<PAGE> 1
As filed with the Securities and Exchange Commission on June 30, 1999
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KYZEN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
TENNESSEE 87-0475115
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
430 HARDING INDUSTRIAL DRIVE
NASHVILLE, TN 37211
(615) 831-0888
(Address, Including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
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KYLE J. DOYEL
KYZEN CORPORATION
430 HARDING INDUSTRIAL DRIVE
NASHVILLE, TN 37211
(615) 831-0888
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
E. MARLEE MITCHELL
WALLER LANSDEN DORTCH & DAVIS,
A PROFESSIONAL LIMITED LIABILITY COMPANY
2100 NASHVILLE CITY CENTER
NASHVILLE, TENNESSEE 37219-1760
(615) 244-6380
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the Effective Date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
______________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: [ ] __________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Title of Each Class of Securities to be Registered Registered Per Unit (1) Offering Price (1) Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share ............... 1,650,000 $1.078125 $1,778,906.25 $495
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) under the Securities Act of 1933,
based on the average of the high and low prices of the common stock on the
Nasdaq Small-Cap Market on June 24, 1999.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
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PROSPECTUS
DATED _______, 1999
KYZEN CORPORATION
1,650,000 SHARES
COMMON STOCK
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This prospectus covers the sale of up to 1,650,000 shares of our common
stock issuable on the exercise of 1,650,000 warrants. The warrants were issued
in our initial public offering that was completed on August 4, 1995. Warrant
holders may purchase one share of common stock for each warrant exercised. The
warrants are exercisable at $5.00 per share and expire on August 4, 2002. If all
of the warrants are exercised, we will receive $8,250,000 before deducting
expenses estimated at $23,000.
Our common stock is quoted on the Nasdaq Small-Cap Market under the
symbol "KYZN" and listed on the Boston Stock Exchange under the symbol "KYZ."
The last sale price of the common stock on June 24, 1999 was $1.0625. Our
warrants are quoted on the Nasdaq Small-Cap Market under the symbol "KYZNW" and
listed on the Boston Stock Exchange under the symbol "KYZW." The last sale price
of the Warrants on June 24, 1999 was $0.15625.
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PURCHASE OF THESE SHARES INVOLVES RISKS.
PLEASE CAREFULLY CONSIDER THE "RISK FACTORS"
BEGINNING ON PAGE 3 OF THIS PROSPECTUS.
------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------
<PAGE> 3
THE COMPANY
We are a specialty chemical company focused on chemical solutions and
processes for electronics and other high technology industries where precision
cleaning is required. We also manufacture and market peripheral equipment such
as process control systems and chemical handling systems that enhance the use by
customers of our chemical solutions. Sales of this equipment comprised
approximately eight percent of net sales in 1997, three percent of net sales in
1998 and three percent of net sales in the three months ended March 31, 1999.
Typically, our products are sold as separate items and are integrated into a
cleaning process by the customer, or by our company as part of a contract
service.
Our company was organized to develop chemical solutions and processes
to replace ozone-depleting products such as chlorofluorocarbons, which are
commonly referred to as "CFCs," used in the cleaning of electronic assemblies
and precision metal components. No single replacement product has been found
that has the broad applicability of the ozone-depleting products produced before
1995, the deadline imposed by the United States government for phasing out
ozone-depleting products pursuant to the Montreal Protocol on Substances that
Deplete the Ozone Layer. As a result, the market for high technology cleaning
has fragmented into smaller niche cleaning applications where specific products
are developed to meet specialized market needs. The high technology cleaning
market continues to evolve as newer technology and miniaturization of products
presents more difficult cleaning challenges for manufacturers.
We have formulated seven general lines of cleaning chemistries that
serve different market niches. These chemistries are:
- Semi-aqueous electronic cleaning (Ionox(R)).
- Aqueous cleaner concentrates for electronic cleaning
(Aquanox(R)).
- Metal/plastic precision cleaners which can be aqueous or
semi-aqueous (Metalnox(R)).
- Volatile organic chemical compliant cleaning agents for
electronics and precision metals (Lonox(TM)).
- Optical solvents and cleaning agents (Optisolv(TM)).
- Semi-conductor cleaning agents (Micronox(TM)).
- Waterless solvents and hand-wipe solvents (Kryptonol(R)).
In addition, we have identified product niches in cleaning chemistries
and processes for batteries and medical devices and are currently selling
limited amounts of specialty cleaning products in those industries. Our strategy
is to patent our formulations where unique materials, blends or uses are
identified. In other formulations, we use a combination of multiple ingredients
and suppliers to protect and maintain as proprietary information the key active
materials used.
Most of our formulations are non-flammable and non-combustible, low in
toxicity and generally require no hazardous material shipping or storage
precautions. We attempt to meet this standard with all of our products.
Customized products for key high volume customers and new niche applications
frequently have unique requirements, however, which may necessitate departures
from these general standards. We are currently developing new cleaning
chemistries and processes for our existing electronics niche in addition to
developing new products for the semiconductor, optics, medical device and other
niche cleaning markets. We believe our unique chemical products will be an
attractive alternative in each of these industries. Our management also believes
that future product lines may be acquired through acquisitions or licensing
arrangements.
Our principal executive offices are located at 430 Harding Industrial
Drive, Nashville, Tennessee 37211, and our telephone number is (615) 831-0888.
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RISK FACTORS
An investment in our common stock involves a number of risks. You
should carefully consider the following information about these risks, together
with the other information in this prospectus, before exercising any warrants to
buy shares of common stock. If any of the following risks actually occur, our
business, financial condition, operating results or cash flows could be
materially adversely affected. This could cause the trading price of our common
stock to decline, and you may lose part or all of your investment. Some of the
statements set forth below are "forward-looking statements" under Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934.
THERE IS UNCERTAINTY CONCERNING THE CONTINUED QUOTATION OF OUR STOCK ON THE
NASDAQ SMALL-CAP MARKET BECAUSE THE MINIMUM BID PRICE OF OUR STOCK HAS RECENTLY
FALLEN BELOW ONE DOLLAR.
Our common stock is quoted, and trades almost exclusively, on the
Nasdaq Small-Cap Market. The Nasdaq Small-Cap Market requires that listed
companies maintain a minimum bid price per share of at least $1.00. Our common
stock has recently been out of compliance with this requirement. If the minimum
bid price of our common stock again falls below $1.00 per share and stays below
that price for an extended period of time, our common stock could be removed
from quotation on the Nasdaq Small-Cap Market. Prior to taking this action,
however, the Nasdaq Small-Cap Market will give us the opportunity to bring our
stock price into compliance or propose a plan for achieving compliance. We
cannot offer assurance that our common stock will continue to be quoted on the
Nasdaq Small-Cap Market.
If our common stock is removed from quotation on the Nasdaq Small-Cap
Market, management anticipates that we would seek to qualify our common stock
for trading on the OTC Bulletin Board. Although OTC Bulletin Board trades are
reported on a "real time" basis, the OTC Bulletin Board standards for quotation
are less demanding than those of the Nasdaq Small-Cap Market. For this reason,
OTC Bulletin Board companies tend to be newer, smaller and less well capitalized
than companies listed on the Nasdaq Small-Cap Market. As a result of these
factors, investors may consider that OTC Bulletin Board companies represent a
greater investment risk than those listed on the Nasdaq Small-Cap Market and the
price of our common stock may reflect this perception.
THE LACK OF AN EXISTING LINE OF CREDIT MAY CAUSE US TO BE UNABLE TO FINANCE
FUTURE TRANSACTIONS OR OPERATIONS.
We currently do not have a line of credit with a banking institution.
Although management believes that we do not need a line of credit for our
current operations, circumstances may arise that create a need for a line of
credit or other source of borrowings. For example, we may be unable to finance
significant capital expenditures or acquisitions of other product lines or
businesses without external financing sources. Also, we have a limited history
of profitable operations and the lack of a line of credit could affect our
ongoing operations and particularly our ability to pay operating expenses if we
are not profitable for an extended period of time. We cannot offer assurance
that we will be able to locate suitable or timely financing if needed. Our
inability to obtain suitable and timely financing in the future could delay or
make impossible capital expenditures, acquisitions or payments of operating
expenses.
HOLDERS OF WARRANTS MAY BE UNABLE TO EXERCISE WARRANTS BECAUSE OF LACK OF
REGISTRATION OR QUALIFICATION IN SOME STATES.
A purchaser of the warrants in the open market may reside in a state in
which the shares of common stock underlying the warrants are not registered or
qualified and where no exemption from registration or qualification is
available. In addition, a warrant holder may relocate to a state in
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which the shares of common stock underlying the warrants are not registered or
qualified and no exemption from registration or qualification is available.
Absent registration or qualification of the shares of common stock underlying
the warrants or any appropriate exemption, holders in those states would have no
choice but to sell their warrants or let them expire. Prospective investors and
other interested persons who wish to know whether shares of common stock may be
issued on the exercise of warrants by holders in a particular state should
consult with the securities department of that state or send a written inquiry
to us.
PAYMENT OF CASH DIVIDENDS IN THE FORESEEABLE FUTURE IS UNLIKELY.
We have not previously paid any cash dividends on our common stock and
we anticipate that, in the foreseeable future, we will continue to use our
earnings, if any, to develop and expand our business.
WE MAY NOT BE ABLE TO COMPETE AGAINST MANY OF OUR COMPETITORS BECAUSE WE ARE
SMALLER AND HAVE LESS FINANCIAL RESOURCES.
The precision cleaning industry is undergoing rapid change as companies
search for new technology to replace processes based on ozone-depleting
products. The market is rapidly moving from a commodity market supplied by major
chemical companies to a series of highly fragmented niche markets supplied by
numerous focused specialty chemical companies. Our management believes that our
most significant competitors include Petroferm, Church & Dwight, Valtron, Alpha
Metals, Multicore and Dr. O.K. Wack Chemie. We cannot offer assurance that we
will remain competitive. Because we are smaller and have less financial
resources than many of our competitors, we may not be able to compete
successfully against current or future competitors. If we compete with them for
the same markets, their financial strength could prevent us from capturing those
markets.
