SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Mark One)
X Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the Year Ended December
31, 1996, or:
Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the Transition Period
from _____ to _____
Commission File Number 0-24320
NaPRO BIOTHERAPEUTICS, INC.
Incorporated in Delaware IRS ID No. 84-1187753
6304 Spine Road, Unit A
Boulder, Colorado 80301
(303) 530-3891
Securities registered pursuant to Section 12(b) of the Act: none
Securities registered pursuant to Section 12(g) of the Act: Common
Stock, $.0075 par value; Preferred Stock Purchase Rights
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(b) of the Securities
Exchange Act of 1934 during the preceding 12 months (or such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes x No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of the Regulation S-K is not contained herein, and will not
be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K.
----------
The aggregate market value of the voting stock held by non-affiliates
of the registrant was $93,507,156 as of March 21, 1997.
The number of shares outstanding of each of the registrant's classes
of common stock, as of March 21, 1997:
Common Stock 11,767,251
Nonvoting Common Stock 595,000
Incorporated by reference in Part III of this report is the
information contained in the NaPro Proxy Statement for the 1997 Annual
Meeting of Stockholders.
<PAGE>
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K
Financial Statements
The Financial Statement Index is found on Page F-1.
Financial Statement Schedules
All schedules are omitted because they are not applicable or not
required or because the information is included in the consolidated
financial statements or the notes thereto.
Exhibits and Reports on Form 8-K
NaPro filed a November 8, 1996, Current Report Form 8-K reporting the
adoption of a Stockholder Rights Plan.
Exhibit
Number Description of Exhibit
3.1 Amended and Restated Certificate of Incorporation of the
Company, as amended August 2, 1996 (1)
3.2 Certificate of Designation for Convertible Preferred Stock,
Series A. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarter ended June 30, 1995 (File No.
0-24320) (1)
3.3 Certificate of Designation for Series B Junior Participating
Preferred Stock. Incorporated herein by reference from the
Company's November 8, 1996 Current Report Form 8-K (File No.
0-24320) (1)
3.4 Bylaws of the Company. Incorporated herein by reference
from the Registration Statement on Form S-1 of the Company,
filed with the Commission on July 24, 1994 (File No.
33-78016) (1)
4.1 Common Stock Certificate. Incorporated herein by reference
from the Registration Statement on Form S-1 of the Company,
filed with the Commission on July 24, 1994 (File No.
33-78016) (1)
4.2 Underwriter's Warrant Agreement. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
4.3 Warrant Agreement. Incorporated herein by reference from
the Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
4.4 Warrant Certificate. Incorporated herein by reference from
the Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
4.5 The Certificate of Incorporation and Bylaws of the Company
are included as Exhibits 3.1 through 3.4 (1)
10.1* Company's 1993 Stock Option Plan. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.2* Company's 1994 Long-Term Performance Incentive Plan, as
amended July 30, 1996 (1)
10.3 Common Stock Warrant dated as of June 7, 1993 between the
Company and Broadmark Capital Corporation. Incorporated
herein by reference from the Registration Statement on Form
S-1 of the Company, filed with the Commission on July 24,
1994 (File No. 33-78016) (1)
10.4 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and Arthur D. Harrison. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.5 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and D&N Holding Company. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.6 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and Kirkland & Ellis. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.7 Stock Purchase Warrant dated as of December 15, 1992 between
the Company and Kirkland & Ellis. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.8 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and Herbert L Lucas. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.9 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and H.J. Meyers & Co., Inc. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.10 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and Freshman, Marantz, Orlanski, Cooper, and Klein
1993 Investments. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.11 Stock Purchase Warrant dated as of April 30, 1993 between
the Company and Pacific Regeneration Technologies, Inc.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.12 Registration Agreement dated as of June 7, 1993 by and among
the Company, D&N Holding Company, Sterling K. Ainsworth,
Patricia A. Pilia, Leonard P. Shaykin, and Lawrence Helson.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.13 Amended and Restated Stockholders Agreement dated as of May
31, 1994 by and among the Company, D&N Holding Company,
Sterling K. Ainsworth, Patricia A. Pilia, Leonard P.
Shaykin, and Lawrence Helson. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.14* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Leonard P.
Shaykin. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.15* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Sterling K.
Ainsworth. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.16* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Patricia A.
Pilia. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.17* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Lawrence Helson.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.18* Company's Stock Option Agreement with Sterling K. Ainsworth.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.19* Company's Stock Option Agreement with Patricia A. Pilia.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.20 Services and Supply Agreement dated as of December 1, 1993
between the Company and Pacific BioTechnologies Inc.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.21 Subscription Agreement dated as of April 29, 1993 between
the Company and Pacific Regeneration Technologies.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.22 Amended and Restated Master Agreement dated as of January
19, 1994 between the Company and F.H. Faulding & Co., Ltd.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.23 Amendment No. 1 to Amended and Restated Master Agreement
Dated January 19, 1994, executed as of March 23, 1995.
Incorporated herein by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1994
(File No. 0-24320) (1)
10.24 Agreement dated as of June 7, 1993 between the Company and
Baker Norton Pharmaceuticals, Inc. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.25 Lease dated February 28, 1995 between the Company and the
Mutual Life of Canada. Incorporated herein by reference from
the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.26 Subscription Agreement and Investment Letter between the
Company and NaPro BioTherapeutics (Canada), Inc.
Incorporated herein by reference from the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995 (File No. 0-24320) (1)
10.27 Put/Call Agreement dated July 12, 1995 between the Company
and the Purchasers of Series A Preferred Shares of NaPro
BioTherapeutics (Canada) Inc. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.28 Side Letter dated July 21, 1995 to Put/Call Agreement.
Incorporated herein by reference from the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995 (File No. 0-24320) (1)
10.29 Engagement Letter dated February 16, 1995 between the
Company and Capital West Partners. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.30 Subscription Agreement between the Company and the
purchasers of Convertible Preferred Stock, Series A, of the
Company. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.31 Purchase Agreement between the Company and certain
purchasers of Preferred Shares of NaPro BioTherapeutics
(Canada) Inc. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.32 Purchase Agreement between the Company and BPI Capital
Management Corporation as to Preferred Shares of NaPro
BioTherapeutics (Canada) Inc. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.33 Lease between the Company and Gunbarrel Facility L.L.C.
dated October 16, 1995. Incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 0-24320) (1)
10.34 First Amendment to Lease dated November 27, 1995, between
the Company and Gunbarrel Facility L.L.C. Incorporated
herein by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1995 (File No.
0-24320) (1)
10.35 Agreement between the Company and Pacific BioTechnologies
Inc. dated March 29, 1996. Incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 0-24320) (1)
10.36 Culture Agreement dated March 1, 1996 between Zelenka
Nursery, Inc. ("Zelenka") and the Company. Incorporated
herein by reference from the Registration Statement on Form
S-1 of the Company filed with the Commission on August 1,
1996 (File No. 333-3051) (1)
10.37 Agreement for Sale, Harvest and Storage of Nursery Stock
dated May 1, 1996 between Zelenka and the Company.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company filed with the
Commission on August 1, 1996 (File No. 333-3051) (1)
10.38 Culture Agreement dated as of March 1, 1997 between Zelenka
and the Company. The Company is filing with the Commission
a Confidential Treatment Request with respect to certain
portions of this agreement, and accordingly, certain
portions have been omitted from the agreement and filed
separately with the Commission.
10.39 Lease Agreement dated as of March 1, 1997 between Zelenka
and the Company. The Company is filing with the Commission
a Confidential Treatment Request with respect to certain
portions of this agreement, and accordingly, certain
portions have been omitted from the agreement and filed
separately with the Commission.
10.40 Agreement for Sale and Purchase of Nursery Stock dated as of
March 1, 1997 between Zelenka and the Company. The Company
is filing with the Commission a Confidential Treatment
Request with respect to certain portions of this agreement,
and accordingly, certain portions have been omitted from the
agreement and filed separately with the Commission.
21.1 List of Subsidiaries. Incorporated herein by reference from
the Registration Statement of the Company on Form S-1, filed
with the Commission on May 20, 1996 (File No. 33-78016) (1)
23.1 Consent of Ernst & Young LLP, Independent Auditors (1)
24.1 Powers of Attorney (1)
27.1 Financial Data Schedule (1)
* A management compensation plan.
