Exhibit 10.6

EMPLOYMENT AGREEMENT

 

THIS AGREEMENT (the "Agreement") is entered intoeffective as of this 1st day of October, 2001 (the "Effective Date"),by and between NaPro BioTherapeutics, Inc., a Delaware corporation (the"Company"), and Sterling K. Ainsworth, Ph.D. ("Executive").Certain capitalized terms used in this Agreement have the meaning set forth inParagraph 17 of this Agreement.

 

RECITALS

 

A. WHEREAS, Executive is currently employed by the Company;and

 

B. WHEREAS, the Company desires to secure the continuedservices of Executive as an employee of the Company, and to provide for certaincompensation and benefit arrangements for Executive in the event of Executive'stermination of employment under certain circumstances, and Executive is willingto enter into this Agreement and perform such services.

 

TERMS AND CONDITIONS

 

In consideration of the respective covenants and agreementsof the parties contained in this Agreement, the parties agree as follows:

 

1. **Employment Services.** The Company herebyagrees to engage Executive, and Executive hereby agrees to perform services forthe Company, on the terms and conditions set forth in this Agreement. During theEmployment Period (as defined below), the Company and Executive agree thatExecutive will serve as an executive officer of the Company in the position ofPresident and Chief Scientific Officer with the duties, responsibilities andauthority as set forth on Schedule A, or will have such other executive titleand such other executive duties, responsibilities and authority as Executive andthe Company may agree upon from time to time, and will perform such services ofan executive and administrative character to the Company and its present orfuture Subsidiaries consistent with the duties of the Company's otherexecutive officers, as the Company's Board of Directors (the"Board") may from time to time direct (the "EmploymentServices") or the Bylaws of the Company may provide. The EmploymentServices shall commence upon the Effective Date of this Agreement and terminateas provided in Paragraph 6 (the "Employment Period").

 

2. **Performance.**
 

(a) Executive shall report to the Board of Directors, andExecutive shall devote his best efforts to the business and affairs of theCompany and its Subsidiaries; provided, however, that upon prior agreement bythe Board of Directors, and subject to the terms of this Agreement, Executivemay engage in independent activities in areas unrelated to the Company'sbusiness or the Company's actual or demonstrably anticipated business; andprovided, further, that no such independent activities shall materially detractfrom the essentially full time commitment of Executive to the business andaffairs of the Company. Executive shall perform his duties and responsibilitiesto the best of his abilities in a diligent, trustworthy, businesslike andprofessional manner.

 

(b) Unless the Company and Executive otherwise agree,Executive shall perform the Employment Services at the Company's executiveoffices and traveling on business as Executive and the Company shall reasonablydeem necessary.

 

3. **Compensation.**
 

(a) During the Employment Period, the Company will payExecutive for the Employment Services a base salary (the "BaseSalary") at the annual rate of two hundred and sixty thousand dollars($260,000) or such other increased rate as the compensation committee of theBoard or Board committee performing equivalent functions (the "CompensationCommittee") (or if the Board has no Compensation Committee at the time,then the Board) may designate from time to time, such salary to be paid at suchperiods as salary is paid to other executive officers of the Company. TheCompensation Committee (or the Board, if applicable) shall review the BaseSalary of the Executive at least annually on the anniversary of the EffectiveDate and may, in its sole discretion, increase (but not decrease) such BaseSalary from time to time. Payment of the Base Salary shall be subject to thecustomary withholding tax and other employment taxes as required with respect tocompensation paid by a corporation to an employee.

 

(b) Executive may receive an annual bonus in such amount, ifany, as the Compensation Committee (or if the Board has no CompensationCommittee at the time, then the Board), in its discretion, may award toExecutive, based upon Executive's and the Company's performance during eachyear of the Employment Period.

 

(c) The Executive shall be entitled to receive such stockoptions during the Employment Period as determined from time to time by theCompensation Committee (or if the Board has no Compensation Committee at thetime, then the Board).

