe, a new Subscription Agreement which
indicates such election. A Participant may make only one
election under this Section 7(f) each Offering Period. An
election pursuant to this Section 7(f) shall be effective no
earlier than the first payroll period that starts after the
Corporation's receipt of such election.
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8. GRANT OF OPTION
(a) On each Grant Date, each Eligible Employee who is a
participant during that Offering Period shall be granted an
Option to purchase a number of Shares. The Option shall be
exercised on the Exercise Date. The number of Shares subject
to the Option shall be determined by dividing the
Participant's Account balance as of the applicable Exercise
Date by the Option Price.
(b) The Option Price per Share of the Shares subject to an Option
for an Offering Period shall be the lesser of: (i) 85% of the
Fair Market Value of a Share on the applicable Grant Date; or
(ii) 85% of the Fair Market Value of a Share on the applicable
Exercise Date.
(c) Notwithstanding anything else contained herein, a person who
is otherwise an Eligible Employee shall not be granted any
Option (or any Option granted shall be subject to compliance
with the following limitations) or other right to purchase
Shares under this Plan to the extent:
(i) it would, if exercised, cause the person to own
"stock" (as such term is defined for purposes of Section
423(b)(3) of the Code) possessing 5% or more of the total
combined voting power or value of all classes of stock of the
Corporation, or of any Parent, or of any Subsidiary; or
(ii) such Option causes such individual to have
rights to purchase stock under this Plan and any other plan of
the Corporation, any Parent, or any Subsidiary which is
qualified under Section 423 of the Code which accrue at a rate
which exceeds $25,000 of the fair market value of the stock of
the Corporation, of any Parent, or of any Subsidiary
(determined at the time the right to purchase such Stock is
granted, before giving effect to any discounted purchase price
under any such plan) for each calendar year in which such
right is outstanding at any time.
For purposes of the foregoing, a right to purchase stock
accrues when it first become exercisable during the calendar
year. In determining whether the stock ownership of an
Eligible Employee equals or exceeds the 5% limit set forth
above, the rules of Section 424(d) of the Code (relating to
attribution of stock ownership) shall apply, and stock which
the Eligible Employee may purchase under outstanding options
shall be treated as stock owned by the Eligible Employee.
9. EXERCISE OF OPTION
Unless a Participant's Plan participation is terminated as provided in
Section 11, his or her Option for the purchase of Shares shall be
exercised automatically on the Exercise Date for that Offering Period,
without any further action on the Participant's part, and the maximum
number of whole Shares subject to such Option (subject to the
Individual
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Limit set forth in Section 4(b) and the limitations contained in
Section 8(c)) shall be purchased at the Option Price with the balance
of such Participant's Account.
If any amount which is not sufficient to purchase a whole Share remains
in a Participant's Account after the exercise of his or her Option on
the Exercise Date: (i) such amount shall be credited to such
Participant's Account for the next Offering Period, if he or she is
then a Participant; or (ii) if such Participant is not a Participant in
the next Offering Period, or if the Committee so elects, such amount
shall be refunded to such Participant as soon as administratively
practicable after such date. If the Share limit of Section 4(a) is
reached, any amount that remains in a Participant's Account after the
exercise of his or her Option on the Exercise Date to purchase the
number of Shares that he or she is allocated shall be refunded to the
Participant as soon as administratively practicable after such date.
If any amount which exceeds the Individual Limit set forth in Section
4(b) or one of the limitations set forth in Section 8(c) remains in a
Participant's Account after the exercise of his or her Option on the
Exercise Date, such amount shall be refunded to the Participant as soon
as administratively practicable after such date.
10. DELIVERY
As soon as administratively practicable after the Exercise Date, the
Corporation shall deliver to each Participant a certificate
representing the Shares purchased upon exercise of his or her Option.
The Corporation may make available an alternative arrangement for
delivery of Shares to a recordkeeping service. The Committee (or its
delegate), in its discretion, may either require or permit the
Participant to elect that such certificates be delivered to such
recordkeeping service. In the event the Corporation is required to
obtain from any commission or agency authority to issue any such
certificate, the Corporation will seek to obtain such authority. If the
Corporation is unable to obtain from any such commission or agency
authority which counsel for the Corporation deems necessary for the
lawful issuance of any such certificate, or if for any other reason the
Corporation can not issue or deliver Shares and satisfy Section 21, the
Corporation shall be relieved from liability to any Participant except
that the Corporation shall return to each Participant the amount of the
balance in his or her Account.