(1) Previously filed.
<PAGE>
Signatures
Pursuant to Section 13 of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
NAPRO BIOTHERAPEUTICS, INC.
By: /s/ Gordon H. Link, Jr.
Gordon H. Link, Jr.
Chief Financial Officer
Date: June 5, 1997
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
3.1 Amended and Restated Certificate of Incorporation of the
Company, as amended August 2, 1996 (1)
3.2 Certificate of Designation for Convertible Preferred Stock,
Series A. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarter ended June 30, 1995 (File No.
0-24320) (1)
3.3 Certificate of Designation for Series B Junior Participating
Preferred Stock. Incorporated herein by reference from the
Company's November 8, 1996 Current Report Form 8-K (File No.
0-24320) (1)
3.4 Bylaws of the Company. Incorporated herein by reference
from the Registration Statement on Form S-1 of the Company,
filed with the Commission on July 24, 1994 (File No.
33-78016) (1)
4.1 Common Stock Certificate. Incorporated herein by reference
from the Registration Statement on Form S-1 of the Company,
filed with the Commission on July 24, 1994 (File No.
33-78016) (1)
4.2 Underwriter's Warrant Agreement. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
4.3 Warrant Agreement. Incorporated herein by reference from
the Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
4.4 Warrant Certificate. Incorporated herein by reference from
the Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
4.5 The Certificate of Incorporation and Bylaws of the Company
are included as Exhibits 3.1 through 3.4 (1)
10.1* Company's 1993 Stock Option Plan. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.2* Company's 1994 Long-Term Performance Incentive Plan, as
amended July 30, 1996 (1)
10.3 Common Stock Warrant dated as of June 7, 1993 between the
Company and Broadmark Capital Corporation. Incorporated
herein by reference from the Registration Statement on Form
S-1 of the Company, filed with the Commission on July 24,
1994 (File No. 33-78016) (1)
10.4 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and Arthur D. Harrison. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.5 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and D&N Holding Company. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.6 Stock Purchase Warrant dated as of June 7, 1993 between the
Company and Kirkland & Ellis. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.7 Stock Purchase Warrant dated as of December 15, 1992 between
the Company and Kirkland & Ellis. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.8 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and Herbert L Lucas. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.9 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and H.J. Meyers & Co., Inc. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.10 Stock Purchase Warrant dated as of June 3, 1992 between the
Company and Freshman, Marantz, Orlanski, Cooper, and Klein
1993 Investments. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.11 Stock Purchase Warrant dated as of April 30, 1993 between
the Company and Pacific Regeneration Technologies, Inc.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.12 Registration Agreement dated as of June 7, 1993 by and among
the Company, D&N Holding Company, Sterling K. Ainsworth,
Patricia A. Pilia, Leonard P. Shaykin, and Lawrence Helson.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.13 Amended and Restated Stockholders Agreement dated as of May
31, 1994 by and among the Company, D&N Holding Company,
Sterling K. Ainsworth, Patricia A. Pilia, Leonard P.
Shaykin, and Lawrence Helson. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.14* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Leonard P.
Shaykin. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.15* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Sterling K.
Ainsworth. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.16* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Patricia A.
Pilia. Incorporated herein by reference from the
Registration Statement on Form S-1 of the Company, filed
with the Commission on July 24, 1994 (File No. 33-78016) (1)
10.17* Amended and Restated Employment and Executive Stock
Agreement dated as of June 7, 1993 and amended and restated
as of May 31, 1994 between the Company and Lawrence Helson.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.18* Company's Stock Option Agreement with Sterling K. Ainsworth.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.19* Company's Stock Option Agreement with Patricia A. Pilia.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.20 Services and Supply Agreement dated as of December 1, 1993
between the Company and Pacific BioTechnologies Inc.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.21 Subscription Agreement dated as of April 29, 1993 between
the Company and Pacific Regeneration Technologies.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.22 Amended and Restated Master Agreement dated as of January
19, 1994 between the Company and F.H. Faulding & Co., Ltd.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company, filed with the
Commission on July 24, 1994 (File No. 33-78016) (1)
10.23 Amendment No. 1 to Amended and Restated Master Agreement
Dated January 19, 1994, executed as of March 23, 1995.
Incorporated herein by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1994
(File No. 0-24320) (1)
10.24 Agreement dated as of June 7, 1993 between the Company and
Baker Norton Pharmaceuticals, Inc. Incorporated herein by
reference from the Registration Statement on Form S-1 of the
Company, filed with the Commission on July 24, 1994 (File
No. 33-78016) (1)
10.25 Lease dated February 28, 1995 between the Company and the
Mutual Life of Canada. Incorporated herein by reference from
the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.26 Subscription Agreement and Investment Letter between the
Company and NaPro BioTherapeutics (Canada), Inc.
Incorporated herein by reference from the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995 (File No. 0-24320) (1)
10.27 Put/Call Agreement dated July 12, 1995 between the Company
and the Purchasers of Series A Preferred Shares of NaPro
BioTherapeutics (Canada) Inc. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.28 Side Letter dated July 21, 1995 to Put/Call Agreement.
Incorporated herein by reference from the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995 (File No. 0-24320) (1)
10.29 Engagement Letter dated February 16, 1995 between the
Company and Capital West Partners. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.30 Subscription Agreement between the Company and the
purchasers of Convertible Preferred Stock, Series A, of the
Company. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.31 Purchase Agreement between the Company and certain
purchasers of Preferred Shares of NaPro BioTherapeutics
(Canada) Inc. Incorporated herein by reference from the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 0-24320) (1)
10.32 Purchase Agreement between the Company and BPI Capital
Management Corporation as to Preferred Shares of NaPro
BioTherapeutics (Canada) Inc. Incorporated herein by
reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 0-24320) (1)
10.33 Lease between the Company and Gunbarrel Facility L.L.C.
dated October 16, 1995. Incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 0-24320) (1)
10.34 First Amendment to Lease dated November 27, 1995, between
the Company and Gunbarrel Facility L.L.C. Incorporated
herein by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1995 (File No.
0-24320) (1)
10.35 Agreement between the Company and Pacific BioTechnologies
Inc. dated March 29, 1996. Incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 0-24320) (1)
10.36 Culture Agreement dated March 1, 1996 between Zelenka
Nursery, Inc. ("Zelenka") and the Company. Incorporated
herein by reference from the Registration Statement on Form
S-1 of the Company filed with the Commission on August 1,
1996 (File No. 333-3051) (1)
10.37 Agreement for Sale, Harvest and Storage of Nursery Stock
dated May 1, 1996 between Zelenka and the Company.
Incorporated herein by reference from the Registration
Statement on Form S-1 of the Company filed with the
Commission on August 1, 1996 (File No. 333-3051) (1)
10.38 Culture Agreement dated as of March 1, 1997 between Zelenka
and the Company. The Company is filing with the Commission
a Confidential Treatment Request with respect to certain
portions of this agreement, and accordingly, certain
portions have been omitted from the agreement and filed
separately with the Commission.
10.39 Lease Agreement dated as of March 1, 1997 between Zelenka
and the Company. The Company is filing with the Commission
a Confidential Treatment Request with respect to certain
portions of this agreement, and accordingly, certain
portions have been omitted from the agreement and filed
separately with the Commission.
10.40 Agreement for Sale and Purchase of Nursery Stock dated as of
March 1, 1997 between Zelenka and the Company. The Company
is filing with the Commission a Confidential Treatment
Request with respect to certain portions of this agreement,
and accordingly, certain portions have been omitted from the
agreement and filed separately with the Commission.
21.1 List of Subsidiaries. Incorporated herein by reference from
the Registration Statement of the Company on Form S-1, filed
with the Commission on May 20, 1996 (File No. 33-78016) (1)
23.1 Consent of Ernst & Young LLP, Independent Auditors (1)
24.1 Powers of Attorney (1)
27.1 Financial Data Schedule (1)
* A management compensation plan.
(1) Previously filed.