 

4. **Reimbursement for Expenses.** The Companyshall promptly reimburse Executive for all reasonable out-of-pocket expensesincurred by him in the course of performing his duties under this Agreement,subject to the Company's reasonable requirements with respect to reporting anddocumentation of such expenses.

 

5. **Benefits.** Executive shall be entitled to allfringe benefits offered by the Company and to participate in all of the Company'semployee benefit programs both on the same basis as available to executives ofthe Company, and shall be entitled to such other benefits as may from time totime be made available to Executive. The Company shall use commerciallyreasonable best efforts to obtain and keep directors' and officers'liability insurance coverage in effect in an amount equivalent to that of awell-insured, similarly-situated company; provided, however, that the failure toobtain and keep such insurance in effect after the Company has exercised suchcommercially reasonable best efforts shall not be a breach of the Company'sobligations under this Agreement. During the Employment Period, Executive shallbe entitled to four weeks of paid vacation during each year of the EmploymentPeriod and may carry over up to four weeks of vacation from one year to the nextsucceeding year only.

 

6. **Term and Termination.**
 

(a) Except as otherwise provided in this Agreement, theEmployment Period shall terminate upon the earlier of:

 

(i) Three years from the Effective Date hereof (the    "Initial Term"); provided, however, that the Employment Period    shall be extended by one year after the Initial Term and each year    thereafter on the anniversary of the Effective Date of this Agreement (each    such extension, a "Renewal Term") unless either Executive or the    Board shall have given written notice to the other party no later than 180    days prior to the commencement of any Renewal Term of his or its desire to    terminate the Employment Period on the date prior to the commencement of    such Renewal Term;

 

(ii) Executive's incapacity or permanent disability    (which in either case shall be deemed to occur only in the event Executive    is unable to perform the Employment Services for 180 days in any 12-month    period) or death;

 

(iii) termination by Executive voluntarily or for Good    Reason (as defined below);

 

(iv) termination by the Company with or without Cause (as    defined below).

 

(b) If (i) the Employment Period is terminated by the Companywithout Cause, (ii) the Company fails to renew this Agreement, or (iii)Executive resign for Good Reason, and provided that Executive has not breachedthe provisions of Paragraphs 9, 10, 12, 13, 14, or 16 hereof in a manner thatcould adversely affect the Company, the Company shall make the followingpayments to Executive within 15 days after the Termination Effective Date (asdefined below), subject in each case to any applicable payroll or other taxesrequired to be withheld: (i) a lump sum amount equal to Executive's BaseSalary based on Executive's Base Salary for the 12-month period immediatelypreceding the Termination Effective Date; and (ii) a lump sum amount in cashequal to any accrued but unpaid salary and bonus through the TerminationEffective Date and unpaid salary with respect to any vacation days accrued butnot taken as of the Termination Effective Date. In addition, under thecircumstances specified in this Paragraph 6(b), all stock options granted to theExecutive prior to October 1, 2001, that have not expired but otherwise wouldnot be exercisable as of the Termination Effective Date because of vestingrequirements, shall be deemed fully vested and shall become fully exercisable asof the Termination Effective Date under the terms of the applicable stock optionplan under which such stock options originally were granted. At Executive'selection, the Company shall continue to provide Executive medical, dental andany other health insurance, life insurance, accidental death and dismembermentinsurance and disability protection no less favorable to Executive and Executive'sdependents covered thereby (including that Executive shall remain obligated tocontinue to pay any costs or expenses which Executive would otherwise beobligated to pay pursuant to such insurance or other protections providedpursuant to Paragraph 5 as in existence on the Termination Effective Date) untilthe first to occur of (i) the date of Executive's re-employment and subsequentopportunity to participate in any health insurance program with comparablecoverage provided by such new employer, including without limitation, coveragewith respect to any pre-existing conditions or (ii) eighteen months after suchTermination Effective Date.