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS
(a) Except as provided in the next paragraph, if a Participant
ceases to be an Eligible Employee for any reason, or if the
Participant elects to terminate Contributions pursuant to
Section 7(c), at any time prior to the last day of an Offering
Period in which he or she participates, such Participant's
Account shall be paid to him or her or in cash (or, in the
event of the Participant's death, to the person or persons
entitled thereto under Section 13 in cash), and such
Participant's Option and participation in the Plan shall be
automatically terminated.
If a Participant (i) ceases to be an Eligible Employee during
an Offering Period but remains an employee of the Company
through the Exercise Date, or (ii)
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during an Offering Period commences a sick leave, military
leave, or other leave of absence approved by the Company,
and the leave meets the requirements of Treasury Regulation
Section 1.421-7(h)(2) and the Participant is an employee of
the Company or on such leave as of the applicable Exercise
Date, such Participant's Contributions shall cease (subject
to Section 7(d)), and the Contributions previously credited
to the Participant's Account for that Offering Period shall
be used to exercise the Participant's Option as of the
applicable Exercise Date in accordance with Section 9
(unless the Participant makes an election to terminate
Contributions in accordance with Section 7(c) at any time
prior to the last day of the applicable Offering Period, in
which case such Participant's Account shall be paid to him
or her in cash in accordance with the foregoing paragraph).
(b) A Participant's termination from Plan participation precludes
the Participant from again participating in this Plan during
that Offering Period. However, such termination shall not have
any effect upon his or her ability to participate in any
succeeding Offering Period, provided that the applicable
eligibility and participation requirements are again then met.
A Participant's termination from Plan participation shall be
deemed to be a revocation of that Participant's Subscription
Agreement and such Participant must file a new Subscription
Agreement to resume Plan participation in any succeeding
Offering Period.
(c) For purposes of this Plan, if a Participating Subsidiary
ceases to be a Subsidiary, each person employed by that
Subsidiary will be deemed to have terminated employment for
purposes of this Plan and will no longer be an Eligible
Employee, unless the person continues as an Eligible Employee
in respect of another Company entity.
12. ADMINISTRATION
(a) The Board shall appoint the Committee, which shall be composed
of not less than two members of the Board. Each member of the
Committee, in respect of any transaction at a time when an
affected Participant may be subject to Section 16 of the
Exchange Act, shall be a "non-employee director" within the
meaning of Rule 16b-3. The Board may, at any time, increase or
decrease the number of members of the Committee, may remove
from membership on the Committee all or any portion of its
members, and may appoint such person or persons as it desires
to fill any vacancy existing on the Committee, whether caused
by removal, resignation, or otherwise. The Board may also, at
any time, assume or change the administration of this Plan.
(b) The Committee shall supervise and administer this Plan and
shall have full power and discretion to adopt, amend and
rescind any rules deemed desirable and appropriate for the
administration of this Plan and not inconsistent with the
terms of this Plan, and to make all other determinations
necessary or advisable for the administration of this Plan.
The Committee shall act by majority vote or by unanimous
written consent. No member of the Committee shall be entitled
to act
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on or decide any matter relating solely to himself or herself
or solely to any of his or her rights or benefits under this
Plan. The Committee shall have full power and discretionary
authority to construe and interpret the terms and conditions
of this Plan, which construction or interpretation shall be
final and binding on all parties including the Company,
Participants and beneficiaries. The Committee may delegate
ministerial non-discretionary functions to third parties,
including individuals who are officers or employees of the
Corporation.
(c) Subject only to compliance with the express provisions hereof,
the Board and Committee may act in their absolute discretion
in matters within their authority related to this Plan. Any
action taken by, or inaction of, the Corporation, any
Participating Subsidiary, the Board or the Committee relating
or pursuant to this Plan shall be within the absolute
discretion of that entity or body and will be conclusive and
binding upon all persons. In making any determination or in
taking or not taking any action under this Plan, the Board or
Committee, as the case may be, may obtain and may rely on the
advice of experts, including professional advisors to the
Corporation. No member of the Board or Committee, or officer
or agent of the Company, will be liable for any action,
omission or decision under the Plan taken, made or omitted in
good faith.