EXHIBIT 10.38
CULTURE AGREEMENT DATED MARCH 1, 1997
Exhibit 10.38
* Portions of this agreement marked "[TEXT REDACTED]*" indicate
portions that have been omitted from this agreement and filed
separately with the Commission pursuant to a Confidential Treatment
Request.
CULTURE AGREEMENT
This Agreement is made as of this 1st day of March, 1997 and is
between Zelenka Nursery, Inc. of 16127 Winans, Grand Haven, MI 49417
("Zelenka") and NaPro BioTherapeutics, Inc. of 6304 Spine Road, Unit
A, Boulder, CO 80301 ("NaPro") with respect to the culture of certain
Taxus Media Hicksii trees.
STATEMENT OF BACKGROUND INFORMATION
A. NaPro has agreed to purchase approximately [TEXT REDACTED]*
Taxus Media Hicksii trees from Zelenka pursuant to an Agreement for
Sale and Purchase of Nursery Stock effective as of the date of this
Agreement, between Zelenka Nursery, Inc. and NaPro BioTherapeutics,
Inc. ("Purchase Agreement").
B. NaPro expects to acquire and to deliver to Zelenka
approximately [TEXT REDACTED]* Taxus Media Hicksii trees for culture
by Zelenka hereunder.
C. NaPro desires to lease from Zelenka certain real property on
which all of the Zelenka Trees (defined below) and the Non-Zelenka
Trees (defined below) will be transplanted and located. NaPro has
agreed to lease such real property from Zelenka pursuant to a certain
Lease ("Lease") of even date herewith.
D. NaPro desires that Zelenka transplant, care for, and culture
the Zelenka Trees and the Non-Zelenka Trees, and that Zelenka harvest,
cut, store, and ship to NaPro all or certain portions of the Zelenka
Trees and the Non-Zelenka Trees, and Zelenka has agreed to do so.
E. NaPro has previously purchased certain other Taxus Media
Hicksii Trees from Zelenka pursuant to a Purchase Agreement dated May
1, 1996. Zelenka is culturing such trees for NaPro pursuant to a
Culture Agreement dated March 1, 1996 and the trees are growing on
real property subleased to NaPro by Zelenka pursuant to certain
Subleases dated April 1, 1996. All such agreements are collectively
referred to herein as the "Spring Agreements".
F. The parties desire to set forth the terms of their agreements
in this writing.
STATEMENT OF AGREEMENT
For their mutual convenience and protection, and in consideration
of the mutual covenants and benefits contained in this Agreement, the
parties agree as follows:
SECTION ONE: DEFINITIONS
1.1 Definition of Zelenka Trees. The "Zelenka Trees" for
purposes of this Agreement shall be defined as all of those [TEXT
REDACTED]* Taxus Media Hicksii Trees [TEXT REDACTED]* and all of those
[TEXT REDACTED]* Taxus Media Hicksii Trees [TEXT REDACTED]* purchased
by NaPro from Zelenka under the Purchase Agreement.
1.2 Definition of Non-Zelenka Trees. The "Non-Zelenka Trees"
for purpose of this Agreement shall be defined as those Taxus Media
Hicksii Trees [TEXT REDACTED]* owned by and acquired from sources
other than Zelenka which are delivered by NaPro to Zelenka for
transplantation and culture by Zelenka under this Agreement.
1.3 Definition of Trees. The Zelenka Trees and the Non-Zelenka
Trees shall be collectively referred to as the "Trees".
SECTION TWO: CULTURE OBLIGATIONS
2.1 Transplanting. During the term of this Agreement, Zelenka
agrees to accept and transplant the Trees pursuant to the instructions
of NaPro and pursuant to the schedule described below in paragraph
5.2.
2.2 Transplant, Care and Culture of Trees. During the term of
this Agreement, Zelenka agrees to transplant, grow, maintain, and care
for all of the Trees pursuant to the instructions of NaPro. In the
absence of such instructions, Zelenka agrees that its care of the
Trees shall be consistent with Zelenka's normal reasonable cultural
practices. Zelenka shall bear all costs and expenses in connection
with the transplanting, care, and maintenance of the Trees, provided
that Zelenka shall be reimbursed for such expenses as provided in
below under Section Three.
2.3 Harvesting & Storing. In addition to Zelenka's obligations
described above in paragraphs 2.1 and 2.2, Zelenka agrees to harvest,
cut, place in cold storage, pack, and prepare for shipping any of the
Trees or Tree cuttings in accordance with the NaPro specifications
attached hereto as Exhibit 2.2 ("NaPro Specifications").
Notwithstanding the foregoing, Zelenka shall not be required to ship
any Trees or Tree cuttings to NaPro if NaPro is not current in all of
its obligations to Zelenka under the Purchase Agreement, this
Agreement, the Lease, and the Spring Agreements.
Any schedules for any activities described in this paragraph shall be
mutually agreed upon by Zelenka and NaPro. All Trees or Tree cuttings
shall be shipped to NaPro FOB Zelenka at NaPro's expense. Further,
Zelenka shall not be required to store, after harvest, any Trees or
Tree cuttings for a period exceeding six months, and Zelenka shall be
entitled to ship to NaPro any Trees or Tree cuttings (in accordance
with the NaPro Specifications) as necessary to ensure that such limit
is not exceeded, unless the parties have otherwise agreed in writing.
SECTION THREE: COMPENSATION AND EXCLUSIVITY
3.1 Compensation. As compensation for its services under this
Agreement, Zelenka shall be entitled to receive [TEXT REDACTED]*
3.2 Invoices and Payment. Zelenka shall be entitled to invoice
NaPro for any sums due hereunder on a monthly basis. Such invoices
shall be paid within thirty (30) days of the invoice date and pursuant
to Zelenka's other standard terms and conditions, which are attached
hereto as Exhibit 3.2 ("Zelenka Terms").
3.3 Exclusivity. During the term of this Agreement, NaPro
agrees that Zelenka shall be the exclusive provider of all
transplanting services, cultural services, all harvesting and cutting
services, all storage services, and any other services provided
hereunder, with respect to all of the Trees, and that NaPro will not
contract or arrange for any other provider of such services with
respect to the Trees or the cuttings thereof. NaPro further agrees
that all products and materials which may be used in connection with
the above-described services shall be purchased and/or acquired
exclusively by and through Zelenka under the terms of this Agreement
and that NaPro shall not contract or arrange for any such materials or
products to be provided by any other person or entity in any other
manner.
SECTION FOUR: TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence as of the
effective date hereof and shall continue through 11:59 p.m. on
February 28, 2006, unless earlier terminated by the parties hereunder.
4.2 Extensions of Term. NaPro shall be entitled to renew the
term of this Agreement, on the same terms and conditions set forth
herein, for two separate five year renewal terms; provided, however,
that NaPro shall not be entitled to renew this Agreement for any
extended term unless NaPro simultaneously renews the Lease for an
extended term for the same duration. If NaPro desires to exercise any
such option, it shall do so in writing to Zelenka at least 180 days
prior to the expiration of the original or extended term.
4.3 Termination. This Agreement may not be terminated by either
party hereto except as provided in this paragraph 4.3. If either
party fails to pay any sums due hereunder or any sums due under this
Agreement, the Purchase Agreement, the Lease, or the Spring Agreements
within five (5) days after such sums are due, or if either party
defaults under any of its other obligations under this Agreement, the
Purchase Agreement, the Lease, or the Spring Agreements, and such
default continues for ten (10) days after written notice thereof, then
the non-defaulting party shall be entitled to terminate this Agreement
and recover any damages resulting from the breach, in addition to any
other legal or contractual remedy available to the non-defaulting
party. Further, Zelenka shall be entitled to terminate this Agreement,
effective immediately upon written notice to NaPro, if NaPro defaults
under any of its obligations under this Agreement, the Culture
Agreement, the Lease, or the Spring Agreements more than four (4)
times during any twelve (12) month period.
4.4 Obligations Upon Termination. Upon the termination or
expiration of this Agreement, all amounts due to either party under
this Agreement shall become due and payable within 10 days following
the termination or expiration.
