January 7, 1999
To the Holders of the Senior Convertible Notes of NaPro BioTherapeutics, Inc.
Gentlemen:
Reference is made to (i) the Note Purchase Agreements (as amended by
the January Amendment and the March Amendment (each as defined herein), the
"Purchase Agreements"), dated as of May 30, 1997, among NaPro BioTherapeutics,
Inc., a Delaware corporation (the "Company"), and the various Buyers parties
thereto, as amended to date, (ii) the Engagement Letter dated May 12, 1997
between the Company and ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital, LLC (the "Engagement
Agreement"); (iii) each of the Senior Convertible Notes of the Company, as
amended to date by the January Amendment and the March Amendment (each, a
"Note"); (iv) the Amendment Agreement dated January 28, 1998 by and among the
Company and the holders named therein (the "January Amendment"); and (v) the
Letter Agreement dated March 20, 1998 by and among the Company and such holders
(the "March Amendment"). Capitalized terms used in this letter agreement (this
"Agreement") and not defined shall have the meanings assigned to them in the
Purchase Agreements and the Notes.
The holders of the Notes who are parties hereto (the "Holders") agree
severally with the Company as follows:
A. The Holders of Convertible Promissory Note Nos. 1, 5 and 6,
registered in the names of Delta Opportunity Fund, Ltd., OTATO Limited
Partnership and ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Group, LLC, respectively, hereby agree that such
Notes shall be amended as follows:
1. The first two sentences of Section 1.2(a) of each such Note
are hereby amended and restated to read as follows:
(a) The following provisions shall apply to
redemptions pursuant to Optional Redemption Notices given
during the Initial Redemption Notice Period. The Company shall
have the right by an Optional Redemption Notice given during
the Initial Redemption Notice Period to redeem all, or from
time to time any part (as specified in the applicable Optional
Redemption Notice), of this Note pursuant to this Section
1.2(a) up to the Initial Redemption Amount (or such lesser
amount of this Note as shall be outstanding at such time) at
the Optional Redemption Price so long as (x) no Event of
Default or Repurchase Event has occurred and is continuing,
(y) the Company is in compliance in all material respects with
its obligations to the Holder (including, without limitation,
its obligations under the Note Purchase Agreement) and (z) the
Company has funds available to pay the Optional Redemption
Price when it gives the Optional Redemption Notice. Any such
redemption pursuant to this Section 1.2(a) shall otherwise be
made in accordance with paragraphs (b) and (c) of this Section
1.2, except that the Optional Redemption Notice for a
redemption pursuant to this Section 1.2(a)
4.1-1
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 2
may only be given on a date during the Initial Redemption
Notice Period. In order to exercise its right of redemption
under this Section 1.2, the Company shall give an Optional
Redemption Notice to the Holder stating that: (1) the Company
is exercising its right to redeem a specified portion of this
Note in accordance with this Section 1.2, (2) the principal
amount of this Note to be redeemed, (3) the Optional
Redemption Price and (4) the Optional Redemption Date.
2. The second sentence of Section 1.2(b) of each such Note is
hereby amended and restated to read as follows:
If the Company gives an Optional Redemption Notice pursuant to
this Section 1.2, the Holder shall not be entitled to convert
any portion of this Note for which a Conversion Notice has not
been given prior to the date the Company gives such Optional
Redemption Notice; provided, however, that if the Company
defaults in payment of the Optional Redemption Price, the
Holder shall thereafter be entitled to convert all or any
portion of this Note from time to time.
