Prepared by MERRILL CORPORATION




QuickLinks
 -- Click here to rapidly navigate through this document

Exhibit 10.1  


 
 

AMENDED AND RESTATED
  STOCK INCENTIVE PLAN OF VICAL INCORPORATED    
  


SECTION 1.  ESTABLISHMENT AND PURPOSE.  


    The Plan was adopted on October 14, 1992. The Plan was amended and restated effective as of January 7, 1993, was amended and restated effective
as of December 4, 1996, was amended and restated March 11, 1998, was amended and restated March 2, 1999, and was amended and restated effective as of May 30, 2001. 



    The
purpose of the Plan is to offer Employees an opportunity to acquire a proprietary interest in the success of the Company, or to increase such interest, by purchasing Shares of the
Company's Stock. The Plan provides both for the direct award or sale of Shares and for the grant of Options to purchase Shares. Options granted under the Plan may include NSOs as well as ISOs intended
to qualify under Section 422 of the Code. 


    The
Plan is intended to comply in all respects with Rule 16b-3 (or its successor) under the Exchange Act and shall be construed accordingly. 



SECTION 2.  DEFINITIONS.  


    (a) "Board of Directors" shall mean the Board of Directors of the Company, as constituted from time to time. 


    (b) "Change in Control" shall mean the occurrence of either of the following events: 



     (i) A
change in the composition of the Board of Directors, as a result of which fewer than one-half of the incumbent directors are directors who either: 



    (A) Had
been directors of the Company 24 months prior to such change; or 


    (B) Were
elected, or nominated for election, to the Board of Directors with the affirmative votes of at least a majority of the directors who had been directors of the
Company 24 months prior to such change and who were still in office at the time of the election or nomination; or 




    (ii) Any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) by the acquisition or aggregation of securities is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 50 percent or more of the combined voting power of the Company's then outstanding securities ordinarily (and apart from
rights accruing under special circumstances) having the right to vote at elections of directors (the "Base Capital Stock"); except that any change in the relative beneficial ownership of the Company's
securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person's ownership of securities,
shall be disregarded until such person increases in any manner, directly or indirectly, such person's beneficial ownership of any securities of the Company. 




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


    (d) "Committee" shall mean a committee of the Board of Directors, as described in Section 3(a). 


    (e) "Common-Law Employee" means an individual paid from W-2 Payroll of the Company or a
Subsidiary. If, during any period, the Company (or a Subsidiary, as applicable) has not treated an individual as a Common-Law Employee and, for that reason, has not withheld employment
taxes with respect to him or her, then that individual shall not be an Employee for that period, even if any person, court of law or government agency determines, retroactively, that individual is or
was a Common-Law Employee during all or any portion of that period. 





 


    (f)  "Company" shall mean Vical Incorporated, a Delaware corporation. 


    (g) "Employee" shall mean (i) any individual who is a Common-Law Employee of the Company or of a
Subsidiary or (ii) an Outside Director and (iii) a consultant or adviser who provides services to the Company or a Subsidiary as an independent contractor. Service as an Outside Director
or as an independent contractor shall be considered employment for all purposes of the Plan except as provided in Sections 4(b) and 4(c). 


    (h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 


    (i)  "Exercise Price" shall mean the amount for which one Share may be purchased upon exercise of an option, as
specified by the Committee in the applicable Stock Option Agreement. 


    (j)  "Fair Market Value" shall mean the market price of Stock, determined by the Committee as follows: 



     (i) If
Stock was traded over-the-counter on the date in question but was not traded on the Nasdaq Stock Market or the Nasdaq National Market,
then the Fair Market Value shall be equal to the mean between the last reported representative bid and asked prices quoted for such date by the principal automated inter-dealer quotation system on
which Stock is quoted or, if Stock is not quoted on any such system, the "Pink Sheets" published by the National Quotation Bureau, Inc.; 



    (ii) If
Stock was traded over-the-counter on the date in question and was traded on the Nasdaq Stock Market or the Nasdaq National Market, then
the Fair Market Value shall be equal to the last transaction price quoted for such date by the Nasdaq Stock Market or the Nasdaq National Market; 


    (iii) If
Stock was traded on a stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported by the applicable
composite transactions report for such date; and 


    (iv) If
none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems
appropriate. 