 

(c) If a Change of Control (as defined below) occurs or isanticipated, and (i) the Employment Period is terminated by the Company withoutCause, (ii) Executive resigns for Good Reason, or (iii) the Company fails torenew this Agreement, and provided that Executive has not breached theprovisions of Paragraphs 9, 10, 12, 13, 14, or 16 hereof in a manner that couldadversely affect the Company, then the Company shall make the following paymentsto Executive within 15 days after the Termination Effective Date (as definedbelow), subject in each case to any applicable payroll or other taxes requiredto be withheld: (i) a lump sum amount equal to one hundred and fifty percent(150%) of Executive's Base Salary based on Executive's Base Salary for the12-month period immediately preceding the Termination Effective Date; (ii) alump sum amount in cash equal to any accrued but unpaid salary and bonus throughthe Termination Effective Date and unpaid salary with respect to any vacationdays accrued but not taken as of the Termination Effective Date; and (iii) alump sum amount equal to the greater of 100% of the prior year's bonus or 75%of the Executive's Base Salary, based on Executive's Base Salary for the12-month period immediately preceding the Termination Effective Date. AtExecutive's election, the Company shall continue to provide Executive medical,dental and any other health insurance, life insurance, accidental death anddismemberment insurance and disability protection no less favorable to Executiveand Executive's dependents covered thereby (including that Executive shallremain obligated to continue to pay any costs or expenses which Executive wouldotherwise be obligated to pay pursuant to such insurance or other protectionsprovided pursuant to Paragraph 5 as in existence on the date of suchtermination) until the first to occur of (i) the date of Executive'sre-employment and subsequent opportunity to participate in any health insuranceprogram with comparable coverage provided by such new employer, includingwithout limitation, coverage with respect to any pre-existing conditions or (ii)eighteen months after such Termination Effective Date.

 

(d) Except as provided in Paragraphs 6(b) or (c), upontermination of the Employment Period, Executive shall be entitled to receiveonly (i) accrued but unpaid salary and bonus through the date of suchtermination and (ii) unpaid salary with respect to any vacation days accrued butnot taken as of the date of such termination.

 

(e) For purposes of this Agreement, "Cause" shallmean (i) the conviction (or plea of nolo contendere) of a felony or a crimeinvolving moral turpitude or the commission of any other act which has anadverse effect on the Company and which involves dishonesty, disloyalty or fraudwith respect to the Company or any of its Subsidiaries, (ii) conduct bringingthe Company or any of its Subsidiaries into substantial public disgrace ordisrepute, including, without limitation, such conduct resulting from repeatedacts of alcohol or drug abuse, (iii) continued failure by Executive tosubstantially perform his duties as reasonably directed by the Board for aperiod of 15 days after the Board has made a written demand for substantialperformance which specifically identifies the manner in which the Board believesthat Executive has not substantially performed his duties, or (iv) grossnegligence or misconduct not in good faith with respect to the Company or any ofits Subsidiaries that materially and adversely affects the Company, or (v) anyother material breach of this Agreement which is not cured within 15 days afterExecutive's receipt of written notice thereof.

 

(f) For purposes of this Agreement, termination of theEmployment Period by Executive for "Good Reason" shall meantermination by Executive (i) within 90 days after Executive has been assigned,without Executive's consent, to any duties substantially inconsistent withExecutive's position, duties, responsibilities or status with the Company ascontemplated in Paragraph 1 of this Agreement; (ii) in anticipation of orfollowing a Change of Control, upon failure of the Company to pay Executive anannual bonus equal to the average amount of such annual bonus paid to Executiveduring the three fiscal years of the Company immediately preceding the year inwhich the Change of Control occurs; (iii) following a reduction of Executive'sBase Salary in anticipation of or following a Change of Control; (iv) ifExecutive is required to regularly perform the duties of Executive'semployment more than 50 miles from Boulder, Colorado; or (v) upon a materialbreach of this Agreement by the Company which is not cured within 30 days afterthe Company's receipt of written notice thereof. Executive shall providewritten notice to the Company of any and all grounds that Executive allegesconstitute "Good Reason" and the Company shall have 30 days afterreceipt of such written notice to cure any such alleged grounds for "GoodReason". If, following the expiration of such 30 day period, Executivestill believes that "Good Reason" exists for Executive's terminationof Employment, the provisions of Paragraph 7 shall apply.

