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EXHIBIT 2.8
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement"), is
made as of December 11, 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 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, 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: /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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