<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 1999.
REGISTRATION NO. 333-75151
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMDOCS LIMITED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
ISLAND OF GUERNSEY 7371 NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
TOWER HILL HOUSE LE BORDAGE
ST. PETER PORT, ISLAND OF GUERNSEY, GY1 3QT CHANNEL ISLANDS
011-44-1481-727272
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
AMDOCS, INC.
1610 DES PERES ROAD, ST. LOUIS, MISSOURI 63131
ATTENTION: THOMAS G. O'BRIEN, TREASURER
314-821-3242
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
ROBERT A. SCHWED, ESQ. PHYLLIS G. KORFF, ESQ.
REBOUL, MACMURRAY, HEWITT, MAYNARD & KRISTOL SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
45 ROCKEFELLER PLAZA 919 THIRD AVENUE
NEW YORK, NEW YORK 10111 NEW YORK, NEW YORK 10022
(212) 841-5700 (212) 735-3000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [ ]
- ---------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
Amdocs Limited has prepared this Amendment No. 2 to its Registration
Statement on Form F-1 for the purpose of filing with the Securities and Exchange
Commission exhibits to the Registration Statement. This Amendment No. 2 does not
modify any provision of the prospectus included in the Registration Statement;
accordingly, the prospectus has not been included in this Amendment No. 2.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by Amdocs in
connection with the issuance and distribution of the securities being
registered. All amounts shown are estimates except for amounts of filing and
listing fees.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 226,914
New York Stock Exchange listing fee......................... 36,900
National Association of Securities Dealers fee.............. 30,500
Legal fees and expenses..................................... 400,000
Registrar and Transfer Agent fees and expenses.............. *
Accounting fees and expenses................................ *
Printing, EDGAR formatting and mailing expenses............. *
Miscellaneous............................................... *
----------
Total............................................. $2,000,000
</TABLE>
- ---------------
* To be filed by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under our Articles of Association, we are obligated to indemnify any person
who is made or threatened to be made a party to a legal or administrative
proceeding by virtue of being a director, officer or agent of Amdocs, provided
that we have no such obligation to indemnify any such persons for any claims
they incur or sustain by or through their own willful act or default.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Set forth in reverse chronological order below is certain information
regarding the number of ordinary shares or other securities issued, or options
granted, by the Registrant, since May 6, 1996 that have not been registered
under the Securities Act.
(a) Issuances of Share Capital
On March 30, 1998, Welsh, Carson, Anderson & Stowe VII, L.P., Welsh,
Carson, Anderson & Stowe VI. L.P., WCAS Information Partners, L.P. and certain
other investors purchased a total of 51,507,716 ordinary shares for an aggregate
purchase price of $99.1 million. Such number of ordinary shares and all other
share figures set forth in this Item give effect to a recapitalization of
Amdocs' share capital which was effected prior to the June 19, 1998 public
offering.
On September 28, 1997, a trust for the benefit of certain employees of
Amdocs purchased 5,720,000 ordinary shares for an aggregate purchase price of
$31.6 million.
On September 22, 1997, Welsh, Carson, Anderson & Stowe VII, L.P., Welsh,
Carson, Anderson & Stowe VI. L.P., and certain other investors purchased
11,072,308 ordinary shares for an aggregate purchase price of $61.2 million and
$3.27 million in principal amount of Amdocs' junior promissory notes.
(b) Option Grants
From January 1998 through March 31, 1999, Amdocs granted options to
directors, employees and consultants to purchase an aggregate of 4,231,214
ordinary shares at a weighted average exercise price of $6.03 per share. The
options vest ratably over a period of three to
II-1
<PAGE> 4
eight years commencing from the date of grant. As of March 31, 1999 none of
those options were exercisable.
No underwriters were engaged in connection with any of the foregoing sales
of securities. The securities issued in the above transactions were offered and
sold in reliance upon the exemption from registration under Section 4(2) of the
Securities Act or Regulation D or Regulation S promulgated under the Securities
Act, relative to sales by an issuer not involving any public offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Amended and Restated Articles of Association of Amdocs
Limited (Exhibit 3.1 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826)
3.2 Memorandum of Association of Amdocs Limited (Exhibit 3.2 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826)
4.1 Specimen certificate for the ordinary shares of the
Registrant (Exhibit 4.1 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration Number 333-8826)
4.2 Stock Option and Incentive Plan, as amended, of Amdocs
(Exhibit 4.2 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.3 Note Purchase Agreement, dated as of September 22, 1997,
among European Software Marketing Ltd., WCAS Capital
Partners III, L.P., as Agent, and the several Purchasers
named in Schedule 1 thereto (Exhibit 4.3 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826)
4.4 Credit Agreement, dated as of December 5, 1997, among
European Software Marketing Limited, the other subsidiaries
of Amdocs named therein and Nationsbanc of Texas, N.A., as
Administrative Agent, the Bank of Nova Scotia, as
Syndication Agent, and The Bank of Japan, Limited as
Documentation Agent (Exhibit 4.4 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826)
4.5 Share Subscription Agreement, dated as of September 22,
1997, among the several Investors named therein and Amdocs
(Exhibit 4.5 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.6 Conditional Investment Agreement, dated as of September 22,
1997, among the several Investors named therein and Amdocs
(Exhibit 4.6 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.7 Letter Agreement, dated September 22, 1997, as amended as of
May 20, 1998, between Amdocs and Welsh, Carson, Anderson and
Stowe, on behalf of the Investors named therein (Exhibit 4.7
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826)
4.8 Letter of Understanding, dated September 22, 1997, between
Amdocs and Welsh, Carson, Anderson and Stowe, on behalf of
the Investors named therein (Exhibit 4.8 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826)
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
4.9 Shareholders Agreement, Summary of Terms, dated September
22, 1997 (Exhibit 4.9 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826)
4.10 Certain proxies executed by investment partnerships
affiliated with Welsh, Carson, Anderson and Stowe and
certain other entities in favor of Conbond Holding Company
Ltd. (Exhibit 4.10 to Amdocs' Registration Statement on Form
F-1 dated June 19, 1998; Registration No. 333-8826)
*5.1 Opinion of Carey Langlois
10.1 Agreement No. C303410 for Joint Development and Marketing
between Southwestern Bell Telephone Company and Amdocs, Inc.
dated as of June 19, 1991, as amended(Exhibit 10.1 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.2 General Agreement No. CGA0450 for Support Services effective
as of January 1, 1994 Southwestern Bell Telephone Company
and Amdocs, Inc.(Exhibit 10.2 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.3 Marketing and License Agreement between Southwestern Bell
Yellow Pages, Inc. and Amdocs, Inc. dated as of May 18,
1990, as amended(Exhibit 10.3 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.4 Joint Development Agreement between Southwestern Bell Mobile
Systems, Inc. and Amdocs, Inc., signed by the parties on
March 15, 1994 and March 31, 1994, respectively(Exhibit 10.4
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.5 Marketing Rights Agreement between Southwestern Bell Mobile
Systems, Inc. and Canadian Directory Technology Limited,
signed by the parties on March 14, 1994 and April 5, 1994,
respectively, as amended(Exhibit 10.5 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
10.6 Letter of Agreement between Southwestern Bell Mobile
Systems, Inc. and Canadian Directory Technology Limited
dated July 22, 1996 and signed on July 25, 1995(Exhibit 10.3
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.7 Development Agreement between Southwestern Bell
Communications Services, Inc. and Amdocs, Inc. dated as of
February 15, 1996(Exhibit 10.7 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.8 Marketing Rights Agreement between Southwestern Bell
Communications Services, Inc. and Canadian Directory
Technology Limited effective as of February 15, 1996, as
amended(Exhibit 10.8 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826).
10.9 License and Maintenance Services Agreement between
GoldenLines Limited and Amdocs (UK) Limited, dated as of
November 15, 1996(Exhibit 10.9 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.10 Customization and Support Services Agreement between
GoldenLines Limited and P.S. Publishing System Limited,
dated as of November 15, 1996(Exhibit 10.10 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
10.11 IT Services Provision Agreement between Pacific Access & Pty
Ltd., as agent for Telstra Corporation Limited, and Amdocs
(USA), Inc., dated as of May 7, 1998(Exhibit 10.11 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.12 Guarantee and Indemnity between Amdocs Limited, as
Guarantor, and Pacific Access Pty Ltd., as Beneficiary,
dated as of May 7, 1995(Exhibit 10.12 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
+10.13 Master Agreement No. 99006220 for Software and Services
between Amdocs, Inc. and SBC Operations, Inc. (effective
July 7, 1998), dated March 1999.
*21.1 Subsidiaries of the Registrant
**23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Carey Langlois (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature pages
hereof).
</TABLE>
- ---------------
* To be filed by amendment
**Previously filed
+ Confidential material redacted and complete exhibit has been separately
filed with the Securities and Exchange Commission.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, ordinary shares in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 14, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of New York, State of New
York, on this 21st day of May, 1999.
AMDOCS LIMITED
By: /s/ BRUCE K. ANDERSON
------------------------------------
Bruce K. Anderson
Chief Executive Officer
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<C> <S> <C>
/s/ BRUCE K. ANDERSON Chairman of the Board and Chief Executive May 21, 1999
- --------------------------------------- Officer
Bruce K. Anderson (Principal Executive Officer)
* Director and Chief May 21, 1999
- --------------------------------------- Financial Officer (Principal Financial
Robert A. Minicucci and Accounting Officer)
* Director May 21, 1999
- ---------------------------------------
Adrian Gardner
* Director May 21, 1999
- ---------------------------------------
Stephen Hermer
* Director May 21, 1999
- ---------------------------------------
James Kahan
* Director May 21, 1999
- ---------------------------------------
Paz Littman
* Director May 21, 1999
- ---------------------------------------
Avinoam Naor
* Director May 21, 1999
- ---------------------------------------
Revital Naveh
* Director May 21, 1999
- ---------------------------------------
Lawrence Perlman
Director
- ---------------------------------------
Michael J. Price
* Amdocs Limited's Authorized May 21, 1999
- --------------------------------------- Representative in the United States
Thomas G. O'Brien
</TABLE>
- ---------------
*By: /s/ BRUCE K. ANDERSON
--------------------------------------
Bruce K. Anderson
Attorney-in-Fact
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Amended and Restated Articles of Association of Amdocs
Limited (Exhibit 3.1 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826)
3.2 Memorandum of Association of Amdocs Limited (Exhibit 3.2 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826)
4.1 Specimen certificate for the ordinary shares of the
Registrant (Exhibit 4.1 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration Number 333-8826)
4.2 Stock Option and Incentive Plan, as amended, of Amdocs
(Exhibit 4.2 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.3 Note Purchase Agreement, dated as of September 22, 1997,
among European Software Marketing Ltd., WCAS Capital
Partners III, L.P., as Agent, and the several Purchasers
named in Schedule 1 thereto (Exhibit 4.3 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826)
4.4 Credit Agreement, dated as of December 5, 1997, among
European Software Marketing Limited, the other subsidiaries
of Amdocs named therein and Nationsbanc of Texas, N.A., as
Administrative Agent, the Bank of Nova Scotia, as
Syndication Agent, and The Bank of Japan, Limited as
Documentation Agent (Exhibit 4.4 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826)
4.5 Share Subscription Agreement, dated as of September 22,
1997, among the several Investors named therein and Amdocs
(Exhibit 4.5 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.6 Conditional Investment Agreement, dated as of September 22,
1997, among the several Investors named therein and Amdocs
(Exhibit 4.6 to Amdocs' Registration Statement on Form F-1
dated June 19, 1998; Registration No. 333-8826)
4.7 Letter Agreement, dated September 22, 1997, as amended as of
May 20, 1998, between Amdocs and Welsh, Carson, Anderson and
Stowe, on behalf of the Investors named therein (Exhibit 4.7
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826)
4.8 Letter of Understanding, dated September 22, 1997, between
Amdocs and Welsh, Carson, Anderson and Stowe, on behalf of
the Investors named therein (Exhibit 4.8 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826)
4.9 Shareholders Agreement, Summary of Terms, dated September
22, 1997 (Exhibit 4.9 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826)
4.10 Certain proxies executed by investment partnerships
affiliated with Welsh, Carson, Anderson and Stowe and
certain other entities in favor of Conbond Holding Company
Ltd. (Exhibit 4.10 to Amdocs' Registration Statement on Form
F-1 dated June 19, 1998; Registration No. 333-8826)
*5.1 Opinion of Carey Langlois
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
10.1 Agreement No. C303410 for Joint Development and Marketing
between Southwestern Bell Telephone Company and Amdocs, Inc.
dated as of June 19, 1991, as amended(Exhibit 10.1 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.2 General Agreement No. CGA0450 for Support Services effective
as of January 1, 1994 Southwestern Bell Telephone Company
and Amdocs, Inc.(Exhibit 10.2 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.3 Marketing and License Agreement between Southwestern Bell
Yellow Pages, Inc. and Amdocs, Inc. dated as of May 18,
1990, as amended(Exhibit 10.3 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.4 Joint Development Agreement between Southwestern Bell Mobile
Systems, Inc. and Amdocs, Inc., signed by the parties on
March 15, 1994 and March 31, 1994, respectively(Exhibit 10.4
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.5 Marketing Rights Agreement between Southwestern Bell Mobile
Systems, Inc. and Canadian Directory Technology Limited,
signed by the parties on March 14, 1994 and April 5, 1994,
respectively, as amended(Exhibit 10.5 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
10.6 Letter of Agreement between Southwestern Bell Mobile
Systems, Inc. and Canadian Directory Technology Limited
dated July 22, 1996 and signed on July 25, 1995(Exhibit 10.3
to Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.7 Development Agreement between Southwestern Bell
Communications Services, Inc. and Amdocs, Inc. dated as of
February 15, 1996(Exhibit 10.7 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.8 Marketing Rights Agreement between Southwestern Bell
Communications Services, Inc. and Canadian Directory
Technology Limited effective as of February 15, 1996, as
amended(Exhibit 10.8 to Amdocs' Registration Statement on
Form F-1 dated June 19, 1998; Registration No. 333-8826).