 

(g) For purposes of this Agreement, a "Change ofControl" shall mean (i) any consolidation or merger of the Company in whichthe Company is not the surviving or continuing corporation or pursuant to whichshares of the Company's common stock would be converted into cash, securitiesor other property, other than a merger of the Company in which the holders ofthe Company's common stock immediately prior to the merger have (directly orindirectly) at least an 80% ownership interest in the outstanding common stockof the surviving corporation immediately after the merger, (ii) the acquisitionby any person, together with all affiliates and associates of such person, ofbeneficial ownership of securities of the Company that represent twenty fivepercent (25%) or more of the outstanding voting securities of the Company, otherthan an acquisition of newly-issued voting securities directly from the Companyin a single transaction or series of related transactions as a result of whichthe holders of the Company's voting securities immediately prior to theconsummation of such transaction or series of related transactions continue tohold securities representing a majority of the voting power of all of theCompany's outstanding voting securities, (iii) any sale, lease, exchange orother transfer (in one transaction or a series of related transactions) of all,or substantially all, of the assets of the Company, (iv) the stockholders of theCompany approve any plan or proposal for the liquidation or dissolution of theCompany, (v) as a result of, or in connection with, any cash tender offer,exchange offer, merger or other business combination, sale of assets, or anaccumulation, directly or indirectly, by any person or group (other than theCompany, any Subsidiary, or any employee benefit plan sponsored or maintained bythe Company or any Subsidiary, or any trustee of such plan acting as trustee) ofsecurities of the Company representing 25% or more of the combined voting powerof the Company's then outstanding securities, the members of the Boardimmediately prior to the first public announcement relating to such event shallthereafter cease to constitute a majority of the Board, or (vi) as a result of,or in connection with, any proxy or consent solicitation or contested election,one or more members of the Board are elected in opposition to the nominees ofthe Board.

 

(h) Promptly (but in any event within 20 days) following anytermination of the Employment Period, and as of that date, the Company willnotify Executive of the itemized and aggregate cash value of the payments andbenefits, as determined under Section 280G of the Internal Revenue Code (the"Code"), received or to be received by Executive in connection withthe termination of Executive's employment (whether payable pursuant to theterms of this Agreement or otherwise). At the same time, the Company shalladvise Executive of the portion of such payments or benefits which constituteparachute payments within the meaning of the Code and which may subjectExecutive to the payment of excise taxes pursuant to Section 4999 and theexpected amount of such taxes (such payments or benefits being hereinafterreferred to as "Parachute Payments").

 

(i) Notwithstanding the provisions of Paragraph 6(c) hereof,if all or any portion of the payments or benefits provided under Paragraph 6(c)either alone or together with other payments or benefits which Executive hasreceived or is then entitled to receive from the Company and any of itsSubsidiaries would constitute Parachute Payments, such payments or benefitsprovided to Executive under Paragraph 6(c) shall be reduced to the extentnecessary so that no portion thereof shall be subject to the excise tax imposedby Section 4999 of the Code; but only if, by reason of such reduction, Executive'snet after tax benefit shall exceed the net after tax benefit if such reductionwere not made. "Net after tax benefit" for purposes of this Paragraph6(i) shall mean the sum of (i) the total amount payable to Executive underParagraph 6(c) hereof, plus (ii) all other payments and benefits which Executivehas received or is then entitle to receive from the Company and any of itssubsidiaries that would constitute a Parachute Payment, less (iii) the amount offederal income taxes payable with respect to the payment and benefits describedin (i) and (ii) above calculated at the maximum marginal income tax rate foreach year in which such payments and benefits shall be paid to Executive (basedupon the rate in effect for such year as set forth in the Code at theTermination Date), less (iv) the amount of excise taxes imposed with respect tothe payments and benefits described in (i) and (ii) above by Section 4999 of theCode.

 

For purposes of this Paragraph 6(i), Executive's baseamount, the present value of the Parachute Payments, the amount of the excisetax and all other appropriate matters shall be determined by the Company'sindependent auditors in accordance with the principles of Section 280G of theCode and based upon the advice of tax counsel selected by the Company, which taxcounsel shall be reasonably satisfactory to Executive, provided, however, thatthe applicable federal rate used for the purposes of calculating the presentvalue of the Parachute Payments shall be the federal rate in effect on the dateof this Agreement.

