Exhibit 2.23
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SUB-SERVICES AGREEMENT
BY AND BETWEEN
CABLETRON SYSTEMS, INC.
AND
ENTERASYS NETWORKS, INC.
SUB-SERVICES AGREEMENT
THIS AGREEMENT is effective as of August 28, 2000 (the "Effective Date") by
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and between Cabletron Systems, Inc., a Delaware corporation ("CSI") and
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Enterasys Networks, Inc., a Delaware corporation ("Enterasys").
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WHEREAS each of Aprisma Management Technologies, Inc., a Delaware
corporation, ("Aprisma"), GlobalNetwork Technology Services, Inc., a Delaware
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corporation ("GNTS"), and Riverstone Networks, Inc., a Delaware corporation
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("Riverstone") (each individually referred to as a "Newco," and collectively,
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the "Newcos") has entered into a Services Agreement with CSI dated as of the
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date hereof and attached hereto as Exhibits A1 through A3 respectively (with
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respect to each Newco, a "Services Agreement," and collectively, the "Services
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Agreements"), pursuant to which Cabletron shall provide certain services to the
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Newcos;
WHEREAS each Services Agreement permits CSI to engage subcontractors to
perform all or any of CSI's duties thereunder; and
WHEREAS CSI desires to have Enterasys provide certain of the services that
CSI has agreed to provide to the Newcos pursuant to the Services Agreements, and
Enterasys is willing to perform such services on behalf of CSI upon the terms
and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein made, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall have
the following meanings:
1.1. ADDITIONAL SERVICE(S). "Additional Service(s)" shall have the meaning set
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forth in Section 2.4.
1.2. AGREEMENT. "Agreement" shall have the meaning set forth in Section 2.1.
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1.3. ANCILLARY AGREEMENT(S). "Ancillary Agreement(s)" shall have the meaning
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set forth in the Transformation Agreement.
1.4. APRISMA. "Aprisma" shall have the meaning set forth in the Recitals.
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1.5. ASSIGNMENT. "Assignment" shall have the meaning set forth in Section 12.5.
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1.6. CSI. "CSI" shall have the meaning set forth in the Preamble.
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1.7. DISPUTE. "Dispute" shall have the meaning set forth in Section 11.1.
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1.8. EFFECTIVE DATE. "Effective Date" shall have the meaning set forth in the
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Preamble.
1.9. ENTERASYS. "Enterasys" shall have the meaning set forth in the Preamble.
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1.10. EXPIRATION DATE. "Expiration Date" shall have the meaning set forth in
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Section 5.1.
1.11. FORCE MAJEURE. "Force Majeure" shall mean any act of God, any accident,
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explosion, fire, storm, earthquake, flood, or any other circumstance or
event beyond the reasonable control of the party relying upon such
circumstance or event.
1.12. GNTS. "GNTS" shall have the meaning set forth in the Recitals.
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1.13. IMPRACTICABILITY. "Impracticability" shall have the meaning set forth in
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Section 2.2.
1.14. IMPRACTICABLE. "Impracticable" shall have the meaning set forth in
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Section 2.2.
1.15. INTERCOMPANY ACCOUNT. "Intercompany Account" shall mean the intercompany
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account managed by CSI on behalf of Enterasys pursuant to this Agreement.
1.16. NEWCO(S). "Newco(s)" shall have the meaning set forth in the Recitals.
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1.17. RIVERSTONE. "Riverstone" shall have the meaning set forth in the
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Recitals.
1.18. SERVICE(S). "Service(s)" shall have the meaning set forth in Section 2.1.
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1.19. SERVICES AGREEMENT(S). "Services Agreement(s)" shall have the meaning set
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forth in the Recitals.
1.20. SERVICE SCHEDULE. " Service Schedule" shall have the meaning set forth in
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Article 2.1.
1.21. SUBCONTRACTOR. "Subcontractor" shall mean any individual, partnership,
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corporation, firm, association, unincorporated organization, joint
venture, trust or other entity engaged by Enterasys to perform services
hereunder on behalf of Enterasys.
1.22. TRANSFORMATION AGREEMENT. "Transformation Agreement" shall mean the
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Transformation Agreement, dated as of June 3, 2000, by and among CSI and
the Newcos.
ARTICLE 2
SERVICES
2.1. SERVICES. This Agreement will govern individual services (the "Services")
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to be provided by Enterasys on behalf of CSI, the details of which are set
forth in the Service Schedule attached to this Agreement, as amended from
time to time by the parties hereto (the "Service Schedule"). Obligations
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under this Agreement regarding a particular Service shall be effective
upon the addition of such Service to the Service Schedule, subject to the
effectiveness of this Agreement. This Agreement together with the Service
Schedule shall be defined as the "Agreement."