SECTION FIVE: LEASE ISSUES
5.1 Lease. As of the effective date of this Agreement, Zelenka
and NaPro shall enter into a lease with respect to any real property
owned by Zelenka on which the Trees may be located ("Leases"). Such
Lease shall be in the form attached hereto as Exhibit 5.1. The Lease
shall form a part of this Agreement and any breach of the provisions
of the Lease shall be deemed a breach of this Agreement. NaPro's
obligations under the Lease and the legal description of the leased
premises thereunder shall not be reduced, limited, or changed even if
NaPro causes the harvest and/or removal of any or all of the Trees
from such leased premises prior to the termination of the Lease.
5.2 Transplanting and Lease. The Lease will initially lease
approximately [TEXT REDACTED]* acres of Zelenka-owned real property to
NaPro. Zelenka and NaPro agree that NaPro will instruct Zelenka to
transplant on such real property, on or before June 30, 1997, all of
those six year old Trees purchased from Zelenka by NaPro under the
Purchase Agreement, as well as a certain number of trees which have
not been purchased by NaPro from Zelenka. As of the effective date of
this Agreement, the parties do not know whether there will be
sufficient space (after the aforementioned transplanting) on such
parcel to transplant any of the [TEXT REDACTED]* Trees purchased from
Zelenka by NaPro under the Purchase Agreement. If there is room to
transplant any of the [TEXT REDACTED]* Trees, then the parties agree
that Zelenka shall transplant, on or before June 30, 1997, as many of
the [TEXT REDACTED]* Trees as possible on the such parcel. If,
however, all of the [TEXT REDACTED]* Trees purchased under the
Purchase Agreement cannot be transplanted onto the such parcel prior
to June 30, 1997, then Zelenka and NaPro agree to use good faith
efforts to negotiate a lease, with NaPro as lessee and Zelenka as
lessor, pursuant to which NaPro shall lease from Zelenka such real
estate as may be necessary for the transplanting, growing, and
culturing of such remaining [TEXT REDACTED]* trees. Such lease shall:
(i) commence after January 1, 1998 and before June 30, 1998 and before
the transplanting of any such trees on the land, (ii) expire at 11:59
p.m. on February 28, 2006, (iii) include two five year renewal options
subject to the same terms and conditions of the two five year renewal
options under the Lease, and (iv) include terms substantially similar
to the terms of the Lease. The transplanting of such [TEXT REDACTED]*
trees shall occur after January 1, 1998 and before June 30, 1998.
SECTION SIX: GENERAL TERMS
6.1 Arbitration. Any disagreements or dispute between the
parties with regard to this Culture Agreement shall be resolved
exclusively by arbitration which shall be binding upon both of the
parties. The arbitration shall be conducted by a panel of three
arbitrators under the rules of the American Arbitration Association.
One arbitrator shall be selected by Zelenka, one by NaPro, and one by
the two selected arbitrators. Any arbitration shall be conducted in
Grand Haven, Michigan and the arbitrators shall apply Michigan law.
Unless otherwise allocated or assessed by the arbitrators, the parties
shall share equally the fees and expenses of the arbitrators.
6.2 Definition of Zelenka's Costs.
a. Zelenka's actual costs and expenses shall be calculated
based upon Zelenka's current cost accounting system. Such cost
accounting system will base Zelenka's costs and expenses upon, among
other things, the number of hours of labor times Zelenka's loaded
labor rate, plus any other actual costs incurred by Zelenka such as
crate rental, electricity charges, shipping charges, etc. The parties
acknowledge and agree that Zelenka's loaded labor rate includes
charges for items related to Zelenka's performance under this
Agreement such as insurance, irrigation costs (including well drilling
and irrigation equipment), acquisition of equipment (including
harvesting equipment), and repair and maintenance charges. Such actual
costs and expenses shall not include: (i) marketing costs or general
administrative costs except to the extent that those costs are part of
Zelenka's loaded labor rate, (ii) monthly rental payments due under
the Lease, or (iii) those real estate taxes which are Zelenka's
responsibility under the Lease.
b. NaPro shall have the right to audit Zelenka's books and
records pertaining to calculation of Zelenka's costs. Any such
inventory shall be conducted at reasonable intervals and at reasonable
times, and shall not interfere with the business operations of
Zelenka. Furthermore, NaPro agrees to keep confidential and not to
disclose to any other party (except to any professional advisors or
employees who have a need to know) any information or documents
learned or discovered by NaPro in connection with any such audit. If
any such audit uncovers overcharges or undercharges, the parties shall
attempt to agree upon the amounts of such overcharges or undercharges
and pay to one another any such amount as may be necessary to correct
the overcharge or undercharge. If the parties cannot agree on any
overcharge or undercharge, either party shall be entitled to submit
their question to arbitration under paragraph 6.1. If the parties
agree or an arbitration determines that Zelenka has overcharged NaPro
an amount greater than ten (10%) percent, then Zelenka shall bear the
cost of the audit by NaPro and the cost of the arbitration. Otherwise,
the cost of the audit and arbitration shall be borne by NaPro.
6.3 Zelenka's Limited Warranty. Zelenka hereby warrants to
NaPro that: (i) ninety two percent (92%) or more of the Zelenka Trees
transplanted between January 1, 1997 and June 30, 1997 by Zelenka
hereunder will be alive as of August 31, 1997, and (ii) 92% or more of
the Zelenka Trees transplanted by Zelenka by January 1, 1998 and June
30, 1998 hereunder will be alive as of August 31, 1998. NaPro or its
representatives shall be entitled to inspect all such Zelenka Trees,
with a Zelenka representative, at a time mutually agreed on by Zelenka
and NaPro within ten (10) days before or after the above-described
applicable August 31 date for the purpose of determining the survival
rates under this paragraph 6.3. If NaPro notifies Zelenka in writing,
on or before the date 10 days after the above- described applicable
August 31 date, that the survival rate of the relevant transplanted
Zelenka Trees is less than ninety two percent (92%), then Zelenka
shall be required to elect one of the following remedies, in its sole
discretion: (1) Zelenka may reimburse NaPro for the purchase price
under the Purchase Agreement, for the number of Zelenka Trees
purchased by NaPro under the Purchase Agreement multiplied by 92%
minus the number of surviving Zelenka Trees, or (2) Zelenka may
replace and transplant (at Zelenka's cost) the non- surviving Zelenka
Trees with a number of comparable Trees which is equal to the number
of Zelenka Trees purchased and paid for by NaPro under the Purchase
Agreement multiplied by 92% minus the number of surviving Zelenka
Trees. Notwithstanding anything to the contrary in this paragraph 6.3,
if NaPro (or its representatives) fails to inspect the Zelenka Trees
within 10 days before or after the above-described applicable August
31 date, or if NaPro fails to notify Zelenka in writing on or before
the date 10 days after the above-described applicable August 31 date,
that the survival rate of the Zelenka Trees is less than 92%, then
NaPro shall be deemed to have waived all of its rights under this
paragraph 6.3.
6.4 No Warranties. Zelenka offers no warranties or guarantees
regarding any aspect (including survival or viability) of any
Non-Zelenka Trees which are transplanted or cultured by Zelenka under
the terms of this Agreement. Further, except as otherwise provided in
paragraph 6.3, Zelenka offers no warranties or guarantees regarding
any aspect (including the survival or viability) of any Zelenka Trees
or the Non- Zelenka Trees which are transplanted or cultured under the
terms of this Agreement. Without limiting the generality of the
foregoing, Zelenka also offers no warrantees or guarantees regarding:
(1) the quantity of Tree cuttings which will be harvested, cut, or
produced hereunder, or (2) the quality or suitability of the Trees or
Tree cuttings for any purpose. Finally, Zelenka offers no warrantees
of merchantability or fitness for any particular purpose.
6.5 Force Majeure. Neither party shall be liable to the other
in the event that performance of its obligations hereunder shall be
prevented by any cause beyond its reasonable control, including
without limitation acts of God, acts of government, accident, fire,
flood, natural disaster, delay or destruction of means of transport,
or other disaster ("events of force majeure"), but the affected party
shall use best efforts to avoid or remove the cause of such
nonperformance and shall continue performance hereunder with the
utmost dispatch whenever such cause is removed.
