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EXHIBIT 2.1
FORM OF CONTRIBUTION AGREEMENT,
PLAN AND AGREEMENT OF REORGANIZATION AND DISTRIBUTION
(EXCLUDING EXHIBITS AND SCHEDULES)
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"), and SDS HOLDING
CO., a Delaware corporation with offices at 1717 West Collins Avenue, Orange,
California 92867 ("SDS").
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 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");
WHEREAS, SDS is a wholly owned subsidiary of Sybron that owns, or will
own, directly or indirectly (through its subsidiaries), all of the assets
primarily associated with the Dental Business including, without limitation, the
equity interests of the corporations and other entities described on Schedule 2
hereto (the "Dental Business Subsidiaries") which will retain all of their
assets and liabilities, and certain other assets described on Schedule 3 hereto
which, although associated with the Dental Business, are accounted for on the
books of Sybron; and that has assumed, or will assume, certain liabilities
described on Schedule 4 hereto which, although associated with the Dental
Business, are accounted for on the books of Sybron; such that SDS will own,
directly or indirectly (through its subsidiaries), all of the assets,
businesses, and operations formerly and currently used and conducted by the
Dental Business;
WHEREAS, the parties intend to provide for the transfer to SDS of all
of the equity interests of the Dental Business Subsidiaries and the assets
listed on Schedule 3 hereto;
WHEREAS, the parties intend to provide for the assumption by SDS of the
liabilities listed on Schedule 4 hereto;
WHEREAS, Sybron intends to distribute all of the common stock 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 ________, 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.
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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 12:01 a.m., Central Standard Time, __________,
2000 (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.
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) owned by Sybron, directly
or indirectly, of the Dental Business Subsidiaries,
which may be so delivered at any time prior to the
Effective Date, as may be agreed to by the parties;
(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 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;
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(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;
(h) a duly executed Confidentiality and Non-Disclosure
Agreement substantially in the form attached hereto
as Exhibit I;
(i) those Option Waivers and Releases 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.
The foregoing agreements, instruments and documents as 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, all 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 _______________ (__) shares of
common stock of SDS for each share 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.
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, shall be construed to limit or alter the authority of the Board
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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. Assumption of Liabilities. Sybron and SDS agree that, in addition
to those liabilities of SDS and the Dental Business Subsidiaries in existence on
the Effective Date (which shall be retained by SDS and the Dental Business
Subsidiaries, respectively), SDS shall assume the liabilities listed on Schedule
4 attached hereto.
3.5. Payment of Dividend and Intercompany Loan. On or prior to the
Effective Date, Sybron shall pay to SDS the amount necessary to settle all
intercompany loans and advances made to Sybron by SDS (the "Intercompany
Payment"). On or before the Effective Date, SDS 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 SDS as of the Effective Date.
ARTICLE IV
OTHER MATTERS
4.1. No Representation or Warranty. Sybron does not, in this Agreement,
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."
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
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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.
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 remit payment thereof in accordance with the terms of the Tax
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 consoli
dated 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.
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(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").
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. Tax Ruling. SDS shall, in addition to its obligations under the
Tax Sharing and Indemnification Agreement, cooperate with Sybron in obtaining a
ruling from the Internal Revenue Service to the effect that the Distribution
will be tax-free to Sybron and its shareholders. In that regard, SDS agrees that
it will authorize, cause to be executed and comply with any and all
undertakings, representations or agreements required in connection with the
ruling of the Internal Revenue Service.
4.9. 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.
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ARTICLE VI
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,
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 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.
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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
SDS HOLDING CO.
By: ______________________________________
Name:
Title: President and Chief Executive Officer
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LIST OF EXHIBITS AND SCHEDULES
<TABLE>
<CAPTION>
DESCRIPTION EXHIBIT OR SCHEDULE NUMBER
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<S> <C>
Sybron International Corporation Certificate Exhibit A
SDS Holding Co. Certificate Exhibit B
General Assignment, Assumption and Agreement
Regarding Litigation, Claims and Other Liabilities Exhibit C
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 Non-Disclosure Agreement Exhibit I
Option Waivers and Releases Exhibit J
List of Laboratory Business Entities Schedule 1
List of Dental Business Entities Schedule 2
List of Dental Business Assets being Transferred Schedule 3
List of Dental Business Liabilities being Assumed Schedule 4
List of Banks Maintaining Dental Business Accounts Schedule 4.5
Allocation of Expenses Relating to Distribution Schedule 4.9
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