WE HAVE HISTORICALLY RELIED ON A SINGLE CHEMICAL PRODUCER FOR OUR SUPPLY OF
NONLINEAR ALCOHOL.
Although we purchase our raw materials, components and finished
machines from a variety of sources and generally do not significantly depend on
any one supplier, we have historically relied on one domestic chemical producer
for our supply of the nonlinear alcohol used in many of our cleaning
formulations. The unavailability of raw materials from this producer or any
other supplier of raw materials could result in a short-term reduction in our
production until a replacement supplier is found.
WE MAY BE UNABLE TO PROTECT OUR PATENTS AND PROPRIETARY TECHNOLOGY.
We own patents, both in the United States and abroad, for many of our
chemical cleaning formulations. We rely upon the protection afforded by our
patents and trade secrets to protect the technology we develop or license. Our
success may depend upon our ability to protect our intellectual property. The
enforcement of intellectual property rights, however, can be both expensive and
time consuming. Therefore, we may not be able to devote the resources necessary
to prevent infringement of our intellectual property. Also, our competitors may
develop or acquire substantially similar technologies without infringing our
patents or trade secrets. For these reasons, we cannot offer assurance that our
patents and proprietary technology will provide us with any competitive
advantage.
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WE MAY HAVE TO TRANSFER SOME OF OUR PATENTS TO BIX MANUFACTURING COMPANY.
In connection with our purchase from Bix Manufacturing Company of our
patented chemistry used in our cleaning solutions, we agreed to transfer related
patents back to Bix Manufacturing Company in the event that:
- we default by failing to pay the royalty based on 2% of the
revenues related to the patented chemistry, and the default is
not cured as provided in our purchase agreement;
- we are ordered or adjudged as bankrupt or placed in the hands
of a receiver, or otherwise enter into any plan with our
creditors or make an unauthorized assignment for the benefit
of our creditors;
- our assets are seized or attached in conjunction with any
action against our company by any third party; or
- we are dissolved or liquidated.
We cannot offer assurance that we will be able to avoid these events and the
transfer of patents back to Bix Manufacturing Company.
THE LOSS OF KEY EMPLOYEES COULD RESULT IN THE LOSS OF CUSTOMERS OR SUPPLIERS.
Because we do not maintain key-man life insurance on any employees, the
loss of key employees, including Kyle J. Doyel, Michael L. Bixenman, Thomas M.
Forsythe and Thomas J. Herrmann, could impact our business. For example, losing
key employees could result in the loss of customers or suppliers with whom they
have established relationships.
POTENTIAL FUTURE ACQUISITIONS COULD RESULT IN DILUTION FROM THE ISSUANCE OF
ADDITIONAL SHARES AND LEVERAGE FROM ADDITIONAL DEBT.
We may acquire other companies which produce products and provide
services similar to ours. We cannot offer assurance, however, that we will make
any acquisitions. We have not entered into any understandings or agreements to
acquire any other companies. Our acquisition strategy will be determined by our
Board of Directors and management, and unless otherwise required by law, our
shareholders will not receive advance information or otherwise have the right to
approve or disapprove any acquisition opportunity. Potential future acquisitions
may involve dilution from the issuance of additional shares and leverage from
additional debt and the addition of management and other personnel.
THE INABILITY OF VENDORS OR SUPPLIERS TO ACCOMMODATE THE YEAR 2000 CHANGE COULD
CAUSE SIGNIFICANT DELAYS IN OUR PRODUCTION PROCESS OR THE DELIVERY OF OUR
PRODUCTS.
We are reviewing our exposure to damages that could result if our
internal computing, communication and non-computational systems do not correctly
recognize date information when the year changes to 2000. We are also evaluating
our major vendors and suppliers of goods and services to determine whether they
will be able to accommodate the year 2000 change. We are currently uncertain as
to whether or not all of our suppliers and vendors will be able to accommodate
the year 2000 change. The failure of any significant vendor or supplier to
accommodate the year 2000 change could cause significant delays in our
production process or the delivery of our products to customers.
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OUR INABILITY TO MAINTAIN COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS RELATING
TO ENVIRONMENTAL MATTERS COULD RESULT IN SIGNIFICANT CIVIL OR CRIMINAL REMEDIES
IMPOSED ON US.
Our operations are subject to federal, state and local laws and
regulations relating to the discharge of pollutants into the air and water,
worker exposure to the chemicals we manufacture and sell, and established
standards for the reuse, storage and disposal of hazardous wastes. Although we
believe that our operations are in compliance with current laws and regulations
relating to these matters, our inability to maintain compliance could result in
significant civil or criminal remedies imposed on us. We derive a large portion
of our revenue from the sale of blended products made from finished materials
purchased from various chemical manufacturers. These chemical materials are
periodically evaluated by these third-party chemical suppliers for potential
adverse health effects resulting from exposure or overexposure to the chemical
materials. A discovery of adverse health effects related to our products could
result in significant civil or criminal remedies.
REDUCED GOVERNMENTAL REGULATIONS CONCERNING OZONE DEPLETION COULD LESSEN THE
DEMAND FOR OUR PRODUCTS.
We believe that the demand for our products is directly related to
governmental responses to and public concern with ozone depletion, elimination
of CFCs and air and water contamination. A decrease in public concern over ozone
depletion or water contamination or less governmental pressure to remedy these
problems could substantially reduce demand for our products. Although our
customers utilize our products and services in response to regulatory
requirements affecting their businesses, we believe that the federal and state
environmental rules and regulations applicable to our customers do not directly
govern our operations as they currently are being conducted. Although we are not
aware of any pending or proposed federal legislation or regulation that could
adversely affect our products, chemicals or services, any future legislation or
regulation that limits the sale of our products or components or limits the
methods by which those products are manufactured, installed or serviced, could
reduce product sales and therefore reduce our revenues.
POTENTIAL TRADE SANCTIONS WITH CHINA OR FAILURE TO RENEW NORMAL TRADE RELATIONS
STATUS FOR CHINA COULD INCREASE THE COST OF SOME OF OUR RAW MATERIALS.
In 1998, manufacturers in the Peoples Republic of China became
significant suppliers of our company. In 1999, we expect to import approximately
35% of our raw material purchases from China. The United States has threatened
trade sanctions of up to $2 billion if China does not increase its efforts to
stop piracy and other intellectual property violations. In addition, annual
renewal of China's Normal Trade Relations status is under review by the United
States government in 1999. Failure of the United States government to continue
to grant Normal Trade Relations status to China could increase duties and
increase the cost of some of our raw materials or make them completely
unavailable. We obtain a portion of these raw materials domestically but we have
no contingency plans if Chinese sources are no longer able to provide these raw
materials. These potential developments could cause a reduction in production,
sales and revenues or at least could cause an increase in the cost of our raw
materials.
PROVISIONS IN OUR CHARTER AND BYLAWS AND UNDER TENNESSEE LAW COULD DISCOURAGE
AND PREVENT CHANGES IN CONTROL.
Provisions in our charter and bylaws and under Tennessee law could
prevent you from receiving a premium on your common stock and could also have a
depressive effect on the market price of our common stock. We also have a Rights
Agreement that could discourage potential acquirers from attempting a takeover
and could prevent you from receiving a premium on your common stock. See the
section entitled "Description of Securities - Charter and Bylaw Provisions May
Have Anti-Takeover Effects" on page 11 and "Description of Securities -
Tennessee Law May
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Have Anti-Takeover Effects" on page 12 for more information about these
provisions in our charter, bylaws and the Rights Agreement and the provisions of
Tennessee law that could result in anti-takeover effects.
WE MAY REDEEM THE WARRANTS PRIOR TO THEIR EXERCISE WHICH COULD FORCE HOLDERS TO
EXERCISE THEIR WARRANTS AT AN UNDESIRABLE TIME.
We may redeem the warrants for $0.05 per warrant at any time by giving
thirty days prior written notice, provided that the closing bid quotation or
sale price for the common stock has equaled or exceeded $7.50 for ten
consecutive trading days. If we provide notice of redemption, it could force the
holders to exercise their warrants and pay the exercise price at a time when it
might be disadvantageous or difficult for the holder to do so, or sell the
warrants at current market price when they might otherwise wish to hold the
warrants, or accept the redemption price, which is likely to be less than the
market price of the warrants at the time of redemption.
DILUTION MAY RESULT FROM THE EXERCISE OF WARRANTS OR UNDERWRITERS' WARRANTS.
To the extent that the warrant holders exercise any warrants to
purchase shares of common stock, existing shareholders could experience
dilution. If all of the warrants are exercised, an additional 1,650,000 shares
of common stock will be issued. Also, in connection with the initial public
offering, we issued warrants to the underwriters to purchase up to 55,000 units,
comprised of three shares of common stock and three warrants each, at an
exercise price of 130% of the initial public offering price. We have agreed to
register the common stock issuable upon exercise of the underwriters' warrants
under the Securities Act of 1933 and applicable state securities laws. The
holders of the underwriters' warrants are given the opportunity to profit from
any difference between the exercise price of their warrants and the market price
of the common stock, resulting in dilution in the interests of existing
shareholders.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with
Securities and Exchange Commission under the Securities Act of 1933
(Registration No. 333-________). As permitted by the rules and regulations of
the SEC, this prospectus does not contain all of the information set forth in
the registration statement and the accompanying exhibits and schedules. For
further information with respect to our company and the common stock offered by
this prospectus, please refer to the registration statement. Statements in this
prospectus as to the contents of any contract or other document are not
necessarily complete. We qualify any statement by reference to the copy of the
contract or document filed as an exhibit to the registration statement. You may
inspect copies of the registration statement, without charge, at the offices of
the SEC, or obtain them at prescribed rates from the Public Reference Section of
the SEC at the address set forth below. We will provide this information upon
written request and without charge to any person, including a beneficial owner,
to whom a copy of this prospectus is delivered. These requests should be
directed to Kyzen Corporation, 430 Harding Industrial Drive, Nashville,
Tennessee 37211, Attention: Thomas J. Herrmann, Corporate Secretary (telephone
number (615) 831-0888).
