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Exhibit 10(liv)
AGREEMENT
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This Agreement, dated November 16, 1998, is made by and among
Chrysalis International Corporation, a Delaware corporation ("Chrysalis"),
Panlabs International Inc., a Washington corporation and a wholly-owned
subsidiary of MDS Washington, Inc., a wholly-owned subsidiary of MDS Inc. (the
"Investor") and MDS Inc., a corporation organized under the laws of Canada
("MDS").
WHEREAS, Chrysalis, Investor and MDS are parties to that
certain Standstill and Confidentiality Agreement, dated March 16, 1998 (the
"Standstill Agreement"); and
WHEREAS, Chrysalis and Investor are parties to that certain
Warrant Agreement, dated March 16, 1998 (the "Warrant Agreement"); and
WHEREAS, Chrysalis and Investor are parties to that certain
Note and Warrant Purchase Agreement, dated March 16, 1998 (the "Purchase
Agreement"), pursuant to which Chrysalis issued to Investor that certain 6%
Subordinated Note Due March 16, 2001 (the "Note"); and
WHEREAS, Chrysalis and Investor are parties to that certain
Security Agreement, dated March 16, 1998 (the "Security Agreement"), that
secures Chrysalis' obligations under the Note; and
WHEREAS, Chrysalis, Investor and MDS, as appropriate, desire
to waive or amend certain provisions of the Standstill Agreement, the Warrant
Agreement, the Purchase Agreement, the Note and the Security Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO STANDSTILL AGREEMENT. Pursuant to Section 8.2
of the Standstill Agreement, the parties hereto hereby agree that:
(a) Section 2.1(d) of the Standstill Agreement is
hereby amended and restated to read as follows:
"(d) TERM OF THIS AGREEMENT. "Term of this
Agreement" for purposes of this Agreement shall mean
a period commencing on March 16, 1998 and ending on
the first to occur of (i) an Event of Default under
Section 3.8 of the Note, (ii) the date that the
Investor is no longer the Beneficial Owner of any
Restricted Securities, or (iii) the date that
Chrysalis merges with, or otherwise is acquired by,
Phoenix International Life Sciences, Inc. ("Phoenix")
or any direct or indirect wholly-owned subsidiary of
Phoenix (a "Phoenix Merger") pursuant to which (A)
Chrysalis' stockholders receive merger consideration
having a value of no more than $1.50 per share (as
calculated as of the date of execution of definitive
documentation related to the Phoenix Merger) and (B)
Phoenix agrees in the
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definitive documentation related to the Phoenix
Merger to repay on the date of consummation of the
Phoenix Merger all amounts owing under the Note."
(b) The following new Section 6.6 is hereby added
immediately following the existing Section 6.5 of the
Standstill Agreement:
"SECTION 6.6 TERMINATION. The provisions of
this Section 6 shall automatically terminate upon the
closing of a Phoenix Merger."
(c) The following new Section 7.6 is hereby added
immediately following the existing Section 7.6 of the
Standstill Agreement:
"SECTION 7.6 TERMINATION. The provisions of
this Section 7 shall automatically terminate upon the
closing of a Phoenix Merger."
2. WAIVER AND AMENDMENTS TO WARRANT AGREEMENT. Pursuant to
Section 8.1 of the Warrant Agreement:
(a) Investor hereby waives any right to
receive notice under Section 2.4 of the Warrant Agreement of
any record date related to a Phoenix Merger.
(b) Chrysalis and Investor hereby agree that
Section 1.1 of the Warrant Agreement is hereby amended and
restated to read in its entirety as follows:
"1.1 GRANT. Chrysalis hereby grants
t the Investor this Warrant, which, subject
to the terms and conditions of the
Standstill Agreement is exercisable as
provided herein, in whole or in part as
provided in Section 3.1 hereto, at any time
and from time to time during the period (the
"Exercise Period") commencing on March 16,
1998 (the "Closing Date") and ending on the
earlier to occur of (i) the date immediately
preceding the closing of a Phoenix Merger or
(ii) the later to occur of (A) the third
anniversary of the Closing Date at 5:00
p.m., local time in New York, New York and
(B) payment by Chrysalis of the full amount
of the Note, to purchase an aggregate of up
to Two Million (2,000,000) shares of Common
Stock (the "Warrant Shares"), at an exercise
price of two dollars and fifty cents ($2.50)
per share (as it may be hereinafter
adjusted, the "Exercise Price")."
3. WAIVER OF PURCHASE AGREEMENT. Pursuant to Section 10.8.2 of
the Purchase Agreement, Investor hereby waives any right to receive notice
related to a Phoenix Merger under Section 6.3 of the Purchase Agreement.
4. AMENDMENT TO NOTE. Chrysalis and the Investor hereby agree
that:
(a) the last sentence of the second paragraph of the Note
is hereby amended and restated to read in its
entirety as follows:
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"The aforesaid principal amount shall be due,
together with all accrued and unpaid interest, on the
earliest to occur of the following dates (in each
case, the "Maturity Date"): (i) Xxxxx 00, 0000, (xx)
the date of the closing of a Phoenix Merger, or (iii)
such earlier date on which the principal amount shall
become due in accordance with the terms of the Note."
(b) Section 3.9 of the Note is hereby amended and
restated to read in its entirety as follows:
"3.9 CHANGE OF CONTROL. Upon any of the following to
occur: (i) in the event of a Phoenix Merger, the
passage of 180 calendar days after the earlier of the
public announcement or the execution of definitive
documents with respect thereto; (ii) in the event of
a Change of Control transaction (other than a Phoenix
Merger) with a Person, other than the Payee, which is
approved by the Board of Directors of the Company,
the passage of 60 calendar days after the earlier of
the public announcement or the execution of
definitive documents with respect thereto; and (iii)
in the event of a Change of Control transaction with
a Person, other than the Payee, which is not approved
by the Board of Directors of the Company, the passage
of 60 calendar days after the consummation of such
transaction,"
5. EFFECTIVENESS; TERMINATION. This Agreement shall be
effective upon execution by all of the parties hereto. Notwithstanding the
foregoing, if the Phoenix Merger is not consummated within 180 calendar days
after the earlier of the public announcement or the execution of definitive
documents with respect thereto (such 180th day being referred to herein as the
"Final Date"), then this Agreement shall be null and void and of no further
force or effect other than with respect to the waivers contained in Section
1(d), 2(a) and 3 solely with respect to actions and events taking place prior to
the Final Date.
6. MISCELLANEOUS:
(a) All capitalized terms used herein and
not defined herein are used as defined in the Standstill
Agreement, the Warrant Agreement, the Purchase Agreement, the
Note or the Security Agreement, as the case may be.
(b) This Agreement shall be deemed to be a
contract made under the laws of the State of Delaware and for
all purposes shall be construed in accordance with the laws of
said state without giving effect to the rules of said state
governing the conflicts of laws.
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(c) This Agreement shall be binding on all
successors and assigns of the parties hereto and on all
transferees of the Note.
(d) This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original,
and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
CHRYSALIS INTERNATIONAL CORPORATION
/s/ Xxxx X. Xxxxxxx
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By: Xxxx X. Xxxxxxx
Title: President and CEO
PANLABS INTERNATIONAL INC.
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
Title: Assistant Secretary
MDS INC.
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
Title: Vice President Legal Affairs and Corporate
Secretary
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