    Whenever
possible, the determination of Fair Market Value by the Committee shall be based on the prices reported in the Western Edition of THE WALL STREET JOURNAL. Such determination
shall be conclusive and binding on all persons. 


    (k) "Incentive Stock Option" or "ISO" shall mean an employee incentive
stock option described in Section 422(b) of the Code. 


    (l)  "Nonstatutory Option" or "NSO" shall mean an employee stock option
not described in Sections 422(b) or 423(b) of the Code. 


    (m) "Offeree" shall mean an individual to whom the Committee has offered the right to acquire Shares under the Plan
(other than upon exercise of an Option). 


    (n) "Option" shall mean an ISO or NSO granted under the Plan and entitling the holder to purchase Shares. 


    (o) "Optionee" shall mean an individual who holds an Option. 


    (p) "Outside Director" shall mean a member of the Board of Directors who is not a Common-Law Employee of the
Company or of a Subsidiary. 


    (q) "Plan" shall mean this Stock Incentive Plan of Vical Incorporated, formerly the 1992 Stock Plan of Vical
Incorporated. 


2





 


    (r) "Purchase Price" shall mean the consideration for which one Share may be acquired under the Plan (other than upon
exercise of an Option), as specified by the Committee. 


    (s) "Service" shall mean service as an Employee. 


    (t)  "Share" shall mean one share of Stock, as adjusted in accordance with Section 9 (if applicable). 


    (u) "Stock" shall mean the Common Stock ($.01 par value) of the Company. 


    (v) "Stock Option Agreement" shall mean the agreement between the Company and an Optionee, which contains the terms,
conditions and restrictions pertaining to the Optionee's Option. 


    (w) "Stock Purchase Agreement" shall mean the agreement between the Company and an Offeree who acquires Shares under the
Plan, which contains the terms, conditions and restrictions pertaining to the acquisition of such Shares. 


    (x) "Subsidiary" shall mean any corporation if the Company and/or one or more other Subsidiaries own not less than
50 percent of the total combined voting power of all classes of outstanding stock of such corporation. A corporation that attains the status of a Subsidiary on a date after the adoption of the
Plan shall be considered a Subsidiary commencing as of such date. 


    (y) "Total and Permanent Disability" shall mean that the Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not
less than one year. 


    (z) "W-2 Payroll" shall mean whatever mechanism or procedure that the Company or a Subsidiary utilizes to
pay any individual which results in the issuance of a Form W-2 to the individual. "W-2 Payroll" does not include any mechanism or procedure which results in the issuance
of any form other than a Form W-2 to an individual, including, but not limited to, any Form 1099 which may be issued to an independent contractor, an agency employee or a
consultant. Whether a mechanism or procedure qualifies as a "W-2 Payroll" shall be determined in the absolute discretion of the Company (or Subsidiary, as applicable), and the Company or
Subsidiary determination shall be conclusive and binding on all persons. 


SECTION 3.  ADMINISTRATION.  


    (a) Committee Composition. The Plan shall be administered by the Committee. Except as provided below, the Committee
shall consist exclusively of directors of the Company, who shall be appointed by the Board. In addition, the composition of the Committee shall satisfy: 



     (i) Such
requirements, if any, as the Securities and Exchange Commission may establish for administrators acting under plans intended to qualify for exemption under
Rule 16b-3 (or its successor) under the Exchange Act; and 


    (ii) Such
requirements as the Internal Revenue Service may establish for outside directors acting under plans intended to qualify for exemption under
Section 162(m)(4)(C) of the Code. 




    The
Board may act on its own behalf with respect to Outside Directors and may also appoint one or more separate committees composed of one or more officers of the Company, who need
not be directors of the Company and who need not satisfy the foregoing requirements, who may administer the Plan with respect to Employees who are not "covered employees" under
Section 162(m)(3) of the Code and who are not required to report pursuant to Section 16(a) of the Exchange Act. 


