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EXHIBIT 10.7
FORM OF
TRANSITIONAL SERVICES AGREEMENT
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This Transitional Services Agreement (the "Agreement") is entered into
as of _____________, 1996, by and between PENRIL DATACOMM NETWORKS, INC.
("Parent") and ACCESS BEYOND, INC., a Delaware corporation ("A/B").
WHEREAS, Parent owns 100% of the issued and outstanding shares of
common stock of A/B ("A/B Common Stock");
WHEREAS, Parent will distribute to the holders of its common stock
("Parent Stockholders") all of the A/B Common Stock owned by Parent on a pro
rata basis and without consideration being paid by such holders (the
"Distribution");
WHEREAS, after the Distribution, Parent and A/B will be separate
companies with a subsidiary of Bay Networks, Inc. ("Bay") to be merged with and
into Parent ("Merger"); and
WHEREAS, to facilitate Parent's ongoing business, Parent and A/B desire
to enter into this Agreement to set forth the terms upon which A/B will provide
services to Parent for a one-year period following the Distribution.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SERVICES. The parties agree that A/B will provide to Parent the
following services for a period of one (1) year following the Distribution: (i)
assistance in the preparation of federal, state, local and foreign tax returns
and assistance with respect to federal, state and local compliance for income,
franchise, sales and use taxes, tax planning and audit negotiation and support,
(ii) certain accounting, treasury and other financial services, and (iii)
assistance in the preparation for shipping
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of certain equipment and inventories and (iv) the administrative, clerical
and operational services set forth on Exhibit A (the "Services"). The Services
will be provided at such times and with respect to such matters as Parent may
reasonably request from time to time.
2. SERVICES FEE. As compensation for the Services rendered under this
Agreement, Parent will pay to A/B, upon execution of this Agreement, the sum of
$1,500,000 ("Fee"). The Fee is intended to cover the costs incurred by A/B in
providing the Services, including salary and other administrative costs and
expenses (but excluding payments to third parties).
3. REIMBURSEMENT OF EXPENSES. To the extent that A/B pays any expense
allocable to Parent to a third party for reasons of administrative convenience
(a "Reimbursable Expense"), A/B will promptly xxxx Parent for the amount
thereof, and Parent will reimburse A/B within thirty (30) days of receipt of
such invoice. Notwithstanding the foregoing, A/B will not make any payment in an
amount equal to or greater than Five Thousand Dollars ($5,000), or equal to or
greater than Five Thousand Dollars ($5,000.00) in the aggregate for any single
person or entity, without the prior written approval of Parent.
4. LIABILITY AND INDEMNIFICATION. A/B will be liable in connection
with this agreement to Parent or to any third party in privity with, connected
or affiliated with Parent, only if A/B has engaged in conduct in connection
with providing the Services which constitute willful misconduct. A/B will be
fully protected in any action taken in good faith in accordance with advice of
legal counsel. A/B will be fully protected in acting in accordance with any
written instructions given to it hereunder and reasonably believed by it to
have been executed by Parent.
5. WAIVER. Failure of either party to enforce any provision or
provisions of this Agreement will not in any way be construed as a waiver of any
such provision as to any future violations, nor prevent that party from
enforcing every other provision of this Agreement. The
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rights granted to the parties in this Agreement are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
6. COOPERATION. Each party to this Agreement agrees to cooperate with
the other party in good faith to carry out the purpose and intent of this
Agreement. Each party shall afford the other and its counsel, accountants and
agent reasonable access during normal working hours to all books, records,
contracts, instruments, computer data and other information relating to affairs
of the respective businesses before the date hereof ("Information") as is
reasonably requested, provided, however, neither A/B nor Parent shall be
required to divulge Information which it believes will cause it any
competitive disadvantage.
7. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially enforceable provision will be binding and enforceable to the extent
enforceable in any jurisdiction.
8. ASSIGNMENT. Except in connection with the Merger, neither A/B nor
Parent may assign any of its rights or benefits under this Agreement without
the prior written consent of the other, which consent will not be unreasonably
withheld or delayed. This Agreement is binding on and will inure to the benefit
of the parties and their respective successors and permitted assignees.
9. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and should not be deemed to confer upon third
parties any remedy, claim, liability, reimbursement, claim of action, or other
right in excess of those existing without reference to this Agreement.
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10. NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (i) delivered
by hand, (ii) upon receipt of a facsimile transmission, (iii) sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) sent by
Federal Express or other courier for next or second business day delivery,
shipping prepaid, and addressed as follows:
To A/B: ____________________________________
____________________________________
____________________________________
Attention: ________________________
Facsimile No. ______________________
To Parent: ____________________________________
____________________________________
____________________________________
Attention: ________________________
Facsimile No. ______________________
11. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
previous negotiations, commitments and writings with respect to such subject
matter.
12. AMENDMENTS. This Agreement may not be modified or amended except by
an agreement in writing signed by both parties.
13. CAPTIONS. Captions and section headings are used for the
convenience of reference only and are not part of this Agreement and may not be
used in construing it.
14. ENFORCEABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such
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prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision or remedies otherwise available to any
party hereto.
15. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first written above.
PENRIL DATACOMM NETWORKS, INC.
By: ____________________________________
Its: ____________________________________
ACCESS BEYOND, INC.
By: ____________________________________
Its: ____________________________________
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