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Exhibit.2.1
CONTRIBUTION AGREEMENT,
PLAN AND AGREEMENT OF REORGANIZATION AND DISTRIBUTION
This CONTRIBUTION AGREEMENT, PLAN AND AGREEMENT OF REORGANIZATION AND
DISTRIBUTION (this "Agreement") is made as of _______________, 2000, by and
between SYBRON INTERNATIONAL CORPORATION, a Wisconsin corporation with offices
at 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202 ("Sybron"), SYBRON
DENTAL SPECIALITIES, INC. (formerly known as "SDS Holding Co."), a Delaware
corporation with offices at 1717 West Collins Avenue, Orange, California 92867
("SDS"), and SYBRON DENTAL MANAGEMENT, INC., a Delaware corporation ("SDM").
RECITALS
WHEREAS, Sybron conducts its labware and life sciences, clinical and
industrial, diagnostics and microbiology, and laboratory equipment businesses
(the "Laboratory Business") through the corporations and other entities listed
on Schedule 1 hereto (such businesses, as formerly and currently conducted,
whether by or through the current Laboratory Business subsidiaries, or their
predecessors in interest, are referred to herein as the "Laboratory Business
Subsidiaries") and its professional dental, orthodontics, and infection control
products businesses (the "Dental Business") through the corporations and other
entities listed on Schedule 2 hereto (such businesses, as formerly and currently
conducted, whether by or through the current Dental Business subsidiaries, or
their predecessors in interest, are referred to herein as the "Dental Business
Subsidiaries");
WHEREAS, SDS is a wholly owned subsidiary of Sybron that (A) owns, or will
own, directly or indirectly (through its subsidiaries), all of the assets
primarily associated with the Dental Business, consisting of (1) the equity
interests of the Dental Business Subsidiaries (which will retain all of their
assets and liabilities) and (2) certain other assets which, although associated
with the Dental Business, are accounted for on the books of Sybron (the
"Miscellaneous Dental Assets") and (B) has assumed, or will assume, certain
liabilities which, although associated with the Dental Business, are accounted
for on the books of Sybron (the "Miscellaneous Dental Liabilities"); such that
SDS will own, directly or indirectly (through its subsidiaries), all of the
assets, businesses, and operations formerly and currently associated with the
Dental Business and will assume or retain, directly or indirectly (through its
subsidiaries), all of the liabilities formerly and currently associated with the
Dental Business;
WHEREAS, Sybron directly owns the equity interests of SDM, which is the
sole first-tier Dental Business Subsidiary, and which owns, directly or
indirectly, all of the equity interests of the other Dental Business
Subsidiaries;
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WHEREAS, the parties intend to provide for the transfer to SDS of all of
the equity interests of SDM (and, indirectly, the other Dental Business
Subsidiaries) and all of the Miscellaneous Dental Assets;
WHEREAS, the parties intend to provide for the assumption by SDS of the
Miscellaneous Dental Liabilities;
WHEREAS, Sybron intends to distribute all of the common stock and related
preferred stock purchase rights of SDS, pro rata, to the shareholders of Sybron
in accordance with resolutions of the Board of Directors of Sybron and in
accordance with the terms of a tax ruling dated October 5, 2000, obtained from
the Internal Revenue Service (the "Distribution"), so that after the
Distribution Sybron will own no shares of stock representing the equity of SDS
and SDS will be a publicly traded corporation whose shares are listed and traded
on the New York Stock Exchange; and
WHEREAS, the parties wish to provide for their agreements with respect to
certain matters pertaining to their business relationships following the
Distribution and other matters mutual to their interests.
NOW, THEREFORE, in furtherance of the foregoing purposes and in
consideration of the issuance of the common stock of SDS to Sybron as provided
in Section 3.1 and the mutual promises and undertakings contained herein and
contained in any agreement or other document executed in connection with this
Agreement, the parties agree as follows:
ARTICLE I
EFFECTIVE DATE AND CLOSING
1.1. Effective Date. Unless otherwise provided in this Agreement, or in any
other Contribution Document (as defined herein), the effective date of each
transfer of property, assumption of liability, license, undertaking or agreement
in connection herewith shall be 11:59 p.m., Central Standard Time, on the date
of the Distribution (the "Effective Date") or such other date as may be fixed by
the Board of Directors of Sybron.
