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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 22, 1999
NAPRO BIOTHERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-243201 84-1187753
(State or other jurisdiction of (Commission (I.R.S. Employer
Incorporation or Organization) File Number) Identification No.)
6304 Spine Road, Unit A
Boulder, Colorado 80301
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 530-3891
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1
<PAGE>
Item 5. Other Events.
As previously reported, on January 28, March 20 and March 31, 1998, and
on January 7, 1999, the Company entered into definitive agreements with the
holder of its Series C Senior Convertible Preferred Stock (the "Preferred
Stock") relating to modification of certain terms of the Preferred Stock.
On June 22, 1999, the Company entered into an additional letter
agreement with the holder of the Preferred Stock modifying further such terms.
The June 22, 1999, letter agreement has been filed as an exhibit to this Report
and is incorporated herein by this reference. This Report is qualified in its
entirety by reference to such exhibit.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit Description
4.1 Letter Agreement dated as of June 22, 1999, by and
between the Registrant and Advantage Fund II, Ltd.
99.1 Press Release
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NAPRO BIOTHERAPEUTICS, INC.
By: /s/ Gordon H. Link, Jr.
Gordon H. Link, Jr.
Chief Financial Officer
Date: June 22, 1999
2
<PAGE>
Exhibit 4.1
June 22, 1999
To the Holder of the Series C Senior Convertible Preferred Stock of NaPro
BioTherapeutics, Inc.
Gentlemen:
Reference is made to (i) the Subscription Agreement (the "Subscription
Agreement") dated as of December 8, 1997, by and between NaPro BioTherapeutics,
Inc., a Delaware corporation (the "Company" or the "Corporation"), and Advantage
Fund II Ltd. (the "Holder"); (ii) the Certificate of Designations of Series C
Senior Convertible Preferred Stock (the "Certificate"); and (iii) warrants to
purchase 175,000 shares of common stock of the Company issued to the Holder (the
"Warrants"). Further reference is made to the following agreements by and
between the Company and the Holder: (1) the Amendment Agreement dated January
28, 1998; (2) the Letter Agreement dated March 31, 1998; (3) the Letter
Agreement dated January 7, 1999; (4) the Letter Agreement dated March 24, 1999;
and (5) the Letter Agreement dated May 14, 1999 (collectively, the "Prior
Agreements"). Capitalized terms used herein and not defined shall have the
meanings assigned to them in the Subscription Agreement and the Certificate.
The Prior Agreements amended and/or supplemented the Subscription
Agreement and the Warrants, provided that the Certificate shall have been deemed
to be amended in certain respects as between the Holder and the Company, and
provided for certain other agreements between the Holder and the Company. This
letter (this "Agreement") is intended to amend and restate the Prior Agreements.
Accordingly, effective as of the date hereof, the Holder and the Company hereby
agree to amend and restate the Prior Agreements in their entirety as follows:
1. The Company hereby agrees that the Holder may exchange shares of
Series C Preferred Stock for shares of Common Stock in lieu of converting such
shares in accordance with the Certificate, and the Holder hereby agrees that it
will not convert any shares in accordance with the Certificate so long as the
Company is in compliance in all material respects with its obligations to the
holders of the shares of Series C Preferred Stock, including, without
limitation, the obligations of the Company under the Transaction Documents and
this Agreement. The terms and conditions pursuant to which shares of Series C
Preferred Stock may be exchanged for shares of Common Stock shall in all
respects be identical to the terms pursuant to which such shares may be
converted under the Certificate and the provisions of Section 10 of the
Certificate are hereby incorporated herein by this reference as if set forth in
full herein, except as set forth in this Agreement. Each reference in the
Certificate to "conversion" or "convert" or other forms of such words (including
in the definitions contained therein) shall be deemed to be a reference to
"exchange" or the appropriate form of such word. The Company shall treat any
request for conversion of Series C Preferred Stock submitted by a Holder in
accordance with the terms and conditions of the Certificate as a request for
exchange in accordance with the terms and conditions hereof. Any notice of
exchange of shares of Series C
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 2
Preferred Stock by a Holder pursuant hereto shall be in the form of the
Conversion Notice included in the Certificate.