3. Section 1.2(c) of each such Note is hereby amended by
adding the following at the end thereof:
Notwithstanding the foregoing, the Company shall be permitted
to make the following redemptions or repurchases without
making a pro rata redemption of this Note or repurchase offer
to the Holder (except as otherwise specifically provided in
clauses (x) through (z) below):
(w) the Company may at any time on or prior
to March 31, 1999 redeem Convertible Promissory Note
No. 4 at a redemption price equal to the redemption
price for such Note in effect for such Note on
January 1, 1999;
(x) the Company may at any time on or prior
to March 31, 1999 repurchase Convertible Promissory
Note No. 4 at a repurchase price not in excess of an
amount equal to 125% of the sum of (i) the
outstanding principal amount thereof, plus (ii)
accrued interest thereon to the date of payment;
(y) the Company may at any time on or prior
to June 30, 1999 redeem the Other Notes that are
numbered 2 and 3 at a
4.1-2
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 3
redemption price equal to the redemption price in
effect (after giving effect to the 1999 Amendment
Agreement but no amendment of such Other Notes
subsequent to the 1999 Amendment Agreement) for a
redemption thereof pursuant to Section 1.2(a) thereof
on a basis that is not pro rata with a redemption of
this Note if (1) on or prior to the date on which the
Company proposes to redeem such Other Notes the
Company has redeemed or called for redemption the
entire Initial Redemption Amount or the entire Middle
Redemption Amount, as applicable at such time and (2)
the Company offers to purchase from the Holder an
amount of this Note such that, if such offer were
accepted in full by the Holder, this Note will be
redeemed or repurchased pro rata with such Other
Notes (based on the outstanding principal amounts of
this Note and such Other Notes and treating the
principal amount of this Note that is being redeemed
in connection with such redemption of such Other
Notes as part of such pro rata redemption and
repurchase of this Note) at a repurchase price
payable in cash that is equal to the Optional
Redemption Price that would be applicable if the
portion of this Note that the Company so offers to
repurchase were redeemable by the Company on the date
of such repurchase; and
(z) the Company may at any time after June
30, 1999 redeem the Other Notes that are numbered 2
and 3 at a redemption price equal to the redemption
price in effect (after giving effect to the 1999
Amendment Agreement but no amendment of such Other
Notes subsequent to the 1999 Amendment Agreement) for
a redemption thereof pursuant to Section 1.2(a)
thereof so long as the Company offers to purchase
from the Holder an amount of this Note that is pro
rata (based on the outstanding principal amounts of
this Note and the Other Notes) with the portion of
such Other Notes to be so redeemed at a repurchase
price payable in cash that is equal to the Optional
Redemption Price that would be applicable if the
portion of this Note that the Company so offers to
repurchase were redeemable by the Company on the date
of such repurchase.
4. Section 1.2 of each such Note is hereby amended by adding
an additional paragraph (d) to read as follows:
(d) The following provisions shall apply to
redemptions pursuant to Optional Redemption Notices given
during the Middle Redemption Notice
4.1-3
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 4
Period. The Company shall have the right by an Optional
Redemption Notice given during the Middle Redemption Notice
Period to redeem all, or from time to time any part (as
specified in the applicable Optional Redemption Notice), of
this Note pursuant to this Section 1.2(d) up to the Middle
Redemption Amount (or such lesser amount of this Note as shall
be outstanding at such time) at the Optional Redemption Price,
so long as (x) no Event of Default or Repurchase Event has
occurred and is continuing, (y) the Company is in compliance
in all material respects with its obligations to the Holder
(including, without limitation, its obligations under the Note
Purchase Agreement) and (z) the Company has funds available to
pay the Optional Redemption Price when it gives the Optional
Redemption Notice. Any such redemption pursuant to this
Section 1.2(d) shall otherwise be made in accordance with
paragraphs (a), (b) and (c) of this Section 1.2, except that
the Optional Redemption Notice for a redemption pursuant to
this Section 1.2(d) may only be given on a date during the
Middle Redemption Notice Period.
5. Section 1.2 of each such Note is hereby amended by adding
an additional paragraph (e) to read as follows:
(e) The following provisions shall apply to
redemptions pursuant to Optional Redemption Notices given
during the Final Redemption Notice Period. The Company shall
have the right by an Optional Redemption Notice given during
the Final Redemption Notice Period on one occasion only to
redeem all or any part (as specified in the applicable
Optional Redemption Notice) of this Note pursuant to this
Section 1.2(e) up to the Final Redemption Amount (or such
lesser amount of this Note as shall be outstanding at such
time) at the Optional Redemption Price, so long as (x) no
Event of Default or Repurchase Event has occurred and is
continuing, (y) the Company is in compliance in all material
respects with its obligations to the Holder (including,
without limitation, its obligations under the Note Purchase
Agreement) and (z) the Company has funds available to pay the
Optional Redemption Price when it gives the Optional
Redemption Notice. Any such redemption pursuant to this
Section 1.2(e) shall otherwise be made in accordance with
paragraphs (a), (b) and (c) of this Section 1.2, except that
the Optional Redemption Notice for a redemption pursuant to
this Section 1.2(e) may only be given on a date during the
Final Redemption Notice Period.