SECTION SEVEN: MISCELLANEOUS
7.1 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Neither party shall assign any of
their rights, privileges, or obligations under this Agreement without
the written consent of the other party, which shall not be
unreasonably withheld.
7.2 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand or mailed certified or
registered mail, return receipt requested with postage prepaid, to the
parties at their addresses on page one of this Agreement. Any party
may change its address by providing notice hereunder to all of the
other parties.
7.3 Headings. The headings of sections herein and in the
exhibits referred to herein are for convenience only and shall not
control of effect any meaning or interpretation of any provision of
this Agreement.
7.4 Entire Agreement; Modifications. This Agreement contains
the entire agreement among the parties hereto with respect to the
transactions contemplated hereby. This Agreement may be modified only
by a written agreement signed by all of the parties hereto.
7.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.6 Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Michigan.
7.7 Severability. In the event that any of the provisions of
this Agreement shall be held to be invalid or unenforceable, the same
shall not affect the validity or enforceability of any other
provisions of this Agreement, unless such validity or unenforceability
shall materially affect and frustrate the intentions of the parties.
7.8 Time is of the Essence. All of the parties hereto agree and
acknowledge that time is of the essence in connection with this
Agreement.
7.9 No Waiver. No waiver of any rights of either party
hereunder shall be effective against such party unless set forth in
writing and signed by such party. Further, no waiver of any right
hereunder shall be construed to be a waiver of such right or any other
right hereunder or in the future.
ZELENKA NURSERY, INC.
/s/ Paul Zelenka
Paul Zelenka
Vice President
NAPRO BIOTHERAPEUTICS, INC.
/s/ Sterling K. Ainsworth
Sterling K. Ainsworth
President and Chief Executive Officer
EXHIBIT 10.39
LEASE AGREEMENT DATED MARCH 1, 1997
Exhibit 10.39
* Portions of this agreement marked "[TEXT REDACTED]*" indicate
portions that have been omitted from this agreement and filed
separately with the Commission pursuant to a Confidential Treatment
Request.
LEASE AGREEMENT
This is a Lease, which is effective as of the 1st day of March,
1997. The names and addresses of the parties are as follows:
NAME ADDRESS DESIGNATION
NaPro Bio Therapeutics, Inc. 6304 Spine Road, Unit A
Boulder, CO 80301 Lessee
Zelenka Nursery, Inc. 16127 Winans
Grand Haven, MI 49417 Lessor
BACKGROUND INFORMATION
A. Lessor is the owner of a parcel of real property located in
Robinson Township, Ottawa County, Michigan, together with certain
improvements located thereon.
B. Lessee wishes to lease such property, including the
improvements, and the Lessor has agreed to lease such property and
improvements to the Lessee.
C. The Lessee has purchased certain [TEXT REDACTED]* Trees and
[TEXT REDACTED]* Trees from the Lessor pursuant to an Agreement for
Sale and Purchase of Nursery Stock dated March 1, 1997 between the
parties ("Purchase Agreement").
D. The parties have entered into a Culture Agreement of even
date herewith, pursuant to which the Lessor has agreed to transplant
and care for the trees purchased under the Purchase Agreement and for
certain additional trees. The Culture Agreement requires that the
Lessee lease the property described herein from the Lessor for the
purpose of transplanting and growing all or certain of such trees
thereon.
E. The parties acknowledge that their obligations hereunder
will commence as soon as the leased premises are needed for the
transplanting which will occur (under the Culture Agreement) between
January 1, 1997 and June 30, 1997 and that a substantially similar
lease for additional real property may be executed by the parties for
the purpose of transplanting certain trees (under the Culture
Agreement) between January 1, 1998 and June 30, 1998.
F. Lessor and Lessee wish to define the terms of their
agreement and commit it to writing.
AGREEMENT
For their mutual convenience and protection, and in consideration
of the mutual covenants and benefits contained in this Agreement, the
receipt and adequacy of which is hereby acknowledged, Lessor and
Lessee mutually agree as follows:
SECTION ONE: GENERAL AGREEMENT
1.1 Leased Premises. Lessor leases to Lessee and Lessee leases
from Lessor, the real property described in Exhibit 1.1 (attached
hereto and made a part hereof) together with all improvements located
thereon (collectively referred to as the "Premises").
SECTION TWO: TERM
2.1 Term. The term of this Lease shall begin immediately and
automatically upon the preparation, use, or occupancy of any portion
of the Premises for the purpose specified in paragraph 4.1, but no
later than June 30, 1997. The parties shall endeavor to execute a
written certification specifying such date; however, the parties
failure to execute such a certification shall not affect the
commencement of the term. The term of this Lease shall expire at
11:59 p.m. on February 28, 2006. The term of this Lease shall also
include any extensions of this Lease for any period of time as agreed
to by the parties.
SECTION THREE: RENTAL
3.1 Rental. The rent for the Premises is [TEXT REDACTED]* per
acre for each year during the term of this Lease. The parties have
agreed that the Premises consists of [TEXT REDACTED]* acres, and
therefore that (I) the total rent for the Premises for each year of
the Lease term is [TEXT REDACTED]*, and (ii) that the total rent for
the Premises for each month of the Lease term is [TEXT REDACTED]*.
Such monthly rental payment shall be paid in addition to any other
sums expressly agreed to be paid by the Lessee under this Lease and
shall be payable in advance on the first day of each month during the
term of the Lease. If the term of the Lease begins on a date other
than the first day of the month, the monthly installments of the rent
for the first and last fractional months of the term of this Lease
shall be prorated in the proportion that the number of days of
Lessee's tenancy bears to thirty (30 days).
SECTION FOUR: USE AND COMPLIANCE WITH LAW
4.1 Use. The Lessee shall use the Premises for the purpose of
transplanting, growing and culturing the Taxus Media Hicksii Trees
delivered to the Lessor under the Culture Agreement (which Trees
include those Taxus Media Hicksii Trees purchased from Zelenka under
the Purchase Agreement and those other Taxus Media Hicksii Trees which
have not been purchased from Zelenka but which have been delivered to
Zelenka for care under the Culture Agreement). Lessee shall comply
with the statutes and regulations of Michigan and of the United
States, and any and all ordinances and regulations of any other
governmental body having jurisdiction over the Premises. The Lessee
shall further comply with all health, fire, and police rules and
regulations affecting the Premises.
SECTION FIVE: LESSEE'S IMPROVEMENTS AND PERSONAL PROPERTY
5.1 Improvements. The Lessee and the Lessor acknowledge that the
Lessor will be caring for the Premises and all crops and trees thereon
pursuant to the terms of the Culture Agreement. Therefore, the Lessor
shall have the right to construct and erect any fences or other
improvements on the Premises as the Lessor shall deem appropriate and
necessary to perform its obligations under the Culture Agreement. All
such fences, buildings, and other improvements shall remain the
property of the Lessor as of the expiration or earlier termination of
this Lease.
5.2 Personal Property. The Lessor shall have the right to place
on the Premises any personal property or equipment as the Lessor shall
deem necessary or appropriate to perform its obligations under the
Culture Agreement. Any such property or equipment shall remain the
sole property of the Lessee and may be removed by the Lessee at any
time during the Lease or at its termination. Any such personal
property which is not removed as of the termination of this Lease
shall be deemed abandoned by the Lessee and shall thereupon become the
absolute property of the Lessor.
SECTION SIX: LESSEE'S TREES
6.1 Ownership. The Lessee shall have the right to transplant on
to the Premises trees for culture pursuant to the terms of the Culture
Agreement. Subject to the terms of the Purchase Agreement and the
Culture Agreement, any and all trees grown or maintained on the
Premises by the Lessee, shall be the sole property of the Lessee, and
may be harvested and removed from the Premises pursuant to the
Lessee's instructions under the Culture Agreement at any time during
the term of this Lease.
SECTION SEVEN: QUIET ENJOYMENT
7.1 General. If the Lessee pays the rent and performs all of
the covenants and agreements on its part to be performed pursuant to
this Agreement, Lessor agrees that Lessee shall have peaceful and
quiet enjoyment of the Premises. Lessor agrees that Lessee's rights
to lease the Premises shall be exclusive and that Lessor will not
lease any interest in or portion of the Premises, including but not
limited to any oil, gas, or mineral interests, to any other party
during the term of this Lease.