2. Section 10 of the Certificate shall be deemed to have been amended
to add a new Section 10(c), which shall read as follows:
(c) Limitation on Conversions from June 1, 1999 through August
16, 1999. (i) Notwithstanding any other provision herein, the holders
of shares of Series C Preferred Stock shall not be entitled to convert
shares of Series C Preferred Stock to the extent that the proposed
conversion would result in the aggregate number of shares of Common
Stock issued hereunder by the Corporation by reason of such conversions
to exceed (A) 300,000 shares of Common Stock during the period from
June 1, 1999 through June 30, 1999; (B) 600,000 shares of Common Stock
during the period from June 1, 1999 through July 31, 1999 or (C)
900,000 shares of Common Stock during the period from June 1, 1999
through August 16, 1999.
(ii) The provisions contained in this Section 10(c) shall be
of no further force and effect if (A) the Corporation is acquired by
another person by means of any merger, consolidation, sale of all or
substantially all assets of the Corporation, share exchange or other
business combination (each, a "Transaction"), (B) the Corporation
enters into any Transaction where the stockholders of the Corporation
immediately prior to such Transaction do not collectively own at least
51% of the outstanding voting securities of the surviving corporation
of such Transaction immediately following such Transaction, (C) the
Corporation enters into any agreement for any Transaction, (D) a Tender
Offer is consummated for at least 51% of the outstanding shares of
Common Stock or (E) the Corporation fails to comply in any material
respect with its obligations to any holder of shares of Series C
Preferred Stock, including, without limitation, its obligations arising
under or in connection with this Certificate of Designations, the
Subscription Agreement, the Transfer Agent Instruction, the Warrants
(as defined in the Subscription Agreement) and of the letter agreement,
dated June 22, 1999, by and between the Corporation and Advantage Fund
II Ltd.
3. Section 10 of the Certificate shall be deemed to have been amended
to add a new Section 10(d), which shall read as follows:
(d) Suspension of Conversions. Notwithstanding any other
provision herein, the Company shall have the right on one occasion only
to give a Suspension Notice to the holders of the Series C Preferred
Stock. The Suspension Notice may be given at any time on any Trading
Day, except that a Suspension Notice given before 2:00 p.m. (Pacific
time) on a Trading Day shall be deemed to have been given
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 3
at 2:00 p.m. (Pacific time) on such day. The holders of the Series C
Preferred Stock shall not be entitled to give a Conversion Notice in
accordance with Section 10(b) to convert into Common Stock any shares
of Series C Preferred Stock on the day the Suspension Notice is given
or during the five calendar days immediately following the day on which
the Suspension Notice is given to such holders, provided that any
Conversion Notices given prior to the time the Suspension Notice is
given or is deemed given shall not be subject to this Section 10(d).
4. Section 14 of the Certificate shall be deemed to have been amended
to add a new Section 14(j), which shall read as follows:
(j) Form of Suspension Notice.
SUSPENSION NOTICE
(Section 10(d) of Certificate of Designations of
Series C Senior Convertible Preferred Stock)
TO:
(Name of Holder)
(1) Pursuant to Section 10(d) of the Certificate of Designations of the
Series C Senior Convertible Preferred Stock of NaPro BioTherapeutics, Inc., a
Delaware corporation (the "Corporation"), the Corporation hereby notifies you
that no Conversion Notices may be given under Section 10(b) of the Certificate
of Designations during the period commencing upon the later of (i) 2:00
p.m.(Pacific time), if this Suspension Notice is received by you prior to 2:00
p.m. (Pacific time), or (ii) the time of your receipt of this Suspension Notice,
if this Suspension Notice is received by you on or after 2: 00 p.m. (Pacific
time), and continuing through and including the fifth calendar day after this
Suspension Notice is given.
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 4
(2) Capitalized terms used herein and not otherwise defined herein have
the respective meanings provided in the Certificate of Designations.
Date _______________________ NAPRO BIOTHERAPEUTICS, INC.