10.9 License and Maintenance Services Agreement between
GoldenLines Limited and Amdocs (UK) Limited, dated as of
November 15, 1996(Exhibit 10.9 to Amdocs' Registration
Statement on Form F-1 dated June 19, 1998; Registration No.
333-8826).
10.10 Customization and Support Services Agreement between
GoldenLines Limited and P.S. Publishing System Limited,
dated as of November 15, 1996(Exhibit 10.10 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
10.11 IT Services Provision Agreement between Pacific Access & Pty
Ltd., as agent for Telstra Corporation Limited, and Amdocs
(USA), Inc., dated as of May 7, 1998(Exhibit 10.11 to
Amdocs' Registration Statement on Form F-1 dated June 19,
1998; Registration No. 333-8826).
10.12 Guarantee and Indemnity between Amdocs Limited, as
Guarantor, and Pacific Access Pty Ltd., as Beneficiary,
dated as of May 7, 1995(Exhibit 10.12 to Amdocs'
Registration Statement on Form F-1 dated June 19, 1998;
Registration No. 333-8826).
+10.13 Master Agreement No. 99006220 for Software and Services between
Amdocs, Inc. and SBC Operations, Inc. (effective July 7, 1998), dated
March 1999.
*21.1 Subsidiaries of the Registrant
**23.1 Consent of Ernst & Young LLP, independent auditors.
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
*23.2 Consent of Carey Langlois (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature pages
hereof).
</TABLE>
- ---------------
* To be filed by amendment.
**Previously filed.
+ Confidential material redacted and complete exhibit has been separately
filed with the Securities and Exchange Commission.
<PAGE> 1
Ex-1.1
FORM OF UNDERWRITING AGREEMENT
<PAGE> 2
Exhibit 1.1
AMDOCS LIMITED
ORDINARY SHARES
(POUND STERLING 0.01 PAR VALUE)
------------------------
UNDERWRITING AGREEMENT
_________, 1999
Goldman, Sachs & Co.
Banc of America Securities LLC
BancBoston Robertson Stephens Inc.
BT Alex. Brown Incorporated
Lehman Brothers Inc.
SG Cowen Securities Corporation
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Amdocs Limited, a Guernsey corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of........ Ordinary
Shares, pound sterling 0.01 par value ("Stock") of the Company and, at the
election of the Underwriters, up to ........... additional............ shares of
Stock and the shareholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of........shares and, at the
election of the Underwriters, up to........ additional shares of Stock. The
aggregate of........shares to be sold by the Company and the Selling
Stockholders is herein called the "Firm Shares" and the aggregate of ........
additional shares to be sold by the Company and the Selling Stockholders is
herein called the "Optional Shares". The Firm Shares and the Optional
<PAGE> 3
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are
herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and the Selling Stockholders that:
(i) A registration statement on Form F-1 (File No. 333-75151)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each
of the other Underwriters, have been or will be declared effective
by the Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), to be filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which will
become effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act
to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the
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<PAGE> 4
Company by an Underwriter through Goldman, Sachs & Co. expressly for
use therein or by the Selling Stockholders expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co. expressly for
use therein or by any Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock, net
current assets, shareholders' equity or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries;
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<PAGE> 5
(vi) The Company has been duly incorporated and is validly
existing as a company under the laws of Guernsey, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; the Company has filed
its most recent statutory annual return, has paid all fees due
thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no
outstanding applications, orders or resolutions for the winding-up
of the Company; the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing (where applicable) under the laws of its jurisdiction of
incorporation;
(vii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description of the Stock contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and
except as set forth in the Registration Statement) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the shares of issued and
outstanding capital stock of the Company (including the Shares) have
been duly listed and admitted for trading on the New York Stock
Exchange ("NYSE"); the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights
to acquire the Shares; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company, or obligations of the Company to
issue, the Stock or any other class of capital stock of the Company
(except as set forth in the Prospectus under "Management" and
"Principal and Selling Shareholders" ); and there are no
restrictions on subsequent transfers of the Shares under the laws of
Guernsey and of the United States;
(viii) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid
and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(ix) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the
current laws and regulations
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<PAGE> 6
of Guernsey be paid in U.S. dollars that may be freely transferred
out of Guernsey, and all such dividends and other distributions will
not be subject to withholding or other taxes under the current laws
and regulations of Guernsey and are otherwise free and clear of any
other tax, withholding or deduction in Guernsey and without the
necessity of obtaining any Governmental Authorization in Guernsey;
(x) The issue and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Memorandum of Association and the Articles of Association of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body (hereinafter referred to as a
"Governmental Agency") having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such Governmental Agency (hereinafter referred to as
"Governmental Authorizations") is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except (A) the registration under
the Act of the Shares, (B) such Governmental Authorizations as have
been duly obtained and are in full force and effect and copies of
which have been furnished to you and (C) such Governmental
Authorizations as may be required under state securities or Blue Sky
laws or any laws of jurisdictions outside Guernsey and the United
States in connection with the purchase and distribution of the
Shares by or for the account of the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in
violation of its constituent documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(xii) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(xiii) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the
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<PAGE> 7
terms of the Stock, under the caption "Taxation of the Company" and
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xiv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(xv) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(xvi) The Company and each of its subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders
and other concessions of and from all Governmental Agencies that are
necessary to own or lease their other properties and conduct their
businesses as described in the Prospectus;
(xvii)The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended;
(xviii) The Company and its subsidiaries are in compliance in
all material respects with all conditions and requirements
stipulated by the instruments of approval granted to it with respect
to the "Approved Enterprise" status of any of the Company's Israeli
subsidiary's facilities as well as with respect to the other tax
benefits received by the Company's Israeli subsidiary as set forth
under the caption "Taxation of the Company" in the Prospectus and by
Israeli laws and regulations relating to such "Approved Enterprise"
status and the aforementioned other tax benefits received by the
Company's Israeli subsidiary; and neither the Company nor the
Israeli subsidiary has received any notice of any proceeding or
investigation relating to revocation or modification of any
"Approved Enterprise" status granted with respect to any of the
Israeli subsidiary's facilities;
(xix) The Company qualifies as an "exempt company" in Guernsey
and is in compliance with all conditions and requirements, whether
imposed by applicable law or otherwise, to the extent necessary to
maintain its status as an exempt company;
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<PAGE> 8
(xx) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(xxi) Neither the Company nor any of its affiliates does
business with the government of Cuba within the meaning of Section
517.075, Florida Statutes; and
(xxii)The Company has reviewed its operations and those of its
subsidiaries and any third parties with which the Company or any of
its subsidiaries has a material relationship to evaluate the extent
to which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result
of such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a material adverse
effect on the general affairs, management, the current or future
consolidated financial position, business prospects, shareholders'
equity or results of operations of the Company and its subsidiaries
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case
of dates or time periods occurring after December 31, 1999, function
at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All Governmental Authorizations required for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder and for the execution and delivery by such Selling
Stockholder of this Agreement, the Power of Attorney and the Custody
Agreement hereinafter referred to, and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder have
been obtained; and such Selling Stockholder has full right, power
and authority to enter into this Agreement, the Power of Attorney
and Custody Agreement, and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, the Power of Attorney
and Custody Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed
of trust, loan
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<PAGE> 9
agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the constituent documents of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, or any statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over such
Selling Stockholder or the property of such Selling Stock holder;
(iii) Such Selling Stockholder has, and immediately prior to
each Time of Delivery (as defined in Section 4 hereof) such Selling
Stockholder will have, good and valid title to the Shares to be sold
by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto and thereto, good and valid
title to such Shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters;
(iv) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(v) To the extent that any statements made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus
and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(vi) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Selling Stockholder will deliver to you
prior to or at the First Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof);
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<PAGE> 10
(vii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been
placed in custody under a Custody Agreement (the "Custody
Agreement"), in the form heretofore furnished to you, duly executed
and delivered by such Selling Stockholder to [ ], as
custodian (the "Custodian"), and such Selling Stockholder has duly
executed and delivered a Power of Attorney (the "Power of
Attorney"), in the form heretofore furnished to you, appointing the
persons indicated in Schedule II hereto, and each of them, as such
Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to execute and deliver this Agreement on behalf of
such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to the Selling Stockholders as provided in
Section 2 hereof, to authorize the delivery of the Shares to be sold
by such Selling Stockholder hereunder and otherwise to act on behalf
of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement; and
(viii)The Shares represented by the certificates held in
custody for such Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Stockholder for such custody, and
the appointment by such Selling Stockholder of the Attorneys-in-Fact
by the Power of Attorney, are to that extent irrevocable; the
obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity
of any individual Selling Stockholder or, in the case of an estate
or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership
or corporation, or by the occurrence of any other event; if any
individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation
should be dissolved, or if any other such event should occur, before
the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling
Stockholders in accordance with the terms and conditions of this
Agreement and of the Custody Agreements; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per Share of $......................, the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the
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<PAGE> 11
aggregate number of Firm Shares to be sold by the Company and each of the
Selling Stockholders as set forth opposite their respective names in Schedule II
hereto by a fraction, the numerator of which is the aggregate number of Firm
Shares to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from
the Company and all of the Selling Stockholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company and each of the Selling
Stockholders agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and each of the Selling Stockholders, at the purchase
price per Share set forth in clause (a) of this Section 2, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Optional Shares that all
of the Underwriters are entitled to purchase hereunder.
The Company and the Selling Stockholders, as and to the extent indicated
in Schedule II hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to _______ Optional
Shares, at the purchase price per Share set forth in the paragraph above, for
the sole purpose of covering sales of shares in excess of the number of Firm
Shares. Any such election to purchase Optional Shares shall be made in
proportion to the number of Optional Shares to be sold by the Company and each
Selling Stockholder. Any such election to purchase Optional Shares may be
exercised by written notice from you to the Company and the Attorneys-in-Fact,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours'
notice to the Company and the Selling Stockholders and the Custodian prior to a
Time of Delivery (as defined below) (the "Notification Time"), shall be
delivered by or on behalf of the Company and the Selling Stockholders to
Goldman, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company or the Selling
Stockholders, as the case may be, to Goldman, Sachs & Co. at least forty-eight
hours in advance. The Company and the Selling Stockholders will cause the
certificates representing the
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<PAGE> 12
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004
(the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:30 a.m., New York City time, on ________, 1999 or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the
date specified by Goldman, Sachs & Co. in the written notice given by Goldman,
Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or
such other time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(n) hereof, will be delivered at the offices of Skadden,
Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022 (the
"Closing Location"), and the Shares will be delivered as specified in Section
4(a) above, all at such Time of Delivery. A meeting will be held at the Closing
Location at 4:30 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish you copies thereof; to file promptly all reports required to
be filed by the Company with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a
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prospectus is required in connection with the offering or sale of
the Shares; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such
order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that
in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any
time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon
your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of
the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
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(iv) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on the date of this Agreement),
without your prior written consent;
(vi) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants and prepared in
conformity with generally accepted accounting principles in the U.S.
("GAAP")) and to make available to its shareholders, as soon as
practicable after the end of each of the first three quarters of
each fiscal year prepared in accordance with GAAP (beginning with
the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable
detail;
(vii) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to
shareholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished
to or filed with the Commission or any securities exchange on which
any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or
to the Commission);
(viii)To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
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<PAGE> 15
(ix) Not to (and to cause its subsidiaries not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale or the Shares;
(x) To use its best efforts to list the Shares on the NYSE;
(xi) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
(xii) To file with the Commission such information on Form
20-F as may be required by Rule 463 under the Act.