6. Section 2.6 of each such Note is hereby amended and
restated to read as follows:
4.1-4
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 5
(a) Subject to Sections 1.2(b) and 2.6(c), during the
period beginning on January 1, 1999 and ending on March 31,
1999, the Holder shall not be entitled to convert any portion
of this Note at a Conversion Price that is less than $4.00 if
such conversion would result in the aggregate number of shares
of Common Stock issued hereunder (whether through conversion
or in payment of interest or otherwise) at a Conversion Price
(or Computed Price, in the case of Payment Shares) of less
than $4.00 during the calendar month of the proposed
conversion for which the determination under this paragraph
(a) is being made exceeding the Monthly Allotment; provided,
however, that notwithstanding the foregoing or any
inconsistent provisions of Section 2.1, NP Partners (f/k/a
▇▇▇▇▇▇ Partners) and Olympus Securities Ltd. (but not any
transferee of their interests in the Notes), taken together,
and Delta Opportunity Fund, Ltd. and OTATO L.P. (but not any
transferee of their interests in the Notes), taken together,
shall each have the right at any time to convert from and
after January 28, 1998, an aggregate principal amount of and
interest on the Notes equal to $236,250 at a Conversion Price
of $1.575, which right and conversions shall not be included
in determining compliance with the Monthly Allotment
restriction referred to above.
(b) "Monthly Allotment" shall mean, with respect to
this Note and the Other Notes, a number of shares of Common
Stock equal to the number set forth below opposite the number
of this Note and each Other Note:
Note No. Monthly Allotment
1 110,272
2 65,740
3 65,706
4 42,682
5 7,174
6 8,427
; provided, however, that from and after the date of
redemption or repurchase, if any, of Note No. 4, the amount of
the Monthly Allotment for all of this Note and the Other Notes
that remain outstanding after such redemption or repurchase
shall be increased by reallocating the Monthly Allotment
allocated to Note No. 4 pro rata based on the ratio of the
Monthly Allotment of each such instrument then outstanding to
the Monthly Allotment of all such instruments then
outstanding.
4.1-5
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 6
(c) The provisions contained in this Section 2.6
shall be of no further force and effect if (i) the Company is
acquired by any other person by means of any merger,
consolidation, sale of all or substantially all the assets of
the Company, share exchange or other business combination
(each, a "Transaction"), (ii) the company enters into any
Transaction where the shareholders of the Company 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, (iii) the Company enters into any agreement for
any such Transaction, (iv) a Tender Offer is consummated for
at least 51% of the outstanding shares of Common Stock or (v)
the Company fails to comply in any material respect with its
obligations to the Holder, including, without limitation, the
Amendment Agreement, the 1999 Amendment Agreement, the Note
Purchase Agreement, the Warrants or this Note as amended by
the Amendment Agreement and the 1999 Amendment Agreement.
7. For redemptions of such Notes occurring on or after January
1, 1999, the definition of "Subsequent Redemption Price" in Section 7.1
of each such Note is hereby further amended by deleting "110%" in
clause (1)(B) thereof and replacing it with "140%."
8. Section 7.1 of each such Note is hereby amended by adding
the following definitions in the appropriate alphabetical order:
"Final Redemption Amount" shall mean with respect to
this Note an amount equal to the principal amount set forth
below opposite the number of this Note less the aggregate
principal amount of this Note that has been redeemed on any
Middle Redemption Date (together with accrued and unpaid
interest and accrued and unpaid Default Interest, if any, on
the portion of this Note included in the Final Redemption
Amount to the date of determination):
Note No. Principal Amount
1 $411,435
5 $ 27,208
6 $ 31,355
4.1-6
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 7
"Final Redemption Date" means the date that is five
Business Days after the date the Company gives an Optional
Redemption Notice to redeem any portion of this Note pursuant
to Section 1.2(e).
