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EXHIBIT 2.7.
EXHIBIT H
INTERIM ADMINISTRATIVE SERVICES AGREEMENT
This INTERIM ADMINISTRATIVE SERVICES 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").
RECITALS
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, after the Effective Date, SDS will operate the Dental Business
as a separate publicly traded company and Sybron will operate the Laboratory
Business (as defined in the Contribution Agreement) as a separate publicly
traded company;
WHEREAS, prior to the Effective Date, Sybron provided various
administrative support services to the Dental Business and the Laboratory
Business;
WHEREAS, after the Effective Date, SDS and Sybron will have a need for
the provision of certain administrative support services, which will have been
assumed by the other party; and
WHEREAS, SDS desires and Sybron is willing to provide certain
administrative support services for SDS's operations for certain specified
interim periods after the Effective Date solely for the purpose of assisting SDS
in the transition, and Sybron desires and SDS is willing to provide certain
other administrative support services for Sybron's operations for certain
specified interim periods after the Effective Date solely for the purpose of
assisting Sybron in the transition.
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained in this Agreement and the other Contribution Documents, the
parties hereto agree as follows:
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1. Services.
(a) Subject to the terms and conditions provided herein,
Sybron shall provide SDS with the following services (the
"Sybron Services") on an interim basis, consisting of:
(i) "Accounting Services," which shall mean the
accounting services previously provided by Sybron to the
Dental Business;
(ii) "Tax Management Services," which shall mean the tax
management services previously provided by Sybron to the
Dental Business;
(iii)"Legal Services," which shall mean the legal services
previously provided by Sybron to the Dental Business; and
(iv) "Treasury/Cash Management Services," which shall mean the
treasury and cash management services previously provided
by Sybron to the Dental Business.
(b) Subject to the terms and conditions provided herein, SDS shall
provide Sybron with "Insurance/Risk Management Services"on an
interim basis, which shall mean the procurement of property,
casualty and related insurance policies and the administration of
claims and rights, and which shall include, but not be limited to,
the availability of Mr. Stephen Tomassi for discussion and
conferral regarding matters related to his previous employment with
Sybron.
(c) The "Sybron Services" and the "Insurance/Risk Management Services"
may be referred to herein collectively as the "Services."
2. Agreement Principles and Guidelines.
(a) By this Agreement, Sybron and SDS seek to implement the
general principle that, with the exceptions noted herein or in
the Contribution Agreement, Sybron will provide Sybron Services
to SDS and the Dental Business Subsidiaries (as defined in the
Contribution Agreement) on an interim basis in a scope similar
to those provided by Sybron prior to the Effective Date while
it is not reasonably feasible for SDS to provide such Sybron
Services independently for itself, and SDS will provide
Insurance/Risk Management Services to Sybron and the Laboratory
Business Subsidiaries (as defined in the Contribution
Agreement) on an interim basis in a scope similar to those
previously provided by Sybron prior to the Effective Date while
it is not reasonably feasible for Sybron to provide such
Insurance/Risk Management Services independently for itself.
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(b) Sybron does not promise, covenant, or agree to provide a
greater level or magnitude of Sybron Services than those which
were previously provided to the Dental Business by Sybron. SDS
acknowledges and covenants to use reasonable efforts to
independently provide such Sybron Services for itself and its
subsidiaries as soon as reasonably feasible. If reasonably
feasible, SDS will provide such Sybron Services for itself
prior to the term limits set forth in Section 4 of this
Agreement. Each party hereby acknowledges that the requirement
for SDS to use reasonable efforts to independently provide such
Sybron Services as soon as reasonably feasible is a material
element and condition to this Agreement and that failure to
fully comply with such provision will give rise to, among other
provisions, the termination rights set forth in Section 4(c) of
this Agreement. Nothing in this Agreement shall be construed to
cause Sybron to become a service bureau or to perform a Sybron
Service which it cannot provide without (i) a conflict with a
third-party contract to which Sybron or one of its subsidiaries
is a party or (ii) a breach of any third-party contract to
which Sybron or one of its subsidiaries is a party. In no event
will Sybron be responsible for any damages if it is unable to
offer or continue to provide a Sybron Service to SDS or its
subsidiaries pursuant to this paragraph.