 

7. **Notice of Certain Termination.** In the eventthat either (i) the Company shall terminate Executive for Cause or (ii)Executive shall terminate for Good Reason, then any such termination shall becommunicated by written notice to the other party hereto. Any such notice shallspecify (x) the effective date of termination of the Employment Period, which,except as otherwise provided in Paragraph 6(f), shall not be more than 30 daysafter the date the notice is delivered (the "Termination EffectiveDate") and (y) in reasonable detail the facts and circumstances underlyinga determination that the termination is for Cause or for Good Reason, as thecase may be. If within 15 days after any notice of termination of Executive forCause by the Company is given, or if within 15 days after the Company's 30 daycure period under Paragraph 6(f) has expired, the party receiving such noticenotifies the other party that a good faith dispute exists concerning thecharacterization of the termination, the Termination Effective Date shall be thedate on which such dispute is finally resolved either by written agreement ofthe parties or by binding arbitration conducted pursuant to the rules of theAmerican Arbitration Association. Notwithstanding the pendency of any suchdispute, the Company shall continue Executive and Executive's dependents asparticipants in all medical, dental and any other health insurance, lifeinsurance, accidental death and dismemberment insurance and disabilityprotection plans of the Company in which Executive and Executive's dependentswere participating when the notice giving rise to the dispute was given, untilthe dispute is finally resolved. Benefits provided under this Paragraph 7 are inaddition to all other amounts due under this Agreement and shall not be offsetagainst, or reduce any other amounts due under, this Agreement.

 

8. **Insurance.** The Company may, at its electionand for its benefit, insure Executive against accidental death, and Executiveshall submit to such physical examination and supply such information as may berequired in connection therewith.

 

9. **Non-disclosure of Confidential Information.**
 

(a) Unless Executive first secures written consent from theCompany pursuant to procedures implemented by Company after the date hereof,Executive shall not disclose or use at any time, either during the EmploymentPeriod or thereafter, any Confidential Information (as defined in Paragraph 17)except to the extent Executive reasonably believes is necessary to disclose oruse such Confidential Information in performing the Employment Services.Executive further agrees that Executive will use Executive's commercial bestefforts to safeguard the Confidential Information and protect it againstdisclosure, misuse, espionage, loss and theft, including, without limitation,causing recipients of Confidential Information to enter into non-disclosureagreements with the Company. Subject to the provisions of Paragraphs 10 and 13,nothing herein shall be construed to prevent Executive from using Executive'sgeneral knowledge and skill after termination of this agreement, whetherExecutive acquired such knowledge or skill before or during the EmploymentPeriod.

 

(b) In the event the Company has entered into confidentialityagreements with third parties (not including Company employees) which containprovisions different from those set forth in this Agreement, Executive agrees,in addition to the provisions of Paragraph 9(a), to comply with any suchdifferent provisions of which Executive is notified by the Company.

 

10. **Company Ownership of Intellectual Property.**Executive hereby assigns to the Company all right, title and interest in and toall Intellectual Property (as defined in Paragraph 17) contributed to orconceived or made by Executive during the Employment Period and prior to theEmployment Period during the period Executive was employed by or engaged inresearch or development activities for or with the Company or its predecessorsand affiliates (whether alone or jointly with others) to the extent suchIntellectual Property is not owned by the Company as a matter of law. Executiveshall promptly and fully communicate to the Company all Intellectual Propertyconceived, contributed to or made by Executive and shall cooperate with theCompany to protect the Company's interests in such Intellectual Propertyincluding, without limitation, providing assistance in securing patentprotection and copyright registrations and signing all documents reasonablyrequested by the Company, even if such request occurs after the EmploymentPeriod. The Company shall pay Executive's reasonable expenses of cooperatingwith the Company in protecting the Company's interests in such IntellectualProperty unless the subject matter of the requested cooperation is related toactions taken or failed to be taken by Executive wrongfully or otherwise not ingood faith.

