exv10w18xdy



 





Exhibit 10.18(d)



EMPLOYMENT AGREEMENT






     This EMPLOYMENT AGREEMENT (“Agreement”) is made to be effective as of the first day of August,
2007, between Introgen Therapeutics, Inc., a Delaware corporation (the “Company”), and David G.
Nance (the “Employee”).



BACKGROUND




     The Company was founded in 1993, and is in the business of developing and commercializing
treatments for cancer. Employee has served as President and Chief Executive Officer since
formation of the Company. The Board of Directors of the Company (the “Board”) has determined that
Employee’s continued service as President and Chief Executive Officer is in the best interest of
the Company. Employee desires to continue service in those capacities. Therefore, in
consideration of the compensation to be paid Employee hereunder, and the covenants of Employee set
forth herein, the parties hereto have entered into this Agreement.



AGREEMENT




     1. Employee Duties. The Company will continue employment of the Employee as its
President and Chief Executive Officer for the Term (as hereinafter defined), with such
responsibilities and duties as the Board of Directors may from time to time determine, consistent
with such job title. The Employee shall devote such time as is reasonably necessary to the
performance of his responsibilities and duties hereunder.



     2. Salary and Bonuses. Employee will receive an aggregate base salary at the rate of
$594,944 per annum during the Term; provided that the Compensation Committee of the Company will
review Employee’s base salary at least annually to ensure that it will be consistent with the
compensation paid by other public biotechnology companies to their Chief Executive Officers with
comparable duties and responsibilities. Installments of base salary shall be paid not less
frequently than bi-weekly. Employee will also receive bonuses in the form of money, stock options,
restricted stock, or other consideration as may be determined from time to time by the Compensation
Committee. It is anticipated that Employee will, at a minimum, participate in regular milestone
option grants to Company officers.



     3. Other Fringe Benefits. Employee will receive the following benefits during the
Term of Employment: 401K plan and stock option plan participation, comprehensive health, accident,
major medical, disability and life insurance protection in accordance with the general policies of
the Company as in effect from time to time.



     4. Reimbursement of Expenses. The Company shall reimburse Employee for all
reasonable, ordinary and necessary expenses incurred by him in the performance of his duties
hereunder, provided that Employee accounts to the Company therefore in the manner prescribed by the
Company for reimbursement of Employee’s expenses.



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     5. Vacation. Employee shall be entitled to a reasonable number of vacation days each
year, and in any event shall receive at least as many vacation days as allowed any other Company
Employee. Unused vacation days may not be accumulated from year to year.



     6. Term of Agreement. The term of this Agreement will commence on August 1, 2007, and
continue until July 31, 2010 (“Initial Term”), and will thereafter continue from year-to-year
unless: (i) either party notifies the other in writing prior to the end of the Initial Term, or
prior to the end of any twelve month period thereafter, that such party wishes to terminate this
Agreement at the end of such Initial Term or other period; or (ii) earlier termination occurs
pursuant to Section 7.



     7. Termination of Employment.



     7.1 Termination by Employer for Cause. The Company may terminate Employee’s
employment only for “Cause.” A termination for Cause is a termination evidenced by a finding
adopted in good faith by the Board that Employee (i) willfully and continually failed to
substantially perform his duties with the Company (other than a failure resulting from Employee’s
incapacity due to illness, physical or mental disability or other incapacity) and such failure
continues after the Board has given written notice that Employee has failed to perform his duties,
(ii) has been convicted of a felony, (iii) has breached this Agreement in any material respect if
such breach is not cured or remedied reasonably promptly after the Board has given written notice
to Employee providing a reasonable description of the breach, or (iv) engaged in conduct
constituting willful malfeasance in connection with his employment which is materially and
demonstrably injurious to the Company and its subsidiaries taken as a whole, or (v) has been barred
by the Securities Exchange Commission or any court or agency having jurisdiction from serving as an
officer of a publicly traded company. No act, or failure to act, on Employee’s part, shall be
considered “willful” for purposes of (i) or (iv) above unless he has acted or failed to act with an
absence of good faith and without a reasonable belief that his action or failure to act was in the
best interests of the Company. Notwithstanding anything contained in this Agreement to the
contrary, no failure to perform by Employee after Notice of Termination (as hereinafter defined) is
given by Employer shall constitute Cause for purposes of this Agreement. Termination for Cause
shall be by action of the Board after giving Employee and his legal advisor an opportunity to meet
with the Board, contest the basis for termination, and to demonstrate that Employee’s continued
employment is in the best interests of the Company.



     7.2 Termination by Employee for Cause. In the event that Employee’s responsibilities,
job title, or authority are materially altered by Employer, then Employee may terminate this
Agreement at any time.



     7.3 Effect of Termination.



          (i) If Employee’s employment hereunder shall be terminated by the Company for Cause pursuant
to Section 7 hereof, this Agreement shall forthwith terminate except that Employee’s obligations
under Section 9 shall continue unaffected.




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          (ii) If Employee’s employment hereunder shall be terminated by the Company other than for
Cause, Employee’s obligations under Section 9 shall terminate and the Company shall pay to the
Employee all compensation otherwise payable to the Employee hereunder to the same extent as if this
Agreement had not been terminated.