1.2. Sybron Directors Action. This Agreement shall be void if the Board of
Directors of Sybron refrains from declaring or proceeding with the Distribution.
1.3. Lodging of Documents. Unless otherwise provided herein, the closing of
the transactions contemplated hereunder shall occur by Sybron and SDS each
lodging the executed instruments of transfer, assumptions of liability,
undertakings, agreements, instruments or other documents executed or to be
executed in connection with this Agreement with Quarles & Brady LLP, 411 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, attorneys for Sybron, to be held
in escrow for delivery as provided in Section 1.4 of this Agreement.
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1.4. Closing. Upon receipt of a certificate from an officer of Sybron in
the form attached hereto as Exhibit A, Quarles & Brady LLP shall deliver to SDS
on behalf of Sybron all of the items required to be delivered by Sybron
hereunder which have been lodged with it pursuant to Section 1.3 of this
Agreement, and each such item shall be deemed to be delivered to SDS as of the
Effective Date upon delivery of such certificate. Upon receipt of a certificate
from an officer of SDS in the form attached hereto as Exhibit B, Quarles & Brady
LLP shall deliver to Sybron on behalf of SDS all of the items required to be
delivered by SDS hereunder which have been lodged with it pursuant to Section
1.3 of this Agreement, and each such item shall be deemed to be delivered to
Sybron as of the Effective Date upon receipt of such certificate.
ARTICLE II
CLOSING
2.1. Sybron Deliveries. As of the Effective Date, or such later date as
specified, Sybron will deliver to SDS all of the following:
(a) certificates representing all of the shares (or other form of
equity interests) of the Dental Business Subsidiaries, such that
SDS will own, directly or indirectly, all of the Dental Business
Subsidiaries in the same manner immediately after the Effective
Date as Sybron owned, directly or indirectly, all of the Dental
Business Subsidiaries immediately prior to the Effective Date;
(b) a duly executed General Assignment, Assumption and Agreement
Regarding Litigation, Claims and Other Liabilities substantially
in the form attached hereto as Exhibit C;
(c) a duly executed Trade Name Assignment and Transitional Trade Name
Use and License Agreement substantially in the form attached
hereto as Exhibit D;
(d) a duly executed Insurance Matters Agreement substantially in the
form attached hereto as Exhibit E;
(e) a duly executed Employee Benefits Agreement substantially in the
form attached hereto as Exhibit F;
(f) a duly executed Tax Sharing and Indemnification Agreement
substantially in the form attached hereto as Exhibit G;
(g) a duly executed Interim Administrative Services Agreement
substantially in the form attached hereto as Exhibit H;
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(h) a duly executed Confidentiality and Nondisclosure Agreement
substantially in the form attached hereto as Exhibit I;
(i) those Consents which have been executed by any employee of
Sybron, SDS, any Laboratory Business Subsidiary, or any Dental
Business Subsidiary who held options to acquire shares of Sybron
common stock immediately prior to the Effective Date, and who
will be employed by SDS or a Dental Business Subsidiary
immediately following the Effective Date, substantially in the
form attached hereto as Exhibit J; and
(j) such other agreements, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the
purposes of this Agreement.
This Agreement, along with the foregoing agreements, instruments and
documents described in subsections (b) through (j), shall be referred to as the
"Contribution Documents."
2.2. SDS Deliveries. As of the Effective Date or such later date as
specified, SDS will deliver to Sybron all of the following:
(a) in each case where SDS is a party to any Contribution Document
referred to in Section 2.1, a duly executed counterpart of such
Contribution Document;
(b) a certificate or certificates representing all of the outstanding
shares of the common stock of SDS other than those already owned
by Sybron, as provided in Section 3.1; and
(c) such other agreements, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the
purposes of this Agreement.
ARTICLE III
THE DISTRIBUTION
3.1. Issuance and Delivery of Certificates. On or before the Effective
Date, SDS shall issue and deliver to Sybron a certificate or certificates
registered in the name of Sybron representing that number of shares of common
stock of SDS which, when taken together with the shares of common stock already
owned by Sybron, (a) will result in Sybron owning, of record and beneficially,
all of the issued and outstanding shares of SDS common stock and (b) will be
equal to a number such that Sybron shall own one (1) share of common stock of
SDS for each three (3) shares of common stock of Sybron issued and outstanding
(the "Distribution Ratio") on the record date for the Distribution (the "Record
Date"). Each share of common stock of SDS shall be validly issued, fully paid,
nonassessable, and free of preemptive rights.