We are subject to the informational requirements of the Securities
Exchange Act of 1934. Accordingly, we file annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB, current reports on Form 8-K, proxy statements
and other documentation with the SEC. You may inspect and copy this information
at the public reference facility maintained by the SEC at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You may get additional
information about the operation of the SEC's public reference facilities by
calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding companies that, like us, file information
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electronically with the SEC. You can also inspect information about our company
at the offices of the National Association of Securities Dealers, Inc., at 1735
K Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" the information we file
with it. This means that we can disclose important information to you by
referring you to the other documents that we have previously filed with the SEC.
The documents that we incorporate by reference are considered to be a part of
this prospectus, and information that we file in the future with the SEC will
automatically update and supersede the information that we have included in this
prospectus. We incorporate by reference the documents listed below. We also
incorporate by reference any future filings we make with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell
all of the shares of common stock or until the offering of the shares of common
stock is otherwise ended.
- The description of our Series A Junior Participating Preferred
Stock on Form 8-A filed with the SEC on January 15, 1999.
- Our proxy statement on Schedule 14A filed with the SEC on
March 15, 1999.
- Our annual report on Form 10-KSB filed with the SEC for the
year ended December 31, 1998.
- Our annual report on Form 10-KSB/A filed with the SEC for the
year ended December 31, 1998.
- Our quarterly report on Form 10-QSB filed with the SEC for the
quarter ended March 31, 1999.
- Our current report on Form 8-K filed with the SEC on
June 2, 1999.
- All other documents that we file with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 following the date of this prospectus and prior to
the termination of this offering.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to this prospectus. We have not
authorized anyone to provide you with different information or additional
information. We will not make an offer of these shares of common stock in any
state where the offer is not permitted. You should not assume that the
information in this prospectus, or any supplement to this prospectus, is
accurate at any date other than the date indicated on the cover page of these
documents.
FORWARD-LOOKING STATEMENTS
We have included in this report forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities and Exchange Act of 1934. When used, statements which are not
historical in nature, including the words "anticipate," "estimate," "should,"
"expect," "believe," "intend" and similar expressions are intended to identify
forward-looking statements. These statements are, by their nature, subject to
risks and uncertainties. Among the factors that could cause actual results to
differ materially from those projected are the following:
- Business conditions and the general economy as they affect
interest rates
- Business conditions as they affect manufacturers of chemical
raw materials
- The federal, state and local regulatory environments
- The availability of debt and equity capital with favorable
terms and conditions
- The availability of new expansion and acquisition
opportunities
- Changes in the financial condition or corporate strategy of
our primary customers
- The inability of our significant customers or suppliers to
accommodate the year 2000 change
- Our ability to develop or acquire new competitive product
lines
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- Our ability to protect our patents and proprietary technology
- Loss of one or more key employees.
Actual results, events and performance may differ materially from those
projected. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date of this prospectus.
We undertake no obligation to release publicly the results of any revisions to
these forward-looking statements that may be made to reflect events or
circumstances after the date of this prospectus or to reflect the occurrence of
unanticipated events.
USE OF PROCEEDS
Assuming all of the warrants are exercised, we will receive proceeds of
$8,250,000 before deducting our expenses estimated at $23,000. Net proceeds from
the sale of our common stock upon exercise of the warrants will be used for
working capital and other general corporate expenses.
PLAN OF DISTRIBUTION AND DESCRIPTION OF WARRANTS
We filed a registration statement to issue 550,000 common stock units
in our initial public offering on August 4, 1995. Each unit consisted of three
shares of Class A common stock and three redeemable Class A common stock
purchase warrants with a final expiration date of August 4, 2000. In connection
with the warrants, we entered into a Warrant Agreement with American Stock
Transfer & Trust Company. The Class A common stock and the warrants began
trading separately as of August 23, 1995. On May 12, 1999, the Class A common
stock was converted to common stock. On June 2, 1999, we extended the exercise
date of our warrants to August 4, 2002.
We are offering shares of common stock to holders of warrants issued in
the offering in August 1995. Each warrant entitles the holder to purchase one
share of our common stock at an exercise price per share equal to $5.00, subject
to adjustment described below under "Antidilution." The warrants expire at 5:00
p.m., New York time, on August 4, 2002. Warrants may be surrendered for exercise
at any time on or prior to August 4, 2002, by submitting to American Stock
Transfer & Trust Company, as warrant agent, a warrant certificate signed by the
warrant holder indicating an election to exercise all or a portion of the
warrants evidenced by the certificate, accompanied by payment of the aggregate
exercise price of the warrants to be exercised. Payment may be made in the form
of cash or by certified or official bank check payable to the order of American
Stock Transfer & Trust Company.
Effective as of February 4, 1996, we may redeem the warrants, in whole
or in part, at $0.05 per warrant at any time upon thirty days prior written
notice, if the closing sale price of the common stock on the Boston Stock
Exchange or the closing bid quotation on the Nasdaq Small-Cap Market is equal to
or greater than $7.50 for ten consecutive trading days. Each registered holder
of a warrant will continue to have the right to exercise his warrant until the
close of business on the date of redemption, and the warrants will continue to
be subject to adjustment until the exercise or redemption.
We will issue a certificate or certificates representing the shares of
common stock at the time of exercise. We have reserved 1,650,000 shares of
common stock for issuance upon exercise of the warrants.
ANTIDILUTION ADJUSTMENTS
The exercise price and the number of shares of common stock purchasable
upon the exercise of each warrant are subject to adjustment to protect warrant
holders against dilution upon the occurrence of events such as stock dividends,
stock splits, reclassification or any combination of the
9
<PAGE> 11
common stock, or a merger, consolidation or disposition of substantially all of
our assets. No adjustment in the exercise price of the warrants and the number
of shares of common stock purchasable upon the exercise of each warrant will be
required until cumulative adjustments reach $0.25 per share. No fractional
shares will be issued upon exercise of warrants, but we will pay an amount in
cash equal to the same fraction of the fair market value of the warrant.
FEDERAL INCOME TAX CONSEQUENCES
The following discussion relates to the material federal income tax
consequences of a U.S. holder of warrants participating in the exercise of
warrants. The effect of such tax consequences upon you will depend upon your
individual circumstances.
Generally, a U.S. holder of warrants will not recognize any gain or
loss on the purchase of our common stock for cash upon exercise of the warrants.
The U.S. holder's tax basis in the common stock received will be equal to the
sum of the tax basis in the warrants so exercised and the cash paid upon
exercise of the warrants. The holding period of the common stock received upon
exercise of a warrant for cash will not include the period during which the
warrant was held; it will commence only upon the exercise date on which the
warrant is exercised.
You should consult your own tax advisors concerning the federal income
tax consequences of the sale, exchange or other disposition of the warrants. We
have not received any advice as to local, income, franchise, personal property
or other taxation in any state or locality or as to the tax effect of ownership
of warrants in any state or locality. You are advised to consult your own tax
advisors with respect to any state or local tax consequences arising out of your
ownership or exercise of warrants.
DESCRIPTION OF SECURITIES
AUTHORIZED STOCK
Our authorized capital stock consists of 50,000,000 shares, divided
into 40,000,000 shares of common stock, $0.01 par value per share, and
10,000,000 shares of preferred stock, $0.01 par value per share.
Our board of directors has the authority, without approval of our
shareholders, to authorize the issuance of shares of preferred stock from time
to time in one or more series. Each series will have a distinctive designation
or title and the number of shares will be fixed by the board of directors prior
to the issuance of any shares. Each series of preferred stock will have voting
powers, full or limited, or no voting powers and the preferences and relative,
participating, optional, or other special rights and qualifications,
limitations, or restrictions thereof, as adopted by the board of directors prior
to the issuance of any shares. We have no present plan to establish any
additional class or series.
Currently, our board of directors has authorized and reserved for
issuance one series of preferred stock. This series of preferred stock was
established in connection with the adoption of our Rights Agreement.
DESCRIPTION OF COMMON STOCK
As of this date, 5,006,681 shares of common stock are outstanding. All
outstanding shares of common stock are fully paid and nonassessable. The holders
of common stock are entitled to one vote for each share held of record on all
matters voted upon by shareholders and may not cumulate votes for the election
of directors. Therefore, the owners of a majority of the shares of common stock
outstanding may elect all of the directors, if they choose to do so, and the
owners of the balance of the shares would not be able to elect any directors.
10
<PAGE> 12
Each share of outstanding common stock is entitled to participate
equally in any distribution of net assets made to the shareholders in
liquidation of our company and is entitled to participate equally in dividends
as and when declared by our board of directors. There are no preemptive rights
with respect to the shares of common stock, which could result in a dilution of
the interest of existing shareholders should additional shares of common stock
be issued.
DESCRIPTION OF PREFERRED STOCK
On January 15, 1999, our board of directors declared a dividend of one
preferred share purchase right for each share of common stock. Each right
entitles the registered holder to purchase one one-hundredth of a share of
Series A Junior Participating Preferred Stock at a price of $5.00 per right,
subject to adjustment. The description and terms of the rights are set forth in
our Rights Agreement. See "Charter and Bylaw Provisions May Have Anti-Takeover
Effects" below for more information about the Rights Agreement.
We have reserved for issuance 100,000 shares of Series A Junior
Participating Preferred Stock. The holders of shares of Series A Junior
Participating Preferred Stock are entitled to receive quarterly dividends as and
when declared by our board of directors in an amount equal to the greater of
$1.00 or 100 times the aggregate per share amount of all cash dividends or other
distributions declared on the common stock, subject to adjustment. Each share is
entitled to 100 votes, subject to adjustment, on all matters submitted to a vote
of our shareholders. On liquidation or dissolution, we cannot make a
distribution to the holders of shares of stock ranking junior to the Series A
Junior Participating Preferred Stock unless the holders of Series A Junior
Participating Preferred Stock have received $100 per share plus any accrued and
unpaid dividends and distributions, whether or not declared. If our company
enters into a consolidation, merger, combination or other transaction in which
shares of its common stock are exchanged for other securities or property, each
share of Series A Junior Participating Preferred Stock will additionally be
exchanged into an amount per share equal to 100 times the aggregate amount of
securities or property for which each share of common stock is exchanged. The
shares of Series A Preferred Stock are not redeemable.