13. DESIGNATION OF BENEFICIARY
(a) A Participant may file, on a form and in a manner prescribed
by the Committee (or its delegate), a written designation of a
beneficiary who is to receive any Shares or cash from such
Participant's Account under this Plan in the event of such
Participant's death. If a Participant's death occurs
subsequent to the end of an Offering Period but prior to the
delivery to him or her of any Shares deliverable under the
terms of this Plan, such Shares and any remaining balance of
such Participant's Account shall be paid to such beneficiary
(or such other person as set forth in Section 13(b)) as soon
as administratively practicable after the Corporation receives
notice of such Participant's death and any outstanding
unexercised Option shall terminate. If a Participant's death
occurs at any other time, the balance of such Participant's
Account shall be paid to such beneficiary (or such other
person as set forth in Section 13(b)) in cash as soon as
administratively practicable after the Corporation receives
notice of such Participant's death and such Participant's
Option shall terminate. If a Participant is married and the
designated beneficiary is not his or her spouse, spousal
consent shall be required for such designation to be effective
unless it is established (to the satisfaction of the Committee
or its delegate) that there is no spouse or that the spouse
cannot be located. The Committee may rely on the last
designation of a beneficiary filed by a Participant in
accordance with this Plan.
(b) Beneficiary designations may be changed by the Participant
(and his or her spouse, if required) at any time on forms
provided and in the manner prescribed by the Committee (or its
delegate). If a Participant dies with no validly designated
beneficiary under this Plan who is living at the time of such
Participant's death, the Corporation shall deliver all Shares
and/or cash payable
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pursuant to the terms hereof to the executor or administrator
of the estate of the Participant, or if no such executor or
administrator has been appointed, the Corporation, in its
discretion, may deliver such Shares and/or cash to the spouse
or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known
to the Corporation, then to such other person as the
Corporation may designate.
14. TRANSFERABILITY
Neither Contributions credited to a Participant's Account nor any
Options or rights with respect to the exercise of Options or right to
receive Shares under this Plan may be anticipated, alienated,
encumbered, assigned, transferred, pledged or otherwise disposed of in
any way (other than by will, the laws of descent and distribution, or
as provided in Section 13) by the Participant. Any such attempt at
anticipation, alienation, encumbrance, assignment, transfer, pledge or
other disposition shall be without effect and all amounts shall be paid
and all Shares shall be delivered in accordance with the provisions of
this Plan. Amounts payable or Shares deliverable pursuant to this Plan
shall be paid or delivered only to the Participant or, in the event of
the Participant's death, to the Participant's beneficiary pursuant to
Section 13.
15. USE OF FUNDS; INTEREST
All Contributions received or held by the Corporation under this Plan
will be included in the general assets of the Corporation and may be
used for any corporate purpose. Notwithstanding anything else contained
herein to the contrary, no interest will be paid to any Participant or
credited to his or her Account under this Plan (in respect of Account
balances, refunds of Account balances, or otherwise).
16. REPORTS
Statements shall be provided to Participants as soon as
administratively practicable following each Exercise Date. Each
Participant's statement shall set forth, as of such Exercise Date, that
Participant's Account balance immediately prior to the exercise of his
or her Option, the Option Price, the number of whole Shares purchased
and his or her remaining Account balance, if any.
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK
Upon or in contemplation of any reclassification, recapitalization,
stock split (including a stock split in the form of a stock dividend),
or reverse stock split; any merger, combination, consolidation, or
other reorganization; split-up, spin-off, or any similar extraordinary
dividend distribution in respect of the Common Stock (whether in the
form of securities or property); any exchange of Common Stock or other
securities of the Corporation, or any similar, unusual or extraordinary
corporate transaction in respect of the Common Stock; or a sale of
substantially all the assets of the Corporation as an entirety occurs;
then the Committee shall, in such manner, to such extent (if any) and
at such time as it deems appropriate and equitable in the
circumstances:
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(a) proportionately adjust any or all of (i) the number and type
of Shares or the number and type of other securities that
thereafter may be made the subject of Options (including the
specific maxima and numbers of Shares set forth elsewhere in
this Plan), (ii) the number, amount and type of Shares (or
other securities or property) subject to any or all
outstanding Options, (iii) the Option Price of any or all
outstanding Options, or (iv) the securities, cash or other
property deliverable upon exercise of any outstanding Options;
or
(b) make provision for a cash payment or for the substitution or
exchange of any or all outstanding Options or the cash,
securities or property deliverable to the holder of any or all
outstanding Options based upon the distribution or
consideration payable to holders of the Common Stock upon or
in respect of such event.
The Committee may adopt such valuation methodologies for outstanding
Options as it deems reasonable in the event of a cash or property
settlement and, without limitation on other methodologies, may base
such settlement solely upon the excess (if any) of the amount payable
upon or in respect of such event over the exercise or strike price of
the Option.
In each case, no adjustment, substitution, exchange or settlement will
be made that would cause this Plan to violate Section 423 of the Code
or any successor provisions without the written consent of the holders
materially adversely affected thereby.