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3.2. No Limit on Authority of Sybron Directors. Nothing contained in
Section 3.1 or elsewhere in this Agreement, including the Schedules and Exhibits
hereto, or in the Contribution Documents, shall be construed to limit or alter
the authority of the Board of Directors of Sybron to declare or refrain from
declaring the Distribution, fixing or changing the Record Date, fixing or
changing the Effective Date, or fixing or changing all the appropriate
procedures in connection with the Distribution, including the Distribution
Ratio.
3.3. No Liability upon Termination. In the event that, for any reason, the
Distribution does not occur, this Agreement shall terminate and neither Sybron,
SDS, any Laboratory Business Subsidiary, nor any Dental Business Subsidiary
shall incur or retain any liability to any other party in connection therewith.
3.4. Payment of Dividend and Intercompany Loan. On or prior to the
Effective Date, Sybron shall pay to SDM, or subsidiaries of SDM, as appropriate,
the amount necessary to settle all intercompany loans and advances made to
Sybron by SDM or its subsidiaries (the "Intercompany Payment"). On or prior to
the Effective Date, SDM shall pay to Sybron an amount equal to the Intercompany
Payment plus the difference between Three Hundred Seventy Five Million Dollars
($375,000,000) and the actual allocation of Sybron bank debt to SDM as of the
Effective Date.
ARTICLE IV
OTHER MATTERS
4.1. No Representation or Warranty. Sybron does not, in this Agreement,
including the Schedules and Exhibits hereto, any Contribution Document, or any
other agreement, instrument or document contemplated by this Agreement, make any
representation as to, warranty of or covenant with respect to:
(a) the value of any asset or thing of value to be transferred to
SDS;
(b) the freedom from encumbrance of any asset or thing of value to be
transferred to SDS (except for encumbrances in favor of Sybron
and the Laboratory Business Subsidiaries); or
(c) the absence of defenses or freedom from counterclaims with
respect to any claim to be transferred to SDS (except defenses
and counterclaims in favor of Sybron and the Laboratory Business
Subsidiaries).
All assets to be transferred to SDS shall be transferred "AS IS, WHERE IS."
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4.2. Execution and Delivery of Additional Documents.
(a) Each of Sybron and SDS will execute and deliver such further
instruments of conveyance, transfer, and assignment and will take
such other actions as either of them may reasonably request of
the other in order to effectuate the purposes of this Agreement
and to carry out the terms hereof.
(b) At the request of SDS, and without further consideration, Sybron
will execute and deliver to SDS such other instruments of
transfer, conveyance, assignment, assumption, novation,
substitution, confirmation, undertaking or other documents and
take such action as SDS may reasonably deem necessary or
desirable in order to more effectively transfer, convey, and
assign to SDS and, subject to the provisions of Section 4.1,
confirm SDS's title to all of the assets, rights, and other
things of value to be transferred to SDS under this Agreement or
any Contribution Document, to place SDS in actual possession and
operating control thereof, and to permit SDS to exercise all
rights with respect thereto (including, without limitation,
rights under contracts and other arrangements as to which the
consent of any third party to the transfer thereof shall not have
previously been obtained).
(c) At the request of Sybron and without further consideration, SDS
will execute and deliver to Sybron such other instruments of
transfer, conveyance, assignment, assumption, novation,
substitution, confirmation, undertaking, or other documents and
take such other action as Sybron may reasonably deem necessary or
desirable in order to have SDS fully and unconditionally assume
and discharge the liabilities to be assumed by SDS under this
Agreement or any Contribution Document, and to relieve Sybron of
any liability or obligation with respect thereto and evidence the
same to third parties.
(d) Sybron and SDS will use their reasonable efforts to obtain any
consent, substitution, approval or amendment required to novate
or assign all agreements, leases, licenses and other rights of
any nature whatsoever relating to the assets, rights and other
things of value being transferred to SDS and all liabilities and
obligations being assumed by SDS; provided, however, that neither
Sybron nor SDS shall be obligated to pay any consideration
therefor (except for filing fees and other similar charges) to
the third party from whom such consents, approvals, substitutions
and amendments are requested.