SECTION EIGHT: ASSIGNMENT AND SUBLETTING
8.1 Prohibition Without Consent. This Lease shall not be
assigned, nor shall any part of the Premises be sublet by the Lessee
without the prior written consent of the Lessor, unless the rights of
the Lessee under the Purchase Agreement and the Culture Agreement have
also been assigned with the consent of the Lessor. If such assignments
have occurred with the consent of the Lessor, then the Lessor's
consent to the assignment of this Lease shall not be unreasonably
withheld.
SECTION NINE: TAXES
9.1 Real Property. During the term of this Lease, the Lessor
shall pay promptly, before any penalties or interest charge attach,
all general real estate taxes and installments of special assessment
and any other governmental charges levied upon the Premises; provided,
however, that the Lessor reserves the right to withhold any such
payments in the event of a bona fide dispute (between the Lessor and
the taxing authority) regarding the same. The Lessor shall provide
proof of such payments to the Lessee upon request. If the Lessor
fails to make any such payments, then in the absence of a bona fide
dispute (between the Lessor and the taxing authority), Lessee shall
have the option to make such payments on behalf of the Lessor and
deduct such amounts from the rental payable hereunder and/or collect
such amounts from the Lessor immediately.
9.2 Personal Property. Lessor shall pay all personal property
taxes assessed against the personal property owned by the Lessor and
located on the Premises which is assessable for personal property tax
purposes.
9.3 Trees. Lessee shall pay all personal property taxes assessed
against the Trees located on the Premises which are accessible for
personal property tax purposes.
SECTION TEN: UTILITY SERVICES
10.1 General. Lessor shall make payment for all gas,
electricity, water, sewer, and any and all other public utilities used
or consumed on the Premises during the term of this Lease. Lessor
shall be reimbursed therefor by the Lessee pursuant to the terms of
the Culture Agreement.
SECTION ELEVEN: REPAIRS AND MAINTENANCE
11.1 General. Lessor shall make and pay for all repairs,
alterations, and maintenance of the buildings, structures, and
improvements owned by the Lessor on the Premises. Lessor shall be
reimbursed therefor by the Lessee pursuant to the terms of the Culture
Agreement.
SECTION TWELVE: EMINENT DOMAIN
12.1 Rent and Termination. In the event that any part of the
Premises is taken by condemnation, eminent domain proceedings, the
rent payable thereafter shall be decreased in proportion to the
portion of the Premises taken. However, if all of the Premises are
taken, or if the taking precludes the Lessee from reasonably using the
Premises for its farming and growing operations, this Lease shall
terminate at the time possession must be surrendered, and the Lessee
shall be relieved of all future rental payments. Lessor shall not
voluntarily sell the Premises or any part thereof in connection with
any such proceedings that may be threatened or instituted without
giving Lessee the opportunity to resist such condemnation at Lessee's
expense, in which case the Lessor shall resist such proceedings (if
requested to do so by Lessee) at Lessee's expense in the court or
forum having jurisdiction thereof.
12.2 Lessee Rights. In addition to the Lessee's rights as
provided in paragraph 12.1, Lessee shall have the right to collect
from the condemning authority damages by reason of loss of business,
business interruption, depreciation or damage of crops, fixtures and
equipment, removal and planting costs, and such other damages to which
it may be legally entitled.
SECTION THIRTEEN: ENVIRONMENTAL CONTAMINATION
13.1 Warranty. The Lessee warrants that it will comply with all
federal, state, and local rules, regulations, statutes, and ordinances
pertaining to the protection of the environment in conducting any
activities on the Premises.
13.2 Indemnification. The Lessee agrees to defend and indemnify
the Lessor against any obligations, costs, and liabilities (including
but not limited to reasonable attorneys' fees) relating to the
Premises arising out of claims for investigation, study, remedial
work, monitoring, or other costs or expenses regarding any
environmental contamination of the Premises caused by the Lessee,
including but not limited to groundwater or soil contamination, water
pollution, air pollution, personal injury, or property damage.
SECTION FOURTEEN: INSURANCE
14.1 Public Liability and Indemnity. Lessee shall indemnify and
save harmless Lessor from any liability for any loss, damage, injury,
or other casualty to persons or property caused or occasioned by or
arising from any act, use, occupancy, or negligence by or of Lessee or
any of its agents, servants, visitors, licensees, or employees
occurring during the term of this lease or any extended term. If any
action or proceedings are brought against the Lessor by reason of any
such claim, Lessee on timely notice from Lessor shall resist and
defend such action or proceedings by counsel employed by the Lessee,
which shall include the taking of all permissible appeals, unless full
release of expense is obtained by way of settlement of compromise at
the expense of Lessee or its insurance carrier.
The Lessee shall furnish to Lessor a certificate or other
evidence indicating that Lessee has had issued to it a policy or
policies of insurance insuring against damage to property in the
minimum amount of One Million Dollars ($1,000,000.00) in bodily
injury, including death, and the minimum amount of One Million Dollars
($1,000,000.00) for injury to one (1) person and One Million Dollars
($1,000,000.00) for injury to more than one (1) person, in one
accident or occurrence, naming Lessor as additional insured, and the
Lessee shall pay all premiums thereon and furnish evidence of such
payments to Lessor, if requested to do so.
14.2 Insurance on Buildings of Lessor. Lessor shall, at its
expense, insure any buildings, structures, or improvements owned by
Lessor on the Premises against loss or damage under a policy or
policies of fire and extended coverage insurance, including
"additional perils". Such policy or policies shall contain appropriate
clauses or endorsements under which the insurer waives all right of
subrogation against Lessee, its agents, employees, invites, and
licensees with respect to losses payable under such policy or
policies. In addition, Lessor hereby waives all rights of recovery
which it might otherwise have against Lessee, its agents, employees,
invites, or licensees for any loss or damage to the property which is
covered by said policy or policies, notwithstanding that such loss or
damage may result from the fault or negligence of Lessee, its
employees, invites, or licensees. Such policy or policies shall be
issued in an amount equal to the estimated replacement value of all
buildings, structures, and improvements owned by the Lessor on the
Premises. Lessor shall furnish proof of such policy or policies upon
request to the Lessee.
14.3 Lessee's Personal Property. Any personal property, trees,
or crops kept on the Premises by Lessee shall be at the Lessee's sole
risk and responsibility. Any insurance maintained by Lessee on such
personal property shall contain a clause or endorsement under which
the insurer waives all right of subrogation against Lessor, its agents
or employees, with respect to losses payable under the policy, and
Lessee hereby waives all right of recovery which it might otherwise
have against Lessor, its agents or employees for any damage to its
personal property which is covered by a policy of insurance regardless
of the amount of such insurance, notwithstanding that such damage may
result from the negligence or fault of Lessor, its agents or
employees.
14.4 Failure to Obtain Insurance. If Lessee or Lessor, at any
time during the term of this Lease, fails to secure or maintain the
insurance as required in this section, the other party shall be
permitted to obtain such insurance and shall be compensated by the
defaulting party for the cost of the insurance premiums immediately,
and, in the case of payments made by the Lessee in such case, shall be
entitled to deduct such amounts from the rental payable hereunder.
SECTION FIFTEEN: RENEWAL AND EXTENSION OF LEASE
15.1 Terms. For and in consideration of the sum of one dollar
($1.00), paid by the Lessee to the Lessor, the receipt of which hereby
acknowledged, the Lessor hereby grants to the Lessee the exclusive
right and option to renew this Lease for two separate five (5) year
renewal terms on the same terms and conditions of this Lease except as
otherwise provided below in paragraph 15.2; provided, however, that
the Lessee shall not be entitled to renew the Lease for any renewal
term unless the Lessee simultaneously renews the Culture Agreement for
a renewal term of the same duration. In the event that the Lessee
elects to exercise such option, the Lessee shall serve the Lessor with
a written notice of election to renew, not less than one hundred
eighty (180) days before the end of the original term of this Lease.
Upon receipt of such notice by the Lessor, this Lease shall remain in
full force and effect for the renewal term. If Lessee elects not to
renew this Lease and remains in possession following the end of the
term of this Lease, the Lessee shall be a tenant from month to month,
unless the parties otherwise agree in writing.