By:___________________________
Title:
5. The Company and the Holder agree that they will not enforce their
rights under the first two sentences of Section 9(a)(1) of the Certificate and
will instead have the rights and obligations set forth below as if the first two
sentences of Section 9(a)(1) of the Certificate had been amended to read as
follows:
(1) So long as (w) the Corporation shall be in compliance in
all material respects with its obligations to the holders of the Series
C Preferred Stock (including its obligations under the Subscription
Agreement and the provisions of this Certificate of Designations), (x)
the Registration Statement shall be effective on the date the
Corporation gives any such Redemption Notice and on the applicable
Redemption Date, (y) on the date the Corporation gives such Redemption
Notice and on the applicable Redemption Date no Optional Redemption
Event shall have occurred with respect to which any holder of shares of
Series C Preferred Stock shall be entitled at such time to exercise
optional redemption rights under Section 11 or the Corporation shall
have failed to pay the Optional Redemption Price of any shares of
Series C Preferred Stock as to which any holder has exercised such
optional redemption rights and (z) on the date the Corporation gives
such Redemption Notice and on the applicable Redemption Date, the
Corporation has Cash and Cash Equivalent Balances (excluding investment
securities) that are sufficient, after taking into account the
Corporation's cash requirements during the period from the date such
Redemption Notice is given to the Redemption Date, to pay the
Redemption Price of the shares of Series C Preferred Stock to be
redeemed, the Corporation shall have the right to redeem all or from
time to time any part (as specified in the applicable Redemption
Notice) of the outstanding shares of Series C Preferred Stock pursuant
to this Section 9(a)(1) up to the Redemption Amount (or such lesser
number of shares of Series C Preferred Stock as shall be outstanding at
such time) at the Redemption Price. In order to exercise its right of
redemption under this Section 9(a), the Corporation may give a
Redemption Notice to the holders of shares of
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 5
Series C Preferred Stock at any time on any Trading Day, except that a
Redemption Notice given before 2:00 p.m. (Pacific time) on any day
shall be deemed to have been given at 2:0 p.m. (Pacific time) on such
day. Any such redemption pursuant to this Section 9(a)(1) shall
otherwise be made in accordance with paragraphs (2), (3) and (4) of
this Section 9(a).
6. The Company and the Holder agree that they will not enforce their
rights contained in Section 9(a)(2) of the Certificate and will instead have the
rights and obligations set forth below as if Section 9(a)(2) of the Certificate
had been amended to read as follows:
(2) The Corporation shall not be entitled to give a Redemption
Notice or to redeem any shares of Series C Preferred Stock with respect
to which a holder has given a Conversion Notice. If the Corporation
gives a Redemption Notice in accordance with this Section 9(a), the
holders of shares of Series C Preferred Stock shall not be entitled to
convert in accordance with Section 10 the shares of Series C Preferred
Stock that are to be redeemed in accordance with such Redemption
Notice; provided, however, that if the Corporation defaults in payment
when due of the Redemption Price for such redemption, the holders shall
thereafter be entitled to convert any or all shares of Series C
Preferred Stock from time to time.
7. The Company and the Holder agree that they shall have the rights and
obligations set forth below as if Section 7 of the Certificate had been amended
to add a new Section 7(a)(8), which shall read as follows:
(8) If at any time the Company or the holder of shares of
Series C Preferred Stock becomes aware of any facts that would cause
any outstanding shares of Series C Preferred Stock to be inconvertible,
other than a Maximum Share Amount Inconvertibility or a Registration
Restriction Inconvertibility, the Company shall promptly and such
holder may give written notice of such facts to the other person.
Within ten Business Days after receipt of such notice by the receiving
person, if such inconvertibility exists, such holder shall have the
right by a Redemption Election given to the Corporation to direct the
Corporation to redeem the portion of such holder's outstanding shares
of Series C Preferred Stock (which, if applicable, shall be all of such
holder's outstanding shares of Series C Preferred Stock) as shall not,
on the Business Day prior to the date of such redemption, be
convertible into shares of Common Stock by reason other than a Maximum
Share Amount Inconvertibility or Registration Restriction
Inconvertibility, at a price per share equal to the Share Limitation
Redemption Price. Such Share Limitation Redemption Price shall be
payable by the Company in four equal installments on the
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 6
day which is five Business Days after the date such Redemption Election
is given and on each of the 30th, 60th and 90th Business Days after
such fifth Business Day, and such shares of Series C Preferred Stock
held by such holder shall be redeemed in four equal installments as and
when such payments are made. Each share of Series C Preferred Stock
subject to redemption shall remain outstanding until redeemed. This
Section 7(a)(8) shall be subject to the provisions of Sections
7(a)(2)(B), 7(a)(3), 7(a)(4), 7(a)(5) and 7(a)(7). If at any time
subsequent to a determination pursuant to this Section 7(a)(8) of the
number of inconvertible shares of Series C Preferred Stock any such
inconvertibility shall occur with respect to additional shares of
Series C Preferred Stock held by such holder, the provisions of this
Section 7(a)(8) shall be applicable successively to each instance of
such inconvertibility.
