1
EXHIBIT 1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of April 16, 2001 (this
"Agreement"), by and between [NAME] (the "Purchaser"), and Xxxxxxxxxxx X. Xxxxxx
("Xxxxxx").
WITNESSETH:
WHEREAS, Xxxxxx owns, 1,113,535 shares (the "Xxxxxx Stock") of the
common stock, $.01 par value per share (the "Common Stock") of Kyzen
Corporation, a Tennessee corporation (the "Company");
WHEREAS, pursuant to a Promissory Note made by Xxxxxx payable to the
order of the Company dated November 1, 2000, the Company loaned Xxxxxx One
Hundred Thousand No/100 Dollars (the "Company Note");
WHEREAS, as security for the payment of all of Xxxxxx'x obligations to
the Company arising from or in connection with the Company Note, Xxxxxx pledged
to the Company Three Hundred Fifty Thousand (350,000) shares of Xxxxxx Stock
(the "Company Shares");
WHEREAS, pursuant to a Promissory Note made by Xxxxxx payable to the
order of First National Bank of Xxxxxx, Xxxxxx, NE a bank organized under the
laws of the United States (the "Bank"), dated September 29, 2000, the Bank
loaned Xxxxxx One Hundred Fifty Thousand and No/100 Dollars (the "Bank Note");
WHEREAS, as security for the payment of all of Xxxxxx'x obligations to
the Bank arising from or in connection with the Bank Note, Xxxxxx pledged to the
Bank Six Hundred Sixty Six Thousand Six Hundred Sixty Seven (666,667) shares of
Xxxxxx Stock (the "Bank Shares");
WHEREAS, Xxxxxx is the beneficial owner of Eighty Six Thousand Eight
Hundred Sixty Eight (86,868) shares of Xxxxxx Stock, the record holder of which
is Xxxxx Xxxxxx; and
WHEREAS, Xxxxxx desires to sell and Purchaser desires to purchase a
portion of the Xxxxxx Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of all of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Sale and Purchase; Closing.
(a) Sale and Purchase. In accordance with the terms and
conditions set forth herein, at the Closing (as hereinafter defined), Xxxxxx
shall transfer, convey, assign and deliver, and the Purchaser will purchase,
[NUMBER] shares of the Xxxxxx Stock (the "Shares") free and clear of the lien,
claim and encumbrance of the Company, the Bank and any and all other liens,
claims and encumbrances whatsoever.
(b) Purchase Price. In exchange for certificates
representing all of the Shares, the Purchaser shall deliver at Closing an
aggregate amount equal to the product of the number of Shares multiplied by
[X XX/100] Dollars ($X.XX) in cash or otherwise immediately available funds to
such person or entity as directed in writing by Xxxxxx.
2
(c) Delivery. At Closing, Xxxxxx shall cause to be
delivered to American Stock Transfer & Trust Company, the stock transfer agent
of the Purchaser, a stock transfer power, or other instrument of assignment,
authorizing the transfer of the Shares to the Purchaser.
(d) Closing. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place, following the
satisfaction of all of the conditions set forth in Section 4 hereof, or the
waiver thereof, on or before April 30, 2001 (the "Closing Date"), at the offices
of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A Professional Limited Liability Company, 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or such other date, time
and place as may be agreed by the parties.
Section 2. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to Xxxxxx as follows as of the date
hereof and as of the Closing:
(a) Authority and Authorization. The Purchaser is a
natural person and has all requisite capacity and authority to enter into this
Agreement and to carry out its obligations hereunder. This Agreement, when
executed, will constitute the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as may be limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally and except as may be limited by the
availability of equitable remedies.
(b) Non-Contravention. The execution, delivery and
performance of this Agreement by the Purchaser and the consummation of any of
the transactions contemplated hereby by the Purchaser will not (a) conflict with
or result in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default), under any agreement, instrument, franchise, license or
permit to which the Purchaser is a party or by which any of its properties or
assets may be bound, or (b) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental or
regulatory agency or body applicable to the Purchaser or any of its properties
or assets.
(c) No Consents. No consent, authorization or approval
of, or filing with, any person or any United States federal, state or local
governmental department, commission, board, agency or instrumentality is
required to be made or obtained by the Purchaser in connection with its
execution and performance of this Agreement, except for any filings with federal
and state regulatory authorities.
Section 3. Representations and Warranties of Xxxxxx. Xxxxxx
represents and warrants to the Purchaser as follows as of the date hereof and as
of the Closing:
(a) Title to Shares. Xxxxxx is the legal and beneficial
owner of and has good and marketable title to the Xxxxxx Stock, free and clear
of any and all liens, claims, pledges, encumbrances, charges, options and
contractual restrictions other than that arise in connection with the Company
Note, Bank Note or agreements set forth on Exhibit A hereto. Xxxxxx has not
pledged or otherwise granted any person or entity the right to acquire any of
the Xxxxxx Stock except as security for the Company Note, as security for the
Bank Note and as set forth in agreements described in Exhibit A hereto. Upon the
satisfaction of the conditions in Section 4 hereof, Xxxxxx has full, absolute
and unrestricted right, power, capacity and authority to sell, transfer, assign
and deliver the Shares to the Purchaser and the delivery of such Shares to the
Purchaser will convey to the Purchaser valid, marketable and indefeasible title
to such Shares, free and clear of any and all liens, claims, pledges,
encumbrances, charges, options or contractual restrictions whatsoever.