15.2 Rental During Renewal Terms. If this Lease is renewed
pursuant to the provisions of paragraph 15.1, the rent for each
renewal term shall be agreed upon by the Lessor and the Lessee, and
shall be documented in a writing signed by the Lessor and the Lessee
prior to the beginning of any such renewal term. If the Lessor and
the Lessee cannot agree on the amount of the rent before the
commencement of the renewal term, then the rent hereunder shall be the
fair market rental value of the Premises as determined by an appraiser
who shall be selected as follows: (1) one appraiser shall be selected
by the Lessor, and one shall be selected by the Lessee. The two
appraisers shall each agree upon and select a third appraiser, who
shall conduct the appraisal. The appraisal conducted by the selected
appraiser shall be binding upon the Lessor and the Lessee hereunder
and the Lessor and the Lessee shall each be responsible to pay
one-half (1/2) of the costs and fees associated with such appraisal.
SECTION SIXTEEN: DEFAULT
16.1 Default in General. If the Lessee defaults in the payment
of rent when due, or if the Lessee violates or neglects to fulfill any
of the covenants and agreements under this Agreement or under the
Culture Agreement or under the Spring Agreements, and such default
continues for thirty (30) days after written notice by the Lessor to
the Lessee specifying the breach or default, the Lessor and his
attorney(s), heir(s), representative(s), or assign(s) shall have the
right to: (1) terminate this Lease, to re-enter into and to repossess
the Premises and to remove and put out Lessee and each and every other
occupant either by summary proceedings or other lawful means and to
recover immediately those damages permitted by law, and/or (2)
terminate the Lessee's right of possession, repossess the Premises,
and without terminating this Lease, relet the Premises, and recover
its damages from time to time as permitted by law.
16.2 Removal Rights. Notwithstanding the foregoing paragraph
16.1, if the Lessee defaults and the Lessor invokes its rights under
this paragraph, and if the Lessee pays to the Lessor all past due
rental payments and other sums due to the Lessor hereunder as well as
the rentals due hereunder for ninety (90) additional days, the Lessee
shall have the right to care for, harvest, and remove within ninety
(90) days from the date of termination of this Lease, any trees
growing or cared for on the Premises at the time of the termination of
this Lease. Any rights of the Lessor, any subsequent Lessee or, any
other party with a subsequent interest in the Premises, with regard to
the Premises shall be subject to such rights of the Lessee.
16.3 Abandonment. Any trees, crops, or personal property which
remain on the Premises as of the termination of this Lease (or as of
the date 90 days thereafter if the Lessee invokes its rights under
paragraph 16.2) shall be deemed to be abandoned by the Lessee and the
Lessor shall automatically take title thereto. Even though the
Lessor's ownership rights are self-executing, the Lessee agrees to
execute such documents as may be necessary to affirm or give notice of
such transfer of title.
SECTION SEVENTEEN: FIRE AND CASUALTY
17.1 General. If any buildings, structures, or improvements
owned by the Lessor are damaged by fire or by the elements or other
casualty, Lessor, as soon as reasonably may be done, shall
reconstruct, repair or rebuild the same to the extent necessary to
make them substantially similar in character and value to their status
prior to the damage. If such loss renders the Lessor's buildings,
structures, or improvements totally unusable to the extent that they
cannot be used by the Lessee, rent shall abate until said buildings,
structures, or improvements are put back in a condition substantially
similar to their condition immediately prior to the loss. However, if
such buildings, structures, or improvements are partially destroyed by
fire or the elements or other casualty, and are not rendered totally
unusable by Lessee, the Lessee shall pay that proportion of the rental
as the part of the Lessor's buildings, structures, improvements that
may be used for the business of the Lessee bears to the whole thereof.
SECTION EIGHTEEN: RIGHT OF ENTRY
18.1 Lessor Rights. Lessor and its agents shall have the right
to enter the Premises at such reasonable times as will not interfere
with the Lessee's normal use thereof, for the purposes of inspection
or repair, or other purposes as permitted by Lessee.
SECTION NINETEEN: SUBORDINATION; ATTORNMENT;
ESTOPPEL CERTIFICATE
19.1 Subordination. This Lease shall be subject and subordinate
to the interests of the holders of any notes secured by mortgages on
the Premises, now or in the future, and to all ground or underlying
leases and to all renewals, modifications, consolidations,
replacements and extensions thereof, and while the provisions of this
section are self-executing, Lessee shall execute such documents as may
be necessary to affirm or give notice of such subordination.
19.2 Attornment. Lessee shall attorn to any foreclosing
mortgagee or to any purchaser of the Premises at any foreclosure sale,
or sale in lieu of foreclosure, for the balance of the term of the
Lease on all of the terms and conditions herein contained.
19.3 Estoppel Certificate. At the Lessor's request, the Lessee
shall, within ten (10) days deliver to the Lessor, or anyone
designated by the Lessor, a certificate stating and certifying such
information as may be reasonably requested to verify the status of the
Lessor/Lessee relationship established by the Lease.
LESSOR'S COSTS
20.1 General. Any costs or expenses hereunder which are required
to be borne by the Lessor hereunder may be charged back to the Lessee
to the extent permitted under the terms of the Culture Agreement.
SECTION TWENTY-ONE: MISCELLANEOUS
21.1 Copies. This Lease may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
21.2 Captions. The captions in this Lease are for convenience
only and shall not be considered as part of this Lease or in any way
limiting or amplifying the terms and provisions hereof.
21.3 Definitions. Words used in the singular number shall
include the plural number; words used in the plural number shall
include the singular number. The use of pronouns or other terms
referring to the male gender shall include the female and/or neuter
gender, and use of pronouns or other terms referring to the female
gender shall include the male gender. Reference to any person or
gender shall include the male gender. Reference to any person or
entity herein is presumed by any designation of such person or entity.
The word "person" includes a firm, association, partnership, joint
venture, corporation, trust or equivalent entity or a combination of
them as well as a natural person.
21.4 Benefit. This Lease shall inure to the benefit of and be
binding upon the Lessor, its or their personal representatives, heirs
and assigns, and the Lessee, its successors and assigns.
21.5 Notice. Any notice, reports or statements required to be
given hereunder shall be sufficiently given if sent by certified
United States mail, return receipt requested, to the parties, at their
addresses set forth on page one. The notice shall be effective when
deposited in such mail.
21.6 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto and may be amended or terminated
only by a writing signed by each party unless otherwise set forth
herein.
21.8 Michigan Law. This Agreement shall be governed by and
construed according to the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year above provided.
ZELENKA NURSERY, INC.
/s/ Paul Zelenka
Paul Zelenka
Vice President
NAPRO BIOTHERAPEUTICS, INC.
/s/ Sterling K. Ainsworth
Sterling K. Ainsworth
President and Chief Executive Officer
EXHIBIT 10.40
AGREEMENT FOR SALE AND PURCHASE OF NURSERY STOCK DATED MARCH 1. 1997
Exhibit 10.40
* Portions of this agreement marked "[TEXT REDACTED]*" indicate
portions that have been omitted from this agreement and filed
separately with the Commission pursuant to a Confidential Treatment
Request.
AGREEMENT FOR SALE AND PURCHASE
OF NURSERY STOCK
This Agreement is made as of this 1st day of March, 1997 and is
between Zelenka Nursery, Inc. of 16127 Winans, Grand Haven, MI 49417
("Zelenka") and NaPro BioTherapeutics, Inc. of 6304 Spine Road, Unit
A, Boulder, CO 80301 ("NaPro") with respect to the sale and purchase
of certain Taxus Media Hicksii trees currently owned by Zelenka.
STATEMENT OF BACKGROUND INFORMATION
A. Zelenka owns certain [TEXT REDACTED]* Taxus Media Hicksii
trees and certain [TEXT REDACTED]* Taxus Media Hicksii trees which are
currently growing in liners on real estate owned or controlled by
Zelenka.
B. NaPro desires to purchase from Zelenka and Zelenka desires to
sell to NaPro approximately [TEXT REDACTED]* trees and approximately
[TEXT REDACTED]* trees.