    (b) Committee Responsibilities. The Committee shall (i) select the Employees who are to receive Options and other
rights to acquire shares under the Plan, (ii) determine the type, number, vesting 


3





 


requirements and other features and conditions of such Options or other rights, (iii) interpret the Plan and (iv) make all other decisions relating to the operation of the Plan. The
Committee may adopt such rules or guidelines as it deems appropriate to implement the Plan. The Committee's determinations under the Plan shall be final and binding on all persons. 


SECTION 4.  ELIGIBILITY.  


    (a) General Rules. Only Employees (including, without limitation, independent contractors who are not members of the
Board) shall be eligible for designation as Optionees or Offerees by the Committee. 


    (b) Outside Directors. The Committee may provide that the NSOs that otherwise would be granted to an Outside Director
under this Plan shall instead be granted to an affiliate of such Outside Director. Such
affiliate shall then be deemed to be an Outside Director for purposes of the Plan, provided that the service-related vesting and termination provisions pertaining to the NSOs shall be applied with
regard to the service of the Outside Director. 


    (c) Incentive Stock Options. Only Employees who are Common-Law Employees of the Company or a Subsidiary
shall be eligible for the grant of ISOs. In addition, an Employee who owns more than 10% of the total combined voting power of all classes of outstanding stock of the Company or any of its
Subsidiaries shall not be eligible for the grant of an ISO unless the requirements set forth in Section 422(c)(6) of the Code are satisfied. 


SECTION 5.  STOCK SUBJECT TO PLAN.  


    (a) Basic Limitation. Shares offered under the Plan shall be authorized but unissued Shares or treasury Shares. The
aggregate number of Shares which may be issued under the Plan (upon exercise of Options or other rights to acquire Shares) shall not exceed 4,200,000 Shares (subject to adjustment pursuant to
Section 9). Of the Shares available hereunder, no more than 30% in the aggregate shall be available with respect to Outside Directors, subject to adjustment pursuant to Section 9. The
number of Shares that are subject to Options or other rights outstanding at any time under the Plan shall not exceed the number of Shares that then remain available for issuance under the Plan. The
Company, during the term of the Plan, shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan. Notwithstanding any other provision of the Plan, no
Employee shall receive a grant of more than 300,000 Shares in any calendar year. 


    (b) Additional Shares. In the event that any outstanding option or other right for any reason expires or is canceled or
otherwise terminated, the Shares allocable to the unexercised portion of such Option or other right shall again be available for the purposes of the Plan. In the event that Shares issued under the
Plan are reacquired by the Company pursuant to any forfeiture provision, right of repurchase or right of first refusal, such Shares shall again be available for the purposes of the Plan. 


SECTION 6.  TERMS AND CONDITIONS OF AWARDS OR SALES.  


    (a) Stock Purchase Agreement. Each award or sale of Shares under the Plan (other than upon exercise of an option) shall
be evidenced by a Stock Purchase Agreement between the Offeree and the Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other
terms and conditions which are not inconsistent with the Plan and which the
Committee deems appropriate for inclusion in a Stock Purchase Agreement. The provisions of the various Stock Purchase Agreements entered into under the Plan need not be identical. 


    (b) Duration of Offers and Non-Transferability of Rights. Any right to acquire Shares under the Plan (other
than an Option) shall automatically expire if not exercised by the Offeree within 30 days after 


4





 


the grant of such right was communicated to the Offeree by the Committee. Such right shall not be transferable and shall be exercisable only by the Offeree to whom such right was granted. 


    (c) Purchase Price. The Purchase Price of Shares to be offered under the Plan shall not be less than the par value of
such Shares. Subject to the preceding sentence, the Purchase Price shall be determined by the Committee at its sole discretion. The Purchase Price shall be payable in a form described in
Section 8. 


    (d) Withholding Taxes. As a condition to the purchase of Shares, the Offeree shall make such arrangements as the
Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such purchase. The Committee may permit the Offeree to
satisfy all or part of his or her tax obligations related to such Shares by having the Company withhold a portion of any Shares that otherwise would be issued to him or her or by surrendering any
Shares that previously were acquired by him or her. The Shares withheld or surrendered shall be valued at their Fair Market Value on the date when taxes otherwise would be withheld in cash. The
payment of taxes by assigning Shares to the Company, if permitted by the Committee, shall be subject to such restrictions as the Committee may impose, including any restrictions required by rules of
the Securities and Exchange Commission. 