"Final Redemption Notice Period" means the period
that begins on August 1, 1999 and ends on August 7, 1999.
"Initial Redemption Amount" shall mean with respect
to this Note an amount equal to the principal amount set forth
below opposite the number of this Note less the sum of (x) the
aggregate principal amount of this Note that has been
converted by the Holder or for which the Holder gives a
Conversion Notice on or after January 1, 1999 and prior to the
date the Company gives the Optional Redemption Notice to
redeem a portion of this Note pursuant to Section 1.2(a) plus
(y) the aggregate principal amount of this Note that has been
redeemed or called for redemption on or after January 1, 1999
and prior to the date the Company gives the Optional
Redemption Notice to redeem a portion of this Note pursuant to
Section 1.2(a) (together with accrued and unpaid interest and
accrued and unpaid Default Interest, if any, on the portion of
this Note included in the Initial Redemption Amount to the
date of determination):
Note No. Principal Amount
1 $1,645,739
5 $ 108,830
6 $ 125,419
"Initial Redemption Date" means the date that is five
Business Days after the date the Company gives an Optional
Redemption Notice to redeem any portion of this Note pursuant
to Section 1.2(a).
"Initial Redemption Notice Period" means the period
that begins on January 1, 1999 and ends on March 31, 1999.
"Middle Redemption Amount" shall mean with respect to
this Note an amount equal to the principal amount set forth
below opposite the number of this Note less the sum of (x) the
aggregate principal amount of this Note that has been
converted by the Holder or for which the Holder gives a
Conversion
4.1-7
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 8
Notice on or after January 1, 1999 and prior to March 31, 1999
plus (y) the aggregate principal amount of this Note that has
been redeemed or called for redemption on or after January 1,
1999 and prior to the date the Company gives the Optional
Redemption Notice to redeem a portion of this Note pursuant to
Section 1.2(d) (together with accrued and unpaid interest and
accrued and unpaid Default Interest, if any, on the portion of
this Note included in the Middle Redemption Amount to the date
of determination):
Note No. Principal Amount
1 $1,028,587
5 $ 68,019
6 $ 78,387
"Middle Redemption Date" means the date that is five
Business Days after the date the Corporation gives an Optional
Redemption Notice to redeem any portion of this Note pursuant
to Section 1.2(d).
"Middle Redemption Notice Period" means the period
that begins on April 1, 1999 and ends on June 30, 1999.
"1999 Amendment Agreement" shall mean the letter
agreement, dated January 7, 1999, between the Company and the
Holder of this Note and the holders of certain of the Other
Notes.
8. The definition of the term Subsequent Redemption Date in
each such Note is hereby amended and restated to read as follows:
"Subsequent Redemption Date" means each Final Redemption Date,
Initial Redemption Date and Middle Redemption Date.
B. The Holders of Convertible Promissory Note Nos. 2 and 3, registered
in the names of ▇▇▇▇▇▇ Partners and Olympus Securities, Ltd., respectively,
hereby agree that such Notes shall be amended as follows:
1. Section 1.2(c) of each such Note is hereby amended by
adding the following at the end thereof:
4.1-8
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 9
Notwithstanding the foregoing, the Company shall be permitted
to make the following redemptions or repurchases without
making a pro rata redemption of this Note or repurchase offer
to the Holder:
(x) the Company may at any time on or prior to March
31, 1999 redeem Convertible Promissory Note No. 4 at a
redemption price equal to the redemption price for such Note
calculated in the manner in effect for such Note on January 1,
1999;
(y) the Company may at any time on or prior to March
31, 1999 repurchase Convertible Promissory Note No. 4 at a
repurchase price not in excess of an amount equal to 125% of
the sum of (i) the outstanding principal amount thereof, plus
(ii) accrued interest thereon to the date of payment; and
(z) the Company may redeem Convertible Promissory
Notes 1, 5 and 6 pursuant to Section 1.2(a), 1.2(d) or 1.2(e)
thereof at redemption prices equal to the redemption prices in
effect thereunder after giving effect to the 1999 Amendment
Agreement so long as contemporaneously therewith the Company
calls for redemption a pro rata portion of this Note (based on
the outstanding principal amounts of this Note and such Other
Notes) at the applicable Optional Redemption Price.