8. In order to give effect to the exchange and redemption rights
provided in this Agreement, the following definitions shall be deemed to be
added to Section 1(b) of the Certificate in the appropriate alphabetical order:
"Announcement Date" means the date on which the Corporation
issues a public announcement by the issuance of a press release or by
the filing of Current Report on Form 8-K with the SEC, in either case
announcing that it has reached agreement with a strategic partner for
the marketing and development of paclitaxel in the United States or
that it is not or is no longer engaged in negotiations with a strategic
partner for such an agreement.
"Closing Bid Price" on any Trading Day means the closing bid
price for one share of Common Stock on such date on the first
applicable among the following: (a) the national securities exchange on
which the shares of Common Stock are listed if such exchange
constitutes the principal securities market for the Common Stock or (b)
Nasdaq, in either such case as reported by Bloomberg, L.P.
"New Cap Date" means the earlier of (i) August 16, 1999 or
(ii) the date that is 30 calendar days after the Announcement Date.
"Redemption Amount" means a number of shares of Series C
Preferred Stock equal to 2,000 less the aggregate number of shares of
Series C Preferred Stock that have been redeemed or called for
redemption prior to the date the Company gives the Redemption Notice to
redeem shares of Series C Preferred Stock pursuant to Section 9(a)(1)
(together with accrued and unpaid dividends and Arrearage Interest, if
any, on the shares of Series C Preferred Stock included in the
Redemption Amount to the date of determination).
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 7
"Suspension Notice" means a Suspension Notice substantially in
the form set forth in Section 14(j).
9. In order to give effect to the exchange and redemption rights
provided in this Agreement, the following definitions in Section 1(b) of the
Certificate shall be deemed to be amended and restated to read in their entirety
as follows:
"Conversion Price" for any Conversion Date means 95% of the
lowest Two- Day Average Trading Price during the Measurement Period for
the applicable Conversion Date; provided, however, that (a) prior to
the New Cap Date, the Conversion Price shall not be greater than
$1.9559 and (b) on and after the New Cap Date, the Conversion Price
shall not be greater than the lowest of (i) $1.9559, (ii) the
arithmetic average of the Closing Bid Prices for the 20 consecutive
Trading Days ending one Trading Day prior to the New Cap Date and (iii)
on or after the day following the 20th Trading Day after the New Cap
Date, the arithmetic average of the Closing Bid Prices for the 20
consecutive Trading Days immediately following the New Cap Date
(subject, in the case of the amounts determined in accordance with this
proviso, to equitable adjustments from time to time on terms reasonably
acceptable to the Corporation and the Majority Holders for (1) stock
splits, (2) stock dividends, (3) combinations, (4) capital
reorganizations, (5) issuance to all holders of Common Stock rights or
warrants to purchase shares of Common Stock, (6) the distribution by
the Corporation to all holders of Common Stock of evidences of
indebtedness of the Corporation or cash (other than regular quarterly
cash dividends), (7) Tender Offers by the Corporation or any Subsidiary
for, or other repurchases of shares of, Common Stock in one or more
transactions which, individually or in the aggregate, result in the
purchase of more than ten percent of the Common Stock outstanding and
(8) similar events relating to the Common Stock, in each such case
which occur, or with respect to which "ex-" trading of the Common Stock
begins on or before the applicable Conversion Date, in each case on a
basis consistent with the adjustments set forth in the definition of
Trading Price); and provided further, however, that if an Adjustment
Event occurs, then the Conversion Price in effect on any date after
such Adjustment Event occurs (and whether or not such Adjustment Event
continues) shall be adjusted to each date on which the Conversion Price
is being determined as follows: (x) in the case of the Conversion Price
provided in the main clause of this definition, the percentage used in
computing such Conversion Price shall be reduced at the rate of 2.5
percentage points for each 30 days that such Adjustment Event continues
(pro rated for any period of less than 30 days) and (y) in the case of
the Conversion Price provided in the first proviso to this definition,
the
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 8
Conversion Price determined in accordance therewith shall be reduced at
the rate of 2.5% of such Conversion Price (computed on the basis of the
amount such Conversion Price would otherwise be without regard to any
adjustment therein pursuant to this clause (y)) for each 30 days that
such Adjustment Event continues (pro rated for any period of less than
30 days).