CHARTER AND BYLAW PROVISIONS MAY HAVE ANTI-TAKEOVER EFFECTS
Our charter and bylaws contain provisions that may, together or
separately, have the effect of discouraging or making more difficult an
acquisition or change of control that might result in a premium price or
otherwise be in our best interest.
Our charter provides:
- The classification of our board of directors into three
classes, with each class of directors serving staggered terms
of three years.
- A director may be removed with or without cause by the vote of
the holders of at least sixty-seven percent of the shares of
the common stock entitled to vote.
- Shareholders do not have the ability to fill a vacancy on the
board of directors.
- The board of directors may consider the effects of a proposed
merger, exchange, tender offer or significant disposition of
assets on our employees, customers, suppliers and the
communities in which we operate.
- The affirmative vote of the holders of at least sixty-seven
percent of the shares of the common stock entitled to vote is
required to repeal, amend or adopt provisions inconsistent
with provisions in the charter or bylaws.
Our charter establishes a series of preferred stock, Series A Junior
Participating Preferred Stock, pursuant to the Rights Agreement adopted on
January 15, 1999. The Rights Agreement is intended to encourage potential
acquirers to negotiate with our board of directors and to discourage
11
<PAGE> 13
coercive, discriminatory and unfair proposals. It provides that each record
holder of our common stock, as of January 15, 1999, is entitled to purchase
shares of our common stock at a discounted price in the event any person or
group of persons exceeds predetermined ownership levels of our outstanding
common stock. Any person who exceeds the predetermined ownership levels,
however, is not entitled to purchase the common stock at a discount.
Furthermore, if we are acquired in a merger or other business combination
transaction after a person exceeds the predetermined ownership levels, each
record holder of our common stock, as of January 15, 1999, is entitled to
purchase shares of common stock of the acquiring company at a discount.
Our bylaws provide that for a shareholder to bring nominations of
persons for election to the board of directors or other business before an
annual meeting of shareholders, the shareholder must give written notice to our
corporate secretary between 120 and 150 days prior to the anniversary of the
date on which we first mailed our proxy statement to shareholders in connection
with the prior year's annual meeting of shareholders.
TENNESSEE LAW MAY HAVE ANTI-TAKEOVER EFFECTS
Tennessee law provides shareholders with protections against a hostile
takeover that may have anti-takeover effects. The Tennessee Business Corporation
Act contains the Tennessee Investor Protection Act, the Tennessee Control Share
Acquisition Act, the Tennessee Business Combination Act and the Tennessee
Greenmail Act. The Tennessee Investor Protection Act prohibits offerors from
making a takeover offer of a Tennessee corporation if the offeror beneficially
owns five percent or more of the equity securities of the Tennessee corporation.
The offeror may not make a takeover offer unless it has previously made a public
announcement of its intention with respect to changing or influencing the
management or control of the Tennessee corporation, has made a full, fair and
effective disclosure of this intention to the persons from whom the offeror
intends to acquire the securities and has filed with the Commissioner of
Commerce and Insurance and the Tennessee corporation a statement of the
intention. Additionally, an offeror may not make a takeover offer involving a
Tennessee corporation which is not made to the holders of record or beneficial
owners of the equity securities of the Tennessee corporation who reside in
Tennessee, or which is not made to Tennessee residents on substantially the same
terms as the offer is made to those holders or owners who reside outside of
Tennessee.
The Tennessee Control Share Acquisition Act provides that a person who
acquires "control shares" must, unless one of the identified exceptions applies,
obtain approval of a majority of the shareholders in order to vote the shares
that the acquiror acquires. The Tennessee Control Share Acquisition Act is not
applicable to our company because we have not elected to be covered by it. We
cannot assure, however, whether this election, which must be expressed in the
form of a charter or bylaw provision, will be made in the future.
The Tennessee Business Combination Act provides, among other things,
that any corporation to which it applies, including our company, shall not
engage in any "business combination" with an "interested shareholder" for a
period of five years following the date that the shareholder became an
interested shareholder unless prior to that date the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the shareholder becoming an interested shareholder. Consummation of
a business combination that is subject to the five-year moratorium is permitted
after that period if the transaction complies with all applicable charter and
bylaw requirements and applicable Tennessee law and is approved by at least
two-thirds of the outstanding voting stock not beneficially owned by the
interested shareholder, or when the transaction meets the statutory fair price
criteria.
The Tennessee Greenmail Act prohibits a Tennessee corporation from
purchasing or agreeing to purchase any of its securities at a price in excess of
"market value" from a holder of three percent or more of any class of those
securities who has beneficially owned the securities for less than two
12
<PAGE> 14
years, unless the purchase has been approved by the affirmative vote of a
majority of the outstanding shares of each class of voting stock issued by the
corporation or the corporation makes an offer of at least equal value per share
to all holders of shares of the class.
OUR TRANSFER AGENT AND WARRANT AGENT
American Stock Transfer & Trust Company acts as the transfer agent and
registrar for our common stock and the warrant agent for our warrants.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACTS LIABILITIES
Our charter and bylaws include provisions that indemnify, and upon
request advance expenses to, our officers and directors to the fullest extent
permissible under Tennessee law, with some exceptions.
The Tennessee Business Corporation Act provides that a corporation may
indemnify any of its directors and officers against liability incurred in
connection with a proceeding if
- the person acted in good faith;
- the director or officer reasonably believed, in the case of
conduct in an official capacity, that the conduct was in the
corporation's best interests, or, in all other cases, that the
conduct was not opposed to the best interests of the
corporation; and
- in connection with any criminal proceeding, the director or
officer had no reasonable cause to believe his conduct was
unlawful. In actions brought by or in the right of the
corporation, however, the Tennessee Business Corporation Act
provides that no indemnification may be made if the director
or officer is adjudged liable to the corporation.
In cases where the director or officer is wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the director or
officer was a party because the director or officer is or was a director or
officer of the corporation, the corporation shall indemnify the director or
officer against reasonable expenses incurred in connection with the proceeding.
The indemnification provisions in our charter, bylaws and under the
Tennessee Business Corporation Act may be sufficiently broad to permit
indemnification of our directors and executive officers for liabilities arising
under the Securities Act of 1933. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of our company pursuant to the foregoing provisions, or
otherwise, our company has been advised that in the opinion of the SEC this
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
LEGAL MATTERS
Waller Lansden Dortch & Davis, A Professional Limited Liability
Company, Nashville, Tennessee, will pass upon legal matters with respect to the
validity of the common stock offered for our company.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-KSB/A of Kyzen Corporation for the year ended
December 31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
13
<PAGE> 15
=====================================================
TABLE OF CONTENTS
The Company.........................................2
Risk Factors .......................................3
Where You Can Find More Information.................7
Forward-Looking Statements..........................8
Use of Proceeds.....................................9
Plan of Distribution
and Description of Warrants.........................9
Description of Securities..........................10
Disclosure of Commission Position on
Indemnification for Securities Act Liabilities.....13
Legal Matters......................................13
Experts............................................13
=====================================================
=====================================================
1,650,000 SHARES
KYZEN CORPORATION
COMMON STOCK
_______________
PROSPECTUS
_______________
____________, 1999
=====================================================
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses that we will pay in connection with this
offering are as follows:
SEC Registration Fee $ 481
Accounting Fees and Expenses $ 2,500
Legal Fees and Expenses $15,000
Miscellaneous Expenses $ 5,019
-------
Total $23,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our charter includes a provision that indemnifies, and upon request
advances expenses to, our officers and directors to the fullest extent
permissible under Tennessee law. The charter provides, however, that we will not
indemnify any officer or director (i) in any proceeding by our company against
the person; (ii) if a judgment or other final adjudication adverse to the person
establishes his liability for (A) any breach of the duty of loyalty to our
company or our shareholders, (B) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; or (iii) unlawful
distributions under section 48-18-304 of the Tennessee Business Corporation Act.
Our bylaws provide that we will indemnify and advance reasonable
expenses to a director or officer to the extent permitted under sections
48-18-502 and 48-18-504 of the Tennessee Business Corporation Act. We will
determine the entitlement to indemnification and advancement of expenses in
accordance with section 48-18-506 of the Tennessee Business Corporation Act.