 

11. **Executive's Rights.** Paragraph 10 of thisAgreement does not apply to an invention for which no equipment, supplies,facilities or trade secret information of the Company was used and which wasdeveloped entirely on Executive's own time, unless (a) the invention relates (i)to the business of the Company, or (ii) to the Company's actual ordemonstrably anticipated material research or development, or (b) the inventionresults from any work performed by Executive for the Company.

 

12. **Return of Materials.** Upon Termination ofthe Employment Period, or at any time reasonable requested by the Company,Executive shall promptly deliver to the Company all copies of ConfidentialInformation in Executive's possession and control, including written records,manuals, lab notebooks, customer and supplier lists and all other materialscontaining any Confidential Information. If the Company requests, Executiveshall provide written confirmation that Executive has returned all suchmaterials. Subject to the provisions of this Agreement, including, withoutlimitation, Paragraph 11, notwithstanding anything in this Agreement to thecontrary, upon termination of the Employment Period, the Company, at Executive'srequest, shall promptly return to Executive any equipment or other materialsowned by Executive then being used by or then in the possession of the Company.

 

13. **Non-Competition.** Executive acknowledges andagrees that Executive is considered to be part of the professional, managerialand executive staff of the Company whose duties include the formulation andexecution of management policy, and that in the course of Executive's duties,Executive is permitted access to Intellectual Property, which includes, amongother things, trade secrets of the Company that the Company seeks to protectfrom dissemination and disclosure. Executive acknowledges and agrees that duringthe Employment Period and for a period of five years thereafter (the"Non-compete Period"), Executive will not, without the prior writtenconsent of the Company, directly or indirectly, provide products or servicessubstantially similar to the Employment Services to any business or entity thatprovides or offers or demonstrably plans to provide or offer, products orservices that (i) are the same as or substantially similar to the products orservices provided by the Company at any time during the Employment Period, (ii)relate to the Company's Intellectual Property (whether the Company acquiredsuch Intellectual Property pursuant to this Agreement or otherwise), or (iii)relate to any subject matter of the Company's actual or demonstrablyanticipated material research and development during the Employment Period,including without limitation, taxol, taxanes and any other compounds, within anygeographical area in which the Company or any of its subsidiaries provide orplan to provide such products or services.

 

14. **Non-Solicitation.** Executive acknowledgesand agrees that during the Non-compete Period, Executive will not (a) solicit,induce or attempt to induce, directly or indirectly, any employee of the Companyto leave the employment of the Company to work for Executive or for any otherperson, firm or corporation or (b) hire any employee of the Company.

 

15. **Acknowledgment of Reasonableness.** Executiveacknowledges and agrees that the limitations set forth in Paragraphs 13 and 14are reasonable with respect to scope, duration and geographic area and areproperly required for the protection of the legitimate business interest of theCompany.

 

16. **Further Assistance.** During the Non-competePeriod, Executive will not make any disclosure or other communication to anyperson, issue any public statements or otherwise cause to be disclosed anyinformation which is designed, intended or might reasonably be anticipated todiscourage any persons from doing business with the Company or otherwise have anegative impact or adverse effect on the Company, except to the extent suchdisclosure is required by law. During the Non-compete Period, Executive willprovide assistance reasonably requested by the Company in connection withactions taken by Executive during the Employment Period, including but notlimited to assistance in connection with any lawsuits or other claims againstthe Company arising from events during the Employment Period, provided that theCompany shall reimburse all reasonable expenses (including without limitation,reasonable loss of compensation from other sources resulting from suchassistance during normal business hours).

 

17. **Certain Definitions.**
 

"Affiliate" and "Associate" have therespective meanings ascribed to such terms in Rule 12b-2 of the General Rulesand Regulations under the Securities Exchange Act of 1934, as in effect on thedate of this Agreement (the "Exchange Act Rules"), and"Beneficial Ownership" has the meaning ascribed to such term in Rule13d-3 of the Exchange Act Rules.