(b) Each of the Selling Stockholders agrees with each of the
Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as
of, the date of this Agreement), without your prior written consent;
and
(ii) Not to (and to cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale of the Shares.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the
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<PAGE> 16
qualification of the Shares for offering and sale under state securities laws as
provided in Section 5(a)(ii) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Shares on the NYSE; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. The Selling Stockholders will pay or cause to be paid all costs and
expenses incident to the performance of such Selling Stockholder's obligations
hereunder which are not otherwise specifically provided for in this Section,
including (1) any fees and expenses of counsel for such Selling Stockholder, (2)
such Selling Stockholder's pro rata share of the fees and expenses of the
Attorneys-in-Fact and the Custodian and (3) all expenses and taxes incident to
the sale and delivery of the Shares to be sold by such Selling Stockholder to
the Underwriters hereunder. In connection with clause (3) of the preceding
sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax,
and each Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, stock transfer taxes on resale of any of the Shares by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a)(i) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or
opinions, dated such Time of Delivery, in form and substance
satisfactory to you, and such counsel shall have received such
papers and information as they may reasonably request to enable them
to pass upon such matters;
15
<PAGE> 17
(c) Reboul, MacMurray, Hewitt, Maynard & Kristol, counsel for
the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(b) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in the United States in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and
certificates);
(ii) Each U.S. subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iii) This Agreement has been duly executed and delivered by
the Company;
(iv) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of United States law or regulation or
to the provisions of documents therein described, are accurate,
complete and fair in all material respects, and nothing has been
omitted from such statements which would make the same misleading in
any material respect;
(v) None of the Company's U.S. subsidiaries are in violation
of their respective constituent documents or, to the best of such
counsel's knowledge, in default in the performance or observance of
any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan
16
<PAGE> 18
agreement, lease or other agreement or instrument to which any of
them is a party or by which any of them or any of their properties
may be bound;
(vi) The statements set forth in the Prospectus under the
captions "Underwriting" and "Taxation of Holders of Ordinary
Shares", insofar as they purport to describe provisions of United
States federal or New York law and documents referred to therein,
are accurate, complete and fair;
(vii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of
this Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court")
in any action arising out of or relating to this Agreement or the
transactions contemplated hereby, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and
has validly and irrevocably appointed the Authorized Agent (as
defined herein) as its authorized agent for the purpose described in
Section 14 hereof; and service of process effected on such agent in
the manner set forth in Section 14 hereof will be effective insofar
as the law of the State of New York is concerned to confer valid
personal jurisdiction over the Company;
(viii)To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending in any United States federal or state court to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate be reasonably
likely to have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(ix) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of the
Company's U.S. subsidiaries is a party or by which the Company or
any of the Company's U.S. subsidiaries is bound or to which any of
the property or assets of the Company or any of such subsidiaries is
subject, nor will such action result in any violation of any statute
or any order, rule or regulation known to such counsel of any United
States Federal or New York
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<PAGE> 19
Governmental Agency having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(x) No Governmental Authorization of the United States or the
State of New York is required for the issue and sale of the Shares
or the consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of the
Shares, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters or which have been obtained and are in
full force and effect;
(xi) The Company is not an "investment company", as such term
is defined in the Investment Company Act; and
(xii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsections (iv) and (vi) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration
18
<PAGE> 20
Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(d) Carey Langlois, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company under the laws of Guernsey, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company has
filed its most recent statutory annual return, has paid all fees due
thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no
outstanding applications, orders or resolutions for the winding-up
of the Company ;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to acquire the Shares to be purchased from the Selling
Stockholders under this Agreement which have not been complied with;
there are no restrictions on subsequent transfers of the Shares; and
the Shares conform to the description of the Stock contained in the
Prospectus;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending in Guernsey to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by any Governmental Agency or
threatened by others;
(iv) This Agreement has been duly authorized by the Company;
(v) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company, compliance by the Company with all
of the provisions of
19
<PAGE> 21
this Agreement and the consummation of the transactions herein
contemplated will not result in any violation of the provisions of
the Memorandum of Association and Articles of Association of the
Company or any Guernsey statute or any order, rule or regulation
known to such counsel of any Governmental Agency in Guernsey having
jurisdiction over the Company or any of its properties;
(vi) No Governmental Authorization of or with any Governmental
Agency is required in Guernsey for the issue and sale of the Shares
by the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except any such
consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect;
(vii) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of Guernsey law or regulation or to the
provisions of documents therein described, are accurate, complete
and fair in all material respects, and nothing has been omitted from
such statements which would make the same misleading in any material
respect;
(viii)Insofar as matters of Guernsey law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of
the Company; and the Registration Statement has been duly executed
pursuant to such authorization by and on behalf of the Company;
(ix) The Company's agreement to the choice of law provisions
set forth in Section 14 hereof will be recognized by the courts of
Guernsey; the Company can sue and be sued in its own name under the
laws of Guernsey; the irrevocable submission of the Company to the
exclusive jurisdiction of a New York Court, the waiver by the
Company of any objection to the venue of a proceeding of a New York
Court and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the State
of New York are legal, valid and binding; service of process
effected in the manner set forth in Section 14 hereof will be
effective, insofar as the law of Guernsey is concerned, to confer
valid personal jurisdiction over the Company; and judgment obtained
in a New York Court arising out of or in relation to the obligations
of the Company under this Agreement would be enforceable against the
Company in the courts of Guernsey;
(x) The indemnification and contribution provisions set forth
in Section 8 hereof do not contravene any statute or any express
statement of the public policy or laws of Guernsey;
20
<PAGE> 22
(xi) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may be paid in
U.S. dollars under the current laws and regulations of Guernsey and
may be freely transferred out of Guernsey, and all such dividends
and other distributions will not be subject to withholding or other
taxes under the current laws and regulations of Guernsey and are
otherwise free and clear of any other tax, withholding or deduction
in Guernsey and without the necessity of obtaining any Governmental
Authorization in Guernsey; and
(xii) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the terms of the Stock, and under the
captions "Taxation of the Company" and "Taxation of Holders of
Ordinary Shares", insofar as they purport to describe the provisions
of Guernsey law and documents referred to therein, are accurate,
complete and fair;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey;
(e) Meitar, Liquornik, Geva & Co., special Israeli counsel for
the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(d) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company's Israeli subsidiary has been duly
incorporated and is validly existing under the laws of Israel, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and all of the
issued shares of capital stock of such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims;
(ii) Any buildings held under lease by such subsidiary are
held by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by such
subsidiary (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general
review of the titles of such subsidiary, upon opinions of counsel to
the lessors of such property and, in respect of matters of fact,
upon certificates of officers of such subsidiary, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports,
policies and certificates);
(iii) Other than as set forth in the Prospectus, to the best
of such counsel's knowledge, there are no legal or governmental
proceedings pending to
21
<PAGE> 23
which the Company's Israeli subsidiary is a party or of which any
property of the Company's Israeli subsidiary is the subject which,
if determined adversely to such subsidiary, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or
results of operations of such subsidiary; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(iv) The issue and sale of the Shares, compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company's Israeli
subsidiary is a party or by which the Company's Israeli subsidiary
is bound or to which any of the property or assets of the Company or
such subsidiary is subject, nor will such action result in any
violation of the provisions of the constituent documents of such
subsidiary or any statute or any order, rule or regulation known to
such counsel of any Israeli Governmental Agency having jurisdiction
over the Company's Israeli subsidiary or any of its properties;
(v) No Governmental Authorization of or with any Governmental
Agency is required in Israel for the sale of the Shares by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except any such consents, approvals,
authorizations or orders which have been duly obtained and are in
full force and effect;
(vi) The Company's Israeli subsidiary has all licenses and
concessions of and from all Governmental Agencies that are necessary
to own or lease its properties and conduct its businesses as
described in the Prospectus; and the Company's Israeli subsidiary
has all franchises, permits, authorizations, approvals and orders
and other licenses and concessions of and from all Governmental
Agencies that are necessary to own or lease its other properties and
conduct its businesses as described in the Prospectus except for
such licenses, franchises, permits, authorizations, approvals and
orders the failure to obtain which will not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries;
(vii) To the best of such counsel's knowledge, the Company's
Israeli subsidiary is not in violation of its constituent documents
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease
22
<PAGE> 24
or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound;
(viii)The statements set forth in the Prospectus under the
caption "Taxation of the Company", insofar as they purport to
describe the provisions of Israeli law and documents referred to
therein, are accurate, fair and complete in all material respects;
(ix) To the best knowledge of such counsel, the Company and
its Israeli subsidiary are in compliance in all material respects
with all conditions and requirements stipulated by the instruments
of approval granted to it with respect to the "Approved Enterprise"
status of any of the Company's Israeli subsidiary's facilities as
well as with respect to the other tax benefits received by the
Company's Israeli subsidiary as set forth under the caption
"Taxation of the Company" in the Prospectus and by Israeli laws and
regulations relating to such "Approved Enterprise" status and the
aforementioned other tax benefits received by the Company's Israeli
subsidiary; and, to the best knowledge of such counsel, neither the
Company nor the Israeli subsidiary has received any notice of any
proceeding or investigation relating to revocation or modification
of any "Approved Enterprise" status granted with respect to any of
the Israeli subsidiary's facilities; and
(x) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (viii) of this Section
7(e), they have no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
23
<PAGE> 25
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Israel;
(f) [ ], special U.K. counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(e) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company's U.K. subsidiaries have been duly
incorporated and are validly existing as corporations in good
standing under the laws of the U.K., with power and authority
(corporate and other) to own their properties and conduct their
business as described in the Prospectus; and all of the issued
shares of capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ii) Having searched its computer records, such counsel is not
currently acting in relation to any pending legal or governmental
proceedings to which the Company's U.K. subsidiaries are a party or
of which any property of the Company's U.K. subsidiaries are the
subject which, if determined adversely to such subsidiary, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders'
equity or results of operations of such subsidiary; and, the chief
executive officers of each of the Company's U.K. subsidiaries have
certified to such counsel that, to the best of their knowledge, no
such proceedings are threatened or pending;
(iii) The issue and sale of the Shares, compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument reviewed by such counsel to which the Company's U.K.
subsidiaries are a party or by which the Company's U.K. subsidiaries
are bound or to which any of the property or assets of the Company
or such subsidiaries are subject, nor will such action result in any
violation of the provisions of the constituent documents of such
subsidiaries or any statute or any order, rule or regulation known
to such counsel of any U.K. Governmental Agency having jurisdiction
over the Company's U.K. subsidiaries or any of their properties;
and, the chief executive officers of each of the Company's U.K.
subsidiaries have certified to such counsel that, to the best of
their knowledge, there are no such material agreements (other than
those which have been reviewed by such counsel);
24
<PAGE> 26
(iv) No Governmental Authorization of or with any Governmental
Agency is required in the U.K. for the sale of the Shares by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except any such consents, approvals,
authorizations or orders which have been duly obtained and are in
full force and effect;
(v) The Company's U.K. subsidiaries have all powers and
licenses necessary to own or lease its properties and conduct its
businesses as described in the Prospectus; and the Company's U.K.
subsidiaries have all franchises, permits, authorizations, approvals
and orders and other licenses and concessions of and from all
Governmental Agencies that are necessary to own or lease its other
properties and conduct its businesses as described in the Prospectus
except for such licenses, franchises, permits, authorizations,
approvals and orders the failure to obtain which will not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries; and
(vi) The Company's U.K. subsidiaries are not in violation of
its constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the U.K.;
(g) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule ll hereto, each shall have
furnished to you their written opinion (drafts of such opinions are
attached as Annex ll(f) hereto) with respect to each of the Selling
Stockholders for whom they are acting as counsel, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute
valid and binding agreements of such Selling Stockholder in
accordance with their terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to
be sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
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Selling Stockholder is a party or by which such Selling Stockholder
is bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the constituent documents of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over such selling Stockholder or the property of such
Selling Stockholder;
(iii) No Governmental Authorization of or with any
Governmental Agency in the jurisdiction of incorporation or
organization of such Selling Stockholder is required for the
consummation of the transactions contemplated by this Agreement in
connection with the Shares to be sold by such Selling Stockholder
hereunder except such consents, approvals, authorizations or orders
which have been duly obtained and are in full force and effect, such
as have been obtained under the Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters;
(iv) Immediately prior to such Time of Delivery, such Selling
Stockholder had good and valid title to the Shares to be sold at
such Time of Delivery by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to
each of the several Underwriters, who have purchased such Shares in
good faith and without notice of any such lien, encumbrance, equity
or claim or any other adverse claim within the meaning of the
Uniform Commercial Code;
(vi) Such Selling Stockholder's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the
courts of the jurisdiction of incorporation or organization of such
Selling Stockholder; such Selling Stockholder can sue and be sued in
its own name under the laws of the jurisdiction of incorporation or
organization of such Selling Stockholder; the irrevocable submission
of such Selling Stockholder to the exclusive jurisdiction of a New
York Court, the waiver by such Selling Stockholder of any objection
to the venue of a proceeding of a New York court and the agreement
of such Selling Stockholder that this Agreement shall be governed by
and construed in accordance with the laws of the State of New York
are legal, valid and binding; service of process effected in the
manner set forth in Section 14 hereof will be effective, insofar as
the laws of the jurisdiction of incorporation or organization of
such Selling Stockholder are concerned, to confer valid personal
jurisdiction over such Selling Stockholder; and judgment obtained in
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<PAGE> 28
a New York court arising out of or in relation to the obligations of
such Selling Stockholder under this Agreement would be enforceable
against such Selling Stockholder in the courts of the jurisdiction
of incorporation or organization of such Selling Stockholder;
(vii) The Selling Stockholder is not an "investment company",
as such term is defined in the Investment Company Act;
(viii)Although such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the jurisdiction of
incorporation of such Selling Stockholder, in rendering the opinion in
subparagraph (iv) such counsel may rely upon a certificate of such Selling
Stockholder in respect of matters of fact as to ownership of and liens,
encumbrances, equities or claims on, the Shares sold by the Selling Stockholder,
provided that such counsel shall state that he believes that both you and he are
justified in relying upon such certificate and in making the statement in
paragraph (viii) such counsel may limit the scope of its statement to the extent
that any statements made in the Registration Statement and the Prospectus and
any further amendments
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<PAGE> 29
and supplements thereto are made by the Company prior to such Time of Delivery
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder;
(h) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Ernst & Young LLP shall
have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (the executed copy of
the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a draft of the form of letter to
be delivered on the effective date of any post-effective amendment
to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates
as of which information is given in the Prospectus there shall not
have been any change in the capital stock, net current assets,
shareholders' equity or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities;
(k) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the NYSE; (ii) a suspension or
material limitation in trading in the Company's securities on the
NYSE; (iii) a general moratorium on commercial banking activities in
New York, London or Israel declared by the relevant authorities;
(iv) a change or
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development involving a prospective change in Guernsey taxation
affecting the Company, the Shares or the transfer thereof or the
imposition of exchange controls by the United States or Guernsey; or
(v) the outbreak or escalation of hostilities involving the United
States, the United Kingdom or Israel or the declaration by the
United States, the United Kingdom or Israel of a national emergency
or war, if the effect of any such event specified in this clause (v)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus or (vi) the occurrence
of any material adverse change in the existing financial, political
or economic conditions in the United States, the United Kingdom or
Israel or elsewhere which, in the judgment of the Representatives,
would materially and adversely affect the financial markets or the
market for the Shares and other equity securities;
(l) The Shares to be sold by the Company and the Selling
Stockholder at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the NYSE;
(m) The Company shall have complied with the provisions of
Section 5(a)(iii) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of this Agreement; and
(n) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and the Selling Stockholders
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders herein at and
as of such Time of Delivery, as to the performance by the Company
and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the
Company shall have furnished or caused to be furnished certificates
as to the matters set forth in subsections (a) and (i) of this
Section, and as to such other matters as you may reasonably request.
