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EXHIBIT 2.3
TRADE NAME ASSIGNMENT AND TRANSITIONAL TRADE NAME USE,
AND LICENSE AGREEMENT
This TRADE NAME ASSIGNMENT AND TRANSITIONAL TRADE NAME USE, AND LICENSE
AGREEMENT (this "Agreement") dated December 11, 2000, is made 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 November 28,
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, SDS is desirous of acquiring all of Sybron's right, title and
interest to the corporate name "Sybron" (the "Trade Name"); and
WHEREAS, the parties hereto intend hereby to provide for the license to
Sybron of the right to use the Trade Name for an interim period during which
Sybron will adopt a new corporate name.
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained in this Agreement and the other Contribution Documents (as
defined in the Contribution Agreement), the parties hereto agree as follows:
1. Assignment. Sybron hereby sells, assigns and transfers to SDS, its
successors and assigns, and SDS hereby accepts, all of Sybron's entire right,
title and interest in and to the Trade Name, and all of Sybron's entire right,
title and interest in and to any and all claims and demands it may have, at law
or in equity, for past infringement of the Trade Name.
2. Transitional Trade Name License and Transitional Use of Trade Name.
(a) For the purpose of enabling Sybron to make a
transition from the Trade Name to a new corporate
name to be adopted by Sybron, SDS grants to Sybron,
for a period of one (1) year from the date of this
Agreement, a royalty free, nontransferable, and
nonexclusive license to use the Trade Name in
Sybron's business operations, including in connection
with any advertising or promotional materials,
subject to the quality control provision of Section 3
of this Agreement; provided that the license granted
hereunder shall be extended for an additional one (1)
year period in the event that Sybron is not able to
change its corporate name by the first anniversary of
this Agreement.
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(b) Sybron and SDS recognize that Sybron and the
Laboratory Business Subsidiaries (as defined in the
Contribution Agreement) have acquired and produced
and currently possess various assets (including
inventory, products, packaging, and promotional
materials) bearing the Trade Name (the "Products").
Pursuant to the license granted in subsection (a)
above, Sybron and its subsidiaries shall have the
right and license to continue to acquire and produce
Products until the first anniversary of the date of
this Agreement and shall have the right and license
to use and sell Products until Sybron's supplies
thereof are exhausted.
3. Quality Control. Sybron and the Laboratory Business Subsidiaries
shall use the Products in the same manner as they had prior to the Effective
Date. The use of the Trade Name on Products shall be in appearance and quality
reasonably satisfactory to SDS.
4. Limitations. No license or rights under any other trademark, trade
name, trade dress, trade designation or any other property right of SDS or its
subsidiaries is granted by this Agreement. Sybron has no right to assign,
transfer or sublicense any of its rights acquired or obligations assumed under
this Agreement. Any such attempted assignment, transfer or sublicense shall be
void. Sybron and the Laboratory Business Subsidiaries shall not use or permit
the use of any trademarks or trade dress that are confusingly similar to the
Trade Name. Sybron will promptly notify SDS of any conflicting use of or acts of
infringement concerning the Trade Name and will cooperate as SDS reasonably may
deem advisable to protect SDS's rights.
5. 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.
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.
(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
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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 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
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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: /s/ KENNETH F. YONTZ
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Name: Kenneth F. Yontz
Title: President and Chief Executive Officer
SYBRON DENTAL SPECIALTIES, INC.
By: /s/ FLOYD W. PICKRELL, JR.
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Name: Floyd W. Pickrell, Jr.
Title: President and Chief Executive Officer
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