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2.2. IMPRACTICABILITY. Enterasys shall not be required to provide any Service
to the extent the performance of such Service becomes impracticable
("Impracticable") as a result of a cause or causes outside the reasonable
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control of Enterasys (including Force Majeure), or to the extent the
performance of such Services would require CSI to violate any applicable
laws, rules or regulations or would result in the breach of any software
license or other applicable contract ("Impracticable"). The inability of
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Enterasys to perform a Service because such performance is Impracticable
shall be referred to herein as "Impracticability."
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2.3. ADDITIONAL RESOURCES. Enterasys shall not be obligated to: (i) hire, lease
or contract for any additional employees; (ii) maintain the employment of
any specific employee; or (iii) purchase, lease or license any additional
equipment or software.
2.4. ADDITIONAL SERVICES. From time to time during the term of this Agreement,
CSI may request that Enterasys provide additional services in accordance
with the terms of this Agreement ("Additional Services"). Each Additional
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Servicshall be listed on the Service Schedule.
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ARTICLE 3
COMPENSATION
3.1. CHARGES FOR SERVICES. The charges for any Service provided to a Newco on
behalf of CSI shall be equal to the charge set forth in the Service
Schedule as attached to the Services Agreement between CSI and such Newco.
Such charges shall be subject to adjustment as set forth in Sections 4.3
and 4.4 of the Services Agreements.
3.2. PAYMENT TERMS.
(a) Invoices. Enterasys shall periodically provide invoices to CSI
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detailing all charges for Services provided on behalf of CSI
pursuant to this Agreement. Such invoices shall be accompanied by
reasonable documentation or other reasonable explanation supporting
such charges.
(b) Payment. While CSI is managing Enterasys' Intercompany Account, the
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charges set forth in invoices shall be paid by CSI to the Intercompany
Account of Enterasys. Any amounts owed by CSI to Enterasys under this
Agreement may be offset by amounts owed by Enterasys to CSI under the
Services Agreement, dated as of the date hereof, between CSI and
Enterasys. If CSI is no longer managing Enterasys' Intercompany
Account, any invoice received by CSI shall be payable no later than
forty-five (45) days after receipt. Late payments shall bear interest
at the lesser of twelve percent (12%) per annum and the maximum rate
allowed by law.
ARTICLE 4
GENERAL OBLIGATIONS; STANDARD OF CARE
4.1. PERFORMANCE BY ENTERASYS. Subject to Section 2.3 and any other terms and
conditions of this Agreement, Enterasys shall maintain sufficient
resources to perform its obligations hereunder. Enterasys shall use
reasonable efforts to provide Services in accordance with the policies,
procedures and practices in effect before the Effective Date and shall
exercise the same care and skill as it exercises in performing similar
services for itself.
4.2. DISCLAIMER OF WARRANTIES. ENTERASYS MAKES NO WARRANTIES WITH RESPECT TO
THE SERVICES PROVIDED BY IT HEREUNDER.
4.3. RESPONSIBILITY FOR ERRORS; DELAYS. Enterasys' sole responsibility to CSI:
(a) for errors or omissions in Services, shall be to furnish correct
information, payment and/or adjustment in the Services, at no
additional cost or expense to CSI; provided, CSI must promptly advise
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Enterasys of any such error or omission of which it becomes aware
after having used reasonable efforts to detect any such errors or
omissions; and
(b) for failure to deliver any Service because of Impracticability, shall
be to use reasonable efforts, subject to Section 2.3, to make the
Services available and/or to resume performing the Services as
promptly as reasonably practicable.
4.4. GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith efforts
to cooperate with each other in all matters relating to the provision and
receipt of Services. Such cooperation shall include exchanging
information, performing true-ups and adjustments, and obtaining all third
party consents, licenses, sublicenses or approvals necessary to permit
each party to perform its obligations hereunder (including by way of
example, not by way of limitation, rights to use third party software
needed for the performance of Services). The costs of obtaining such third
party consents, licenses, sublicenses or approvals in connection with the
performance of Services for CSI shall be borne by CSI. Each party will
maintain, in accordance with its standard document retention procedures,
documentation supporting the information relevant to the charges
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set forth in Section 3.1 and cooperate with each other party in making
such information available as needed in the event of a tax audit, whether
in the United States or any other country.