8. (a) The Company and each of the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim
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<PAGE> 31
as such expenses are incurred; provided, however, that the Company and the
Selling Stockholders shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Goldman, Sachs &
Co. expressly for use therein; provided, further, that the liability of each
Selling Stockholder pursuant to this subsection 8(a) shall not exceed the
product of the number of Shares sold by such Selling Stockholder and the initial
public offering price of the Shares as set forth in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or
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<PAGE> 32
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discount received by the
Underwriters with respect to the Shares purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person
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guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act.
(f) Notwithstanding any other provision of this Section 8, and without
limitation of any other rights to contribution or indemnity which any Selling
Stockholder may have hereunder or otherwise, the Company shall indemnify each
Selling Stockholder with respect to any amounts that are paid by any such
Selling Stockholder under subsection (a) above; provided, however, that the
Company shall not be required to indemnify any Selling Stockholder to the extent
that any such loss, claim, damage or liability arises out of or is based upon a
breach of any representation, warranty or covenant made by such Selling
Stockholder in or pursuant to this Agreement and each Selling Stockholder shall
indemnify the Company with respect to any amounts that are paid by the Company
under subsection (a) above to the extent that any such loss, claim, damage or
liability arises out of or is based upon a breach of any representation,
warranty or covenant made by such Selling Stockholder in or pursuant to this
Agreement. The Company and the Selling Stockholders agree that the foregoing
indemnities shall not diminish or reduce their respective obligations under
subsection (a) above and if the preceding sentence is held to be invalid or
unenforceable for any reason, the parties hereto agree that the respective
indemnities in subsection (a) and (b) above shall remain in full force and
effect, as if this Agreement had been executed without this subsection (f).
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect
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<PAGE> 34
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or the Selling Stockholders, or any officer or
director or controlling person of the Company, or any controlling person of the
Selling Stockholders, and shall survive delivery of and payment for the Shares.
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<PAGE> 35
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company or the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
such Selling Shareholders hereunder) will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and the Selling Stockholders shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives ; and in all dealings with any Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely only upon any statement,
request, notice or agreement on behalf of such Selling Stockholder made or given
by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 32 Old Slip, 21st Floor, New York, New York 10005, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule ll hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the Company in
care of Amdocs, Inc. 1610 Des Peres Road, St. Louis, Missouri, 63131-1831,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8 (d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
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14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or any Selling Stockholder brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
and each Selling Stockholder that is incorporated or organized outside of the
United States has appointed Amdocs Inc., St. Louis, Missouri, as its authorized
agent (the "Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company and each such
Selling Stockholder represents and warrants that the Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company and such Selling Stockholder, as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Stockholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Stockholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
35
<PAGE> 37
If the foregoing is in accordance with your understanding, please sign and
return to us twelve counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Amdocs Limited
By:________________________________________
Name:
Title:
[Names of Selling Stockholders]
By:________________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf of each
of the Selling Stockholders named in
Schedule ll to this Agreement.
Accepted as of the date hereof:
Goldman, Sachs & Co.
Banc of America Securities LLC
BancBoston Robertson Stephens Inc.
BT Alex. Brown Incorporated
Lehman Brothers Inc.
SG Cowen Securities Corporation
By:_____________________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
36
<PAGE> 38
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
- --------------------------------------- --------------- ------------------
<S> <C> <C>
Goldman, Sachs & Co....................
Banc of America Securities LLC.........
BancBoston Robertson Stephens Inc......
BT Alex. Brown Incorporated............
Lehman Brothers Inc....................
SG Cowen Securities Corporation........
Total
=============== ==================
</TABLE>
37
<PAGE> 39
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
TOTAL NUMBER OF FIRM SHARES TO BE SOLD
SHARES IF MAXIMUM OPTION
THE SELLING STOCKHOLDERS TO BE SOLD EXERCISED
- --------------------------------------- -------------------- ------------------
<S> <C> <C>
[Name of Selling Stockholder](a)
[Name of Selling Stockholder](b)
[Name of Selling Stockholder](c)
[Name of Selling Stockholder](d)
[Name of Selling Stockholder](e)
Total
</TABLE>
(a) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(d) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(e) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
38
<PAGE> 40
ANNEX I
Pursuant to Section 7(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules
and regulations thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
operations, consolidated balance sheets, consolidated statement of
changes in shareholders' equity and consolidated statements of cash
flows included in the Prospectus; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(1)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iv) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Item 8 of Form 20-F and of Regulation
S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for
39
<PAGE> 41
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
1) (i) the unaudited consolidated statements of
operations, consolidated balance sheets, consolidated
statement of changes in shareholders' equity and
consolidated statements of cash flows included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited consolidated statements of operations,
consolidated balance sheets, consolidated statement of
changes in shareholders' equity and consolidated
statements of cash flows included in the Prospectus for
them to be in conformity with generally accepted
accounting principles;
2) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included in the Prospectus;
3) the unaudited financial statements which were
not included in the Prospectus but from which were
derived any unaudited condensed financial statements
referred to in Clause (1) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (2) were not
determined on a basis substantially consistent with the
basis for the audited consolidated financial statements
included in the Prospectus;
4) as of , 1999, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the
latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current
40
<PAGE> 42
assets or shareholders' equity, in each case as compared
with amounts shown in the latest balance sheet included
in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in
such letter;
5) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (4) there were any
decreases in consolidated net revenues or the total or
per share amounts of consolidated net income, in each
case as compared with the comparable period of the
preceding year, except in each case for decreases or
increases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
6) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the
latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt of
the Company and its subsidiaries, in each case as
compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for
changes or increases which the Prospectus discloses
have occurred or may occur or which are described in
such letter; and
(vi) Although they are unable to and do not express any
opinion on the pro forma consolidated financial statements of
operations (the "Pro Forma Statements"), if any, included in the
Prospectus or on the pro forma adjustments applied to the historical
amounts included in the Pro Forma Statements; for purposes of this
letter they have performed the following procedures:
1) read the Pro Forma Statements;
2) performed an audit of the financial statements to
which the pro forma adjustments were applied;
3) made inquires of certain officials of the Company
who have responsibility for financial and
accounting matters about the basis for their
determination of the pro forma adjust-
41
<PAGE> 43
ments and whether the Pro Forma Statements comply
as to form in all material respects with the
applicable accounting requirements of Rule 11-02
of Regulation S-X; and
4) proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical
amounts in the Pro Forma Statements; and on the
basis of such procedures and such other inquiries
and procedures as specified herein, nothing came
to their attention that caused them to believe
that (i) the Pro Forma Statements included in the
Prospectus do not comply as to form in all
material respects with the applicable
requirements of Rule 11-02 of Regulations S-X or
(ii) the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements.
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (v) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
42
<PAGE> 1
Ex-10.13
MASTER AGREEMENT
<PAGE> 2
Exhibit 10.13
***TEXT OMITTED AND FILED
SEPARATELY. CONFIDENTIAL
TREATMENT REQUESTED FOR CERTAIN
PORTIONS OF THE EXHIBIT PURSUANT
TO RULE 406 UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
MASTER AGREEMENT
NO. 99006220
for
SOFTWARE AND SERVICES
between
AMDOCS, INC.
and
SBC OPERATIONS, INC.
effective
July 7, 1998
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 3
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS _______________________________________________________ 2
ARTICLE 2: GENERAL PROVISIONS ________________________________________________ 6
2.1. SCOPE OF AGREEMENT____________________________________________________ 6
2.2. TERM OF AGREEMENT_____________________________________________________ 6
2.3. MASTER AGREEMENT______________________________________________________ 6
2.4. PRICES AND TERMS______________________________________________________ 7
2.5. ORDERS________________________________________________________________ 7
2.6. INVOICES AND PAYMENTS_________________________________________________ 7
2.7. RECORDS_______________________________________________________________ 9
2.8. TAXES_________________________________________________________________10
2.9. ACCESS TO SBC's PREMISES______________________________________________11
2.10. INDEPENDENT CONTRACTOR_______________________________________________11
2.11. INDEMNIFICATIONS_____________________________________________________13
2.12. INSURANCE____________________________________________________________14
2.13. INFORMATION__________________________________________________________16
2.14. NOTICE OF DELAYS_____________________________________________________17
2.15. TERMINATION FOR CAUSE________________________________________________17
2.16. PARTIAL TERMINATION__________________________________________________18
2.17. TERMINATION FOR CONVENIENCE__________________________________________18
2.18. QUIET ENJOYMENT______________________________________________________19
2.19. ASSIGNMENT___________________________________________________________19
2.20. SUBCONTRACTING_______________________________________________________20
2.21. NOTICES______________________________________________________________20
2.22. PUBLICITY____________________________________________________________21
2.23. COMPLIANCE WITH LAWS_________________________________________________21
2.24. NO THIRD PARTY BENEFICIARIES_________________________________________21
2.25. WAIVERS OF DEFAULT___________________________________________________21
2.26. AMENDMENTS___________________________________________________________21
2.27. ORDER OF PRECEDENCE__________________________________________________21
2.28. EXECUTIVE ORDERS_____________________________________________________22
2.29. HEADINGS_____________________________________________________________22
2.30. GOVERNING LAW________________________________________________________22
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 4
-2-
2.31. NONEXCLUSIVE AGREEMENT_______________________________________________22
2.32. REMEDIES CUMULATIVE__________________________________________________22
2.33. SEVERABILITY_________________________________________________________22
2.34. SURVIVAL_____________________________________________________________22
2.35. SBC'S INTELLECTUAL PROPERTY__________________________________________23
2.36. NONINTERFERENCE WITH EMPLOYEES_______________________________________23
2.37. EXPORT CONTROLS______________________________________________________23
2.38. LIMITATION OF LIABILITY______________________________________________23
2.39. JOINT WORK PRODUCT___________________________________________________24
2.40. MBE/WBE/DVBE PARTICIPATION GOALS_____________________________________24
2.41. MBE/WBE/DVBE TERMINATION CLAUSE______________________________________24
2.42. DISPUTES AND DISPUTE RESOLUTION______________________________________26
2.43. FORCE MAJEURE________________________________________________________27
ARTICLE 3: SOFTWARE LICENSES / DEVELOPMENT / MAINTENANCE______________________30
3.1. SCOPE OF ARTICLE________________________________________________________30
3.2. PROPOSED PROJECTS_______________________________________________________30
3.3. ORDERS__________________________________________________________________31
3.4. LICENSE_________________________________________________________________32
3.5. DEVELOPMENT OF CUSTOM SOFTWARE__________________________________________33
3.6. ACCEPTANCE OR REJECTION_________________________________________________35
3.7. MODIFICATION OF SOFTWARE________________________________________________36
3.8. MAINTENANCE SERVICES____________________________________________________37
3.9. TITLE___________________________________________________________________37
3.10. WARRANTIES_____________________________________________________________39
ARTICLE 4: ONGOING SUPPORT____________________________________________________43
4.1. SCOPE OF ARTICLE________________________________________________________43
4.2. ADMINISTRATION OF ARTICLE 4_____________________________________________43
4.3. ORDERS__________________________________________________________________43
44. PERFORMANCE OF SERVICES_________________________________________________44
4.5. TITLE___________________________________________________________________45
4.6. WARRANTIES______________________________________________________________45
4.7. TRAINING MATERIALS AND TRAINING PROGRAMS________________________________46
ARTICLE 5: STRATEGIC JOINT DEVELOPMENT PROJECTS_______________________________48
5.1 ALLIANCE MANAGEMENT COUNCIL_____________________________________________48
5.2. CREDITS FROM JOINT DEVELOPMENT PROJECTS_________________________________48
ARTICLE 6: ENTIRE AGREEMENT___________________________________________________50
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 5
-3-
6.1. TERMINATION OF CERTAIN AGREEMENTS_____________________________________50
6.2. ENTIRE AGREEMENT______________________________________________________50
APPENDIX A: SPECIAL COMMITMENTS_______________________________________________52
1. SCOPE OF APPENDIX_______________________________________________________52
2. SBC's *** YEAR COMMITMENT_____________________________________________52
3. CERTAIN SPECIAL CONSIDERATIONS GIVEN BY AMDOCS__________________________53
4. JOINT TELEGENCE COMMITTEE_______________________________________________54
5. RIGHT TO USE, SELL, AND MARKET AND LICENSE CERTAIN SBC
INTELLECTUAL PROPERTY_________________________________________________55
6. SPECIAL PUBLICITY CONCERNS RELATING TO *** CONVERSION___________________57
7. SPECIAL APPLICATION INFRASTRUCTURE SUPPORT SERVICES_____________________58
APPENDIX B: SPECIAL COMMITMENTS ______________________________________________62
LIST OF EXHIBITS______________________________________________________________63
EXHIBIT A_____________________________________________________________________64
EXHIBIT B1____________________________________________________________________65
EXHIBIT B2____________________________________________________________________70
EXHIBIT B3____________________________________________________________________74
EXHIBIT C_____________________________________________________________________76
EXHIBIT D_____________________________________________________________________81
EXHIBIT E_____________________________________________________________________84
EXHIBIT Fl____________________________________________________________________85
EXHIBIT F2____________________________________________________________________88
EXHIBIT G_____________________________________________________________________89
EXHIBIT H_____________________________________________________________________92
EXHIBIT I_____________________________________________________________________93
EXHIBIT J_____________________________________________________________________94
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 6
MASTER AGREEMENT FOR SOFTWARE AND SERVICES
THIS MASTER AGREEMENT ("Agreement"), effective July 7, 1998, is between
AMDOCS, INC., a Delaware corporation ("Amdocs"), and SBC OPERATIONS, INC., a
Delaware corporation ("SBC"). This Agreement consists of the following Articles,
Appendices, and Exhibits:
Article I Definitions
Article II General Provisions
Article III Software Licenses/Development/Maintenance
Article IV Ongoing Support
Article V Strategic Joint Development Project
Article VI Entire Agreement
Appendix A Special Commitments Regarding Telegence(TM)
Billing Software
Appendix B Special Commitments Regarding Directory Software
Exhibits A - J
The parties, intending to be legally bound, agree as follows:
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 7
-2-
ARTICLE 1: DEFINITIONS
The following terms and all other terms defined in this Agreement shall
have the meanings so defined unless the context indicates otherwise. Terms
defined in the singular shall include the plural and vice versa when the context
so indicates.