    (e) Restrictions on Transfer of Shares. Any Shares awarded or sold under the Plan shall be subject to such special
forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Committee may determine. Such restrictions shall be set forth in the applicable Stock
Purchase Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally. 


    (f)  Effect of Change in Control. The Committee may determine, at the time of granting Shares or thereafter, that such
Shares shall become fully vested on an accelerated basis in the event that a Change in Control occurs with respect to the Company. If the Committee finds that there is a reasonable possibility that,
within the succeeding six months, a Change in Control will occur with respect to the Company, then the Committee may determine that all Shares shall be fully vested on an accelerated basis. 


SECTION 7.  TERMS AND CONDITIONS OF OPTIONS.  


    (a) Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement
between the Optionee and the Company. Such Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent
with the Plan and which the Committee deems appropriate for inclusion in a Stock Option Agreement. The Stock Option Agreement shall specify whether the Option is an ISO or an NSO. The provisions of
the various Stock Option Agreements entered into under the Plan need not be identical. 


    (b) Number of Shares. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and
shall provide for the adjustment of such number in accordance with Section 9. 


    (c) Exercise Price. Each Stock Option Agreement shall specify the Exercise Price; provided that the Exercise Price shall
in no event be less than100% of the Fair Market Value of a Share on the date of grant (except as a higher percentage may be required by Section 4(c)). Subject to the preceding sentence, the
Exercise Price under any Option shall be determined by the Committee at its sole discretion. The Exercise Price shall be payable in a form described in Section 8. 


    (d) Withholding Taxes. As a condition to the exercise of an Option, the Optionee shall make such arrangements as the
Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such exercise. The Optionee shall also 


5





 


make such arrangements as the Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with the disposition of Shares
acquired by exercising an Option. The Committee may permit the Optionee to satisfy all or part of his or her tax obligations related to the Option by having the Company withhold a portion of any
Shares that otherwise would be issued to him or her or by surrendering any Shares that previously were acquired by him or her. Such Shares shall be valued at their Fair Market Value on the date when
taxes otherwise would be withheld in cash. The payment of taxes by assigning Shares to the Company, if permitted by the Committee, shall be subject to such restrictions as the Committee may impose,
including any restrictions required by rules of the Securities and Exchange Commission. 


    (e) Exercisability. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to
become exercisable. The vesting of any Option shall be determined by the Committee at
its sole discretion. A Stock Option Agreement may provide for accelerated exercisability in the event of the Optionee's death, Total and Permanent Disability, retirement or other events. 



    (f)  Effect of Change in Control. The Committee may determine, at the time of granting an Option or thereafter, that
such Option shall become exercisable on an accelerated basis in the event that a Change in Control occurs with respect to the Company. If the Committee finds that there is a reasonable possibility
that, within the succeeding six months, a Change in Control will occur with respect to the Company, then the Committee may determine that all outstanding Options shall be exercisable on an accelerated
basis. 


    (g) Term. The Stock Option Agreement shall specify the term of the Option. The term shall not exceed 10 years
from the date of grant, except as otherwise provided in Section 4(c). Subject to the preceding sentence, the Committee at its sole discretion shall determine when an Option is to expire. 


    (h) Non-Transferability. An option granted under the Plan shall not be anticipated, assigned, attached,
garnished, optioned, transferred or made subject to any creditor's process, whether voluntarily, involuntarily or by operation of law, except as approved by the Committee. Notwithstanding the
foregoing, ISOs may not be transferable. However, this Section 7 shall not preclude an Optionee from designating a beneficiary who will receive any outstanding Options in the event of the
Optionee's death, nor shall it preclude a transfer of Options by will or by the laws of descent and distribution. 



    (i)  Termination of Service (except by death). If an Optionee's Service terminates for any reason other than the
Optionee's death, then the Optionee's Option(s) shall, except to the extent determined by the Committee, expire on the earliest of the following occasions: 



     (i) The
expiration date determined pursuant to Subsection (g) above; 


    (ii) The
date 90 days after the termination of the Optionee's Service for any reason other than Total and Permanent Disability; or 



    (iii) The
date six months after the termination of the Optionee's Service by reason of Total and Permanent Disability. 