4.5. ALTERNATIVES. If Enterasys reasonably believes it is unable to provide
any Service because of Impracticability, the parties shall cooperate to
determine the best alternative approach. Until such alternative approach
is found or the problem otherwise resolved to the satisfaction of the
parties, Enterasys shall use reasonable efforts, subject to Section 2.2
and Section 2.3, to continue providing the Service.
ARTICLE 5
TERM AND TERMINATION
5.1. TERM. The term of this Agreement shall commence on the Effective Date and
shall remain in effect until two (2) years after the Effective Date (the
"Expiration Date"), unless earlier terminated under this Article 5. The
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term for a specific Service to a Newco shall be deemed to be the term set
forth in the Service Schedule, as attached to the Services Agreement
between CSI and such Newco.
5.2. TERMINATION.
(a) CSI may terminate this Agreement, either with respect to all or with
respect to any one or more of the Services provided by Enterasys
hereunder, for any reason or for no reason, at any time upon giving
prior written notice to Enterasys at least sixty (60) days prior to
such termination.
(b) Enterasys may terminate this Agreement (i) either with respect to all
or with respect to any one or more of the Services provided to CSI
hereunder, for any reason or for no reason, at any time after the
Expiration Date upon giving prior written notice to CSI at least a
full fiscal quarter prior to such termination; or (ii) with respect
to a specific Service if CSI materially breaches a material provision
with regard to that particular Service and does not cure such breach
(or does not take reasonable steps required under the circumstances
to cure such breach going forward) within sixty (60) days after being
given notice of the breach.
5.3. SURVIVAL. The obligations of the parties under this Agreement shall
survive termination thereof to the extent necessary to carry out the
purposes of this Agreement, including without limitation payment
obligations under Article 3 and indemnification obligations under Article
9. Notwithstanding the foregoing, in the event of any termination with
respect to one or more, but less than all Services, this Agreement shall
continue in full force and effect with respect to all Services not
terminated hereby.
5.4. POST-TERMINATION SERVICES. Following a termination of this Agreement with
respect to a particular Service, corporate administrative services of the
kind provided prior thereto may continue to be provided to CSI on an as-
requested basis by CSI or as required in the event it is not practicable
for CSI to provide such services or CSI is otherwise unable to identify
another source to provide such services. In the event such services are
provided by Enterasys to CSI, CSI shall be charged by Enterasys a fee
equal to the market rate for comparable services charged by third-party
vendors. Enterasys shall periodically provide invoices to CSI detailing
any such charges. If, at such time, CSI is still managing an Intercompany
Account for Enterasys, the charges shall be paid by CSI to the
Intercompany Account of Enterasys. Any amounts owed by CSI to Enterasys
under this Agreement may be offset by amounts owed by Enterasys to CSI
under the Services Agreement between CSI and Enterasys. If CSI is no
longer managing Enterasys' Intercompany Account, any invoice received by
CSI shall be payable no later than thirty (30) days after receipt. The
obligations of the parties set forth in this Section 5.4 shall survive the
termination of this Agreement.
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ARTICLE 6
RELATIONSHIP BETWEEN THE PARTIES
6.1. INDEPENDENT CONTRACTOR. Enterasys shall be an independent contractor
hereunder and shall not be the agent or in control of CSI. Enterasys will
be solely responsible for any employment-related taxes, insurance premiums
or other employment benefits respecting its personnel's performance of
Services under this Agreement. CSI agrees to grant Enterasys personnel
access to sites, systems and information (subject to the provisions of
confidentiality in Article 8 below) as necessary for Enterasys to perform
its obligations hereunder.
6.2. CSI DIRECTORS AND OFFICERS. Nothing contained herein will be construed to
relieve the directors or officers of CSI from the performance of their
respective duties or to limit the exercise of their powers in accordance
with the By-laws of CSI or in accordance with any applicable statute or
regulation.
ARTICLE 7
SUBCONTRACTORS
Enterasys may engage Subcontractors to perform all or any portion of its duties
under this Agreement, provided that any such Subcontractor agrees in writing to
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be bound by confidentiality obligations at least as protective as the terms of
Article 8 regarding confidentiality below, and provided further that Enterasys
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remains responsible for the performance of any such Subcontractor. Any
reference in this Agreement to performance of Services by Enterasys shall
incorporate performance of Services by Subcontractors on behalf of Enterasys.