          (iii) If Employee’s employment hereunder is terminated by Employee pursuant to Section 7.2,
then all of Employee’s obligations and compensation hereunder shall cease except that Employee
shall be entitled to receive all compensation accrued under Section 2, 3, 4 and 5 but unpaid as of
the date of termination.




          (iv) If Employee’s employment hereunder is terminated by Employee other than pursuant to
Section 7.2, then all of Employee’s obligations and compensation hereunder shall cease except that
Employee shall be entitled to receive all compensation accrued under Section 2, 3, 4 and 5 but
unpaid as of the date of termination, and Employee’s obligations under Section 9 will continue for
one year after the date of termination.




     8. Death of Employee. If Employee’s employment hereunder shall terminate because of
his death, this Agreement shall forthwith terminate, except that Employee’s personal representative
shall be entitled to receive all compensation accrued in favor of Employee under Sections 2, 3, 4,
and 5 but unpaid as of the date of death. All rights of Employee’s personal representative to
receive any further compensation hereunder or under any other plan, arrangement or procedure of the
Company shall terminate, to the extent not theretofore vested, except for any rights which arise by
virtue of Employee’s death under any such plan, arrangement or procedure.



     9. Non-Compete.




	 	9.1	 	Non-Competition. Employee agrees that he will not during the Term of
this Agreement engage in, or otherwise directly or indirectly be employed by, or act as
a consultant or lender to, or be a director, officer, employee, owner or partner of,
any other business or organization that is now or shall hereafter be competing with the
Company. In the event that Employee should desire certainty as to whether an activity
might be viewed by Employer as a violation of Employee’s obligations to Employer,
Employee may disclose to and seek approval of such activity by the Compensation
Committee of Employer’s Board of Directors. Any activity approved by such committee
will be deemed not to violate this Section 9.1 or any other provision of this
Agreement, or otherwise breach Employee’s employment obligations to Employer.





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     9.2 Nondisclosure of Confidential Information. (a) Employee shall not, without the
prior written consent of the Company, divulge, or disclose to any other person, firm, partnership,
corporation or other entity any Confidential Information pertaining to the business of the Company,
except (i) while employed by the Company, in the business of and for the benefit of the Company,
or (ii) when required to do so by a court of competent jurisdiction, by any governmental agency
having supervisory authority over the business of the Company, or by any administrative body or
legislative body (including a committee thereof) with purported or apparent jurisdiction to order
Employee to divulge, or disclose such information. For purposes of this Section 10(a),
“Confidential Information” shall mean non-public information concerning the Company’s financial
data, strategic business plans, product development (or other proprietary product data), customer
lists, marketing plans or other non-public, proprietary and confidential information of the
Company, in each case which is not otherwise available to the public.



     9.3 Breach of Section 9. Since a breach of the provisions of this Section 9 could not
be adequately compensated by money damages, the Company shall be entitled, in addition to any other
right and remedy available to it, to an injunction restraining such breach or threatened breach.
Employee agrees that the provisions of this Section 9 are necessary and reasonable to protect the
Company in the conduct of its business. If any restriction contained in this Section 9 shall be
deemed to be invalid, illegal, or unenforceable by reason of the extent, duration, or geographical
scope thereof, or otherwise, then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other provisions hereof, and in its reduced
form such restrictions shall then be enforceable in the manner contemplated hereby.



     10. Warranties and Representations of the Employee. The Employee warrants and
represents that the Employee is not subject to any agreement, contract, judgment, decree or
limitation the effect of which would prohibit, limit or otherwise restrict the employment of the
Employee by the Company pursuant to the terms of this Agreement.



     11. Notices All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by prepaid telegram, or mailed first-class, postage prepaid, by
registered mail (notices sent by telegram or mailed shall be deemed to have been given on the date
sent), as follows (or to such other address as either party shall designate by notice in writing to
the other in accordance herewith):



     If to the Employee:


David G. Nance

8203 Scenic Ridge Cove

Austin, Texas 78731




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     If to the Company:


Introgen Therapeutics, Inc.

301 Congress Avenue, Suite 1850

Austin, Texas 78701




     12. Governing
Law. This Agreement shall be governed by and construed and enforced in
accordance with the local laws of the State of Texas applicable to agreements made and to be
performed entirely in such state. The parties agree that this Agreement is performable in Travis
County, Texas, and that venue of any action concerning this Agreement shall lie in Travis County,
Texas.



     13. Headings and
Captions. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement.



     14. Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements, and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party that is not
embodied in this Agreement, and neither party shall be bound by or liable for the alleged
representation, promise or inducement not so set forth.



     15. Amendments:
No Waivers. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended and the terms or covenants hereof may be waived only by a written
instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving
compliance. The failure of either party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement.



     IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first above
written.





	 	 	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 	 	INTROGEN THERAPEUTICS, INC.
	 

	 
	 	 	 	 	 	By:	 	/s/ CHARLES E. LONG 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Charles E. Long

Chairman, Compensation Committee
	 
	 	 	 	 	 	 	 	 
	 
	 	EMPLOYEE:	 	 	 	/s/ DAVID G. NANCE 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	David G. Nance






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