    The
Optionee may exercise all or part of the Optionee's Option(s) at any time before the expiration of such Option(s) under the preceding sentence, but only to the extent that such
Option(s) had become exercisable before the Optionee's Service terminated. The balance of such Option(s) shall lapse when the Optionee's Service terminates. In the event that the Optionee dies after
the termination of the Optionee's Service but before the expiration of the Optionee's Option(s), all or part of such Option(s)
may be exercised (prior to expiration) by the executors or administrators of the Optionee's estate or by any person who has acquired such Option(s) directly from the Optionee by bequest, beneficiary
designation or inheritance, but only to the extent that such Option(s) had become exercisable before the Optionee's Service terminated. 


6





 


    (j)  Leaves of Absence. For purposes of Subsection (i) above, Service shall, except to the extent determined by
the Committee, be deemed to continue while the Optionee is on military leave, sick-leave or other bona fide leave of absence (as determined by the Committee). The foregoing
notwithstanding, in the case of an ISO granted under the Plan, Service shall not be deemed to continue beyond the first 90 days of such leave, unless the Optionee's reemployment rights are
guaranteed by statute or by contract. 


    (k) Death of Optionee. If an Optionee dies while the Optionee is in Service, then the Optionee's Option(s) shall, except
to the extent determined by the Committee, expire on the earlier of the following dates: 



     (i) The
expiration date determined pursuant to Subsection (f) above; or 


    (ii) The
date six months after the Optionee's death. 




    All
or part of the Optionee's Option(s) may be exercised at any time before the expiration of such Option(s) under the preceding sentence by the executors or administrators of the
Optionee's estate or by any person who has acquired such Option(s) directly from the Optionee by bequest, beneficiary designation or inheritance, but only to the extent that such Option(s) had become
exercisable before the Optionee's death. The balance of such Option(s) shall lapse when the Optionee dies. 


    (l)  No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with
respect to any Shares covered by the Optionee's Option until such person is entitled, pursuant to the terms of such Option, to receive such Shares. No adjustments shall be made, except as provided in
Section 9. 


    (m) Modification, Extension and Assumption of Options. Within the limitations of the Plan, the Committee may modify,
extend or assume outstanding Options or may accept the cancellation of outstanding Options (whether granted by the Company or another issuer) in return for the grant of new Options for the same or a
different number of Shares and at the same or a different Exercise
Price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair the Optionee's rights or increase the Optionee's obligations under such Option. 



    (n) Restrictions on Transfer of Shares. Any Shares issued upon exercise of an Option shall be subject to such special
forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Committee may determine. Such restrictions shall be set forth in the applicable Stock Option
Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally. 


SECTION 8.  PAYMENT FOR SHARES.  


    (a) General Rule. The entire Purchase Price or Exercise Price of Shares issued under the Plan shall be payable in lawful
money of the United States of America at the time when such Shares are purchased, except as provided in Subsections (b), (c), (d), (e) and (f) below. 


    (b) Surrender of Stock. To the extent that a Stock Option Agreement so provides, payment may be made all or in part with
Shares which have already been owned by the Optionee or the Optionee's representative for more than six months and which are surrendered to the Company in good form for transfer. Such Shares shall be
valued at their Fair Market Value on the date when the new Shares are purchased under the Plan. 


    (c) Services Rendered. At the discretion of the Committee, Shares maybe awarded under the Plan in consideration of
services rendered to the Company or a Subsidiary prior to the award. If Shares are awarded without the payment of a Purchase Price in cash, the Committee shall make a determination (at the time of the
award) of the value of the services rendered by the Offeree and the sufficiency of the consideration to meet the requirements of Section 6(c). 


7





 


    (d) Promissory Note. To the extent that a Stock Option Agreement or Stock Purchase Agreement so provides, a portion of
the Exercise Price or Purchase Price (as the case may be) of Shares issued under the Plan may be paid with a full-recourse promissory note, provided that (i) the par value of such
Shares must be paid in lawful money of the United States of America at the time when such Shares are purchased, (ii) the Shares are pledged as security for payment of the principal amount of
the promissory note and interest thereon and(iii) the interest rate payable under the terms of the promissory note shall not be less than the minimum rate (if any) required to avoid the
imputation of additional interest
under the Code. Subject to the foregoing, the Committee (at its sole discretion) shall specify the term, interest rate, amortization requirements (if any) and other provisions of such note. 