"Redemption Date" means the date that is five Business Days
after the date the Corporation gives a Redemption Notice to redeem
shares of Series C Preferred Stock pursuant to Section 9(a)(1).
"Redemption Price" means an amount in cash equal to the sum of
(a) the product obtained by multiplying (i) the sum of (A) $1,000 plus
(B) an amount equal to the accrued but unpaid dividends on the share of
Series C Preferred Stock to be redeemed to the date of payment of the
Redemption Price times (ii) 140% plus (b) an amount equal to accrued
and unpaid Arrearage Interest on dividends in arrears on such share of
Series C Preferred Stock (determined in accordance with Section 5(a))
to the Redemption Date.
10. The definition of "Purchase Price" in the Warrants is amended by
deleting "$10.00" (as provided before amendment thereof in the Prior Agreements)
and replacing it with "$2.00."
11. So long as the Company is in compliance in all material respects
with its obligations to the Holder, the Holder shall cooperate with the Company,
to the extent reasonable and practicable, in effecting resales of shares of
Common Stock acquired upon conversion or exchange of such Holder's shares of
Series C Preferred Stock in block sales to institutional investors identified to
the Holder from time to time by the Company; provided, however, that nothing
herein shall require the Holder to sell any such shares of Common Stock other
than at such time, in such amounts, at such price and on such terms as
determined by such Holder in its sole discretion.
12. Prior to transferring any shares of Series C Preferred Stock, the
Holder shall provide the transferee with a copy of this Agreement and such
transferee shall agree in writing to be bound by the terms hereof. The Company
agrees to be bound by the terms of this Agreement for the benefit of each such
transferee.
13. The Holder represents and warrants to the Company that it has all
requisite power and authority, corporate or otherwise, to execute, deliver and
perform its obligations under this Agreement and the Transaction Documents and
to consummate the transactions contemplated hereby; and this Agreement has been
duly authorized, executed and delivered on behalf of the Holder and, assuming
due execution and delivery by the Company, is a valid and binding agreement of
the
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 9
Holder enforceable in accordance with its terms, except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and general principles of equity, regardless of
whether enforcement is considered in a proceeding in equity or at law.
14. The Company represents and warrants to, and covenants and agrees
with, the Holder that:
(a) This Agreement has been duly and validly authorized, executed and
delivered by the Company and, when duly executed and delivered by the Holder,
will be the legal, valid and binding obligation of the Company enforceable in
accordance with its terms; and this Agreement and the terms of the shares of
Series C Preferred Stock, as deemed amended by this Agreement, constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms.
(b) The execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated by this Agreement
and the performance by the Company of its obligations under the terms of this
Agreement and the shares of Series C Preferred Stock, as deemed amended hereby,
do not and will not, with or without the giving of notice or the passage of
time, or both, (i) result in any violation of any term of the certificate of
incorporation or by-laws of the Company, (ii) conflict with or result in a
breach by the Company of any of the terms or provisions of, or constitute a
default under, or result in the modification of, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company pursuant to, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties or assets are bound or affected which
conflict, breach, default, modification, lien, security interest, charge or
encumbrance would have a material adverse effect on the business, properties,
operations, condition (financial or other) or results of operations of the
Company and its subsidiaries, taken as a whole, or the transactions contemplated
by this Agreement or the authority or ability of the Company to perform its
obligations under this Agreement or the terms of the shares of Series C
Preferred Stock, as deemed amended hereby, or (iii) violate or contravene any
applicable law, rule or regulation or any applicable decree, judgment or order
of any court, United States federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties or assets, which
violation or contravention would have a material adverse effect on the business,
properties, operations, condition (financial or other) or results of operations
of the Company and its subsidiaries, taken as a whole, or the transactions
contemplated by this Agreement or the authority or ability of the Company to
perform its obligations under the terms of the Series C Preferred Stock, as
deemed amended hereby.