(c) SDS does not promise, covenant, or agree to provide a
greater level or magnitude of Insurance/Risk Management
Services than that which was previously provided to the
Laboratory Business by Sybron. Sybron acknowledges and
covenants to use reasonable efforts to independently provide
such Insurance/Risk Management Services for itself and its
subsidiaries as soon as reasonably feasible. If reasonably
feasible, Sybron will provide such Insurance/Risk Management
Services for itself prior to the term limits set forth in
Section 4 of this Agreement. Each party hereby acknowledges
that the requirement for Sybron to use reasonable efforts to
independently provide such Insurance/Risk Management Services
as soon as reasonably feasible is a material element and
condition to this Agreement and that failure to fully comply
with such provision will give rise to, among other provisions,
the termination rights set forth in Section 4(c) of this
Agreement. Nothing in this Agreement shall be construed to
cause SDS to become a service bureau or to perform a
Insurance/Risk Management Services which it cannot provide
without (i) a conflict with a third-party contract to which SDS
or one of its subsidiaries is a party or (ii) a breach of any
third-party contract to which SDS or one of its subsidiaries is
a party. In no event will SDS be responsible for any damages if
it is unable to offer or continue to provide Insurance/Risk
Management Services to Sybron or its subsidiaries pursuant to
this paragraph.
3. Fees and Additional Charges. The parties agrees to pay the fees
described on Schedule 1 hereto for the Services received.
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(a) Additional Charges. In addition to the charges set forth
on Schedule 1, the parties agree ------------------- to pay for
any manufacturers, sales, use, excise, personal property, or
any other tax or charge, or duty or assessment cost, expense,
or fee attributable to the execution or performance of any
Service pursuant to this Agreement, except: (i) any income,
franchise, doing business or similar taxes levied or assessed
on or based on such party's income, capital stock or other
similar base, and (ii) employment taxes with respect to
employees of such party (including, but not limited to,
unemployment taxes, social security taxes and income tax
withholdings). The parties also agree to pay any fee, expense,
or charge associated with obtaining consents from any third
party necessary to offer any Service under this Agreement. Each
party also agrees to reimburse the other party for its
reasonable out-of-pocket expenses directly attributable to the
provision of Services hereunder.
(b) Terms of Payment. Each party shall pay the other's fees
and any additional charges owed within thirty (30) days of
invoice. Each party shall also pay any collection fees and
reasonable attorneys' fees incurred by the other party in
collecting payment of the charges and other amounts for which
the party is liable under the terms and conditions of this
Agreement. Without limiting the foregoing, if a party is more
than two months in arrears on any payment, the other party may
terminate this Agreement pursuant to the provisions of Section
14(d).
4. Term.
(a) This Agreement shall be effective upon the Effective Date.
Subject to the requirement set forth in Section 2 of this
Agreement that each party must use reasonable efforts to
independently provide such Services when reasonably feasible,
Sybron shall perform each of the Sybron Services for a
six-month term and SDS shall perform the Insurance/Risk
Management Services for a six-month term. Each Service shall
have its own six-month term (a "Service Period"). The early
termination, extension, or other change to any Service Period
shall not affect the term of any other Service Period.
(b) The party providing any Service may, at its sole discretion,
and upon request of the other party at least thirty (30) days
prior to termination of any Service Period, extend the Service
Period for an additional period not greater than three months.
The Services will then be offered at a rate of up to 200% of
the billing rate in effect at such time.
(c) The party receiving any Service may, at its sole discretion,
terminate the Service upon providing notice of such termination
to the other party.
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(d) SDS may promptly terminate this Agreement upon written notice
to Sybron with cause for any material breach of this Agreement
by Sybron, unless within a period of fifteen (15) days after
written notice Sybron remedies the breach or proposes a course
of action, reasonably acceptable to SDS to remedy the breach
within a reasonable time. Sybron may promptly terminate this
Agreement upon written notice to SDS with cause for any
material breach of this Agreement by SDS, unless within a
period of fifteen (15) days after written notice SDS remedies
the breach or proposes a course of action, reasonably
acceptable to Sybron, to remedy the breach within a reasonable
time. This Agreement will terminate automatically (to the
extent permitted by law at the time) in the event either party
files a petition in bankruptcy, becomes insolvent, makes an
assignment for the benefit of creditors or an arrangement
pursuant to any bankruptcy law, or discontinues its business or
has a receiver appointed for it.