ARTICLE 8
CONFIDENTIALITY
Each party to this Agreement agrees to hold, and to use all commercially
reasonable efforts to cause its employees, representatives and agents to hold,
in confidence all confidential or proprietary information regarding any other
party, its operations and business obtained through the provision of the
Services in accordance with the confidentiality provisions set forth in the
Transformation Agreement.
ARTICLE 9
LIABILITY AND INDEMNIFICATION
9.1. Enterasys shall not be liable to CSI for direct, consequential or
incidental damages, including, without limitation, loss of profits or
damage to or loss of use of any property arising out of or relating to the
provision of the Services pursuant to this Agreement, except to the extent
of Enterasys' willful misconduct or gross negligence.
9.2. CSI hereby agrees to indemnify and hold Enterasys (and its directors,
officers, employees and representatives) harmless from and against any and
all claims, losses, damages, costs, expenses, causes of action or
judgments of any kind or character (including those arising from, related
to or caused directly or indirectly, by the sole, joint, concurrent or
comparative negligence of such indemnified parties) including any
interest, penalty, reasonable attorneys' fees, investigation expenses with
respect to asserted claims (whether or not resulting in any liability) and
other costs and expenses incurred in connection therewith or the defense
thereof, attributable to or arising out of any claims by, or liabilities
or obligations to, any third party arising out of, in connection with or
resulting from the Services or other activities performed by Enterasys
hereunder for CSI, except to the extent resulting from the gross
negligence or willful misconduct of Enterasys or Subcontractors engaged by
Enterasys (which shall not be deemed to exist if such action is taken at
such Enterasys' direction).
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ARTICLE 10
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of its
obligations under this Agreement, other than the obligations of a Newco to make
certain payments to CSI pursuant to Article 3 hereof for services rendered, if
such failure or delay is caused by Force Majeure.
ARTICLE 11
DISPUTE RESOLUTION
11.1. DISPUTES. If a dispute, controversy or claim ("Dispute") arises between
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the parties relating to the interpretation or performance of this
Agreement, or the grounds for termination hereof, such Dispute shall be
resolved according to the dispute resolution mechanism set forth in the
Transformation Agreement.
11.2. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, during the resolution of any Dispute pursuant to the provisions
of this Article 11 and the Transformation Agreement, the parties will
continue to provide service and honor all other commitments under this
Agreement and each Ancillary Agreement (as defined in the Transformation
Agreement) with respect to all matters not subject to such Dispute.
ARTICLE 12
MISCELLANEOUS
12.1. ENTIRE AGREEMENT. This Agreement, the Transformation Agreement and the
other Ancillary Agreements and the Exhibits and Schedules referenced or
attached hereto and thereto constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and shall
supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof
and thereof.
12.2. GOVERNING LAW. This Agreement shall be construed in accordance with and
all Disputes hereunder shall be governed by the laws of the State of New
Hampshire, excluding its conflict of law rules. The courts of the State
of New Hampshire or of the United States District Court for the state of
New Hampshire shall have venue over all Disputes between the parties that
are permitted to be brought in a court of law pursuant to Article 11
above.
12.3. DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any
Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Any capitalized term used in
any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning assigned to such term in this Agreement. When a reference is made
in this Agreement to an Article or a Section, Exhibit or Schedule, such
reference shall be to an Article or Section of, or an Exhibit or Schedule
to, this Agreement unless otherwise indicated.
12.4. NOTICES. Notices, offers, requests, or other communications required or
permitted to be given by the parties pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the
following addresses:
If to CSI: Cabletron Systems, Inc.
00 Xxxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and Chief Financial Officer
Telecopier No.: 000-000-0000
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with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Fine
Telecopier No.: 000-000-0000
If to Enterasys: Enterasys Networks, Inc.
00 Xxxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxxxx, XX 00000
Attention: President
Telecopier No.: 000-000-0000
with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Fine
Telecopier No.: 000-000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing as provided herein. Any
notice involving non-performance, termination, or renewal shall be sent
by hand delivery, recognized overnight courier or, within the United
States, may also be sent via certified mail, return receipt requested.
All other notices may also be sent by fax, confirmed by first class mail.
All notices shall be deemed to have been given and received on the
earlier of actual delivery or three (3) days from the date of postmark.
12.5. NONASSIGNABILITY.
(a) Except as specifically permitted under Article 7 above, neither
party may, directly or indirectly assign, transfer or delegate its
duties under this Agreement, in whole or in part, whether by
operation of law or otherwise (an "Assignment"), without the prior
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written consent of the other party,and any attempted Assignment
without such prior written consent shall be voidable at the sole
option of the other party.