"Acceptance Letter" means a document substantially in the form of
Exhibit A (for Software Development) as attached
hereto and made a part hereof.
"Acceptance Test Period" means the period specified in the applicable Order
(or, if not specified in the applicable Order, a
period of thirty (30) working days) commencing on
the first working day following the Delivery Date
during which SBC has the right to test the
Software in order to determine whether it conforms
to the applicable Order. Acceptance Test Period
can be extended upon reasonable request by SBC.
"Affiliate" includes any current or future domestic entity
(i.e., at least 90% of whose customers utilize
billing addresses in the United States), whether
incorporated or not, which (1) owns, directly or
indirectly, a majority interest in either party (a
"parent company"), or (2) a 51% or greater
interest of which is owned, either directly or
indirectly, by: (i) a party to this Agreement, or
(ii) a parent company of a party to this
Agreement.
"Critical Performance
Milestone" means a date certain or the end of a stipulated
interval of time for the delivery of an item of
Program Material or Software or the completion of
performance of a Service, the timely completion or
delivery of which is considered to be critical to
the success of the Project and which is expressly
referred to in an Order as a "Critical Performance
Milestone".
"Custom Software" means the unique or specialized computer programs,
routines or subroutines which are listed as Custom
Software in the applicable Order or Functionality
Matrix and developed by Amdocs hereunder. Custom
Software also includes source code and all
associated Program Material. Custom Software also
includes changes made to Standard Software.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 8
-3-
"Delivery Date" means the date on which Amdocs delivers completed
Software to SBC for testing during the Acceptance
Test Period. The initially scheduled Delivery Date
is stated in the applicable Order and is subject
to change in accordance with the provisions of
this Agreement.
"Detailed Functional means a document which sets forth and establishes
Specifications" the detailed functional design specifications
reflecting the requirements established by the
Functionality Matrix.
"Functionality Matrix" means a document, presented in the form of a
matrix, setting forth SBC's specific functional
requirements for Software and may include SBC's
milestones for a Project.
"Information" means specifications, drawings, sketches, models,
samples, tools, computer programs, technical
information, and other confidential business,
customer or employees information or data, whether
written, oral or otherwise.
"Key Employee" means an Amdocs employee whose assignment to a
Project is deemed to be important to its success
and who may not be reassigned or transferred by
Amdocs from the Project without SBC's written
agreement, which will not be unreasonably
withheld. Key Employees must be identified as such
in applicable Orders.
"Material" means original written material prepared by
Amdocs' employees for SBC pursuant to an Order,
including, consulting reports; management reports
and other written material documenting best
practices and processes; testing materials and
methodologies; test metrics; source code
statements and listings; and Program Material.
"Order" means each Order executed hereunder ordering
Software and/or Services which shall be deemed to
incorporate (1) the provisions of this Agreement
(including the Appendices and Exhibits attached
hereto), as it may from time to time be amended,
(2) the Functionality Matrix applicable to such
Order, if applicable and (3) any subordinate
documents attached to or
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 9
-4-
referenced in this Agreement or such Order or
Functionality Matrix, if applicable. Each such
Order shall be deemed to be a separate and
independent agreement between the parties with
respect to the subject matter thereof and shall be
substantially in the form of Exhibit B1 (for
Software Development), or Exhibit B2 (for Ongoing
Support), or Exhibit B3 (for Maintenance
Services), each attached hereto and made a part
hereof.
"Program Material" means all applicable material associated with
Software, including, but not limited to: (i)
detailed architecture design and any other design
specification documents; (ii) the detailed
programming specification and any other functional
specification documents; (iii) test data; (iv)
user instructions; and (v) training materials.
"Project" means the development of Software for a particular
SBC job operation.
"Project Manager" means each party's manager responsible for a
Project or Ongoing Support Order and identified on
the applicable Order.
"Proposal Statement" means Amdocs' statement of the conditions under
which it proposes to provide the Software for a
Project.
"Services" means all Custom Software development and other
services described in the applicable Order
provided by Amdocs hereunder to SBC, including but
not limited to training, installation of the
Software, maintenance services, ongoing support
and preparation of documentation.
"Software" means the Standard and Custom Software which is
provided by Amdocs hereunder to SBC, including
Program Material and source code.
"Standard Software" means the proprietary Amdocs computer programs,
which are listed as Standard Software in the
applicable Order and licensed hereunder to SBC by
Amdocs. Standard Software also includes source
code and all existing associated Program Material.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 10
-5-
"Terminate" or "Termination" means the ending of the Agreement or an Order by
one party. The general terms include "Termination
for Cause" and "Termination for Convenience."
"Terminate for Cause" and mean the ending of the Agreement or an Order in
"Termination for Cause" accordance with the provisions of this Agreement
by a nondefaulting party where the other party is
in material default of an obligation under the
Agreement or an Order. Upon Termination for Cause
the nondefaulting party may exercise such remedies
against the defaulting party as are available
under this Agreement only.
"Terminate for Convenience" mean the ending of the Agreement or an Order by a
and "Termination for party, in accordance with any required notice
Convenience" provisions and other provisions of this Agreement
authorizing a party to end the Agreement or an
Order without cause. On Termination for
Convenience, all obligations which are still
executory on both sides are discharged but any
right based on prior breach or performance
survives.
"Warranty Period" means the period during which Software is covered
by Amdocs' warranties under the Sections entitled
"Warranties" in the applicable Articles of this
Agreement.
(ARTICLE 2 FOLLOWS)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 11
-6-
ARTICLE 2: GENERAL PROVISIONS
2.1. SCOPE OF AGREEMENT
This Agreement sets forth the general terms and conditions under which
Amdocs shall provide Software Development, licenses for Standard Software,
On-going Support, Maintenance Services, Training Services, and other
Services to SBC. In addition, this Agreement shall set forth the
principles and agreements between the parties relating to the strategic
partnership between the parties as it relates to the joint development of
software systems for SBC's telecommunications business. If an Affiliate
approaches Amdocs directly, Amdocs will make reasonable efforts to call
upon SBC Procurement to participate in the negotiation, preparation, and
approval of any Order or other contractual obligation in accordance with
SBC procurement principles.
2.2. TERM OF AGREEMENT
This Agreement shall become effective as of July 7, 1998 and shall
continue in full force and effect for a term of five (5) years.
2.3. MASTER AGREEMENT
a. This Agreement anticipates the future execution of Orders by SBC. In
addition, (i) Amdocs agrees that any Affiliate of SBC may place
Orders, with Amdocs which incorporate the terms and conditions of
this Agreement, and that the names SBC" and "SBC OPERATIONS, INC."
shall be deemed to refer to such Affiliate when an Affiliate places
an Order with Amdocs incorporating the terms and conditions of this
Agreement, and (ii) SBC agrees that Orders may be placed by SBC or
any Affiliate thereof with any Affiliate of Amdocs. An Affiliate
will be responsible for its own obligations, including but not
limited to, all licenses fees, payment obligations, and charges
incurred in connection with such Order. The parties agree that
nothing in this Agreement will be construed as requiring SBC to
indemnify Amdocs, or to otherwise be responsible, for any acts or
omissions of such Affiliate, nor shall anything in this Agreement be
construed as requiring any Affiliate to indemnify Amdocs, or to
otherwise be responsible, for the acts or ommissions of SBC.
b. The provisions of this Agreement shall apply to all obligations
entered into between Amdocs and SBC or any Affiliate thereof during
the term of this Agreement with respect to the Software and Services
which are the subject of this Agreement. If SBC or an Affiliate of
SBC enters into a separate written agreement with Amdocs, signed by
Amdocs and the persons authorized to execute agreements for SBC or
such Affiliate of SBC, any such separate agreement signed between
Amdocs and SBC or Affiliate of SBC shall apply only to the subject
matter of such agreement and shall have no effect whatsoever on the
terms of this Agreement.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 12
-7-
2.4. PRICES AND TERMS
a. SBC may obtain Custom Software and Services at the rates and charges
specified in Annex A1 to Appendix A and Annex B1 to Appendix B,
respectively, ("Amdocs' Rates and Charges") (less any applicable
discounts) in effect on the effective date of this Agreement and
until the date specified in such Annexes. Thereafter, Amdocs may
increase its labor rates upon *** days prior written notice to SBC,
beginning in ***. Such price increases may not exceed the increase
in the Consumer Price Index for All Urban Consumers ("CPI-U"),
Selected Areas, U.S. City Average, as published by the U.S. Bureau
of Labor in the month of December preceding the month in which the
price increases may take effect, plus ***. The maximum permissible
annual increase shall be ***. For example, if the published CPI-U in
December, 1999 is *** for the increase in the CPI-U from December,
1998 through November, 1999, then Amdocs may increase its labor
rates beginning in *** by *** (***). After the initial labor rate
increase, such labor rates shall not be increased more than *** in
any ***.
b. The license fees payable to Amdocs with respect to any Standard
Software licensed by Amdocs to SBC shall be specified in the
applicable Order. Unless such Order specifies otherwise, the payment
terms for the Standard Software shall be as follows: (i) *** upon
execution of the Order, (ii) *** upon delivery of the Detailed
Functional Specifications in respect of such Software, (iii) ***
upon delivery and installation of the Software, and (iv) *** upon
acceptance by SBC of the Software.
2.5. ORDERS
SBC shall submit each proposed Order in duplicate to Amdocs for Amdocs'
review and acceptance or rejection. Amdocs shall notify SBC in writing of
Amdocs' acceptance or rejection of each proposed Order within ten (10)
calendar days after Amdocs' receipt of the Order; provided, however, that
Amdocs shall not reject any proposed Order which correctly reflects all
the terms and conditions agreed to by the parties in the negotiations
relating to such Order. If Amdocs rejects a proposed Order, Amdocs shall
detail in writing its reasons for such rejection and shall indicate the
modifications necessary to make the proposed Order acceptable to Amdocs.
Amdocs shall accept a proposed Order by signing it in duplicate and
returning it to SBC. Each Order shall become effective when signed by both
parties.
2.6. INVOICES AND PAYMENTS
a. SBC shall have no obligation to pay Amdocs for any charges unless
such charges are expressly authorized by an Order and SBC has
received an invoice for such charges.
b. Each Order issued hereunder shall clearly specify whether the
Services or Custom Software purchased under such Order shall be paid
for on a time and materials basis or pursuant to an agreed to
payment schedule. For all
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 13
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Services and Custom Software developed on a time and materials basis,
Amdocs shall deliver to SBC twelve (12) invoices per year, each invoice to
cover four (4) or five (5) whole weeks ("Billing Period") for the charges
stated on the applicable Order. For Software developed or ordered pursuant
to a payment schedule, Amdocs shall deliver to SBC its invoices in
accordance with such schedule.
c. SBC shall pay or cause to be paid each invoice within thirty (30) calendar
days after SBC's receipt of such invoice, unless SBC disputes the invoice
pursuant to paragraph (f) below. Payments, including any progress payments
or payments made by SBC against any Payment Milestone shall not be
construed as acceptance of any Software, and the Software shall be subject
to SBC's acceptance of the Software in accordance with the provisions of
this Agreement.
d. Each invoice rendered hereunder shall describe the Software or Services
and indicate the Order number, charges and applicable taxes, if any.
Amdocs shall separately identify all portions of charges to SBC in
sufficient detail so SBC can properly account for expense and
capitalization costs in compliance with the Uniform System of Accounts
Rewrite mandated by the Federal Communications Commission. Amdocs shall
send each invoice to the billing address shown in the applicable Order. In
addition, Amdocs shall track on the invoice all hours expended under the
Software's warranty, if applicable; and all hours expended on bug-fixes
outside the warranty. No term or condition of any such invoice shall be
binding upon SBC, and no action by SBC, including but not limited to the
payment of any such invoice in whole or in part, shall be construed as
binding or estopping SBC with respect to any such term or condition,
unless the invoice term or condition has been previously agreed to by SBC
in the applicable Order to this Agreement.
e. Any undisputed credits due SBC may be applied by SBC as a credit against
Amdocs' invoices. Any undisputed amounts due SBC that are not credited
against Amdocs' invoices for any reason shall be paid to SBC by Amdocs
within thirty (30) days after such amount is determined by SBC and Amdocs
receives notification of such determination. In the event SBC claims any
adjustments are due to it under this Agreement, SBC must promptly provide
Amdocs with written notice thereof SBC shall be entitled to apply such
adjustments as a credit against any money due Amdocs under this Agreements
only if (i) Amdocs does not dispute such adjustments, or (ii) in the event
SBC has initiated proceeding pursuant to the provisions of Section 2.42
(Dispute Resolution) after Amdocs has disputed in writing such
adjustments.
f. If SBC disputes any invoice rendered or any portion thereof or amount
paid, SBC will so notify Amdocs, and the parties will use their best
efforts to resolve such dispute expeditiously. Provided that SBC so
notifies Amdocs of a disputed invoice and there is a good faith basis for
such dispute, the time for paying the disputed portion of the invoice
shall be extended by a term
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 14
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equal to the time between SBC's notice of such dispute and the resolution
thereof. Any undisputed amounts shall be paid by SBC in accordance with
the provisions of Section 2.6.c. If such disputed amount is determined to
be owing to Amdocs, then SBC shall pay to Amdocs interest on such amount
as provided for late payments, accruing from the date that such payment
would have been originally due.
g. Notwithstanding any other remedies available to Amdocs under this
Agreement or under applicable law, payment in arrears of more than
*** days shall bear interest from the date payment is due at the rate of
*** per annum above the prime rate published by the New York Wall Street
Journal unless the amount in arrears is disputed in good faith and until
such dispute is resolved. Additionally, and without affecting the
foregoing, SBC failure to pay any undisputed payment under this Agreement
within *** days after such payment becomes due shall be considered a
material breach of this Agreement by SBC, subject to the provisions of
Section 2.42.