C. NaPro desires to have Zelenka transplant, care for, and
harvest the trees purchased by NaPro hereunder and the parties will
enter into a separate Culture Agreement, in the form attached hereto,
pursuant to which Zelenka will transplant, care for, harvest, and
store the trees ("Culture Agreement").
D. NaPro has agreed to lease from Zelenka certain real property
on which the trees purchased hereunder will be transplanted and grown,
and the parties will enter into a separate Lease in the form attached
hereto.
E. The parties desire to set forth the terms of their agreements
in this writing.
STATEMENT OF AGREEMENT
For their mutual convenience and protection, and in consideration
of the mutual covenants and benefits contained in this Agreement, the
parties agree as follows:
SECTION ONE: SALE AND PURCHASE OF TREES
1.1 General Agreement. Zelenka hereby agrees to sell to NaPro
and NaPro agrees to purchase from Zelenka approximately [TEXT
REDACTED]* trees (age as of the date hereof) and approximately [TEXT
REDACTED]* trees (age as of the date hereof) on the terms set forth in
this Agreement. Such Trees are currently growing in liners on real
estate owned or controlled by Zelenka.
1.2 Price and Terms of Sale. NaPro shall pay [TEXT REDACTED]*.
The total purchase price (less the Earnest Money described below in
paragraph 1.3) shall be calculated after the exact number of Trees has
been identified under paragraph 1.5, and such sum shall be paid to
Zelenka by NaPro in certified funds at the closing.
1.3 Earnest Money and Execution of Documents. Upon the parties'
execution of this Agreement, NaPro shall deposit with Zelenka the sum
of One Hundred Thousand Dollars ($100,000.00) to be held by Zelenka as
earnest money ("Earnest Money") to apply on the purchase price of the
Trees hereunder. If Zelenka defaults on any of its obligations under
this Agreement, NaPro shall be entitled to select one of the following
options: (i) request a return of the Earnest Money, in which case :
the Earnest Money shall be promptly refunded to NaPro by Zelenka, this
Agreement shall be of no further effect, and neither party shall owe
any liability or obligation to the other in connection with this
Agreement, or (ii) pursue any of NaPro's legal and/or equitable
remedies (including but not limited to specific performance) against
Zelenka. If NaPro defaults on any of its obligations under this
Agreement, Zelenka shall be entitled to select one of the following
options: (i) retain the Earnest Money, in which case the Earnest Money
shall be forfeited to Zelenka as liquidated damages, this Agreement
shall be of no further effect, and neither party shall owe any
liability or obligation to the other in connection with this
Agreement, or (ii) pursue any of Zelenka's legal and/or equitable
remedies (including but not limited to specific performance) against
NaPro. The Earnest Money shall be credited against the purchase price
for the Trees at the closing. Upon the parties' execution of this
Agreement, the parties shall also execute and deliver to each other
the Culture Agreement attached hereto as Exhibit 1.3A and the Lease
attached hereto as Exhibit 1.3B.
1.4 Matters Beyond Zelenka's Control. If, for any reason beyond
its reasonable control (including without limitation, acts of God,
acts of government, accident, fire, flood, natural disaster,
weather-related causes, or failure of Comerica Bank to release all of
the Trees from its collateral security interest) Zelenka is, or will
be, unable to perform all of its obligations at closing hereunder,
then Zelenka and NaPro shall each be entitled, by a written notice to
the other, to terminate this Agreement, the Culture Agreement, and the
Lease. In such event, Zelenka shall return the Earnest Money to
NaPro, return to NaPro any sums (except sums for goods or services
rendered which inure to the benefit of NaPro notwithstanding the
termination of this Agreement) received by Zelenka under the Culture
Agreement or the Lease, and neither party shall have any continuing
obligation to the other under this Agreement, the Culture Agreement,
or the Lease.
1.5 Selection and Number of Trees. Zelenka shall be entitled to
select, at or before the closing, from its total inventory of [TEXT
REDACTED]* Taxus Media Hicksii Trees, those specific [TEXT REDACTED]*
Trees which will be sold to NaPro under the terms of this Agreement.
The only specifications applicable to such selection shall be the
following: (1) Zelenka shall select approximately [TEXT REDACTED]*
Trees and approximately [TEXT REDACTED]* Trees, and (2) all such Trees
shall be alive at the time of the closing. Zelenka shall not be
entitled to select, and NaPro shall not be obligated to purchase, any
number of [TEXT REDACTED]* Trees which is more than five percent (5%)
greater or less than [TEXT REDACTED]*, nor any number of [TEXT
REDACTED]* Trees which is greater or less than five percent (5%) of
[TEXT REDACTED]*.
1.6 Closing. This sale shall be closed within 21 days after the
transplanting of the six year old trees under the Culture Agreement on
a date agreed upon by Zelenka and NaPro, which date shall be no later
than June 30, 1997. If the parties are unable to agree on a date or
location for the closing, the closing shall be held on June 30, 1997
at the offices of Zelenka Nursery at the address of Zelenka Nursery as
set forth on page 1. Zelenka shall deliver to NaPro at the closing a
warranty bill of sale which shall identify the specific Trees sold
pursuant to this Agreement, the number of trees transferred, and the
location of the transferred Trees as of the closing.
1.7 Title and Risk of Loss. Title to the Trees and risk of loss
shall pass to NaPro at the closing.
SECTION TWO: GENERAL TERMS
2.1 Arbitration. Any disagreements or dispute between the
parties shall be resolved exclusively by arbitration which shall be
binding upon both of the parties. The arbitration shall be conducted
by a panel of three (3) arbitrators under the rules of the American
Arbitration Association. One (1) arbitrator shall be selected by
Zelenka, one (1) by NaPro, and one (1) by the two (2) selected
arbitrators. Any arbitration shall be conducted in Grand Haven,
Michigan and the arbitrators shall apply Michigan law. Unless
otherwise allocated or assessed by the arbitrators, the parties shall
share equally the fees and expenses of the arbitrators.
2.2 Warranties. Except as expressly set forth in paragraph 6.3
of the Culture Agreement, Zelenka offers no representations or
warranties regarding any Trees purchased hereunder. Without limiting
the generality of the foregoing, Zelenka offers no representations or
warranties to NaPro regarding: (1) the quality or suitability of any
Trees purchased hereunder or the cuttings thereof for any purpose
whatsoever, or (2) the Trees' merchantability or their fitness for any
particular purpose.
SECTION THREE: MISCELLANEOUS
3.1 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs, and personal representatives.
Neither party shall assign any of its rights, privileges, or
obligations under this Agreement without the written consent of the
other party, which shall not be unreasonably withheld.
3.2 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand or mailed certified or
registered mail, return receipt requested with postage prepaid, to the
parties at their addresses on page one of this Agreement. Any party
may change its address by providing notice under this paragraph 4.2 to
all of the other parties.
3.3 Headings. The headings of sections herein and in the
exhibits referred to herein are for convenience only and shall not
control of effect any meaning or interpretation of any provision of
this Agreement.
3.4 Entire Agreement; Modifications. This Agreement contains
the entire agreement among the parties hereto with respect to the
transactions contemplated hereby. This Agreement may be modified only
by a written agreement signed by all of the parties hereto.
3.5 Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one (1) and the same instrument.
3.6 Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Michigan.
3.7 Severability. In the event that any of the provisions of
this Agreement shall be held to be invalid or unenforceable, the same
shall not affect the validity or enforceability of any other
provisions of this Agreement, unless such validity or unenforceability
shall materially affect and frustrate the intentions of the parties.
3.8 Time is of the Essence. All of the parties hereto agree and
acknowledge that time is of the essence in connection with this
Agreement.
3.9 No Waiver. No waiver of any rights of any party hereunder
shall be effective against such party unless set forth in writing and
signed by such party. Further, no waiver of any right hereunder shall
be construed to be a waiver of such right or any other right hereunder
or in the future.
ZELENKA NURSERY, INC.
/s/ Paul Zelenka
Paul Zelenka
Vice President
NAPRO BIOTHERAPEUTICS, INC.
/s/ Sterling K. Ainsworth
Sterling K. Ainsworth
President and Chief Executive Officer