(e) Upon any termination hereunder, each party will promptly pay
any charges or fees owed to the other party.
5. Subsidiaries. To the extent such Services were previously provided
to subsidiaries of SDS or Sybron, as the case may be, all Services shall be
included as part of the Services provided under this Agreement and shall be
performed in accordance with the terms and conditions of this Agreement. The
parties agree that each is responsible for assuring compliance with the
Agreement by their respective subsidiaries and further agree to be responsible
for the compliance with such subsidiaries' obligations in order to allow the
other party to offer the above described Services.
6. Systems Modification; Amendment of Services. Each party, at its sole
discretion, may modify, amend, enhance, update or provide an appropriate
replacement for any of the software used to provide the Services or any element
of its computer systems (hardware or software) at any time.
7. Responsibility.
(a) General. The parties agree to perform the Services in a
reasonable manner, which is similar to the manner in which each
party provides services for its own operations, and assumes no
other or higher degree of care. Except as specifically provided
herein, neither party assumes any other obligations as to
performance, timing or quality of the Services provided under
this Agreement; all risks of error are expressly and solely
assumed by the party receiving a Service, and the party
providing the Service shall not be responsible for loss or
damage due to delays in providing the Services under this
Agreement. NO PARTY WILL IN ANY EVENT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY THE
OTHER PARTY INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR
BUSINESS OPERATION LOSS, REGARDLESS OF WHETHER THE PARTY WAS
ADVISED OF THE POSSIBLE OCCURRENCE OF SUCH DAMAGES.
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(b) Reliance on the Other Party. In connection with the foregoing,
each party agrees that such party, such party's subsidiaries,
and its and their employees will have a significant impact on
the timing and quality of the performance of the Services
offered. Each party will provide the Services described in this
Agreement on the basis of information and/or instructions
furnished by the other party. The party providing a Service
shall be entitled to rely upon any such data, information, or
instructions as provided by the other party. If any error
results from incorrect input supplied by the party receiving a
Service, that party shall be responsible for discovering and
reporting such error and supplying the information or
instruction necessary to correct such error to the other party.
The party providing a Service may rely upon any instrument,
signature, instruction or telephone call from any employee of
the other party, or an employee of the other party's
subsidiaries, as to Services requested under this Agreement. In
connection with providing such Services, the party providing
the Service shall not be liable for any action taken or omitted
by it in good faith and believed to have been authorized by the
other party, its subsidiaries, or its or their employees.
8. Warranties. EXCEPT AS SPECIFICALLY DESCRIBED IN THIS AGREEMENT, EACH
PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED OR
IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Force Majeure. Neither party shall be liable to the other party if
its fulfillment or performance of any terms or provisions of this Agreement is
delayed or prevented by revolution or other civil disorders, wars, act of
enemies, strikes, electrical equipment availability failures, labor disputes,
fires, floods, act of God, federal, state, or municipal action, statute,
ordinance or regulation, or, without limiting the foregoing, any other causes
not within its reasonable control, and which by the exercise of reasonable
diligence it is unable to prevent, whether of the class of causes hereinbefore
enumerated or not. In case of emergency, each party may also select the order,
timeliness, or availability of providing any Services to other party.
10. Employees. All employees of Sybron or its subsidiaries providing
Services under this Agreement to SDS or its subsidiaries will remain employees
of Sybron or its subsidiaries, as the case may be, and all employees of SDS or
its subsidiaries providing Services under this Agreement to Sybron or its
subsidiaries will remain employees of SDS or its subsidiaries or its
subsidiaries, as the case may be.
11. Confidentiality. The parties recognize that the rendering of
Services will be governed by the Confidentiality and Nondisclosure Agreement
entered into by the parties in connection with the transactions contemplated by
the Contribution Agreement, except that the confidentiality requirements of both
parties will survive after termination of the Services under this Agreement,
regardless of the reason for termination. In the event of any dispute concerning
confidentiality, the parties agree to utilize the provisions of Section 12.
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12. Dispute Resolution Procedure. 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.
13. 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.
14. Miscellaneous.
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(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.
(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
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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
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
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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
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