Exhibit 10.58
V ICAL I
NCORPORATED
D
ELAYED I
SSUANCE S
TOCK P URCHASE E LECTION A GREEMENT
Please complete this Election
Agreement and return a signed copy to Jill Church, Chief Financial
Officer of Vical Incorporated (the “Company”) by
January 31, 2009.
N OTE : T HIS E LECTION A GREEMENT MUST BE COMPLETED AND RETURNED BY J ANUARY 31, 2009. I F THE FIRST VESTING DATE OCCURS NO SOONER THAN 12 MONTHS FOLLOWING THE D ATE OF G RANT AND IF , BY J ANUARY 31, 2009, YOU ELECT TO DEFER DELIVERY OF SUCH S HARES BEYOND THE VESTING DATE , THEN THE C OMPANY WILL DELIVER THE S HARES TO YOU ON THE DATE OR DATES THAT YOU ELECT . I N ADDITION , ANY SHARES SUBJECT TO THE A WARD THAT WOULD OTHERWISE VEST WITHIN THE 12- MONTH PERIOD FOLLOWING THE DATE OF SUCH ELECTION SHALL INSTEAD VEST 12 MONTHS FOLLOWING J ANUARY 31, 2009.
Defined terms not explicitly defined
in this Election Agreement but defined in the Plan, your Delayed
Issuance Stock Purchase Agreement or your Grant Notice shall have
the same definitions as in such documents.
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I NSTRUCTIONS
In making this election, the
following rules apply:
• You
may elect a Settlement Date that occurs after the date of vesting.
The “Settlement Date” is the date as of which you will
receive the vested Shares associated with the Delayed Issuance
Stock Purchase that you elected to defer below. Unless you timely
elect otherwise on this Election Agreement, the Shares will be
issued to you on the date or dates upon which they vest as
indicated on your Grant Notice.
• A
distribution upon a Termination of Service shall only occur if such
Termination of Service is a “separation from service”
as such term is defined in Code Section 409A(a)(2)(A)(i) and
applicable guidance thereunder.
• This
Election Agreement is irrevocable .
• If
no Settlement Date is elected, then the issuance of vested Shares
will occur upon the vesting date(s) indicated on your Grant
Notice.
• Notwithstanding
any provision in this Election Form or your Grant Notice, Award
Agreement or the Plan to the contrary, the issuance of the vested
Shares shall be made in a manner that complies with the
requirements of Code Section 409A, which may include, without
limitation, deferring the payment of such benefit for six
(6) months after your Termination of Service, provided
however, that nothing in this paragraph shall require the payment
of benefits to you earlier than they would otherwise be
payable under the Award.
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Manner of Transfer
All
of the Shares you are entitled to
receive on the Settlement Date specified in this Election Agreement
will be transferred to you on or as soon as practicable after such
Settlement Date.
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D EFERRAL E LECTION
I hereby irrevocably elect to defer
receipt of the Shares associated with the above-referenced Delayed
Issuance Stock Purchase until the following date(s) and in the
following increment(s). I acknowledge that only vested Shares will
be issued to me and that the Settlement Date may occur after
vesting. ( C HOOSE ONE ALTERNATIVE BELOW )
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A LTERNATIVE #1 (O N V ESTING D ATE ):
¨
I
elect to have my vested Shares issued to me on the vesting date(s)
indicated on my Grant Notice.
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A LTERNATIVE #2 (S PECIFIED E VENT – C HECK O NE B OX ):
I elect to have my vested Shares issued to me on
the following event (check boxes that apply):
¨
days following my Termination of
Service
¨
Upon the
earlier of a Change in Control or
days following my Termination of Service
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A LTERNATIVE #3: (S PECIFIED D ATE ( S )
– C HECK BOXES THAT APPLY )
A. I elect to have my
vested Shares issued to me on the following dates, in the following
amounts:
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(1)
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Number
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Year
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(2)
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Number
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Year
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(3)
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Number
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(4)
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Number
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Month
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Year
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