2.7. RECORDS
a. Amdocs shall maintain accurate records of all amounts billable to and
payments made by SBC hereunder in accordance with generally accepted
accounting principles, consistently applied in all accounting periods, in
a format that will permit audit in accordance with generally accepted
auditing standards. Amdocs shall retain such records for a period of three
(3) years from the date of final payment under the Order to which such
records relate. Amdocs shall provide reasonable supporting documentation
to SBC within thirty (30) calendar days after receipt of notice of any
dispute concerning any invoice. Amdocs agrees that all records required
under this Section 2.7 will be available for audit by an independent third
party auditor (who shall have signed a confidentiality agreement with
Amdocs in the form of Exhibit C) appointed by SBC at its expense, on
reasonable advance notice, no more than once in any twelve (12) month
period, and during normal business hours, in the event of a dispute
between SBC and Amdocs hereunder or for the purpose of verifying that
Amdocs is complying with its obligations hereunder.
b. Amdocs shall maintain accurate accounting records of all transactions with
Southwestern Bell Telephone Company, Pacific Bell, Nevada Bell, and any
other future Affiliate of SBC that is or may become subject to the
requirements of Part 32 and Part 64 of the Rules of the Federal
Communications Commission pertaining to "affiliate transactions" and any
similar state or federal requirements, provided SBC duly notifies Amdocs
of any such Affiliates and of any such similar state or federal
requirements. Amdocs shall, at SBC expense, provide reasonable assistance
to assist any such Affiliate with regard to such requirements whenever
those requirements or their enforcement impinges upon any transaction
hereunder.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 15
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2.8. TAXES
a. Amdocs will invoice SBC the amount of any federal excise taxes or
state or local sales taxes imposed upon any transaction hereunder as
separate items, listing the taxing jurisdiction imposing the tax.
SBC agrees to pay such amounts to Amdocs.
b. Amdocs agrees to pay, and to hold SBC harmless from and against, any
penalty, interest, additional tax or other charge that may be levied
or assessed as a result of the delay or failure of Amdocs, for any
reason, to pay any tax or file any return or information required by
law, rule or regulation or by this Agreement to be paid or filed by
Amdocs.
c. Upon SBC's request, the parties shall consult with respect to the
basis and rates upon which Amdocs shall pay any taxes for which SBC
is obligated to reimburse Amdocs under this Agreement. If SBC
determines that in its opinion any such taxes are not payable or
should be paid on a basis less than the full price or at rates less
than the full tax rate, SBC shall provide Amdocs with an opinion
from SBC's in-house counsel if the tax amount in dispute is less
than *** or an opinion from Ernest & Young if the tax amount in
dispute is over ***, supporting such determination. If SBC desires
to contest such collection, SBC shall promptly notify Amdocs. SBC
agrees to pay, and to hold Amdocs harmless from and against any
penalty, interest, additional tax or other charge that may be levied
or assessed as a result of Amdocs compliance with such tax opinion.
If SBC determines that in its opinion it has reimbursed Amdocs for
sales or use taxes in excess of the amount which SBC is obligated to
reimburse Amdocs, SBC and Amdocs shall consult to determine the
appropriate method of recovery of such excess reimbursements. Amdocs
shall credit any excess reimbursements against tax reimbursements or
other payments due from SBC if and to the extent Amdocs can make
corresponding adjustments to its payments to the relevant tax
authority. At SBC's request and expense, Amdocs shall file any
claims for refund and any other documents required to recover any
other excess reimbursements, and shall promptly remit to SBC all
such refunds (and interest) received.
d. If any taxing authority advises Amdocs that it intends to audit
Amdocs with respect to any taxes for which SBC is obligated to
reimburse Amdocs under this Agreement, Amdocs shall (1) promptly so
notify SBC, and (2) keep SBC fully informed as to the progress of
such audit. Each party shall bear its own expenses with respect to
any such audit and the responsibility for any additional tax,
penalty or interest resulting from such audit shall be determined in
accordance with the applicable provisions of this Article II.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 16
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2.9. ACCESS TO SBC's PREMISES
a. Amdocs shall when appropriate have reasonable access to SBC's premises at
such times as may be agreed upon by the parties in order to enable Amdocs
to perform its obligations under this Agreement. Amdocs assures SBC that
only persons employed by Amdocs (or an Amdocs Affiliate) or subcontracted
by Amdocs (or by an Amdocs Affiliate) will be allowed to enter SBC's
premises. If SBC reasonably requests Amdocs or its subcontractor to
discontinue furnishing any person provided by Amdocs or its subcontractor
from performing work on SBC's premises, Amdocs shall immediately comply
with such request. Such person shall leave SBC's premises promptly and
Amdocs shall not furnish such person again to perform work on SBC's
premises without SBC's written consent. Amdocs shall not be liable for any
delay in the performance of any Order resulting directly from Amdocs'
compliance with SBC's request to remove any person from SBC's premises.
Amdocs must provide a replacement with comparable skill sets within a
reasonable time after the removal, unless otherwise agreed to by the
parties.
b. SBC may require Amdocs or its subcontractor employees to exhibit
identification credentials, which SBC may issue in order to gain access to
SBC's premises for the performance of Services hereunder. If, for any
reason, any Amdocs' or Amdocs subcontractor's employees are no longer
performing such Services, Amdocs shall promptly inform SBC. Notification
shall be followed by the prompt delivery to SBC of the identification
credentials, if issued by SBC, or a written statement of the reasons why
said identification credentials cannot be returned.
c. Amdocs shall direct its personnel and subcontractors to perform work which
conforms to SBC's practices and handbooks (as provided to Amdocs), to
protect material, buildings or structures and to perform Services with
care and due regard for the safety, convenience and protection of SBC, its
employees and property, and members of the public. Amdocs shall direct all
persons furnished by Amdocs to work harmoniously with all others when on
SBC's premises.
2.10. INDEPENDENT CONTRACTOR
The parties agree that:
a. Amdocs is engaged in an independent business and will perform its
obligations under this Agreement as an independent contractor and
not as the agent or employee of SBC;
b. the Amdocs personnel performing the Services hereunder shall be
considered solely the employee personnel of Amdocs and not employees
or agents of SBC;
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 17
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c. Amdocs has and retains the right to exercise full control of and
supervision over the performance of Amdocs' obligations hereunder
and full control over the employment, direction, assignment,
compensation, and discharge of all personnel assisting Amdocs in the
performance of such obligations; however, the parties recognize that
joint oversight may be required for joint development projects;
d. Amdocs is solely responsible for all matters relating to the payment
and compensation, including payment of premium pay for overtime, of
all Amdocs personnel assisting in the performance of Amdocs'
obligations. Amdocs will pay all employee compensation and related
taxes and benefits from its own accounts, without regard to any
dispute concerning SBC's liability or payment to Amdocs under any
invoice related to any Service performed by Amdocs;
e. Amdocs is solely responsible for all matters relating to compliance
with all employer obligations to withhold employee taxes, pay
employee and employer taxes, and file payroll tax returns, and
information returns, and partnership income tax returns and
schedules under local, state, and federal income tax laws,
unemployment compensation insurance and state disability insurance
tax laws, and social security and Medicare tax laws and all other
payroll tax laws or similar laws (all collectively hereinafter
referred to as "payroll tax obligations") with respect to any and
all Amdocs personnel providing Services under this Agreement. If any
federal, state, or local taxing authority may claim that SBC is or
may be liable on account of any payroll tax obligations, including
the payment of interest or penalties, with respect to any such
Amdocs personnel, then Amdocs shall:
(i) cooperate fully in SBC's defense of such claim; and
(ii) disclose, to the extent reasonably necessary to satisfy the
applicable taxing authority, its payroll tax returns, and
associated payment deposits records, canceled checks and
instruments, and other such documents reasonably necessary to
enable SBC to perfect its defense of such claims; and
(iii) execute and deliver such powers of attorney or other consents
as may be necessary;
f. Amdocs is and will respond as the employer of all Amdocs personnel, for
purposes of Unemployment Insurance; and
g. Amdocs has secured Workers' Compensation Insurance and Employer's
Liability Insurance, as required in Section 2.12.a(1) of this Agreement,
to cover all Amdocs personnel performing services under this Agreement.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 18
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2.11. INDEMNIFICATIONS
a. Amdocs shall indemnify and hold harmless SBC and its directors,
officers, shareholders, agents and employees ("Indemnitees"), from
and against any fine, penalty, loss, cost, damage, injury, claim,
expense or liability (individually and collectively "Liabilities"),
including, but not limited to, Liabilities as a result of (1) injury
to or death of any person; (2) damage to, loss or destruction of any
property; (3) claims for Liabilities for payroll tax obligations and
other employer obligations which may be asserted against an
Indemnitee, where such claims arise from Amdocs' use of persons that
it classifies as independent contractors or subcontractors to
perform obligations which this Agreement requires to be performed by
employees (including managers) of Amdocs; (4) failure to comply with
the section entitled "Compliance with Laws", or (5) an infringement
of patents, registered trademarks, trade names and copyrights
registered in the United States and/or Canada or a misappropriation
of trade secrets, where such Liabilities arise out of or result from
or in connection with this Agreement, except for that portion of
Liabilities which are caused by the actions or omissions of SBC.
b. SBC shall indemnify and hold harmless Amdocs and its Affiliates, and
the directors, officers, shareholders, agents and employees of each
of them ("Indemnitees"), from and against any fine, penalty, loss,
cost, damage, injury, claim, expense or liability (individually and
collectively "Liabilities"), including, but not limited to,
Liabilities as a result of (1) injury to or death of any person; (2)
damage to, loss or destruction of any property; (3) failure to
comply with the section entitled "Compliance with Laws," or (4) an
infringement of patents, registered trademarks, trade names and
copyrights registered in the United States and/or Canada or a
misappropriation of trade secrets, where such Liabilities arise out
of or result from or in connection with this Agreement, except for
that portion of Liabilities which are caused by the actions or
omissions of Amdocs.
c. Amdocs and SBC are both, as the context requires, referred to in
this section as an "Indemnifying Party." An Indemnifying Party
shall, at no cost or expense to any Indemnitee, defend and/or settle
any claim, proceeding, appellate proceeding, or suit against the
Indemnitees for Liabilities, and pay any reasonable costs,
reasonable attorney fees, and any judgment and/or settlement that
may be incurred by any Indemnitee, under this section or the
enforcement of its rights under this section. An Indemnifying Party
shall also (1) keep the Indemnitees subject to such Liabilities
fully informed as to the progress of such defense and/or settlement
and (2) afford the Indemnitees, each at its own expense, an
opportunity to participate on an equal basis with the Indemnifying
Party in the defense or settlement of any such Liabilities.
d. With respect to any claim of infringement or misappropriation as
aforesaid, if any Indemnitee's use of Software in such action or
suit is enjoined, the Indemnifying Party shall at its own expense,
either (1) procure for such
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 19
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Indemnitee the right to continue using the Software, or (2) after
consultation with such Indemnitee, replace or modify the Software to
make it substantially similar, functionally equivalent, and
noninfringing. If neither (1) or (2) above are possible, then the
Indemnifying Party shall refund to the Indemnitee the cost of such
Software, pro-rated over a five year period.
2.12. INSURANCE
Any and all insurance and/or bonds that may be required of Amdocs under
the laws, ordinances, and regulations of any governmental authority is and
shall be the sole responsibility of Amdocs.
a. At all times during the term of this Agreement, and at its sole
expense, Amdocs shall maintain the following insurance:
(i) "Commercial General Liability" insurance providing coverage at
least as broad as the Insurance Services Office's coverage
form "CGOOO1 (ed. 10/93)" for:
(A) bodily injury and property damage liability, with the
exclusion for contractual liability deleted,
(B) personal and advertising injury liability, and
(C) medical payments,
including coverage for supplementary payments (such as
insurer's expenses, costs of bonds, reasonable expenses
of investigation and defense, costs of suit, and
prejudgment interest) connected with coverages (A) and
(B). The "Occurrence Limit" of such insurance shall not
be less than *** dollars and the "General Aggregate
Limit" of such insurance shall not be less than ***
dollars. Such insurance shall: (a) name SBC and its
directors, officers, and employees as additional
insureds with respect to this Agreement; (b) provide
that such insurance is primary and noncontributing
coverage with respect to all insureds; and (c) include a
"Separation of Insureds" provision stating that, except
with respect to the Limits of insurance and any rights
or duties specifically assigned to the first named
insured, the insurance applies separately to each
insured against whom claim is a made or suit is brought;
(ii) "Professional" liability insurance providing coverage for
errors and omissions, including contractual liability, with a
limit of not less than two million dollars;
(iii) "Business Auto" liability insurance providing coverage at
least as broad as the Insurance Service Office's coverage form
"CAOOOl (ed. 12/93)" for liability resulting from the
ownership, maintenance,
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 20
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or use of an owned, hired, or non-owned auto, with a limit of
not less than five million dollars per accident; and
(iv) "Workers Compensation and Employers Liability" insurance which
complies with the workers compensation law of each state where
Services are provided under this agreement, with minimum
limits of one million dollars for each accident and one
million dollars for each disease.