The Tennessee Business Corporation Act provides that a corporation may
indemnify any of its directors and officers against liability incurred in
connection with a proceeding if (i) the person acted in good faith, (ii) the
director or officer reasonably believed, in the case of conduct in an official
capacity, that the conduct was in the corporation's best interests, or, in all
other cases, that the conduct was not opposed to the best interests of the
corporation and (iii) in connection with any criminal proceeding, the director
or officer had no reasonable cause to believe his conduct was unlawful. In
actions brought by or in the right of the corporation, however, the Tennessee
Business Corporation Act provides that no indemnification may be made if the
director or officer is adjudged liable to the corporation. In connection with
any proceeding charging improper personal benefit to a director or officer, no
indemnification may be made if the director or officer is adjudged liable on the
basis that the personal benefit was improperly received. In cases where the
director or officer is wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the director or officer was a party because
the director or officer is or was a director or officer of a corporation, the
corporation shall indemnify the director or officer against reasonable expenses
incurred in connection with the proceeding. Notwithstanding the foregoing, the
Tennessee Business Corporation Act provides that a court of competent
jurisdiction, upon application, may order that a director or officer be
indemnified for reasonable expenses if, in consideration of all relevant
circumstances, the court determines that the individual is fairly and reasonably
entitled to indemnification, even if the director or officer (i) was adjudged
liable to the corporation in a proceeding by or in right of the corporation,
(ii) was adjudged liable on the basis that personal benefit was improperly
received, or (iii) breached his or her duty of care to the corporation. A
corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final disposition of the
proceeding if (i) the director furnishes the corporation a written affirmation
of his good faith belief that he met the above standard of conduct so that the
corporation may indemnify
<PAGE> 17
the director, (ii) the director furnishes a written undertaking, executed
personally or on his behalf, to repay the advance if it is ultimately determined
that he did not meet the standard of conduct, and (iii) a determination is made
that the facts then known to those making the determination would not preclude
indemnification. A corporation may purchase and maintain insurance on behalf of
a person who is or was a director or officer, or who, while serving as a
director or officer, is or was serving at the request of the corporation as a
director or officer, against liability asserted against or incurred by him in
that capacity or arising from his status as a director or officer, whether or
not the corporation would have power to indemnify him against the same
liability.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Warrant Agreement between Kyzen Corporation and American Stock
Transfer & Trust Company (1)
4.2 Rights Agreement between Kyzen Corporation and American Stock
Transfer & Trust Company dated January 15, 1999 (2)
4.3 Restated Charter
4.4 Bylaws
4.5 Specimen of Common Stock Certificate*
4.6 Specimen of Warrant Certificate*
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company, regarding the legality of the securities being
registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company (included in Exhibit 5)
</TABLE>
- ------------------
* To be filed by amendment.
(1) Incorporated by reference to Exhibit 10.20 to the Registrant's
Registration Statement on Form SB-2 (No. 33-91854-A) filed with the SEC
on May 3, 1995.
(2) Incorporated by reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A filed with the SEC on January 15, 1999.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) (Sec. 230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
II-2
<PAGE> 18
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) Include any additional or changed material information
on the plan of distribution.
(2) That, for the purpose of determining liability under the Securities
Act of 1933, each post-effective amendment shall be deemed a new registration
statement of the securities offered, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the small business issuer of expenses
incurred or paid by a director, officer or controlling person of the small
business issuer in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the small business issuer will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(5) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the small business issuer under Rule 424(b)(1), or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time the Securities and Exchange Commission
declared it effective.
(6) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement for the securities offered in
the registration statement, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, state of Tennessee, on June 29, 1999.
KYZEN CORPORATION
By: /s/ Kyle J. Doyel
-------------------------------------
Kyle J. Doyel
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kyle J. Doyel and Thomas M. Forsythe, and
each or either of them, with full power to act without the other, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities (until revoked in writing), to sign any and all amendments to
this Registration Statement (including post-effective amendments and amendments
thereto), and any registration statement relating to the same offering as this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the SEC, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Michael L. Bixenman Chairman of the Board, Vice President June 29, 1999
- --------------------------------- and Director
Michael L. Bixenman
/s/ Kyle J. Doyel President, Chief Executive Officer June 29, 1999
- --------------------------------- and Director
Kyle J. Doyel
/s/ Thomas M. Forsythe Vice President, Treasurer, Chief June 29, 1999
- --------------------------------- Accounting Officer and Director
Thomas M. Forsythe
/s/ Thomas J. Herrmann Vice President and Secretary June 29, 1999
- ---------------------------------
Thomas J. Herrmann
/s/ Janet Korte Baker Director June 28, 1999
- ---------------------------------
Janet Korte Baker
/s/ John A. Davis III Director June 25, 1999
- ---------------------------------
John A. Davis III
/s/ James A. Gordon Director June 28, 1999
- ---------------------------------
James A. Gordon
Director ________,1999
- ---------------------------------
Larry A. Lofgreen
</TABLE>
II-4
<PAGE> 20
EXHIBIT INDEX AND EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Warrant Agreement between Kyzen Corporation and American Stock
Transfer & Trust Company (1)
4.2 Rights Agreement between Kyzen Corporation and American Stock
Transfer & Trust Company dated January 15, 1999 (2)
4.3 Restated Charter
4.4 Bylaws
4.5 Specimen of Common Stock Certificate*
4.6 Specimen of Warrant Certificate*
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company, regarding the legality of the securities being
registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company (included in Exhibit 5)
</TABLE>
- ------------------
* To be filed by amendment.
(1) Incorporated by reference to Exhibit 10.20 to the Registrant's
Registration Statement on Form SB-2 (No. 33-91854-A) filed with the SEC
on May 3, 1995.
(2) Incorporated by reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A filed with the SEC on January 15, 1999.
II-5
<PAGE> 1
EXHIBIT 4.3
RESTATED
CHARTER OF
KYZEN CORPORATION
Kyzen Corporation, a corporation organized and existing under the laws
of the State of Tennessee (the "Corporation"), does hereby certify as follows:
(a) This Restated Charter was duly adopted and approved by the
board of directors of the Corporation on April 28, 1999, in accordance with the
provisions of Section 48-20-107 of the Tennessee Business Corporation Act (the
"Act").
(b) The text of the Corporation's Charter is hereby restated
to read in its entirety as follows:
1. Name. The name of the corporation is Kyzen Corporation.
2. Registered Office and Registered Agent. The address of the
registered office of the Corporation in Tennessee is 430 Harding Industrial
Drive, Nashville, Davidson County, Tennessee 37211. The Corporation's registered
agent at the registered office is Mr. Kyle J. Doyel.
3. Principal Office. The address of the principal office of the
Corporation is 430 Harding Industrial Drive, Nashville, Davidson County,
Tennessee 37211.
4. Corporation for Profit. The Corporation is for profit.
5. Authorized Shares.
(a) The Corporation shall have authority, acting by its Board of
Directors, to issue not more than 50,000,000 shares of capital stock, of which
40,000,000 shares shall be shares of Common Stock, $.01 par value ("Common
Stock"), and 10,000,000 shall be shares of Preferred Stock, $.01 par value
("Preferred Stock").
(b) All shares of Common Stock shall be one and the same class and
when issued shall have equal rights of participation in dividends and assets of
the Corporation and shall be non-assessable. Except as otherwise provided by law
or in this Charter, each outstanding share of Common Stock shall be entitled to
one vote on each matter submitted to a vote of shareholders.
(c) The Board of Directors is hereby authorized to issue the
Preferred Stock from time to time in one or more classes or series, which
Preferred Stock shall be preferred to the Common Stock as to dividends and
distribution of assets of the Corporation on dissolution, as hereinafter
provided, and shall have such distinctive designations as may be stated in the
articles of amendment providing for the issue of such stock adopted by the Board
of Directors. In such articles of amendment providing for the issuance of shares
of each particular class or series, the Board of Directors is hereby expressly
authorized and empowered to fix the number of shares constituting such class or
series and to fix the relative rights and preferences of the shares of the class
or series so established to the full extent allowable by law except insofar as
such rights and preferences are fixed herein. Such authorization in the Board of
Directors shall expressly include, but not be limited to, the authority to fix
and determine the relative rights and preferences of such shares in the
following respects:
(i) The rate of dividend;
(ii) Whether shares can be redeemed or called and, if so, the
redemption or call price and terms and conditions of redemption or call;
(iii) The amount payable upon shares in the event of voluntary
and involuntary liquidation;
(iv) The purchase, retirement or sinking fund provisions, if
any, for the call, redemption or purchase of shares;
<PAGE> 2
(v) The terms and conditions, if any, on which shares may be
converted into Common Stock or any other securities;
(vi) Whether or not shares have voting rights, and the extent
of such voting rights, if any, including the number of votes per share; and
(vii) Whether or not shares shall be cumulative, non-cumulative
or partially cumulative as to dividends and the dates from which any cumulative
dividends are to accumulate.
All shares of the Preferred Stock shall be of equal rank and
shall be identical, except in respect to the particulars that may be fixed by
the Board of Directors as hereinabove provided in this paragraph and which may
vary among the classes or series. Different classes or series of the Preferred
Stock shall not be construed to constitute different classes of stock for the
purpose of voting by classes, except when such voting by classes is expressly
required by law.
(d) The holders of Preferred Stock are entitled to receive, when and
as declared by the Board of Directors, but only from funds legally available for
the payment of dividends, cash dividends at the annual rate for each particular
class or series as theretofore fixed and determined by the Board of Directors as
hereinbefore authorized, and no more; such dividends to be payable before any
dividend on Common Stock shall be paid or set apart for payment. Arrearages in
the payment of dividends shall not bear interest.
(e) In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation, the holders of each class or
series of Preferred Stock shall be entitled to receive, out of the net assets of
the Corporation, an amount in cash for each share equal to the amount fixed and
determined by the Board of Directors in any articles of amendment providing for
the issue of any particular class or series of Preferred Stock, plus an amount
equal to any dividends payable to such holder which are then unpaid, either
under the provisions of the articles of amendment providing for the issue of
such class or series of Preferred Stock or by declaration of the Board of
Directors, on each such share up to the date fixed for distribution, and no
more, before any distribution shall be made to the holders of Common Stock.
Neither the merger or consolidation of the Corporation, nor the sale, lease or
conveyance of all or a part of its assets, shall be deemed to be a dissolution,
liquidation or winding up of the affairs of the Corporation.
6. Series A Junior Participating Preferred Stock
(a) Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 100,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
(b) Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $.01 per share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all noncash dividends or
other
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distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (A) of this Section 6(b)
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than sixty (60) days prior to the
date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided in this Section 6, in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(C) Except as set forth in this Section 6, or as otherwise
provided by law, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be
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required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
(d) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section
6(b) are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 6(d), purchase or otherwise acquire such shares at such time and in
such manner.
(e) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth in this
Restated Charter, in any other articles of amendment creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
(f) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any
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<PAGE> 5
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
(i) Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Corporation's Preferred Stock.
(j) Amendment. The Charter of the Corporation shall not be amended
in any manner which would materially alter or change the powers, preferences or
special rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a single
class.
