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Exhibit 2.3
EXHIBIT D
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 __________, 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 _________, 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
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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.
(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.
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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
negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as
possible.
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(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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President and Chief Executive Officer
SYBRON DENTAL SPECIALTIES, INC.
By:
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President and Chief Executive Officer
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