Amdocs may maintain required limits through any combination of
primary insurance and excess or umbrella insurance.
b. Amdocs shall maintain all insurance described in paragraph a.,
above, in accordance with the following requirements:
(i) Each insurance policy shall be issued by an insurance company
that holds a current rating of B+X1 or better according to
Best's Key Rating Guide, unless this requirement is expressly
waived in writing by SBC's Risk Management Department;
(ii) Each insurance policy shall be issued by an insured company
licensed to transact insurance business (that is, an admitted
insurance company) in Texas unless Amdocs furnishes to SBC
written certification from Amdocs' insurance broker, insurance
agent, or other qualified expert, certifying that such
insurance is issued by a non-admitted insurance company
currently bearing the designation "no objection to use" given
by the administrative agency having authority to issue such
designation in Texas;
(iii) Each insurance policy shall be issued on an "occurrence" form,
except that "Commercial General Liability" insurance and
"Professional" liability insurance may be issued on "claims
made" forms, so long as "occurrence" forms are unavailable in
the insurance industry, if such "claims made" form has a
retroactive date coinciding with or prior to the effective
date of this Agreement and a minimum extended claims reporting
period of two years following the Termination of this
Agreement; and
(iv) Each insurance policy shall provide that such insurance is
primary coverage with respect to all insureds; and
(v) Each insurance policy shall be endorsed to provide SBC thirty
days advance written notice prior to cancellation.
c. Prior to the execution of this Agreement, and thereafter upon
renewal of any insurance policy or upon written request from SBC,
Amdocs shall provide SBC with certificates of insurance and executed
copies of additional insured endorsements, giving evidence that all
of the foregoing obligations have
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 21
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been satisfied with respect to coverages, limits of insurance, and
insurance policy terms, conditions, and provisions.
2.13. INFORMATION
a. In the performance of its obligations under this Agreement, Amdocs
acting through its employees may have access to or receive
Information owned or controlled by SBC ("SBC Information"). Such SBC
Information may contain material which SBC deems proprietary or
confidential, including disclosures of patentable inventions with
respect to which patents may not have been issued or for which
patent applications may not have been filed or material which is
subject to applicable laws regarding secrecy of communications or
trade secrets. Accordingly, Amdocs agrees:
(i) that all such SBC Information so acquired shall be and shall
remain SBC's exclusive property;
(ii) to inform all of its employees engaged in handling such SBC
Information of the confidential character of such SBC
Information and of the existence of applicable laws regarding
secrecy of communications;
(iii) to keep, and have its employees keep, such SBC Information
confidential;
(iv) to limit access to such SBC Information to authorized
employees having a need to know;
(v) not to copy or publish or disclose such SBC Information to
others or cause or permit its employees, or anyone else to
copy, publish or disclose such SBC Information to others
without SBC's prior written approval;
(vi) to deliver promptly any copies of such SBC Information in
written, graphic or other tangible form to SBC at SBC's
request; and
(vii) to use such SBC Information only for purposes of fulfilling
Services or providing Custom Software ordered hereunder and
for other purposes only upon such terms as may be agreed upon
between Amdocs and SBC in writing.
b. SBC undertakes to treat as confidential the Standard Software,
documentation and all other Information of a confidential nature
which it may receive from Amdocs with respect to Amdocs' Software
and Services under this Agreement ("Amdocs Information") and to
apply to such Amdocs Information the same measures of security as it
normally applies to its own confidential, technical and commercial
information, which measures shall include the measures specified in
sections (i) through (vii) of paragraph (a) above and shall not be
less than reasonable under the applicable
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement
<PAGE> 22
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circumstances. Without derogating from the generality of the
foregoing, SBC shall use all reasonable measures to ensure that no
one, except for: (i) SBC's employees who have the need to know for
the performance of this Agreement and the applicable Order and (ii)
third parties who have a need to know for purposes of this
Agreement, provided that such third parties have first signed
non-disclosure agreement with Amdocs in the event they will have
access to any source code, specifications, and similar proprietary
Amdocs Information.
c. Notwithstanding the foregoing, nothing contained in this section
shall restrict either party in the use or disclosure of any
information obtained from the other party which:
(i) is already in the possession of such party without
accompanying use or disclosure restrictions prior to its
receipt from the other party; or
(ii) is or subsequently becomes publicly available through no fault
of such party; or
(iii) is rightfully received by such party from a third party
without any accompanying use or disclosure restrictions; or
(iv) is independently developed by such party or a third party; or
(v) is approved in writing for release or unrestricted use by the
other party.
2.14. NOTICE OF DELAYS
Whenever any actual cause delays or threatens to delay either party's
performance, the delayed party shall immediately so notify the other party
in writing. Such notice shall include all relevant information concerning
the cause of the delay and its background. During the period such cause
exists, the delayed party shall keep the other party advised of its effect
on the delayed party's performance and of the measures being taken to
remove it.
2.15. TERMINATION FOR CAUSE
Any party may, prior to the completion of any Order, Terminate the
applicable Order if the Arbitrator (as defined herein) has made a
determination that the other party has committed a material breach of the
applicable Order, provided that (i) before Terminating, the first party
has given the defaulting party a written notice specifying the breach with
seventy-five (75) days right to cure, and (ii) the Arbitrator has
determined that the defaulting party has committed a material breach of
the applicable Order, and has determined the circumstances and/or terms
and conditions which shall constitute a cure of such material breach. The
Arbitrator shall retain jurisdiction over the dispute until such cure has
been made.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 23
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2.16. PARTIAL TERMINATION
Where a provision of this Agreement or applicable law permits SBC to
Terminate an Order for cause or convenience, such Termination may, at
SBC's option, be either complete or partial. In the case of a partial
Termination, SBC may, at its option, accept a portion of the Software or
Services covered by an Order, and pay Amdocs for such Software or Services
at the unit prices set forth in such Order, and issue a revised Order to
reflect such partial Termination. The right to Terminate an Order for
Cause shall also include the right to Terminate any other Order for Cause
which is directly affected by the Termination of the initially Terminated
Order.
2.17. TERMINATION FOR CONVENIENCE
a. General. Either party may Terminate for Convenience this Agreement
upon ninety (90) days prior written notice to the other party
setting forth the effective date of such Termination. The
Termination of this Agreement for any reason shall not affect the
obligations of either party pursuant to any Orders previously
executed hereunder, and the terms and conditions of this Agreement
shall continue to apply to such Orders as if this Agreement had not
been Terminated.
b. Termination For Convenience of Software Order. SBC may at any time
Terminate any Order for Software for Convenience prior to the
Delivery Date of the Software covered by such Order, by giving
Amdocs at least thirty (30) days prior written notice. Upon receipt
of any such Termination notice, Amdocs shall, if so requested by SBC
immediately cease performing work and incurring costs in connection
with such Order. After receipt of Amdocs' invoice (supported by
adequate documentation), SBC will pay Amdocs in accordance with the
applicable Order for work under such Order performed prior to the
effective date of such Termination for Convenience. If no other
provision for Termination charges is specified in the applicable
Order, then Amdocs shall bill SBC for any license fees which may be
due up to the effective date of termination as well as for the net
amount determined by applying the then-current Schedule of Rates and
Charges to (i) all work performed under the Order to the date of
Termination and (ii) up to thirty (30) days additional time for each
Amdocs employee not redeployed by Amdocs subsequent to date of
Termination, and adding thereto the amount of all Reimbursable
Expenses (as defined in Exhibit E) which Amdocs has then incurred
under the Order, and subtracting from the total so obtained the
cumulative amount of all payments previously made to Amdocs under
the Terminated Order. SBC shall make payment to Amdocs equal to such
net amount, however, in no event shall such payment exceed the
charges or fixed fee specified in such Order. After the receipt of
SBC's payment, Amdocs shall deliver to SBC all drafts and versions
of the Custom Software which have been written pursuant to such
Terminated Order. The payments referred to herein shall be in
addition to any payments to be made by SBC to Amdocs pursuant to
other provisions contained in Appendix A and any future Appendices
of this Agreement.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 24
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c. Termination For Convenience of Ongoing Support Order. SBC may, at
its option and without any liability to Amdocs, Terminate any OGS
Order for Convenience by written notice to Amdocs. Such Termination
shall be effective thirty (30) days following SBC's giving such
notice to Amdocs, and Amdocs shall cease performing any Ongoing
Support Services as of the effective date of such Termination. SBC
shall pay Amdocs (i) for any Services performed prior to such
Termination, and (ii) for the cost of any Amdocs' employees which
were assigned to the terminated Order and which Amdocs was not able
to reassign at the end of the thirty day notice period, which
payment shall not exceed up to thirty additional days per each such
employee, all in accordance with the provisions of the applicable
Order and in accordance with Section 2.4. (Prices and Terms). If no
other provision for Termination charges is specified in the
applicable OGS Order, then Amdocs shall bill SBC for the net amount
determined by applying the then-current Schedule of Rates and
Charges to all work performed under the OGS Order to the date of
Termination plus any additional amounts as set forth in (ii) above
and adding thereto the amount of all Reimbursable Expenses (as
defined in Exhibit E) which Amdocs has then incurred under the
Order, and subtracting from the total so obtained the cumulative
amount of all payments previously made to Amdocs. SBC shall make
payment to Amdocs equal to such net amount. In no event shall such
payment exceed the maximum expenditure or fixed fee, as the case may
be, specified in such OGS Order. In addition, in the event that as a
result of such Termination for Convenience, Amdocs is required to
relocate Amdocs' OGS personnel which are located at any SBC sites,
then SBC shall reimburse Amdocs for its actual costs incurred in
connection with such relocation. After the receipt of SBC's payment,
Amdocs shall deliver to SBC all drafts and versions of the material
which have been written pursuant to such Terminated Order, if
applicable.
2.18. QUIET ENJOYMENT
SBC shall be entitled during the applicable lease or license term to
possess and use any leased or licensed Software without disturbance by
Amdocs or anyone claiming by or through Amdocs, provided only that SBC is
not in material default of its obligations under the applicable Order or
under the terms of this Agreement as determined by the Arbitrator in
Section 2.42. Amdocs represents that the applicable Order is not subject
or subordinate to any right of Amdocs' creditors, or if such subordination
exists, that the agreement or instrument creating the same provides for
nondisturbance of SBC, provided only that SBC is not in material default
of its obligations under the applicable Order or under the terms of this
Agreement.
2.19. ASSIGNMENT
Except as otherwise provided by law, neither party shall assign its rights
or delegate its duties ("Assignment") under this Agreement, without the
prior written consent of the other party. Any attempted Assignment in
contravention of this section shall be void and of no effect. This
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns, if any, of Amdocs and SBC.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 25
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2.20. SUBCONTRACTING
Amdocs' performance of this Agreement may involve participation of
subcontractors. The parties agree that Amdocs may subcontract and/or
assign any of the Services to be provided by Amdocs hereunder to any other
entity Affiliated with Amdocs or to specialist subcontractors (all
referred to in this Agreement as the "Authorized Subcontractors"),
however:
a. Amdocs shall be responsible for the performance (or non-performance,
as the case may be) of any part of this Agreement and any Order
issued hereunder by the Authorized Subcontractors to which such part
was assigned or subcontracted;
b. the participation of the Authorized Subcontractors shall not affect
any liability imposed on Amdocs under this Agreement; and
c. Amdocs' obligations under this Agreement and the Orders issued
hereunder shall remain in full force and effect despite any act or
omission of the Authorized Subcontractors.
The parties agree that the Authorized Subcontractors will require access
to the premises and facilities of SBC for their participation in the
performance of this Agreement and the Orders issued hereunder, and that if
so requested by Amdocs, SBC shall deal with the personnel of the
Authorized Subcontractors and with any reasonable requests of the
Authorized Subcontractors, in all respects, as if such personnel were the
personnel, and such requests were the requests, of Amdocs.
2.21. NOTICES
Except as otherwise provided in this Agreement or applicable Order, all
notices or other communications under this Agreement shall be deemed to
have been duly given when made in writing and either (1) delivered in
person, (2) delivered to an agent, such as an overnight or similar
delivery service or (3) deposited in the United States mail, postage
prepaid, and addressed as follows:
To Amdocs: To SBC:
AMDOCS, INC. SBC, INC.
1610 Des Peres Road 2600 Camino Ramon, Room 4E453
St. Louis, MO 63131-1831 San Ramon, Ca 94583
Attn: President Attn: Director-Software Contracting
The address to which notices or communications may be given by either
party may be changed by written notice given by such party to the other
pursuant to this paragraph entitled "NOTICES".
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 26
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2.22. PUBLICITY
Amdocs shall not use SBC's name or any language, pictures or symbols which
could, in SBC's judgment, imply SBC's identity or endorsement by SBC or
any of its employees in any (a) written, electronic or oral advertising or
presentation or (b) brochure, newsletter, book, electronic database or
other written material of whatever nature, without SBC's prior written
consent (hereafter the terms in this clause (a) and (b) shall be
collectively referred to as "publicity matters"). Amdocs will submit to
SBC for written approval, prior to publication, all publicity matters that
mention or display SBC's name and/or marks or contain language from which
a connection to said name and/or marks may be inferred or implied. SBC
acknowledges that Amdocs is a publicly traded corporation and is therefor
subject to certain reporting rules which may require that Amdocs publish
certain publicity matters which relate to SBC.
2.23. COMPLIANCE WITH LAWS
Amdocs and SBC shall comply with all laws and regulations in performance
of this Agreement.
2.24. NO THIRD PARTY BENEFICIARIES
Except as otherwise provided in this Agreement, the provisions of this
Agreement are for the benefit of SBC and Amdocs and not for any other
person.
2.25. WAIVERS OF DEFAULT
Waiver by either party of any default by the other party shall not be
deemed a waiver by the nondefaulting party of any other default.
2.26. AMENDMENTS
This Agreement may be amended or modified only by a written document
signed by the authorized representative of the party against whom
enforcement is sought. No course of dealing or failure of either party to
strictly enforce any term, right or condition of this Agreement shall be
construed as a general waiver or relinquishment of such term, right or
condition.