In any of such events, the Committee may take such action sufficiently
prior to such event to the extent that the Committee deems the action
necessary to permit the Participant to realize the benefits intended to
be conveyed with respect to the underlying shares in the same manner as
is or will be available to stockholders generally.
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS
Upon a dissolution of the Corporation, or any other event described in
Section 17 that the Corporation does not survive, the Plan and, if
prior to the last day of an Offering Period, any outstanding Option
granted with respect to that Offering Period shall terminate, subject
to any provision that has been expressly made by the Board for the
survival, substitution, assumption, exchange or other settlement of the
Plan and Options. In the event a Participant's Option is terminated
pursuant to this Section 18 without a provision having been made by the
Board for a substitution, exchange or other settlement of the Option,
such Participant's Account shall be paid to him or her in cash without
interest.
19. TERM OF PLAN; AMENDMENT OR TERMINATION
(a) This Plan shall become effective as of the Effective Date. No
new Offering Periods shall commence on or after the day before
the tenth anniversary of the Effective Date and this Plan
shall terminate as of the Exercise Date on or immediately
following such date unless sooner terminated pursuant to
Section 4, Section 18, or this Section 19.
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(b) The Board may, at any time, terminate or, from time to time,
amend, modify or suspend this Plan, in whole or in part,
without notice. Stockholder approval for any amendment or
modification shall not be required, except to the extent
required by Section 423 of the Code or other applicable law,
or deemed necessary or advisable by the Board. No Options may
be granted during any suspension of this Plan or after the
termination of this Plan, but the Committee will retain
jurisdiction as to Options then outstanding in accordance with
the terms of this Plan. No amendment, modification, or
termination pursuant to this Section 19(b) shall, without
written consent of the Participant, affect in any manner
materially adverse to the Participant any rights or benefits
of such Participant or obligations of the Corporation under
any Option granted under this Plan prior to the effective date
of such change. Changes contemplated by Section 17 or Section
18 shall not be deemed to constitute changes or amendments
requiring Participant consent. Notwithstanding the foregoing,
the Committee shall have the right to designate from time to
time the Subsidiaries whose employees may be eligible to
participate in this Plan and such designation shall not
constitute any amendment to this Plan requiring stockholder
approval.
20. NOTICES
All notices or other communications by a Participant to the Corporation
contemplated by this Plan shall be deemed to have been duly given when
received in the form and manner specified by the Committee (or its
delegate) at the location, or by the person, designated by the
Committee (or its delegate) for that purpose.
21. CONDITIONS UPON ISSUANCE OF SHARES
This Plan, the granting of Options under this Plan and the offer,
issuance and delivery of Shares are subject to compliance with all
applicable federal and state laws, rules and regulations (including but
not limited to state and federal securities laws) and to such approvals
by any listing, regulatory or governmental authority as may, in the
opinion of counsel for the Corporation, be necessary or advisable in
connection therewith. The person acquiring any securities under this
Plan will, if requested by the Corporation and as a condition precedent
to the exercise of his or her Option, provide such assurances and
representations to the Corporation as the Committee may deem necessary
or desirable to assure compliance with all applicable legal and
accounting requirements.
22. PLAN CONSTRUCTION
(a) It is the intent of the Corporation that transactions
involving Options under this Plan in the case of Participants
who are or may be subject to the prohibitions of Section 16 of
the Exchange Act satisfy the requirements for applicable
exemptions under Rule 16 promulgated by the Commission under
Section 16 of the Exchange Act so that such persons (unless
they otherwise agree) will be entitled to the exemptive relief
of Rule 16b-3 or other exemptive rules under Section 16 of the
Exchange Act in respect of those transactions and will not be
subject to avoidable liability thereunder.
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(b) This Plan and Options are intended to qualify under Section
423 of the Code.
(c) If any provision of this Plan or of any Option would otherwise
frustrate or conflict with the intents expressed above, that
provision to the extent possible shall be interpreted so as to
avoid such conflict. If the conflict remains irreconcilable,
the Committee may disregard the provision if it concludes that
to do so furthers the interest of the Corporation and is
consistent with the purposes of this Plan as to such persons
in the circumstances.
23. EMPLOYEES' RIGHTS
(a) Nothing in this Plan (or in any other documents related to
this Plan) will confer upon any Eligible Employee or
Participant any right to continue in the employ or other
service of the Company, constitute any contract or agreement
of employment or other service or effect an employee's status
as an employee at will, nor shall interfere in any way with
the right of the Company to change such person's compensation
or other benefits or to terminate his or her employment or
other service with or without cause. Nothing contained in this
Section 23(a), however, is intended to adversely affect any
express independent right of any such person under a separate
employment or service contract other than a Subscription
Agreement.