(b) Notwithstanding the foregoing, each party (or its permitted
successive assignees or transferees hereunder) may assign or
transfer this Agreement as a whole without consent to an entity that
succeeds to all or substantially all of the business or assets of
such party. Without limiting the foregoing, this Agreement will be
binding upon and inure to the benefit of the parties and their
permitted successors and assigns.
12.6. SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated is not affected in any
manner materially adverse to either party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
12.7. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any agreement herein, nor shall any single
or partial exercise of any such right preclude other or further exercise
thereof or of any
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other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
12.8. AMENDMENT. Subject to Section 10 of the Transformation Agreement, no
change or amendment will be made to this Agreement except by an
instrument in writing signed on behalf of each of the parties to the
Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives.
CABLETRON SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxx
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Title: President, Chairman & CEO
ENTERASYS NETWORKS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: President
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SERVICE SCHEDULE (This Schedule may be amended from time to time by the parties
hereto for the addition of Additional Services)
If an X appears in the column of a Newco to the right of a specific Service (i)
the Newco has contracted to receive such Service from CSI pursuant to the
Services Agreement between CSI and such Newco; and (ii) CSI is hereby
contracting to have Enterasys provide such Service to the Newco under this Sub-
Services Agreement.
Each Service starts on the Effective Date of the Sub-Services Agreement, to
which this Service Schedule is attached, and end two (2) years after the
Effective date, unless otherwise indicated in the Service Schedule to the
Services Agreement between CSI and the Newco to which a particular Service is
being provided.
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Service Category Service Description Aprisma GNTS Riverstone
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1. HUMAN Employee Relations X X X
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RESOURCES
. Consultation on human resource issues, including but not
limited to compensation, performance reviews, employee
development and training.
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Compensation and Benefits Administration X X X
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. Arranging for insurance coverage and other HR programs.
. Administrative services, including without limitation
filing of all governmental reports, with respect to Newco
employee participation in the Plans, filing of all required
reports under ERISA for Plans sponsored by CSI.
. Assistance to Newcos in initial procurement of separate
health and welfare plans provision of training and support
as requested to facilitate successful implementation.
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Recruitment X X X
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Payroll Administration X X X
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2. CORPORATE Legal. In regard to all legal matters, CSI may consult and X X X
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AFFAIRS. retain outside lawyers to assist CSI as determined in its
sole judgment.
. Employment. Labor, human resources.
. Corporate. General corporate governance, government
affairs, bankruptcy, securities, supervision of outside
counsel.
. Litigation. Contract disputes, commercial litigation,
bankruptcy collections, etc.
. Contract Negotiation.
. Trademarks and Patents.
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Internal Communications X X X
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3. FINANCE. Transaction Processing X X X
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. Invoicing, collections, accounts payable.
. Maintenance of service contracts.
. Support international organization, legal structure,
foreign currencies, statutory requirements and reimbursement.
. Create and support centralized procurement and payables
in a manner consistent with corporate services.
. Provide general accounting support, including invoicing
for intercompany transactions.
. Support business requirements for internal cost
distributions and allocations as required.
. Travel administration.
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Tax-Related Services X X X
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. Preparation of Federal tax returns, preparation of state
and local tax returns (including income tax returns), filing
of state sales and other state tax returns.
. Preparation of financial statement disclosures and
calculation of tax provisions for financial statement
purposes.
. Tax research and planning and the conduct of Federal,
state and local tax audits.
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Financial Reporting X X X
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. Support and maintain SAP general ledger and related
master data for both finance and HR data.
. Provide both legal and management structures.
. Information services support, including account
maintenance and reporting support, access to on-line
intranet reporting tools.
. Preparation of Securities and Exchange Commission filings
for CSI, including without limitation registration
statements, Forms 10-K, 10-Q and 8-K, assistance in the
preparation of Proxies and Proxy Statements and the
solicitation of Proxies, and assistance in the preparation
of the Annual and Quarterly Reports to Stockholders.
. Preparation of financial statements.
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Treasury Services X X X
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. Management of Intercompany Accounts.
. Assistance in establishing a comprehensive bank account
structure and accompanying services.
. Risk management.
. Stock plan administration.
. Investor relations.
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4. INFORMATION . Management planning and support. X X
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TECHNOLOGY
. Enterprise applications and operations. X X
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. Network. X X
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. Telecom. X X
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. E-Business. X X
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. File servers. X X
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. NT servers/ Desktop. X X
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