Notwithstanding any inconsistent provision of this Note, the
Company shall not be entitled to call for redemption any
portion of this Note pursuant to Section 1.2 unless
contemporaneously therewith the Company calls for redemption
or offers to repurchase a pro rata portion (based on the
outstanding principal amount of this Note and the Other Notes)
of the Other Notes at the respective redemption prices or
repurchase prices applicable to the Other Notes.
2. Section 2.6 of each such Note is hereby amended and
restated to read as follows:
(a) Subject to Sections 1.2(b) and 2.6 (c), during
the period beginning on January 1, 1999 and ending on March
31, 1999, the Holder shall not be entitled to convert any
portion of this Note at a Conversion Price that is less than
$4.00 if such conversion would result in the aggregate number
of shares of Common Stock issued hereunder (whether through
conversion or in payment of interest or otherwise) at a
Conversion Price (or Computed Price, in the case of Payment
Shares) of less than $4.00 during the calendar
4.1-9
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 10
month of the proposed conversion for which the determination
under this paragraph (a) is being made exceeding the Monthly
Allotment; provided, however, that notwithstanding the
foregoing or any inconsistent provisions of Section 2.1, NP
Partners (f/k/a ▇▇▇▇▇▇ Partners) and Olympus Securities Ltd.
(but not any transferee of their interests in the Notes),
taken together, and Delta Opportunity Fund, Ltd. and OTATO
L.P. (but not any transferee of their interests in the Notes),
taken together, shall each have the right at any time to
convert from and after January 28, 1998, an aggregate
principal amount of and interest on the Notes equal to
$236,250 at a Conversion Price of $1.575, which right and
conversions shall not be included in determining compliance
with the Monthly Allotment restriction referred to above.
(b) "Monthly Allotment" shall mean, with respect to
this Note and the Other Notes, a number of shares of Common
Stock equal to the number set forth below opposite the number
of this Note and each Other Note:
Note No. Monthly Allotment
1 110,272
2 65,740
3 65,706
4 42,682
5 7,174
6 8,427;
provided, however, that from and after the date of
redemption or repurchase, if any, of Note No. 4, the amount of
the Monthly Allotment for all of this Note and the Other Notes
that remain outstanding after such redemption or repurchase
shall be increased by reallocating the Monthly Allotment
allocated to Note No. 4 pro rata based on the ratio of the
Monthly Allotment of each such instrument then outstanding to
the Monthly Allotment of all such instruments then
outstanding.
(c) The provisions contained in this Section 2.6
shall be of no further force and effect if (i) the Company is
acquired by any other person by means of any merger,
consolidation, sale of all or substantially all the assets of
the Company, share exchange or other business combination
(each, a "Transaction"), (ii) the company enters into any
Transaction where the shareholders of the Company immediately
prior to such Transaction do not collectively own at least 51%
of the outstanding voting securities of the
4.1-10
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 11
surviving corporation of such Transaction immediately
following such Transaction, (iii) the Company enters into any
agreement for any such Transaction, (iv) a Tender Offer is
consummated for at least 51% of the outstanding shares of
Common Stock or (v) the Company fails to comply in any
material respect with its obligations to the Holder,
including, without limitation, the Amendment Agreement, the
1999 Amendment Agreement, the Note Purchase Agreement, the
Warrants or this Note as amended by the Amendment Agreement
and the 1999 Amendment Agreement.
3. For redemptions of such Notes occurring on or after January
1, 1999, the definitions of "Subsequent Redemption Price" in Section
7.1 of each such Note is hereby further amended by deleting "110%" in
clause (1)(B) thereof and replacing it with "130%."
