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EXHIBIT 1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated as
of April 16, 2001, is by and between Kyzen Corporation, a Tennessee corporation
("Kyzen"), and American Stock Transfer & Trust Company, a New York corporation
("Rights Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain Rights
Agreement, dated as of January 15, 1999 (the "Agreement"); and
WHEREAS, the parties hereto desire to enter into this Amendment to
amend the Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy all of which are acknowledged and agreed, the parties hereto agree as
follows:
Section 1. Definitions. The Definition of "Acquiring Person" in Section
1(a) is deleted in its entirety and the following substituted in lieu thereof:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding, but shall not include: (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or any Subsidiary of the Company, (iv) any entity holding
Common Shares for or pursuant to the terms of any such plan, (v)
Xxxxxxxxxxx X. Xxxxxx ("Xxxxxx"), based on his beneficial ownership of
Common Shares of the Company on the effective date of this Agreement;
provided, however, that if Xxxxxx, together with all Affiliates and
Associates of Xxxxxx (the "Xxxxxx Group"), shall become the Beneficial
Owner of more than the Permissible Amount of Common Shares of the
Company then outstanding, then such person shall be deemed to be an
"Acquiring Person," or (vi) any Person or group of Persons who,
together with all Affiliates and Associates, acquires the ownership of
Xxxxxx'x Common Shares and any rights to acquire his Common Shares in a
transaction or series of transactions approved by the Board of
Directors and consummated in April, 2001. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result
of an acquisition of Common Shares by the Company which, by reducing
the number of Common Shares of the Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially owned
by such Person to 15% or more of the Common Shares of the
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Company then outstanding or increases the proportionate number of
Common Shares of the Company beneficially owned by the Xxxxxx Group to
the Permissible Amount or more of the Common Shares of the Company;
provided, however, that, if a Person shall become the Beneficial Owner
of 15% or more of the Common Shares of the Company then outstanding, or
if the Xxxxxx Group shall become the Beneficial Owner of more than the
Permissible Amount of Common Shares of the Company then outstanding, by
reason of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any additional
Common Shares of the Company, then such Person shall be deemed to be an
"Acquiring Person." Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer
be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed
to be an "Acquiring Person" for any purposes of this Agreement.
Section 2. No Further Modification. Except as otherwise contained
herein, all of the terms and provisions of the Agreement shall remain in full
force and effect.
Section 3. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Tennessee without
regard to its principles of conflicts of law.
Section 4. Binding Effect. All of the terms of this Amendment, whether
so expressed or not, shall be binding upon the respective personal
representatives, successors and assigns of the parties hereto and shall inure to
the benefit of and be enforceable by the respective personal representatives,
successors and assigns of the parties hereto.
Section 5. Headings. The headings in this Amendment are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
Section 6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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