7. Board of Directors.
(a) The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors. The number of directors of the
Corporation shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors of the
Corporation, except that the minimum number of directors shall be fixed at no
less than three (3). The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
equal in number as possible, of one-third of the total number of directors
constituting the entire Board of Directors. The terms of the initial Class I
directors of the Corporation shall expire at the annual meeting of shareholders
first occurring following the date that this Restated Charter first becomes
effective; the terms of the initial Class II directors of the Corporation shall
expire at the second annual meeting of shareholders following the date that this
Restated Charter first becomes effective; and the terms of the initial Class III
directors of the Corporation shall expire at the third annual meeting of
shareholders following the date that this Restated Charter first becomes
effective. At each annual shareholders' meeting held thereafter, the Directors
shall be chosen for a term of three (3) years and until his or her successor is
elected and qualified or until his or her earlier resignation or removal. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible. A decrease in the number of Directors shall not
shorten an incumbent Director's term.
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(b) Nominations for election to the Board of Directors of the
Corporation at a meeting of shareholders must be made in accordance with the
Bylaws of the Corporation and any applicable law. The chairman of the meeting of
shareholders may, if the facts warrant, determine that a nomination was not made
in accordance with the foregoing procedures, and if the chairman should so
determine, the chairman shall so declare to the meeting and the defective
nomination shall be disregarded.
(c) Any director may be removed with or without cause by a vote of
a majority of the entire Board of Directors or by a vote of the holders of
sixty-seven percent (67%) of the shares of the Corporation entitled to vote,
voting together as a single class.
(d) The Board of Directors may fill any vacancy occurring on the
Board of Directors, including any vacancy resulting from an increase in the
number of Directors or from the resignation or removal of a Director. If the
Directors remaining in office constitute less than a quorum, the Board of
Directors may fill the vacancy by the affirmative vote of a majority of all the
Directors remaining in office. Any director of any class chosen to fill a
vacancy in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his or her term expires
and until such director's successor shall have been elected and qualified.
(e) In furtherance of and not in limitation of the powers conferred
by the Act, the Corporation is expressly authorized, acting upon the authority
of the Board of Directors and without the approval of the shareholders, to:
(i) Issue shares of any class or series as a share dividend in
respect of shares of the same class or series or any other class or series;
(ii) Fix or change the number of directors, including an
increase or decrease in the number of directors;
(iii) Determine, establish or modify, in whole or in part, the
preferences, limitations and relative rights of (A) any class or series of
shares before the issuance of any shares of that class or series, or (B) one or
more classes or series within a class or series before the issuance of any
shares of that class or series. The Board of Directors is further authorized to
amend this Restated Charter, without shareholder action, to set forth such
preferences, limitations and relative rights; and
(iv) From time to time establish the information required from
prospective nominees for the Board of Directors. Furthermore, the Board of
Directors may from time to time investigate the eligibility and qualifications
of prospective nominees to hold office if elected.
8. Limitation on Directors' Liability.
(a) A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability for (i) any breach of the director's
duty of loyalty to the Corporation or its shareholders, (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, or (iii) unlawful distributions under Section 48-18-304 of the Act, as
amended from time to time.
(b) If the Act is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended. Any repeal or modification of the
foregoing by the shareholders shall not adversely affect any right or protection
of a director of the Corporation existing at the time of such repeal or
modification.
9. Indemnification.
(a) The Corporation shall indemnify, and upon request shall advance
expenses to, in the manner and to the full extent permitted by law, any officer
or director (or the estate of any
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such person) who was or is a party to, or is threatened to be made a party to,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner,
trustee or employee of another corporation, partnership, joint venture, trust or
other enterprise (an "indemnitee"). The Corporation may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against him or her. To the full
extent permitted by law, the indemnification and advances provided for herein
shall include expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement. The indemnification provided herein shall not be deemed to
limit the right of the Corporation to indemnify any other person for any such
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement to the full extent permitted by law, both as to action in his
official capacity and as to action in another capacity while holding such
office. Notwithstanding the foregoing, the Corporation shall not indemnify any
such indemnitee (i) in any proceeding by the Corporation against such
indemnitee; or (ii) if a judgment or other final adjudication adverse to the
indemnitee establishes his liability for (A) any breach of the duty of loyalty
to the Corporation or its shareholders, (B) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, or (iii)
unlawful distributions under Section 48-18-304 of the Act.
(b) The rights to indemnification and advancement of expenses
set forth in paragraph 9(a) above are intended to be greater than those which
are otherwise provided for in the Act, are contractual between the Corporation
and the person being indemnified, his heirs, executors and administrators, and,
with respect to paragraph 9(a), are mandatory, notwithstanding a person's
failure to meet the standard of conduct required for permissive indemnification
under the Act, as amended from time to time. The rights to indemnification and
advancement of expenses set forth in paragraph 9(a) above are nonexclusive of
other similar rights which may be granted by law, this Restated Charter, the
Bylaws, a resolution of the Board of Directors or shareholders of the
Corporation, or an agreement with the Corporation, which means of
indemnification and advancement of expenses are hereby specifically authorized.
(c) Any repeal or modification of the provisions of this
paragraph 9, either directly or by the adoption of an inconsistent provision of
this Restated Charter, shall not adversely affect any right or protection set
forth herein existing in favor of a particular individual at the time of such
repeal or modification. In addition, if an amendment to the Act limits or
restricts in any way the indemnification rights permitted by law as of the date
hereof, such amendment shall apply only to the extent mandated by law and only
to activities of persons subject to indemnification under this paragraph 9 which
occur subsequent to the effective date of such amendment.
10. Consideration of Non-Shareholder Constituencies. In considering
whether or not to approve, or to recommend that the shareholders approve, any
proposed merger, exchange, tender offer or significant disposition of assets or
to oppose such proposal, the Board of Directors may consider the effect of such
proposed merger, exchange, tender offer or significant disposition of assets on
the Corporation's employees, customers, suppliers and the communities in which
the Corporation and its subsidiaries operate or are located.
11. Amendments to Bylaws. The Board of Directors, without shareholder
approval, is authorized and empowered to amend, alter, change or repeal the
Corporation's Bylaws and adopt new Bylaws by a majority vote of the directors
then in office at any regular or special meeting of the Board of Directors or by
written consent, subject to any specific right under the Act allowing
shareholders of the Corporation to alter or repeal any Bylaws made by the Board
of Directors. Notwithstanding any other provisions of the Corporation's Charter,
the Bylaws or any provision of law which might otherwise permit a lesser vote or
no vote, the shareholders may alter, amend or repeal any provision of the Bylaws
upon the affirmative vote of the holders of at least sixty-seven percent (67%)
of the voting power of the Corporation, voting together as a single class.
12. Amendments to Charter. The Board of Directors, without shareholder
approval, reserves the right from time to time to amend, alter, change or repeal
any provision contained in this Restated Charter in the manner now or
hereinafter prescribed by the Act, and all rights conferred upon shareholders
herein are granted subject to this reservation. Notwithstanding any of the
provisions of this Restated Charter or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Restated Charter or the Bylaws of the Corporation), the affirmative vote of the
holders of at least sixty-seven percent (67%) of the voting
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power of the Corporation, voting together as a single class, shall be required
to repeal, or amend or adopt any provision inconsistent with, Sections 7 through
12 herein.
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IN WITNESS WHEREOF, this Restated Charter is executed on behalf of the
Corporation by its Chief Executive Officer and attested by its Secretary this
28th day of May, 1999.
/s/ Kyle J. Doyel
--------------------------------------
Kyle J. Doyel
Chief Executive Officer and President
Attest:
/s/ Thomas J. Herrmann
- -------------------------------------
Thomas J. Herrmann
Secretary
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<PAGE> 1
EXHIBIT 4.4
BYLAWS
OF
KYZEN CORPORATION
ARTICLE 1
CORPORATE OFFICES
1.01. Name. The name of the corporation is Kyzen Corporation (the
"Corporation"). The Corporation may conduct operations under such other names as
the Board of Directors may designate.
1.02. Offices. The registered office of the Corporation within the
State of Tennessee shall be located at 430 Harding Industrial Drive, Nashville,
TN 37211. The Corporation may also have such other offices, including its
principal office, at such places, within or without the State of Tennessee, as
the Board of Directors may from time to time designate or the business of the
Corporation may require.
ARTICLE 2
SHAREHOLDERS' MEETING
2.01. Annual Meetings. The annual meeting of shareholders shall be held
on a date and time designated by the Board of Directors and, as set forth in the
notice of the meeting, for the purpose of electing Directors and transacting
such other business as may be properly brought before the meeting.
2.02. Special Meetings. Special meetings of shareholders may be called
for any purpose or purposes by the Chairman of the Board, the President, a
majority of the Board of Directors, or by such person or persons as may be
authorized by the Charter or these Bylaws or the Act. A request for a special
meeting shall state the purpose of the meeting and the matters proposed to be
acted on it.
2.03. Notice of Meetings. A written notice of each meeting of
shareholders stating the place, date and time of the meeting, and, in the case
of a special meeting, describing the purpose or purposes for which the meeting
is called, shall be given to each shareholder entitled to notice of such meeting
not less than ten (10) days nor more than two (2) months before the date of the
meeting.
2.04. Place of Meetings. Meetings of shareholders shall be held at such
places, within or without the State of Tennessee, as may be designated by the
Board of Directors and stated in the notice of meeting.
2.05. Quorum. The holders of shares entitled to vote as a separate
voting group may take action on a matter at a meeting only if a quorum exists
with respect to that matter. Unless the Corporation's Charter or the Act
provides otherwise, the holders of a majority of the votes entitled to be cast
on a matter by a voting group constitute a quorum of that voting group for
action on that matter. Once a share is represented for any purpose at a meeting,
the holder is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting, unless a new record date is or
must be set for that adjourned meeting.