    (e) Exercise/Sale. To the extent that a Stock Option Agreement so provides, payment may be made all or in part by the
delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Shares and to deliver all or part of the sales proceeds to the Company
in payment of all or part of the Exercise Price and any withholding taxes. 


    (f)  Exercise/Pledge. To the extent that a Stock Option Agreement so provides, payment may be made all or in part by the
delivery (on a form prescribed by the Company) of an irrevocable direction to pledge Shares to a securities broker or lender approved by the Company, as security for a loan, and to deliver all or part
of the loan proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. 


SECTION 9.  ADJUSTMENT OF SHARES.  


    (a) General. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount that has a material effect on the value of Shares, a combination or consolidation of the outstanding Stock into a lesser
number of Shares, a recapitalization, a spinoff, a reclassification or a similar occurrence, the Committee shall make appropriate adjustments in one or more of (i) the number of Shares
available for future grants under Section 5, (ii) the number of Shares covered by each outstanding Option or (iii) the Exercise Price under each outstanding Option. 


    (b) Mergers and Consolidations. In the event that the Company is a party to a merger or consolidation, outstanding
Options shall be subject to the agreement of merger or consolidation. Such agreement may provide for the assumption of outstanding Options by the surviving corporation or its parent or for their
continuation by the Company (if the Company is the surviving corporation). In the event the Company is not the surviving corporation and the surviving corporation will not assume the outstanding
Options, the agreement of merger or consolidation may provide for payment of a cash settlement for exercisable options equal to the difference between the amount to be paid for one Share under such
agreement and the Exercise Price and for the cancellation of Options not exercised or settled, in either case without the Optionees' consent. 


    (c) Reservation of Rights. Except as provided in this Section 9, an Optionee or Offeree shall have no rights by
reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend or (iii) any other increase or decrease in the number of shares of
stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the
number or Exercise Price of Shares subject to an Option. The grant of an Option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. 


8





 

SECTION 10.  SECURITIES LAWS.  


    Shares shall not be issued under the Plan unless the issuance and delivery of such Shares comply with (or are exempt from) all applicable requirements of law,
including (without limitation) the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of
any stock exchange on which the Company's securities may then be listed. 


SECTION 11.  NO EMPLOYMENT RIGHTS.  


    No provision of the Plan, nor any right or Option granted under the Plan, shall be construed to give any person any right to become, to be treated as, or to
remain an Employee. The Company and its Subsidiaries reserve the right to terminate any person's Service at any time and for any reason. 


SECTION 12.  DURATION AND AMENDMENTS.  


    (a) Term of the Plan. The Plan, as set forth herein, shall become effective as of the date indicated herein. The Plan
shall terminate automatically 10 years after its amendment and restatement by the Board of Directors to read as set forth herein and may be terminated on any earlier date pursuant to Subsection
(b) below. 


    (b) Right to Amend or Terminate the Plan. The Board of Directors may at any time and for any reason, amend, suspend or
terminate the Plan. An amendment of the Plan shall be subject to the approval the Company's stockholders only to the extent required by applicable laws, regulations and rules, including the rules of
any applicable exchange. 


    (c) Effect of Amendment or Termination. No Shares shall be issued or sold under the Plan after the termination thereof,
except upon exercise of an Option granted prior to such termination. The termination of the Plan, or any amendment thereof, shall not affect any Share previously issued or any Option previously
granted under the Plan. 


SECTION 13.  EXECUTION.  


    To record the amendment and restatement of the Plan by the Board of Directors, effective May 30, 2001, the Company has caused its authorized officer to
execute the same. 



	 	 	VICAL INCORPORATED
	

 	
 	

By	
 	

/s/ MARTHA J. DEMSKI   
 Martha J. Demski




9









QuickLinks


AMENDED AND RESTATED STOCK INCENTIVE PLAN OF VICAL INCORPORATED