 

"Confidential Information" means allinformation (whether or not specifically labeled or identified as confidential),in any form or medium, that is disclosed to, or developed or learned byExecutive during the Employment Period and prior to the Employment Period duringthe period Executive was employed by or engaged in research or developmentactivities for or with the Company or its predecessors and affiliates or thatrelates to the business, products, services, customers, research or developmentof the Company, its Subsidiaries, its Affiliates, or third parties with whom theCompany, its Subsidiaries or its Affiliates does business or from whom theCompany or its Affiliates receives information. Confidential Information shallnot include any information that (i) has become publicly known through nowrongful act or breach of any obligation of confidentiality, as evidenced bywritten records or documents; or (ii) was rightfully received by Executive on anon-confidential basis from a third party (provided that such third party is notknown to Executive to be bound by a confidentiality agreement with the Companyor another party), as evidenced by written records or documents.

 

"Intellectual Property" means any idea,invention, design, development, device, method or process (whether or notpatentable or reduced to practice or including Confidential Information) and allrelated patents and patent applications, any copyrightable work or mask work(whether or not including Confidential Information) and all relatedregistrations and applications for registration, and all other proprietaryrights.

 

"Subsidiaries" means any corporation ofwhich the securities having a majority of the voting power in electing directorsare, at the time of determination, owned by the Company, directly or through oneof more Subsidiaries.

 

18. Executive Representations. Executive herebyrepresents and warrants to the Company that (a) the execution, delivery andperformance of this Agreement by Executive does not and will not conflict with,breach, violate or cause a default under any contract, agreement, instrument,order, judgment or decree to which Executive is a party or by which he is bound,and (b) upon the execution and delivery of this Agreement by the Company, thisAgreement shall be the valid and binding obligation of Executive, enforceable inaccordance with its terms.

 

19. Company Representations. The Company herebyrepresents and warrants to Executive that (a) the execution, delivery andperformance of this Agreement by the Company does not and will not conflictwith, breach, violate or cause a default under any contract, agreement,instrument, order, judgment or decree to which Company is a party or by which itis bound, and (b) upon the execution and delivery of this Agreement byExecutive, this Agreement shall be the valid and binding obligation of theCompany, enforceable in accordance with its terms.

 

20. Severability and Modification. If any provision ofthis Agreement shall be held or declared to be illegal, invalid orunenforceable, such illegal, invalid or unenforceable provision shall not affectany other provision of this Agreement, and the remainder of this Agreement shallcontinue in full force and effect as though such provision had not beencontained in this Agreement. If the scope of any provision in this Agreement isfound to be broad to permit enforcement of such provision to its full extent,Executive consents to judicial modification of such provision and enforcement tothe maximum extent permitted by law.

 

21. Notices. Except as otherwise expressly set forthin this Agreement, all notices, requests and other communications to be given ordelivered under or by reason of the provisions of this Agreement shall be inwriting and shall be given (and, except as otherwise provided in this Agreement,shall be deemed to have been duly given if so given) when delivered if given inperson or by telegram, three days after being mailed by first class registeredor certified mail, return receipt requested, postage prepaid, or one day afterbeing sent prepaid via reputable overnight courier to the parties at thefollowing addresses (or such other address as shall be furnished in writing bylike notice; provided, however, that notice of change of addressshall be effective only upon receipt):

 

Notices to Executive

Sterling K. Ainsworth, Ph.D.

c/o NaPro BioTherapeutics, Inc.

6304 Spine Road, Unit A

Boulder, Colorado 80301

 

Notices to Company

NaPro BioTherapeutics, Inc.

6304 Spine Road, Unit A

Boulder, Colorado 80301

Attn VP, General Counsel

 

22. **Entire Agreement.** This Agreement containsthe entire agreement between parties with respect to the subject matter hereofand supersedes any previous understandings or agreements, whether written ororal, regarding such subject matter.

 

23. **Governing Law.** All questions concerning theconstruction, validity and interpretations of this Agreement will be governed bythe internal law, and not the law of conflicts, of the State of Colorado.