(b) Authority and Authorization. Xxxxxx is a natural
person and has all requisite capacity and authority to enter into this Agreement
and to carry out his obligations
2
3
hereunder. This Agreement, when executed, will constitute the legal, valid and
binding obligation of Xxxxxx, enforceable against Xxxxxx in accordance with its
terms, except as may be limited by bankruptcy and insolvency laws and by other
laws affecting the rights of creditors generally and except as may be limited by
the availability of equitable remedies.
(c) Non-Contravention. Except as otherwise set forth in
any pledge and/or security agreement executed in connection with the Company
Note or Bank Note, the execution, delivery and performance of this Agreement by
Xxxxxx and the consummation of the transactions contemplated hereby by Xxxxxx
will not (a) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default), under any agreement, instrument,
franchise, license or permit to which Xxxxxx is a party or by which any of its
properties or assets may be bound or (b) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body applicable to Xxxxxx or any of its
properties or assets.
(d) No Consents. No consent, authorization or approval
of, or filing with, any person or any United States federal, state or local
governmental department, commission, board, agency or instrumentality is
required to be made or obtained by Xxxxxx in connection with its execution and
performance of this Agreement, except for any filings with federal and state
regulatory authorities.
Section 4. Intentionally Omitted.
Section 5. Indemnification.
(a) Indemnification of the Purchaser. Xxxxxx agrees to
indemnify and hold harmless the Purchaser and its estate, heirs, successors and
assigns (each an "Indemnified Party"), from and against any and all claims,
losses, damages, liabilities and expenses (including, without limitation,
settlement costs and any legal or other expenses for investigating or defending
any actions or threatened actions) (the "Losses") reasonably incurred by such
Indemnified Party as a result of:
(i) the untruth, inaccuracy or breach of any
representation or warranty made by Xxxxxx in this Agreement; and
(ii) the nonfulfillment or breach of any
covenant, agreement or obligation of Xxxxxx contained in this Agreement.
(b) Indemnification of Xxxxxx. The Purchaser shall
indemnify and hold harmless Xxxxxx and its estate, heirs, successors and assigns
(each an "Indemnified Party") from and against any and all Losses reasonably
incurred by such Indemnified Party as a result of:
(i) the untruth, inaccuracy or breach of any
representation or warranty made by the Purchaser in this Agreement; and
(ii) the nonfulfillment or breach of any
covenant, agreement or obligation of the Purchaser contained in this Agreement.
(c) Notification. Whenever any claim shall arise for
indemnification hereunder, the Indemnified Party shall notify the indemnifying
party promptly after such Indemnified Party has actual knowledge of the facts
constituting the basis for such claim, except that, in the event of any claim
for indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third party, such Indemnified Party shall give prompt
notice to the indemnifying
3
4
party of such claim or the commencement of legal proceedings in respect of which
recovery may be sought against the indemnifying party pursuant to the provisions
of this Section 5. The notice to the indemnifying party shall specify, if known,
the amount or an estimate of the amount of the liability arising therefrom. The
Indemnified Party shall not settle or compromise any such claim without the
prior written consent of the indemnifying party unless suit shall have been
instituted against the Indemnified Party and the indemnifying party shall have
failed, within fifteen (15) days after notice of institution of the suit, to
take control of such suit as provided in Section 5(d) below.
(d) Defense of Actions. In connection with any claim
giving rise to indemnity hereunder resulting from or arising out of any claim or
legal proceeding by a person who is not a party to this Agreement, the
indemnifying party, at its sole cost and expense, may, upon written notice to
the Indemnified Party, assume the defense of such claim or legal proceeding, to
the extent that the indemnifying party admits in writing its liability to the
Indemnified Party with respect to all material elements thereof. If the
indemnifying party assumes the defense of any such claim or legal proceeding,
the obligations of the indemnifying party hereunder as to such claim or legal
proceeding shall be limited to taking all steps necessary in the defense or
settlement thereof and to holding the Indemnified Party harmless from and
against any losses, damages, expenses, or liability caused by or arising out of
any settlement approved by the indemnifying party or any judgment in connection
with such claim or legal proceeding; provided that (i) the indemnifying party
shall permit the Indemnified Party to participate in such settlement or defense
through counsel chosen by the Indemnified Party, provided that the fees and
expenses of such counsel shall not be borne by the indemnifying party, and (ii)
the indemnifying party shall not settle any indemnifiable claim without the
Indemnified Party's consent. Each Indemnified Party agrees that it will
cooperate with the indemnifying party in the defense of any such action, the
defense of which is assumed by the indemnifying party. Except with the consent
of the Indemnified Party, the indemnifying party shall not consent to the entry
of any judgment arising from any such claim or legal proceeding which, in each
case, does not include as an unconditional term thereof the delivering by the
claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect thereof, unless the indemnifying party has actually paid to
the Indemnified Party the full amount of such judgment or settlement. If the
indemnifying party does not assume the defense of any claim or litigation, any
Indemnified Party may defend against such claim or litigation in such manner as
it may deem appropriate, including, but not limited to, settling such claim or
litigation, after giving notice of the same to the indemnifying party, on such
terms as the Indemnified Party may deem appropriate. The indemnifying party will
promptly reimburse the Indemnified Party in accordance with the provisions
hereof.