2.06. Voting. Directors shall be elected by a plurality of the votes
cast by shareholders entitled to vote in the election at a meeting at which a
quorum is present. Shareholder action on any other matter is approved by a
voting group if the votes cast by shareholders within the voting group in favor
of the action exceed the votes cast by shareholders within the voting group in
opposition to such action, unless the Corporation's Charter or the Act provides
otherwise. If two or more groups
<PAGE> 2
are entitled to vote separately on a matter, action on the matter is approved
only when approved by each voting group.
2.07. Adjournment. If a meeting of shareholders is adjourned to another
date, time or place, notice need not be given of the adjourned meeting if the
new date, time and place are announced at the meeting before the adjournment. At
the adjourned meeting, the Corporation may transact any business which might
have been transacted at the time originally designated for the meeting if a
quorum existed at the time originally designated for the meeting; provided,
however, if a new record date is or must be fixed under the Act or these Bylaws,
a notice of the adjourned meeting must be given to shareholders as of the new
record date.
2.08. Proxies. A shareholder may appoint a proxy to vote at a meeting
of shareholders or otherwise act for him by signing an appointment form, either
personally or by his attorney-in-fact. An appointment of a proxy is effective
when received by the Secretary or other Officer or agent authorized to tabulate
votes. An appointment is valid for eleven (11) months, unless another period is
expressly provided for in the appointment form. An appointment of a proxy is
revocable by the shareholder, unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an interest.
2.09. Action by Written Consent. Any action required or permitted to be
taken at a meeting of the shareholders may be taken without a meeting, if all
shareholders consent to the taking of such action without a meeting by signing
one or more written consents describing the action taken and indicating each
shareholder's vote or abstention on the action. The affirmative vote of the
number of shares which would be necessary to authorize or take action at a
meeting of shareholders is the act of the shareholders without a meeting. The
written consent or consents shall be included in the minutes or filed with the
corporate records reflecting the action taken. Action taken by written consent
is effective when the last shareholder signs the consent, unless the consent
specifies a different effective date.
2.10. Business to be Transacted at Annual Meetings.
(a) Director Nominations. The Board of Directors, or a
nominating committee appointed by the Board, shall nominate candidates for
election to the Board of Directors to be elected at meetings of shareholders at
which directors are to be elected.
(b) Other Shareholder Business.
(1) No business shall be transacted at any annual meeting
of shareholders other than business that is: (i) specified in the Corporation's
notice of meeting (including shareholder proposals included in the Corporation's
proxy materials under Rule 14a-8 of Regulation 14A or any successor rule ("Rule
14a-8") under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), (ii) otherwise brought before the meeting by or at the direction of the
Board of Directors, or (iii) a proper subject for the meeting and which is
timely submitted by a shareholder of the Corporation entitled to vote at such
meeting who complies fully with the notice requirements set forth in this
subsection (b) in addition to any other applicable law, rule or regulation
applicable to such meeting.
(2) For business to be properly submitted by a shareholder
before any annual meeting under Section 2.10(b)(1)(iii) above, a shareholder
must give timely notice in writing of such business to the Secretary of the
Corporation. To be considered timely, a shareholder's notice must be received by
the Secretary at the principal office of the Corporation not earlier than the
date which is one hundred fifty (150) calendar days nor later than the date
which is one hundred twenty
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(120) calendar days before the first anniversary of the date on which the
Corporation first mailed its proxy statement to shareholders in connection with
the prior year's annual meeting of shareholders.
(3) However, if the Corporation did not hold an annual
meeting during the previous year, or if the date of the applicable year's annual
meeting has been changed by more than thirty (30) calendar days from the first
anniversary of the date of the previous year's meeting, then a shareholder's
notice must be received by the Secretary not earlier than the date which is one
hundred fifty (150) calendar days before date on which the Corporation first
mailed its proxy statement to shareholders in connection with the applicable
year's annual meeting and not later than the date of the later to occur of (i)
one hundred twenty (120) calendar days before the date on which the Corporation
first mailed its proxy statement to shareholders in connection with the
applicable year's annual meeting of shareholders or (ii) ten (10) calendar days
after the Corporation's first public announcement of the date of the applicable
year's annual meeting of shareholders.
(4) A shareholder's notice to the Secretary to submit a
nomination or other business to an annual meeting of shareholders shall set
forth: (i) the name and address of the shareholder; (ii) the class and number of
shares of stock of the Corporation held of record and beneficially owned by such
shareholder; (iii) the name(s), including any beneficial owners, and address(es)
of such shareholder(s) in which all such shares of stock are registered on the
stock transfer books of the Corporation; (iv) a representation that the
shareholder intends to appear at the meeting in person or by proxy to submit the
business specified in such notice; (v) a brief description of the business
desired to be submitted to the annual meeting of shareholders, the complete text
of any resolutions intended to be presented at the annual meeting and the
reasons for conducting such business at the annual meeting of shareholders; (vi)
any personal or other material interest of the shareholder in the business to be
submitted; (vii) as to each person whom the shareholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (viii) all other information relating to the proposed business which may be
required to be disclosed under applicable law. In addition, a shareholder
seeking to submit such business at the meeting shall promptly provide any other
information reasonably requested by the Corporation.
(c) General.
(1) Only those persons who are nominated in accordance with
the procedures set forth in this Section 2.10 shall be eligible for election as
directors at any meeting of shareholders. Only business brought before the
meeting in accordance with the procedures set forth in this Section 2.10 shall
be conducted at a meeting of shareholders. The chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with the
procedures set forth in this Section 2.10 and, if any proposed nomination or
business is not in compliance with this Section 2.10, to declare that such
defective proposal shall be disregarded.
(2) For purposes of this Section 2.10, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press, Business Wire or comparable news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.10, a shareholder shall also comply with all applicable requirements of state
law, the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.10.
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(4) Notwithstanding the foregoing provisions of this Section
2.10, a shareholder who seeks to have any proposal included in the Corporation's
proxy materials shall comply with the requirements of Rule 14a-8 under the
Exchange Act.
2.11. Inspectors. The Board of Directors shall, in advance of any
meeting of the shareholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If the inspectors shall not be so appointed
or if any of them shall fail to appear or act, the chairman of the meeting shall
appoint inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath to execute faithfully the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares represented at
the meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all shareholders. On request of
the chairman of the meeting or any shareholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as inspector of an
election of directors. Inspectors need not be shareholders.
2.12. Organization. At every meeting of the shareholders, the Chairman
of the Board, or in the case of a vacancy in the office or absence of the
Chairman of the Board, one of the following persons present in the order stated:
the President, the Vice Presidents in their order of rank, a chairman designated
by the Board of Directors, or a chairman chosen by the shareholders entitled to
cast a majority of the votes which all shareholders present in person or by
proxy are entitled to cast, shall act as chairman of the meeting, and the
Secretary, or, in his absence, an Assistant Secretary, if any, or any person
appointed by the chairman of the meeting, shall act as secretary of the meeting.
ARTICLE 3
RECORD DATE
In order that the Corporation may determine the shareholders entitled
to notice of or to vote at any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than seventy (70) nor less than ten (10) days before the date of such
meeting, nor more than seventy (70) days prior to any other action. If no record
date is fixed, (i) the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day before the day on which the first notice is given to such
shareholders and (ii) the record date for determining shareholders for any other
purpose shall be at the close of business on the day that the Board of Directors
authorizes the action. A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to any adjournment
of the meeting, unless the Board of Directors fixes a new record date. The Board
of Directors must fix a new record date if the meeting is adjourned to a date
more than four (4) months after the date fixed for the original meeting.
ARTICLE 4
DIRECTORS
4.01. Election, Term and Number. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors.
Directors shall be elected at each annual meeting of shareholders to hold office
for the term specified at that annual meeting, but not to exceed
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three (3) years. The number of the directors of the Corporation shall be fixed
from time to time be resolution adopted by the affirmative vote of a majority of
the entire Board of Directors of the Corporation, except that the minimum number
of directors shall be fixed at no less than three (3).
4.02. Committees. The Board of Directors, with the approval of a
majority of all the Directors in office when the action is taken, may create one
or more committees in accordance with the Act. Any such committee, to the extent
specified by the Board of Directors, may exercise the authority of the Board of
Directors in supervising the management of the business and affairs of the
Corporation, except that a Committee may not: (i) authorize distributions,
except according to a formula or method prescribed by the Board of Directors;
(ii) approve or propose to shareholders action required by law to be approved by
shareholders; (iii) fill vacancies on the Board of Directors or any of its
committees; (iv) amend the Corporation's Charter; (v) adopt, amend or repeal
Bylaws; (vi) approve a plan of merger not requiring shareholder approval; (vii)
authorize or approve reacquisition of shares, except according to a formula or
method prescribed by the Board of Directors; or (vii) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares,
except that the Board of Directors may authorize a committee or senior executive
Officer of the Corporation to do so within limits specifically prescribed by the
Board of Directors. The provisions of sections 4.04, 4.05, 4.06, 4.07, 4.08,
4.09 and 4.10 of this Article 4 and of Article 5 applicable to the Board of
Directors shall also apply to committees.
4.03. Compensation. Directors shall receive such compensation as shall
be fixed by the Board of Directors and shall be entitled to reimbursement for
any reasonable expenses incurred in attending meetings and otherwise carrying
out their duties. Directors may also serve the Corporation in any other capacity
and receive compensation therefor.
4.04. Resignation. A Director may resign at any time by delivering
written notice to the Corporation, the Board of Directors or the President. A
resignation is effective when the notice is delivered, unless the notice
specifies a later effective date.
4.05. Quorum and Voting. A quorum of the Board of Directors consists of
a majority of the number of Directors prescribed by the Board of Directors
pursuant to section 4.01 of this Article 4. If a quorum is present when a vote
is taken, the affirmative vote of a majority of Directors present is the act of
the Board of Directors, unless the Corporation's Charter requires the vote of a
greater number of Directors.
4.06. Regular Meetings. Regular meetings of the Board of Directors may
be held without notice of the date, time, place or purpose of the meeting (i) at
the location of the annual meeting of shareholders immediately after the meeting
in each year and (ii) at such times and at such places, within or without the
State of Tennessee, as the Board of Directors may determine from time to time.
