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