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 10
(c) No authorization, approval or consent of, or filing with, any
court, governmental body, regulatory agency, self-regulatory organization, or
stock exchange or market or the stockholders of the Company is required to be
obtained or made by the Company in connection with the execution, delivery and
performance by the Company of this Agreement or the performance by the Company
of its obligations under the terms of the Series C Preferred Stock, as deemed
amended hereby, the Warrants or the other Transaction Documents.
(d) There is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body presently pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its subsidiaries wherein an unfavorable decision, ruling or finding could have a
material adverse effect on the transactions contemplated by this Agreement or
that could adversely affect the validity or enforceability of, or the authority
or ability of the Company to perform its obligations under this Agreement or the
terms of the Series C Preferred Stock, as deemed amended hereby, the Warrants or
the other Transaction Documents.
(e) The Common Stock is listed for trading on Nasdaq and (i) the
Company and the Common Stock meet the criteria for continued listing and trading
on Nasdaq, (ii) the Company has not been notified since January 1, 1995 by The
Nasdaq Stock Market, Inc. of any failure or potential failure to meet the
criteria for continued listing and trading on Nasdaq and (iii) no suspension of
trading in the Common Stock is in effect. The Company knows of no reason why the
shares of Common Stock issuable upon conversion of the Series C Preferred Stock
will not be eligible for listing on Nasdaq.
(f) The shares of Common Stock issuable upon conversion or exchange of
the shares of Series C Preferred Stock have been duly authorized and, upon
issuance upon conversion or exchange of the shares of Series C Preferred Stock,
will be validly issued and fully paid and non-assessable. The Company has a
sufficient number of authorized but unissued shares of Common Stock that are not
otherwise reserved for issuance (together with related Preferred Stock Purchase
Rights) to permit the conversion or exchange of all Preferred Shares outstanding
on June 21, 1999, at the Conversion Price in effect on such date, and the
Company shall maintain a sufficient number of authorized shares but unissued
shares of Common Stock that are not otherwise reserved for issuance to permit
the conversion or exchange of all Preferred Shares outstanding from time to time
in the future. The Company has duly reserved 175,000 shares of Common Stock for
issuance as the Warrant Shares, and such shares shall remain so reserved
(subject to reduction from time to time for shares of Common Stock issued upon
exercise of the Warrants), and the Company shall from time to time reserve such
additional shares of Common Stock as shall be required to be reserved pursuant
to the Warrants, so long as the Warrants are exercisable.
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 11
15. The Company warrants that no instruction other than the Transfer
Agent Instruction will be given by the Company to the Transfer Agent and that
the Common Stock shall otherwise be freely transferable on the books and records
of the Company as and to the extent provided in this Agreement and the
Subscription Agreement. Nothing in this Section 14 shall limit in any way the
Holder's obligations and agreement to comply with the registration requirements
of all applicable securities laws upon any resale of Common Stock by the Holder.
If the Holder provides the Company with an opinion of counsel reasonably
satisfactory in form, scope and substance to the Company that registration of a
resale by the Holder of any of the Common Stock is not required under the 1933
Act, the Company shall permit the transfer of such Common Stock and promptly
instruct the Company's transfer agent to issue upon transfer no later than three
days after receipt of such opinion one or more share certificates in such name
and in such denominations as specified by the Holder.
16. Within one Business Day after the date hereof, the Company shall
file a Current Report on Form 8-K with the SEC describing the terms of this
Agreement (the "Form 8-K"). This Agreement, when executed and delivered by the
parties, constitutes a notice pursuant to Section 8(b)(5) of the Subscription
Agreement and accordingly the Holder agrees that it will not sell any securities
pursuant to the Prospectus until the Company has filed the Form 8-K. The Company
represents and warrants to the Holder that once the Company files the Form 8-K,
the Registration Statement and the Prospectus contained therein will be
available for use by the Holder and any other selling shareholder named therein
for resale of their Conversion Shares and Warrant Shares in accordance with the
Subscription Agreement.
17. Except as specifically amended or deemed amended hereby, the
Subscription Agreement and the terms of the shares of Series C Preferred Stock
shall remain in full force and effect and the Company hereby confirms to the
Holder that the Subscription Agreement and the terms of the shares of Series C
Preferred Stock, as deemed amended by this Agreement, remain binding obligations
of the Company that are not at the time of execution and delivery of this
Agreement subject to any defense, offset, counterclaim or other claim by the
Company of invalidity or unenforceability.