If one of the purposes of a regular meeting is to consider the removal of a
Director, at least one days' notice stating this purpose shall be given to all
Directors.
4.07. Special Meetings. Special meetings of the Board of Directors may
be called by the President or any two Directors and shall be held at such
places, within or without the State of Tennessee, on such dates and at such
times as may be stated in the notice of meeting.
4.08. Notices. Special meetings of the Board of Directors must be
preceded by at least one days' notice of the date, time and place of the
meeting. The notice need not describe the purpose of the meeting, unless the
purpose, or one of the purposes, of the meeting is to remove a Director or
Directors. Notice of an adjourned meeting need not be given if the time and
place to which the
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meeting is adjourned are fixed at the meeting at which the adjournment is taken
and if the period of any one adjournment does not exceed one (1) month.
4.09. Meeting by Telephone. Any or all Directors may participate in a
regular or special meeting by conference telephone or any other means of
communication by which all Directors participating may simultaneously hear each
other during the meeting. A Director participating in a meeting by this means is
deemed to be present in person at the meeting.
4.10. Action by Written Consent. Any action required or permitted to be
taken at a meeting of the Board of Directors may be taken without a meeting, if
all Directors consent to the taking of such action without a meeting by signing
one or more written consents describing the action taken and indicating each
Director's vote or abstention on the action. The affirmative vote of the number
of Directors that would be necessary to authorize or take action at a meeting is
the act of the Board of Directors without a meeting. The written consent or
consents shall be included in the minutes or filed with the corporate records
reflecting the action taken. Action taken by written consent is effective when
the last Director signs the consent, unless the consent specifies a different
effective date.
ARTICLE 5
WAIVER OF NOTICE
A shareholder or Director may waive any notice required to be given by
the Act, the Corporation's Charter or these Bylaws before or after the date and
time stated in the notice. The waiver must be in writing, signed by the
shareholder or Director entitled to the notice and delivered to the Corporation
and filed in the Corporation's minutes or corporate records, except that a
shareholder's or Director's attendance at or participation in a meeting may
constitute a waiver of notice under the Act. Neither the business to be
transacted at, nor the purpose of, any meeting of the shareholders or Directors
need be specified in any waiver of notice.
ARTICLE 6
OFFICERS
6.01. Election and Term. The Board of Directors shall elect a President
and a Secretary and, as deemed appropriate by the Board of Directors, a Chairman
of the Board, one or more Vice Chairmen, one or more Vice Presidents, a
Treasurer and such other Officers and assistant officers that the Board of
Directors may deem appropriate. The Board of Directors may elect Officers at
such times as it deems advisable. Each Officer of the Corporation shall serve
until his successor is elected and qualified or until his earlier resignation or
removal. Any number of offices may be held by the same person, except that the
President may not serve as the Secretary.
6.02. Compensation. The salaries and other compensation of the Officers
of the Corporation shall be determined by the Board of Directors.
6.03. Removal. The Board of Directors may remove any Officer at any
time, with or without cause, but no such removal shall affect the contract
rights, if any, of the person so removed.
6.04. Resignation. An Officer of the Corporation may resign at any time
by delivering notice to the Corporation. A resignation is effective when the
notice is delivered, unless the notice specifies a later effective date. If a
resignation is made effective at a later date and the Corporation accepts the
future effective date, the Board of Directors may fill the pending vacancy
before the effective date if it provides that the successor does not take office
until the effective date. An Officer's resignation does not affect the
Corporation's contract rights, if any, with the Officer.
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6.05. Duties. The duties and powers of the Officers of the Corporation
shall be as follows:
(a) President. The President shall (i) preside at all meetings
of the shareholders and the Board of Directors, (ii) be primarily responsible
for the general management of the business of the Corporation and for
implementing the policies and directives of the Board of Directors, (iii) have
authority to make contracts on behalf of the Corporation in the ordinary course
of the Corporation's business and (iv) perform such other duties as from time to
time may be assigned by the Board of Directors.
(b) Chairman of the Board. The Chairman of the Board, if such
an officer is elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may from time
to time be assigned to him by the Board of Directors or as may be prescribed by
these Bylaws. If there is no President, then the Chairman of the Board shall
also have the powers and duties prescribed in these Bylaws for the President.
(b) Vice Presidents. The Vice Presidents in the order designated
by the Board of Directors, shall exercise the functions of the President during
the absence or disability of the President and shall perform such other duties
as may be assigned by the President or the Board of Directors.
(c) Treasurer. The Treasurer shall (i) have general supervision
over the funds of the Corporation and the investment or deposit thereof, (ii)
advise the Officers and, if requested, the Board of Directors regarding the
financial condition of the Corporation and (iii) perform such other duties as
may be assigned by the Board of Directors.
(d) Secretary. The Secretary shall (i) attend the meetings of
the shareholders, the Board of Directors and committees of the Board of
Directors and prepare minutes of all such meetings in a book to be kept for that
purpose, (ii) give, or cause to be given, such notice as may be required of all
meetings of the shareholders, Board of Directors and committees of the Board of
Directors, (iii) authenticate records of the Corporation and (iv) perform such
other duties as may be assigned by the Board of Directors.
ARTICLE 7
DIRECTOR AND OFFICER INDEMNIFICATION
The Corporation shall indemnify an individual who is a party to a
proceedings because such individual is or was a Director or Officer of the
Corporation against any liability incurred in the proceeding and, prior to the
disposition thereof, advance the reasonable expenses incurred by such individual
to the extent permitted under sections 48-18-502 and 48-18-504 of the Act. The
determination of entitlement to indemnification and advancement of expenses
shall be made in accordance with section 48-18-506 of the Act.
ARTICLE 8
EMERGENCY BYLAW
In the event that a quorum of Directors cannot be readily assembled
because of a catastrophic event, the Board of Directors may take action by the
affirmative vote of a majority of those Directors present at a meeting and may
exercise any emergency power granted to a Board of Directors under the act not
inconsistent with this Bylaw. If less than three (3) regularly elected Directors
are present, the Director present having the greatest seniority as a Director
may appoint
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one or more persons (not to exceed the number most recently fixed by the Board
of Directors pursuant to section 4.01 of Article 4) from among the Officers or
other executive employees of the Corporation to serve as substitute Directors.
If no regularly elected Director is present, the Officer present having the
greatest seniority as an Officer shall serve as a substitute Director, shall
appoint up to four (4) additional persons from among the Officers or other
executive employees of the Corporation to serve as substitute Directors. Special
meetings of the Board of Directors may be called in an emergency by the Director
or, if no Director is present at the Corporation's principal offices, by the
Officer present having the greatest seniority as an Officer.
ARTICLE 9
CORPORATE SEAL
The Corporation may have a corporate seal, but the use of or failure to
use any such seal shall not have any legal effect on any action taken or
instrument executed by or on behalf of the Corporation. The seal may be used by
impressing or affixing it to an instrument or by causing a facsimile thereof to
be printed or otherwise reproduced thereon.
ARTICLE 10
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise established by the Board of Directors.
ARTICLE 11
AMENDMENT
The Board of Directors may amend or repeal these Bylaws by a majority
vote of the directors then in office at any regular or special meeting of the
Board of Directors or by written consent, unless (i) the Corporation's Charter
or the Act reserves this power exclusively to shareholders or (ii) the
shareholders, in amending or repealing a particular Bylaw, provide expressly
that the Board of Directors may not amend or repeal that Bylaw. Notwithstanding
any other provisions of these Bylaws, the shareholders may alter, amend or
repeal any provision of these Bylaws in accordance with the Act and the Charter.
ARTICLE 12
DEFINITION
The term "Act" as used in these Bylaws refers to the Tennessee Business
Corporation Act, as amended from time to time. Terms defined in the Act shall
have the same meanings when used in these Bylaws.
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EXHIBIT 5
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
(615)244-6380
FACSIMILES
(615)244-6804
(615)244-5686
June 30, 1999
Kyzen Corporation
430 Harding Industrial Drive
Nashville, TN 37211
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Kyzen Corporation, a Tennessee corporation
(the "Company"), in connection with a registration statement on Form S-3 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), relating to the registration of 1,650,000 shares of common stock, $.01
par value per share (the "Common Shares"), all of which Common Shares may be
offered and sold by the Company from time to time in connection with the
exercise of warrants to purchase Common Shares under the Warrant Agreement
between the Company and American Stock Transfer & Trust Company dated August 3,
1995 (the "Warrant Agreement"), as set forth in the prospectus which forms a
part of the Registration Statement (the "Prospectus").
This opinion letter is furnished to you at your request to enable you
to fulfill the requirements of Item 601(b)(5) of Regulation S-B, 17 C.F.R. ss.
228.601(b)(5), in connection with the Registration Statement.
In connection with this opinion, we have examined and relied upon such
records, documents and other instruments as in our judgment are necessary or
appropriate in order to express the opinions hereinafter set forth and have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the accuracy and completeness of all documents submitted to us, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
photostatic copies.
In rendering the following opinion, we state that we are not admitted
to practice in any state other than the State of Tennessee, and we express no
opinion
<PAGE> 2
Kyzen Corporation
June 30, 1999
Page 2
as to the laws of any jurisdiction other than the State of Tennessee and the
Federal law of the United States to the extent specifically referred to herein.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof, when the Registration Statement has become
effective under the Act, upon issuance and delivery of certificates for Common
Shares against payment therefor in accordance with the terms of the Warrant
Agreement, and as contemplated by the Registration Statement and the Prospectus,
the shares represented by such certificates will be duly authorized and validly
issued, fully paid and non-assessable by the Company.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and further consent to the reference to this firm
under the caption "Legal Matters" in the Prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that
this firm is an "expert" within the meaning of the Act.
Very truly yours,
/s/ Waller Lansden Dortch & Davis, PLLC
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated January 22, 1999 relating
to the financial statements, which appears in Kyzen Corporation's Annual Report
on Form 10-KSB/A for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Nashville, TN
June 28, 1999