 

24. **Survival.** Paragraphs 6, 9, 10, 11, 12, 13,14 and 16 and any other provision of this Agreement which by its terms couldsurvive termination of the Employment Period shall survive and continue in fullforce in accordance with their terms notwithstanding any termination of theEmployment Period.

 

25. **Counterparts.** This Agreement may beexecuted in separate counterparts, each of which is deemed to be an original andall of which taken together constitute one and the same agreement.

 

26. **Successors and Assigns.** This Agreement isintended to bind and inure to the benefit of and be enforceable by Executive,the Company and their respective successors and assigns; provided that in noevent shall Executive's obligations under this Agreement be delegated ortransferred by Executive, nor shall Executive's rights be subject toencumbrance or to the claims of Executive's creditors. This Agreement is forthe sole benefit of the parties hereto and shall not create any rights in thirdparties other than Executive's spouse or beneficiary as expressly set forthherein.

 

27. **Remedies.** Except as otherwise provided inthis Agreement, (i) each of the parties to this Agreement will be entitled toenforce its rights under this Agreement specifically, to recover damages byreason of any breach of any provision of this Agreement and to exercise allother rights to which it may be entitled and (ii) disputes under this Agreementnot finally resolved in writing by the parties within sixty days after one partygives notice in good faith to the other party that a bona fide dispute existsshall be resolved pursuant to binding arbitration conducted in Denver, Coloradoin accordance with the rules of the American Arbitration Association. Theprevailing party in any such arbitration shall be entitled to have its costs andexpenses (including reasonable attorney's fees and expenses) relating to sucharbitration paid by the other party if the arbitrator(s) conducting sucharbitration so determine. Notwithstanding the foregoing, the parties agree andacknowledge that money damages may not be an adequate remedy for breach of theprovisions of this Agreement and that any party may in its sole discretion applyto any court of law or equity of competent jurisdiction for specific performanceand/or injunctive relief in order to enforce or prevent any violations of theprovisions of this Agreement. The prevailing party in any suit shall be entitledto recover reasonable attorneys fees and costs from the other party.

 

28. **Modifications and Waivers.** No provision ofthis Agreement may be modified, altered or amended except by an instrument inwriting executed by the parties hereto. No waiver by either party hereto of anybreach by the other party hereto of any term or provision of this Agreement tobe performed by such other party shall be deemed a waiver of similar ordissimilar terms or provisions at the time or at any prior or subsequent time.

 

29. **Headings.** The headings contained herein aresolely for the purpose of reference, are not part of this Agreement and shallnot in any way affect the meaning or interpretation of this Agreement.

 

30. **Notification of Subsequent Employer.**Executive agrees that the Company may present a copy of this Agreement to anythird party.

 

31. **UNDERSTAND AGREEMENT.** EXECUTIVE REPRESENTSAND WARRANTS THAT (a) EXECUTIVE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISIONOF THIS AGREEMENT, (b) EXECUTIVE HAS HAD THE OPPORTUNITY TO OBTAIN ADVICE FROMLEGAL COUNSEL OF EXECUTIVE'S CHOICE, OTHER THAN COUNSEL TO THE COMPANY (WHO ISNOT REPRESENTING THE EXECUTIVE), IN ORDER TO INTERPRET ANY AND ALL PROVISIONS OFTHIS AGREEMENT, (c) EXECUTIVE HAS HAD THE OPPORTUNITY TO ASK THE COMPANYQUESTIONS ABOUT THIS AGREEMENT AND ANY OF SUCH QUESTIONS EXECUTIVE HAS ASKEDHAVE BEEN ANSWERED TO EXECUTIVE'S SATISFACTION, AND (d) EXECUTIVE HAS BEENGIVEN A COPY OF THIS AGREEMENT.

 

IN WITNESS WHEREOF, the parties hereto have caused thisAgreement to be duly executed on the day and year first above written.

 

EXECUTIVE

/s/

 Sterling K. Ainsworth, Ph.D.

 

 

 

NAPRO BIOTHERAPEUTICS, INC.

By:       /s/

Gordon Link, Vice President and Chief Financial Officer