(e) Neither Sybron nor SDS shall be obligated, in connection with the
foregoing, to expend money other than reasonable out-of-pocket
expenses, attorneys' fees and recording or similar fees.
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4.3. Taxes. SDS and Sybron agree to cooperate to determine the amount of
any sales, transfer or other taxes or fees payable in connection with the
transactions contemplated by this Agreement. Sybron and SDS agree to file
promptly and timely returns for such taxes with the appropriate taxing
authorities and Sybron shall remit payment thereof in accordance with the terms
of the Tax Sharing and Indemnification Agreement.
4.4. NYSE Listing. SDS shall make a timely application to the New York
Stock Exchange and use its reasonable efforts to have the common stock of SDS
quoted for trading on the New York Stock Exchange and shall arrange for such
stock to trade on a "when issued" basis as promptly as practicable following the
declaration of the Distribution. Sybron shall provide reasonable assistance to
SDS in obtaining such listing. The parties agree to take whatever reasonable
steps are necessary so that SDS may use the ticker symbol "SYD" on the New York
Stock Exchange.
4.5. Depository Arrangements.
(a) The parties agree that Schedule 4.5 sets forth a list of the
banks maintaining lock boxes or similar deposit arrangements
which are maintained by Sybron in connection with the Dental
Business prior to the Effective Date. As of the Effective Date,
Sybron will terminate any arrangement whereby funds directed to
such lock boxes or similar arrangements are consolidated with
other funds of Sybron or otherwise made available to Sybron.
Sybron shall, as of the Effective Date, take all necessary steps
to remove all persons who are not employees of SDS who are
signatories or holders of powers-of-attorney with respect to such
lock boxes or other arrangements from the list of such
signatories and holders and otherwise extinguish their signing
authority with respect thereto. As of the Effective Date, Sybron
shall take such action as may be required to deliver to SDS full
authority with respect to such lock boxes or other arrangements.
(b) Each of Sybron and SDS hereby grants to the other a limited
irrevocable power-of-attorney to endorse, deposit and negotiate
all checks, drafts or other forms of payment made in respect of
any invoice representing a receivable which:
(i) is payable to either of them or any of their subsidiaries
but which is sent by the payor to a lock box maintained by
the other ("Misdirected Payments") or
(ii) is made payable to either of them or any of their
subsidiaries but which is the payment of a receivable of the
other or one of the other's subsidiaries ("Mispayee Items").
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Sybron and SDS shall develop procedures reasonably
satisfactory to them whereby they reconcile Misdirected
Payments and Mispayee Items weekly and make appropriate and
timely payments to each other in respect thereof.
4.6. Conduct of Dental Business. At all times prior to the Effective Date,
Sybron will conduct the Dental Business in the ordinary course of business
consistent with past practices and will not undertake or permit any arrangement
with any third party which is intended to or has the effect of delaying the
payment of any account receivable beyond the Effective Date or accelerating the
payment of any account payable before the Effective Date.
4.7. Authorization of Execution of Documents. SDS shall authorize the
execution and cause the authorized officers of SDS to execute all documents,
notes and undertakings and to do such other things required in connection with
the irrevocable and unconditional assumption by SDS without any recourse
whatsoever to Sybron of all obligations of Sybron relating to the Dental
Business and required to be assumed by SDS pursuant to the terms hereof.
4.8. Expenses. Sybron and SDS agree that the expenses associated with the
preparation of this Agreement, the transfers contemplated hereunder, the matters
related to the organization of SDS, and the Distribution shall be borne by
Sybron and SDS as set forth on Schedule 4.9 annexed hereto.
ARTICLE V
DISPUTE RESOLUTION
5.1. Attempt to Settle. In an effort to resolve informally and amicably any
claim or controversy arising out of or related to the interpretation or
performance of this Agreement without resorting to litigation, a party shall
first notify the other of any difference or dispute under this Agreement that
requires resolution. Sybron and SDS each shall designate an employee to
investigate, discuss and seek to settle the matter between them. If the two are
unable to settle the matter within 30 days after notification (or such longer
period as may be agreed to expressly by the parties), the matter shall be
submitted to a senior officer of Sybron and SDS, respectively, for
consideration.