(e) Payment. All indemnification hereunder shall be
effected by payment of cash or delivery of a certified or official bank check in
the amount of the indemnification liability or by set-off against any amounts
otherwise owed by the Purchaser to Xxxxxx or by Xxxxxx to the Purchaser, as the
case may be.
Section 6. Miscellaneous.
(a) Expenses. Except as may otherwise be provided herein,
no party hereto shall be responsible for the payment of any other party's
expenses incurred in connection with this Agreement.
(b) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
4
5
(i) if to Xxxxxx, to
Xxxxxxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxx Xxxxx 000
Xxxxx, XX 00000
(ii) if to the Purchaser, to
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited Liability Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: E. Xxxxxx Xxxxxxxx
(c) Entire Agreement. This Agreement and other documents
delivered pursuant hereto contain and constitute the entire agreement and
understanding between the Purchaser and Xxxxxx and supersede and cancel all
prior agreements and understandings relating to the subject matter hereof,
whether written or oral, which shall remain in effect. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated, except in
writing signed by the parties hereto.
(d) Severability. Should any one or more of the
provisions of this Agreement or any agreement entered into pursuant hereto be
determined to be illegal or unenforceable, all other provisions of this
Agreement and such other agreements shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and shall not
be affected thereby.
(e) Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Tennessee without regard to
its principles of conflicts of laws. Each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Tennessee and of the United States of America located in the
State of Tennessee (the "Tennessee Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the Tennessee
Courts and agrees not to plead or claim in any Tennessee Court that such
litigation brought therein has been brought in an inconvenient forum.
(f) Further Assurances. Each party covenants that at any
time, and from time to time, after the Closing, it will execute such additional
instruments and take such actions as may be reasonably requested by the other
party to confirm or perfect or otherwise to carry out the intent and purposes of
this Agreement.
(g) Waiver. Any failure on the part of any party to
comply with any of its obligations, agreements or conditions hereunder may be
waived by any other party to whom such compliance is owed. No waiver of any
provision of this Agreement shall be deemed, or shall
5
6
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver.
(h) Assignment. This Agreement shall not be assignable by
any of the parties hereto, by operation of law or otherwise, without the written
consent of all of the other parties.
(i) Binding Effect. All of the terms of this Agreement,
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. This Agreement shall survive the
Closing and not be merged therein.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) Counterparts. This Agreement 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.
(l) Survival. The representations, warranties and
covenants of the parties contained in this Agreement, including without
limitation the provisions of Section 5 hereof, shall survive the Closing and
shall not be extinguished thereby notwithstanding any investigation or other
examination by any party.
(m) Construction of Terms. The language used in the
Agreement shall be construed, in all cases, according to its fair meaning, and
not for or against any party hereto. The parties acknowledge that each party has
reviewed this Agreement and that normal rules of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement. Whenever the masculine gender
is used herein, it shall be deemed to include the feminine and the neuter.
(n) Drafting Party. The provisions of this Agreement, and
the documents and instruments referred to herein, have been examined,
negotiated, drafted and revised by counsel for each of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
7
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
PURCHASER:
-----------------------------------------
-----------------------------------------
XXXXXX:
-----------------------------------------
Xxxxxxxxxxx X. Xxxxxx
8
EXHIBIT A
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxxxx X.
Xxxxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Independence
Trust Company Custodian for Xxxxxxx X. Xxxxxxxx Individual Retirement Account
and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxx X.
Xxxxxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxx X.
Xxxxx III and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between T. Xxxx
Xxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxxxx X.
Xxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Independence
Trust Company Custodian for Xxxxxxx X. Xxxxx Individual Retirement Account and
Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxx X.
Xxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxxx X.
Xxxxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Independence
Trust Company custodian for Xxxxxx X. Xxxxxxxx beneficiary of Xxxxxxx X.
Xxxxxxxx Individual Retirement Account and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxxx X.
Xxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between XxXxx
Xxxxxxxxx and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxx X.
Xxxxxxx Xx. and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Xxxx X.
Xxxxxxx Xx. and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Ram Xxxxxx
and Xxxxxxxxxxx X. Xxxxxx.
Stock Purchase Agreement dated as of April 16, 2001, by and between Kyzen
Corporation, a Tennessee corporation, and Xxxxxxxxxxx X. Xxxxxx.