(b) No Participant or other person will have any right, title or
interest in any fund or in any specific asset (including
Shares) of the Company by reason of any Option hereunder.
Neither the provisions of this Plan (or of any related
documents), nor the creation or adoption of this Plan, nor any
action taken pursuant to the provisions of this Plan will
create, or be construed to create, a trust of any kind or a
fiduciary relationship between the Company and any Participant
or other person. To the extent that a Participant or other
person acquires a right to receive payment pursuant to this
Plan, such right will be no greater than the right of any
unsecured general creditor of the Corporation. No special or
separate reserve, fund or deposit will be made to assure any
such payment.
(c) A Participant will not be entitled to any privilege of stock
ownership as to any Shares not actually delivered to and held
of record by the Participant. No adjustment will be made for
dividends or other rights as a stockholder for which a record
date is prior to such date of delivery.
24. MISCELLANEOUS
(a) This Plan, the Options, and related documents shall be
governed by, and construed in accordance with, the laws of the
State of Delaware. If any provision shall be held by a court
of competent jurisdiction to be invalid and unenforceable, the
remaining provisions of this Plan shall continue in effect.
(b) Captions and headings are given to the sections of this Plan
solely as a convenience to facilitate reference. Such captions
and headings shall not be
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deemed in any way material or relevant to the construction of
interpretation of this Plan or any provision hereof.
(c) The adoption of this Plan shall not affect any other Company
compensation or incentive plans in effect. Nothing in this
Plan will limit or be deemed to limit the authority of the
Board or Committee (i) to establish any other forms of
incentives or compensation for employees of the Company (with
or without reference to the Common Stock), or (ii) to grant or
assume options (outside the scope of and in addition to those
contemplated by this Plan) in connection with any proper
corporate purpose; to the extent consistent with any other
plan or authority.
(d) Benefits received by a Participant under an Option granted
pursuant to this Plan shall not be deemed a part of the
Participant's compensation for purposes of the determination
of benefits under any other employee welfare or benefit plans
or arrangements, if any, provided by the Company, except where
the Committee or the Board expressly otherwise provides or
authorizes in writing.
25. EFFECTIVE DATE
Notwithstanding anything else contained herein to the contrary, the
effectiveness of this Plan is subject to the approval of this Plan by
the stockholders of the Corporation within twelve months after the
Effective Date. Notwithstanding anything else contained herein to the
contrary, no Shares shall be issued or delivered under this Plan until
such stockholder approval is obtained and, if such stockholder approval
is not obtained within such twelve-month period of time, all
Contributions credited to a Participant's Account hereunder shall be
refunded to such Participant (without interest) as soon as practicable
after the end of such twelve-month period.
26. TAX WITHHOLDING
Notwithstanding anything else contained in this Plan herein to the
contrary, the Company may deduct from a Participant's Account balance
as of an Exercise Date, before the exercise of the Participant's Option
is given effect on such date, the amount of any taxes which the Company
reasonably determines it may be required to withhold with respect to
such exercise. In such event, the maximum number of whole Shares
subject to such Option (subject to the other limits set forth in this
Plan) shall be purchased at the Option Price with the balance of the
Participant's Account (after reduction for the tax withholding amount).
Should the Company for any reason be unable, or elect not to, satisfy
its tax withholding obligations in the manner described in the
preceding paragraph with respect to a Participant's exercise of an
Option, or should the Company reasonably determine that it has a tax
withholding obligation with respect to a disposition of Shares acquired
pursuant to the exercise of an Option prior to satisfaction of the
holding period requirements of Section 423 of the Code, the Company
shall have the right at its option to (i) require the Participant to
pay or provide for payment of the amount of any taxes which the Company
reasonably determines that it is required to withhold with respect to
such event or (ii)
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deduct from any amount otherwise payable to or for the account of the
Participant the amount of any taxes which the Company reasonably
determines that it is required to withhold with respect to such event.
27. NOTICE OF SALE
Any person who has acquired Shares under this Plan shall give prompt
written notice to the Corporation of any sale or other transfer of the
Shares if such sale or transfer occurs (i) within the two-year period
after the Grant Date of the Offering Period with respect to which such
Shares were acquired, or (ii) within the twelve-month period after the
Exercise Date of the Offering Period with respect to which such Shares
were acquired.
IN WITNESS WHEREOF, the Corporation has caused its duly
authorized officer to execute this Plan on this ___ day of _________, 2000.
VERSICOR INC.
By:_____________________________________
Its:____________________________________
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