5.2. Alternative Dispute Resolution; Litigation. If settlement cannot be
reached through the efforts of the senior officers within an additional 30 days,
or such longer time period as they shall agree upon, the parties shall consider
mediation, arbitration or other alternative means to resolve the dispute. If
they are unable to agree on an alternative dispute resolution mechanism, either
party may initiate legal proceedings to resolve the matter.
ARTICLE VI
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MISCELLANEOUS
6.1. Entire Agreement. This Agreement, including the Schedules and Exhibits
hereto and the Contribution Documents, shall constitute the entire Agreement
between Sybron and SDS with respect to the Distribution and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter, provided however, in the event of conflict between this Agreement and
any other agreement executed in connection herewith, the provisions of such
other agreement, including the Schedules and Exhibits hereto and thereto, shall
prevail.
6.2. Assignment. This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party; except that this Agreement
may be assigned to a parent or subsidiary of a party, or to a third party
acquiring substantially all of the assets of a party, without such prior written
consent to such an assignment, provided that any such third party expressly
assumes, and agrees to be bound by the terms of, this Agreement, and provided
further that the assigning party shall not be relieved of any of its obligations
hereunder in the event of such an assignment.
6.3. No Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties and is not intended to confer upon any person except the parties
any rights or remedies hereunder. There are no third party beneficiaries to this
Agreement.
6.4. Written Amendment and Waiver. This Agreement may not be altered or
amended nor any rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with the amendment or waiver.
6.5 Limited Amendment or Waiver. No waiver of any term, provision or
condition of this Agreement or failure to exercise any right, power or remedy or
failure to enforce any provision of this Agreement, in any one or more
instances, shall be deemed to be a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition or enforcement right of this Agreement or deemed to be an impairment
of any right, power or remedy or acquiescence to any breach.
6.6. Reformation and Severability. If any provision of this Agreement shall
be held to be invalid, unenforceable or illegal in any jurisdiction under any
circumstances for any reason, (a) that provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (b) if that provision
cannot be so reformed, it shall be severed from this Agreement. The holding
shall not affect or impair the validity, enforceability or legality of the
provision in any other jurisdiction or under any other circumstances. Neither
the holding nor the reformation or severance shall affect or impair the
legality, validity or enforceability of any other provision of this Agreement to
the extent that the other provision is not itself actually in conflict with any
applicable law. Upon a determination that
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any term or provision is invalid, unenforceable or illegal, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible.
6.7. Jurisdiction. This Agreement shall be governed and construed and
enforced in accordance with the internal laws of the State of Wisconsin (without
regard to conflict of law principles) as to all matters including, without
limitation, matters of validity, construction, effect, performance and remedies.
6.8. Titles and Headings. All titles and headings have been inserted solely
for the convenience of the parties and are not intended to be a part of this
Agreement or to affect its meaning or interpretation.
6.9 Counterparts. This Agreement, and any other agreement to be executed in
connection herewith, may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed as
of the date first above written by their duly authorized officers.
SYBRON INTERNATIONAL CORPORATION
By: _________________________________________
Name:
Title: President and Chief Executive Officer
SYBRON DENTAL SPECIALTIES, INC.
By: _________________________________________
Name:
Title: President and Chief Executive Officer
SYBRON DENTAL MANAGEMENT, INC.
By: _________________________________________
Name:
Title:
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LIST OF EXHIBITS AND SCHEDULES
<TABLE>
<CAPTION>
DESCRIPTION EXHIBIT OR SCHEDULE NUMBER
<S> <C>
Sybron International Corporation Certificate Exhibit A
Sybron Dental Specialties, Inc. Certificate Exhibit B
General Assignment, Assumption and Agreement
Regarding Litigation, Claims and Other Liabilities Exhibit C
Trade Name Assignment and Transitional Trade Name
Use and License Agreement Exhibit D
Insurance Matters Agreement Exhibit E
Employee Benefits Agreement Exhibit F
Tax Sharing and Indemnification Agreement Exhibit G
Interim Administrative Services Agreement Exhibit H
Confidentiality and Nondisclosure Agreement Exhibit I
Option Waivers and Releases Exhibit J
List of Laboratory Business Subsidiaries Schedule 1
List of Dental Business Subsidiaries Schedule 2
List of Banks Maintaining Dental Business Accounts Schedule 4.5
Allocation of Expenses Relating to Distribution Schedule 4.9
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