<PAGE>
Holder of the Series C Convertible Preferred Stock of NaPro BioTherapeutics,
Inc.
June 22, 1999
Page 12
If the foregoing correctly sets forth our agreement, please so indicate
by signing the appropriate line below, whereupon this letter shall constitute a
binding agreement between the Company and the Holder under the laws of the State
of New York.
Very truly yours,
NAPRO BIOTHERAPEUTICS, INC.
By: /s/ Gordon H. Link, Jr.
Name: Gordon H. Link, Jr.
Title: Chief Financial Officer
Agreed and accepted:
ADVANTAGE FUND II LTD.
By: /s/ W.R. Weber
By: /s/ Walter Reich
Name: InterCaribbean Services Limited
Title: Secretary
Exhibit 99.1
CONTACT:
NaPro BioTherapeutics, Inc. Burns McClellan, Inc.
Gordon Link Stephanie Diaz (investors)
VP and Chief Financial Officer (415) 352-6262
Tel: (303) 530-3891 Justin Jackson (media)
(212) 213-0006
For Immediate Release
NAPRO AMENDS TERMS OF CONVERTIBLE PREFERRED STOCK
Boulder Colo., June 23, 1999 - NaPro BioTherapeutics, Inc. (Nasdaq: NPRO) today
announced that it has reached agreement with the holder of its Series C
Convertible Preferred Stock to increase the permitted redemption up to $2.0
million face value of preferred shares at a price of 140% of face. In addition,
during the period from June 1, 1999 through August 15, 1999, the holder of the
Preferred Stock has agreed to limit the number of preferred shares exchanged for
NaPro Common Stock on a cumulative basis to that which would result in the
issuance of 300,000 shares of Common Stock per calendar month. In return for
these concessions, NaPro has reduced the exercise price of the 175,000 warrants
issued to the holder from $2.50 per share to $2.00 per share and has agreed to
provide for a recalculation of the maximum conversion price for the Preferred
Stock based upon the closing bid price of the Common Stock for the 20 trading
day periods before and after August 16, 1999. The face value of the outstanding
shares of the Series C Convertible Preferred Stock is $3,047,000 and the current
outstanding prinicipal balance of the Senior Convertible Notes is $1,940,000.
NaPro continues negotiations that may lead to the selection of one or more
marketing and development partners for its paclitaxel program. Although NaPro
may complete these negotiations soon, there can be no assurance that the
negotiations will lead to an agreement soon, if ever.
In commenting on the amendment of the agreements with the holder of NaPro's
Preferred Stock, Sterling K. Ainsworth, Ph.D., President and CEO of NaPro
BioTherapeutics, Inc. said, "This agreement with our preferred holder permits
NaPro to redeem a significant portion of these convertible securities if it is
in the best interest of the Company to do so. In addition, it provides some
limits on the number of new common shares entering the market while we continue
our ongoing negotiations with potential new partners."
NaPro, headquartered in Boulder, Colorado, is a biopharmaceutical company
focused on the development, production and licensing of complex natural-product
pharmaceuticals.
Except for the historical matters contained herein, statements in this press
release are forward looking and are made pursuant to the safe harbor provisions
of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements can be identified by the use of words such as "believes", "intends",
"may", "should", "anticipates", "expected" or comparable terminology or by
discussions of strategies or trends. Although NaPro believes that the
expectations reflected in such forward-looking statements are reasonable; it
cannot give any assurances that these expectations will prove to be correct.
Such statements by their nature involve substantial risks and uncertainties that
could significantly impact expected results. Actual future results could differ
materially from those described in such forward-looking statements, and NaPro
disclaims any intention or obligation to update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
Forward looking statements include the prospects for NaPro's redemption of the
Series C Preferred Stock and for success of NaPro's negotiations for one or more
new development and marketing partners. Among the factors that could affect
matters are all aspects of competition from Bristol-Myers Squibb Company and
other producers of paclitaxel and other drugs, delays with regulatory
authorities, limitations on the ability to market NaPro paclitaxel because of
the intellectual property rights of third parties, and other factors discussed
in NaPro's periodic and other filings with the Securities and Exchange
Commission.