4. The proviso at the end of the definition of Conversion
Price in Section 7.1 of each such Note is amended and restated as
follows:
provided, however, that (i) on any date on or after March 1,
1998, but prior to June 1, 1998, the Conversion Price shall
not be greater than 110% of the arithmetic average of the
Market Price of the Common Stock for the period of thirty (30)
consecutive Trading Days ending one Trading Day prior to March
1, 1998 (the "March Cap"); (ii) on any date on or after June
1, 1998, but prior to April 1, 1999, the Conversion Price
shall not be greater than $1.92; and (iii) on any date on or
after April 1, 1999, the Conversion Price shall not be greater
than the lesser of (A) 110% of the arithmetic average of the
Market Price of the Common Stock for the period of thirty (30)
consecutive Trading Days ending one Trading Day prior to April
1, 1999 and (B) $1.92.
5. Section 7.1 of each such Note is hereby amended by adding
the following definition in the appropriate alphabetical order:
"1999 Amendment Agreement" shall mean the letter
agreement, dated January 7, 1999, between the Company and the
Holder of this Note and the holders of certain of the Other
Notes.
C. The Company represents and warrants to, and covenants and agrees
with, each Holder that:
4.1-11
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 12
1. This Agreement has been duly and validly authorized,
executed and delivered by the Company and, when duly executed and
delivered by the Holders will be the legal, valid and binding
obligation of the Company enforceable in accordance with its terms; and
the Notes, as amended by this Agreement, constitute the legal, valid
and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms.
2. 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 Notes, as 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 or
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, 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 Notes, as 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 this Agreement or the Notes,
as amended hereby.
3. No authorization, approval or consent of, or filing with,
any court, governmental body, regulatory agency, self-regulatory
organization, or stock exchange or market of the stockholders of the
Company is required to be obtained or made by the Company in connection
with the execution, delivery and performance of
4.1-12
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 13
this Agreement or the performance by the Company of its obligations
under the Notes, as amended hereby.
4. 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 which could adversely
affect the validity or enforceablilty of, or the authority or ability
of the Company to perform its obligations under, this Agreement or the
Notes, as amended hereby.
5. The Common Stock is listed for trading on the Nasdaq
National Market ("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
Notes will not be eligible for listing on Nasdaq.
D. All Holders who are parties hereto hereby consent to all matters
provided for herein to the extent any such consent is required pursuant to the
Notes.
E. So long as the Company is in compliance in all material respects
with its obligations to the several Holders, each Holder shall cooperate with
the Company, to the extent reasonable and practicable, in effecting resales of
shares of Common Stock acquired upon conversion of such Holder's Note in block
sales to institutional investors identified to the Holders from time to time by
the Company; provided, however, that nothing herein shall require any Holder to
sell any shares of Common Stock other than at such time, in such amounts, at
such principal and on such terms as determined by such holder in its sole
discretion.
F. Within five business days of the date hereof, the Company shall file
a Current Report on Form 8-K describing the terms of this Agreement.
G. Paragraph (g) of the January Amendment is hereby deleted.
H. Except as specifically amended hereby, the Notes, the Purchase
Agreement and the Engagement Agreement shall remain in full force and effect and
the Company hereby confirms to the Holders that the Notes, the Purchase
Agreements and the Engagement Agreement remain binding obligations of the
Company that are not at the time of execution and delivery of this Agreement
4.1-13
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 14
subject to any defense, offset, counterclaim or other claim by the Company of
invalidity or unenforceability.
If the foregoing correctly sets forth our agreement, please so indicate
by signing the appropriate line below, whereupon, when executed and delivered by
the Company and all of the Holders identified below, this letter shall
constitute a binding agreement between the Company and each Holder under the
laws of the State of New York; provided, however, that the effectiveness of this
Agreement is conditioned upon the amendment of the terms of the Company's Series
C Convertible Preferred Stock, substantially on the terms set forth on Exhibit A
hereto.
NAPRO BIOTHERAPEUTICS, INC.
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Chief Financial Officer
Agreed and accepted:
DELTA OPPORTUNITY FUND, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
NP PARTNERS (f/k/a ▇▇▇▇▇▇ Partners)
By: /s/ ▇▇▇▇▇▇▇ ▇. Simpler
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
4.1-14
Holders of Senior Convertible Notes
of NaPro Bio Therapeutics, Inc.
January 7, 1999
Page 15
OLYMPUS SECURITIES, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. Simpler
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
OTATO LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Counsel
▇▇▇▇ & ▇▇▇▇▇▇▇▇ GROUP, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Member
4.1-15
