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Exhibit 2.8
EXHIBIT I
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement"), is
made as of __________, 2000 by and between SYBRON INTERNATIONAL CORPORATION, a
Wisconsin corporation ("Sybron"), and SYBRON DENTAL SPECIALITIES, INC. (formerly
known as "SDS Holding Co."), a Delaware corporation ("SDS").
WHEREAS, pursuant to the Contribution Agreement, Plan and Agreement of
Reorganization and Distribution between the parties dated as of _________, 2000
(the "Contribution Agreement") and pursuant to certain other agreements of even
date herewith, Sybron is transferring, or will transfer, to SDS, all of the
Dental Assets (as defined in the General Assignment, Assumption and Agreement
regarding Litigation, Claims and Other Liabilities (executed by the parties of
even date herewith);
WHEREAS, Sybron and the Laboratory Business Subsidiaries (as defined in the
Contribution Agreement) (together, the "Sybron Parties") are the proprietary
owners of confidential information concerning their business operations,
including but not limited to customer lists, business practices, trade secrets,
pricing information, technical know-how, and competitive information (the
"Sybron Proprietary Information");
WHEREAS, SDS and the Dental Business Subsidiaries (as defined in the
Contribution Agreement) (together, the "SDS Parties") are the proprietary owners
of confidential information concerning their business operations, including but
not limited to customer lists, business practices, trade secrets, pricing
information, technical know-how, and competitive information (the "SDS
Proprietary Information");
WHEREAS, prior to the Effective Date (as defined in the Contribution
Agreement) certain employees of the SDS Parties were privy to the Sybron
Proprietary Information;
WHEREAS, prior to the Effective Date, certain employees of the Sybron
Parties were privy to the SDS Proprietary Information;
WHEREAS, Sybron and SDS have entered into certain agreements to govern
their relationship after the Effective Date which will require that Sybron and
SDS disclose information to one another which one or the other safeguards as
confidential (the "Spin-Off Information") (the Sybron Proprietary Information,
the SDS Proprietary Information, and the Spin-Off Information is referred to
collectively as the "Confidential Information"); and
WHEREAS, Sybron and SDS consider the Confidential Information to be
valuable, confidential and not otherwise available for disclosure.
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NOW, THEREFORE, in consideration of the promises set forth herein, the
parties do hereby agree as follows:
1. Proprietary Information.
(a) From the Effective Date, Sybron and SDS agree to treat the other
party's Confidential Information as confidential and acknowledge
that the equivalent of a confidential relationship between Sybron
and SDS is established with respect to the Confidential
Information.
(b) Each party agrees to disclose the Confidential Information of the
other party only to such employee(s), representatives, advisers,
officers, directors and agents as necessary and only if such
persons agree to respect the confidential relationship between
Sybron and SDS. Neither party, nor any of their respective
employee(s), representatives, advisers, officers, directors and
agents shall make any use or disclosure of the Confidential
Information to any other third party without the other party's
prior written consent.
2. Non-Confidential Information.
The provisions of this Agreement shall not apply to:
(a) information which at the time of disclosure is generally
available to the public in a published work; or
(b) information which, after disclosure by either a Sybron Party or
an SDS Party to the other, becomes published or generally
available to the public, other than through any act or omission
on the part of a Sybron Party or an SDS Party in violation of
this Agreement; or
(c) information which either a Sybron Party or an SDS Party can show
was in its possession at the time of disclosure by the other
party and which was not acquired directly or indirectly from the
other party either prior to, on or after the Effective Date; or
(d) information rightfully acquired from third parties who did not
obtain it under pledge of secrecy to either a Sybron Party or an
SDS Party; or
(e) information required to be disclosed pursuant to a court, federal
regulatory agency, or state regulatory agency order, or required
to be disclosed pursuant to any federal or state statutory or
regulatory provision; provided that the disclosing party provides
the other party with at least five (5) business days advance
written notice of such disclosure; and provided further that the
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disclosing party shall provide the other party with the
opportunity to obtain a protective order restricting the
disclosure of the information.
3. Conflicts between this Agreement and Any Other Agreement(s). Sybron and
SDS agree that these provisions of this Agreement are superseded by
corresponding provisions that are included in the Contribution Agreement and
Contribution Documents (as defined in the Contribution Agreement).
4. Dispute Resolution. In the event that any dispute or difference arises
between the parties relating to the interpretation or performance of this
Agreement, the parties shall comply with the dispute resolution procedures
prescribed in Article V of the Contribution Agreement.
5. Notices.
All notices and communications required or permitted under this
Agreement shall be in writing and any communication or delivery hereunder shall
be deemed to have been duly made if personally delivered, or if mailed by first
class mail, postage prepaid, or by air express service, with charges prepaid and
addressed as follows:
If to Sybron: Sybron International Corporation
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: General Counsel
If to SDS: Sybron Dental Specialities, Inc.
1717 West Collins Avenue
Orange, California 92867
Attention: General Counsel
Either party may by written notice so delivered to the other, change the
address to which future delivery shall be made.
6. Miscellaneous.
(a) Entire Agreement. This Agreement and the other Contribution
Documents constitute the entire understanding of the parties
hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and
understandings relating to their subject matter; provided,
however, that the specific provisions of any other agreement
between the parties executed and delivered by the parties in
connection with the closing under the Contribution Agreement
shall not be superseded by this Agreement and to the extent any
such other agreement is in conflict herewith, such specific
agreement shall control.
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(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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 any term or provision is invalid,
unenforceable or illegal, the parties hereto shall
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negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible.
(g) 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.
(h) 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.
(i) 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.
(j) Effectiveness. This Agreement shall become effective at the
Effective Date and may be terminated by Sybron at any time prior
thereto without any liability on either party's part.
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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:
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Name:
Title: President and Chief Executive Officer
SYBRON DENTAL SPECIALTIES, INC.
By:
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Name:
Title: President and Chief Executive Officer
