1
KYZEN CORPORATION
EXHIBITS
EXHIBIT 10.1
FORM OF AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement is made and entered into
as of the 15th day of June 1999, by and between Kyzen Corporation, a Tennessee
corporation ("Employer") and the employee named in Paragraph 1 of the attached
Employment Agreement ("Employee").
WHEREAS, Employer and Employee entered into an Employment Agreement,
dated ______________, 199_ (the "Employment Agreement"); and
WHEREAS, Employer and Employee desire to amend the Employment Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Amendment to Employment Agreement Section 2 is deleted in its entirety
and replaced with the following:
2. Term a) The initial term of this Agreement shall begin on
________________, 199_ , and shall continue for a period
of one year.
b) Thereafter, this agreement shall continue for successive
one-year terms unless and until it is terminated by a
minimum of sixty (60) days written notice from either
party to the other party prior to the end of the
then-current term (the "Employment Term"); provided,
however, that in the event of a "Termination Upon a Change
in Control," as hereinafter defined, the following shall
occur:
(i) Employee shall immediately be paid (A) all accrued
salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance
with the applicable plans), any benefits under any plans
of Employer in which Employee is a participant to the full
extent of Employee's rights under such plans, accrued
vacation pay and any appropriate business expenses
incurred by Employee in connection with his duties
hereunder, all to the date of termination, and (B) for the
remainder of the existing Employment Term and for a period
of two years thereafter, Employee shall be entitled to
receive semi-monthly severance payments equal to salary
payment which otherwise would have been paid to Employee
pursuant to this Agreement;
(ii) In the event that Employee is not otherwise entitled
to fully exercise all awards granted to Employee under the
Kyzen Corporation 1994 Stock Option Plan (the "Plan"), or
any successor plan, and the Plan or the successor plan
does not otherwise provide for acceleration of
exerciseability upon the occurrence of the Change in
Control described herein, such awards shall become
immediately exercisable upon a Change in Control; and
(iii) Employee shall continue to accrue retirement
benefits and shall continue to enjoy any benefits under
any plans of Employer in which Employee is a participant
to the full extent of Employee's rights under such plans,
including any perquisites provided under this Agreement,
through the remainder of the Employment Term; provided,
however, that the benefits under any such plans of
Employer in which Employee is a participant, including any
such perquisites, shall cease upon Employee's obtaining
other employment. If necessary to provide such benefits to
Employee, Employer shall, at its election, either: (A)
amend its employee benefit plans to provide the benefits
described in this paragraph (b) (iii), to the extent that
such is permissible under the nondiscrimination
requirements and other provisions of the Internal Revenue
Code of 1986 (the "Code") and the provisions of the
Employee Retirement Income Security Act of 1974, or (B)
provide separate benefit arrangements or cash payments so
that Employee receives amounts equivalent thereto, net of
tax consequences.
c) "Termination Upon a Change in Control" shall mean either
(i) a termination by Employer of Employee's employment
with Employer following a "Change in Control" (as
hereinafter defined) or (ii) resignation by Employee
following a "Change in Control" (as hereinafter defined)
if such resignation follows Employer's assignment of
Employee to a position that is not reasonably equivalent
in responsibility or compensation or in the same location
to Employee's responsibility, compensation or location
prior to the "Change in Control" (as hereinafter defined).
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KYZEN CORPORATION
EXHIBITS
d) "Change in Control" shall mean (I) the date on which
Employer first determine that any person and all other
persons which constitute a group, within the meaning of
Section 13(d)(3) of the Exchange Act, have acquired (after
the effective date of this Amendment) direct of indirect
beneficial ownership, within the meaning of Rule 13d-3
under the Exchange Act, of fifteen percent (15%) or more
of Employer's outstanding securities, 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: (a) the Company, (b) any Subsidiary of
the Company, (c) any employee benefit plan of the Company
or any Subsidiary of the Company, or (d) any entity
holding Common shares for or pursuant to the terms of any
such plan and e) Xxxxxxxxxxx X. Xxxxxx ("Xxxxxx") based on
his beneficial ownership of Common Shares of the Company
on January 15, 1999; 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 (defined as the number of
Common Shares of the Company beneficially owned at any
time by the Xxxxxx Group expressed as a percentage of the
outstanding Common Shares of the Company set forth below):
Percentage of the Outstanding Common Shares of the Company
Beneficially Owned by the Xxxxxx Group Permissible Amount
-----------------------------------------------------------------------------------------
22.4% or greater 25%
More than 17.5% but less than 22.4% 23%
More than 15% but less than 17.5% 18%
15% or less 15%
of Common Shares of the Company then outstanding or (II)
the first day on which a majority of the members of the
Board of Directors are not Continuing Directors.
e) Continuing Director's shall mean, as of any date
determination, any member of the Board of Directors who
(I) was a member of the Board of Directors on January 1,
1994, (ii) has been a member of the Board of Directors for
the two years immediately preceding such date of
determination, or (iii) was nominated for election or
elected to the Board of Directors with the affirmative
vote of the greater of (A) a majority of the Continuing
Directors who were members of the Board of Directors at
the time of such nomination or election or (B) at least
four Continuing Directors.
2. Definitions. Unless otherwise defined herein, terms shall have the
meanings ascribed to them in the Employment Agreement.
3. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be considered an original, but all which
together shall be and constitute one and the same Amendment.
4. Other Provisions. Except as amended hereby, the Employment Agreement shall
remain unmodified and in full force and effect.
5. Effectiveness. This Amendment shall be effective when it has been executed
by Employer and Employee. This Amendment shall binding upon, and shall inure to
the benefit of, the parties and their heirs, representatives, successors and
assigns.
IN WITNESS WHEREOF, the undersigned have hereunto signed this Amendment
No. 1 to Employment Agreement
KYZEN CORPORATION
By:
----------------------------- ----------------------------------
(Employee's Signature)
Title:
--------------------------- ----------------------------------
(Employee's Typed or Printed Name)
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