2.27. ORDER OF PRECEDENCE
In the event of any conflict or inconsistency between provisions of this
Agreement, the provisions of any Appendix and/or the provisions of an
Order, the following order of precedence shall control: (i) the Order;
(ii) an Appendix; (iii) the Agreement; but only for purposes of such Order
and/or Appendix and, except for such Order and/or Appendix, the terms and
conditions of this Agreement shall not be deemed to be waived, amended or
modified.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
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In the event of any conflict or inconsistency among the specifications for
any Custom Software that may include Standard Software, the provisions of
the Functionality Matrix and those of any other specifications attached to
or referenced in the applicable Order shall control over Amdocs' published
specifications for such Standard Software.
2.28. EXECUTIVE ORDERS
Amdocs shall comply with Exhibit D (Executive Orders and Associated
Regulations), where applicable. As used in Exhibit D, "Contractor" shall
mean "Amdocs".
2.29. HEADINGS
Article, section or paragraph headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
2.30. GOVERNING LAW
This Agreement and any Order shall be construed in accordance with the
laws of the Texas, as though made, executed, and to be fully performed, in
Texas by two parties each of which is domiciled therein.
2.31. NONEXCLUSIVE AGREEMENT
This Agreement is a nonexclusive Agreement. SBC expressly reserves the
right to contract with others for any custom software or services it may
require.
2.32. REMEDIES CUMULATIVE
Any rights of Termination, liquidated damages or other remedies prescribed
in this Agreement are cumulative and are not exclusive of any other
remedies to which the injured party may be entitled hereunder, including
but not limited to the remedies of specific performance and cover;
provided however, that neither party shall retain the benefit of
inconsistent remedies.
2.33. SEVERABILITY
If any provision or any part of a provision of this Agreement is held
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other portion of this Agreement.
2.34. SURVIVAL
Provisions contained in this Agreement that by their sense and context are
intended to survive completion of performance, Termination, or expiration
of this Agreement by any party hereto shall so survive.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
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2.35. SBC'S INTELLECTUAL PROPERTY
Except as expressly provided in this Agreement and its Appendices, nothing
contained in this Agreement shall be construed as conferring by
implication, estoppel, or otherwise, any license or right, under any
patent, trademark, trade name, copyright or other proprietary right of
SBC.
2.36. NONINTERFERENCE WITH EMPLOYEES
Subject to any restrictions by local laws, each of the parties agrees not
to hire or employ any employee of the other party or its Affiliates who
are assigned full or part-time to activities which are part of the
performance of this Agreement, except by mutual written consent of such
other party, within two (2) years of such employee ceasing to work on
Projects associated with this Agreement.
2.37. EXPORT CONTROLS
At Amdocs" expense, Amdocs will obtain any necessary import certificates
or permissions and all necessary export or other licenses from the United
States government, including, but not limited to, certifications as to use
and ultimate destination and/or written agreements not to knowingly
transmit the Software directly or indirectly to certain named countries.
2.38. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CLAIMS IN RESPECT OF OR
ARISING OUT OF THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER FOR ANY
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF
PROFITS, REVENUE, DATA, OR USE), INCURRED BY THE OTHER PARTY OR BY
ANY THIRD PARTY WHETHER IN AN ACTION IN CONTRACT OR TORT EVEN IF
THAT PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. The provisions of this clause shall in no way
create any third party beneficiaries under this Agreement.
b. Notwithstanding anything to the contrary, the sole liability of
Amdocs in case of any loss or damage resulting from any error or
defect in Software or from the Services provided by Amdocs hereunder
that cause errors or defects, will be to correct, as soon as is
reasonably possible, such error or defect in accordance with Amdocs'
warranty or maintenance obligations. SBC will not have any other
remedy against Amdocs.
c. Notwithstanding anything to the contrary, (i) each party's aggregate
liability under this Agreement for any cause(s) whatsoever, except
for (x) Liabilities under Section 2.lla(1) through (4) and (y)
Liabilities under Section 2.lla(5) to the extent such Liabilities
arise as a result of an intentional and knowing infringement, shall
not exceed in the aggregate Five Million Dollars, and (ii) each
party's liability under any individual Order for any cause(s)
whatsoever,
PROPRIETARY INFORMATION
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<PAGE> 29
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except for (x) Liabilities under Section 2.lla(1) through (4) and
(y) Liabilities under Section 2.lla(5) to the extent such
Liabilities arise as a result of an intentional and knowing
infringement, shall not exceed the lower of (a) One Million Dollars,
or (b) the consideration to be paid to Amdocs under such Order. The
limitation of liability specified in (i) of this paragraph (c) shall
apply with respect to Orders executed hereunder pursuant to the
provisions of Appendices A and B. In the event the scope of this
Agreement is extended beyond such two Appendices, the five million
dollars shall be increased pro-rata to the extent of such increase.
2.39. JOINT WORK PRODUCT
This Agreement is the joint work product of SBC and Amdocs and their
respective representatives. For convenience, it has been draft in final
form by one of the parties. Accordingly, in the event of any ambiguity, no
inferences shall be drawn against any party solely on the basis of
authorship of this Agreement.
2.40. MBE/WBE/DVBE PARTICIPATION GOALS
Amdocs commits to submit goals in support of the M/WBE and DVBE program
(as defined in the following Section entitled "MBE/WBE/DVBE Termination
Clause) by March 31st, 1999. These goals will be developed in conjunction
with the SBC Supplier Diversity Manager. Attached hereto and incorporated
herein as Exhibit Fl shall be Amdocs' completed Participation Plan
outlining its M/WBE-DVBE goals and specific and detailed plans to achieve
those goals. Amdocs will submit an updated Participation Plan annually by
the first week in January. Amdocs will submit M/WBE-DVBE Results Reports
quarterly by the end of the first week following the close of each
quarter, using the form attached hereto and incorporated herein as Exhibit
F2. Participation Plans and Results Reports will be submitted to the SBC's
Prime Results Manager.
2.41. MBE/WBE/DVBE TERMINATION CLAUSE
a. Amdocs agrees that falsification or misrepresentation of, or failure
to report disqualifying change in, the MBE/WBE/DVBE status of Amdocs
or any subcontractor utilized by Amdocs; or Amdocs' failure to
comply in good faith with any MBE/WBE/DVBE utilization goals
established by Amdocs; or Amdocs' failure to cooperate in any
investigation conducted by SBC, or by SBC's agent, to determine
Amdocs' compliance with this section, will constitute a material
breach of this Agreement. In the event of any such breach, SBC may,
at its option, Terminate this Agreement for Cause upon 20 days
notice. Amdocs acknowledges and agrees that SBC's right to Terminate
for Cause is absolute and unconditional, and SBC shall not be
subject to liability, nor shall Amdocs have any right to suit for
damages as a result of such Termination for Cause.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
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b. For transactions under this Agreement by Pacific Bell, Pacific Bell
Directory, Pacific Bell Mobile Services, Pacific Bell Information
Services, Pacific Bell Communications, and any other entity
operating principally in California (collectively "California
Affiliates"), Minority and Women Business Enterprises (MBEs/WBEs)
are defined as businesses which satisfy the requirements of
paragraph c. below and are certified as MBEs/WBEs by the California
Public Utilities Commission Clearinghouse ("CPUC-certified"). For
transactions under this Agreement by any entity that is not a
California Affiliate, MBEs/WBEs are defined as businesses which
satisfy the requirements of paragraph c. below and are either
CPUC-certified or are certified as MBEs/WBEs by a certifying agency
recognized by the California Affiliates.
c. MBEs/WBEs must be at least 51% owned by a minority individual or
group or by one or more women (for publicly-held businesses, at
least 51% of the stock must be owned by one or more of those
individuals), and the MBEs/WBEs' management and daily business
operations must be controlled by one or more of those individuals,
and these individuals must be either U.S. citizens or legal aliens
with permanent residence status. For the purpose of this definition,
minority group members include male or female Asian Americans, Black
Americans, Filipino Americans, Hispanic Americans, Native Americans
(i.e., American Indians, Eskimos, Aleuts and Native Hawaiians),
Polynesian Americans, and multi-ethnic (i.e., any combination of
MBEs and WBEs where no one specific group has a 51% ownership and
control of the business, but when aggregated, the ownership and
control combination meets or exceeds the 51% rule). "Control" in
this context means exercising the power to make policy decisions.
"Operate" in this context means actively involved in the day-to-day
management of the business and not merely acting as officers or
directors.
d. For purchases under this Agreement by California Affiliates,
Disabled Veteran Business Enterprises (DVBEs) are defined as
business concerns that satisfy the requirements of paragraph e.
below and are certified as DVBEs by the California State Office of
Small and Minority Business (0SMB). The DVBE must be a resident of
the State of California, and must satisfy the requirements of
paragraph e. below. For purchases under this Agreement by any entity
that is not a California Affiliate, DVBEs are defined as any
business concern that satisfies the requirements of paragraph e.
below and is either a defined DVBE for purchases by California
Affiliates, or is certified as a DVBE by a certifying agency
recognized by SBC.
e. The DVBE must be (1) a sole proprietorship at least 51% owned by one
or more disabled veterans; or (2) a publicly-owned business in which
at least 51% of the stock is owned by one or more disabled veterans;
or (3) a subsidiary which is wholly owned by a parent corporation,
but only if at least 51% of the voting stock of the parent
corporation is owned by one or more disabled veterans; or (4) a
joint venture in which at least 51% of the joint venture's
management and control and earnings are held by one or more disabled
veterans. In each case, the
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 31
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management and control of the daily business operations must be by
one or more disabled veterans. A disabled veteran is a veteran of
the military, naval or air service of the United States with a
service-connected disability. "Management and control" in this
context means exercising the power to make policy decisions and
actively involved in the day-to-day management of the business and
not merely acting as officers or directors.
2.42. DISPUTES AND DISPUTE RESOLUTION
a. Any dispute arising out of or relating to this Agreement or any
Order shall be resolved in accordance with the procedures specified
in this Section 2.42, which shall be the sole and exclusive
procedure for the resolution of any such disputes, unless the
parties establish other procedures by mutual agreement.
b. The parties shall attempt in good faith to resolve any dispute
arising out of or relating to this Agreement or any Order promptly
by negotiation between executives who have authority to settle the
controversy and who are at a higher level of management than the
persons with direct responsibility for administration of this
contract. Any party may give the other party written notice of any
dispute not resolved in the normal course of business. Within 15
days after delivery of the notice, the receiving party shall submit
to the other party a written response. The notice and response shall
include (i) a statement of each party's position and a summary of
arguments supporting that position, and (ii) the name and title of
the executive who will represent that party and of any other person
who will accompany the executive. Within 30 days after delivery of
the disputing party's notice, the executives of both parties shall
meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to attempt to resolve the
dispute. All reasonable requests for information made by one party
to the other will be honored. if the matter has not been resolved by
these persons within 60 days of the disputing party's notice, or if
the parties fail to meet within 30 days, the dispute shall be
referred to more senior executives ("more senior executives" are
members of the Council as defined in Section 5.1), of both parties
who have authority to settle the dispute and who shall likewise
meet to attempt to resolve the matter. If the matter has not been
resolved within 30 days from the referral of the dispute to more
senior executives or if no meeting of such senior executives has
taken place within 15 days after such referral, either party may
initiate mediation as provided hereinafter. All negotiations
pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state rules of evidence.
c. If the dispute has not been resolved by negotiation as provided
herein, the parties shall endeavor to settle the dispute by
mediation under the then current Center for Public Resources ("CPR")
Model Procedure for Mediation of Business Disputes. The neutral
third party will be selected from
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
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the CPR Panels of Neutrals, with the assistance of CPR, unless the
parties agree otherwise.
d. Any dispute arising out of or relating to this contract or the
breach, Termination, or validity thereof, which has not been
resolved by a nonbinding mediation procedure as provided herein
within 90 days of the initiation of such procedure shall be settled
by arbitration in accordance with the then current CPR Rules for
Non-Administered Arbitration of Business Disputes by one independent
and impartial arbitrator (the "Arbitrator"); provided, however, that
if one party has requested the other to participate in a non-binding
procedure and the other has failed to participate, the requesting
party may initiate arbitration before expiration of the above
period. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C.ss.ss.1-16 and judgment upon the award
rendered by the Arbitrator may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Dallas,
Texas or its environs. The Arbitrator is not empowered to award
damages in excess of compensatory damages and each party hereby
irrevocably waives any right to recover such damages with respect to
any dispute resolved by arbitration.
e. The procedures specified in this Section 2.42 shall be the sole and
exclusive procedures for the resolution of disputes between the
parties arising out of or relating to this Agreement or any Order;
provided, however, that a party, without prejudice to the above
procedures, may file a complaint to seek a preliminary injunction or
other provisional relief if in its sole judgment such action is
necessary to avoid irreparable damage or to preserve the status quo.
Despite such action the parties will continue to participate in good
faith in the procedures specified in this Section 2.42.
f. All applicable statutes of limitation and defenses based upon the
passage of time shall be tolled while the procedures specified in
this Section 2.42 are pending. The parties will take such action, if
any, required to effectuate such tolling.
2.43. FORCE MAJEURE
a. Neither party shall be deemed in default of this Agreement or any
Order to the extent that any delay or failure in the performance of
its obligations results from any cause beyond its reasonable
control, such as acts of God, acts of civil or military authority,
embargoes, epidemics, war, riots, insurrections, fires, explosions,
earthquakes, floods, unusually severe weather conditions or strikes.
b. If any Force Majeure condition occurs, the delayed party shall give
immediate notice to the other party and, in the event the Force
Majeure event continues for a period of more than fifteen (15) days,
the other party may elect to either: (1) terminate the affected
Order(s) or any part thereof, (2) suspend the affected Order(s) or
any part thereof for the duration of the Force Majeure condition,
with the option, in the case of SBC, to obtain
PROPRIETARY INFORMATION
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elsewhere the Software and Services to be furnished by Amdocs under
such Order(s) and deduct from any commitment under such Order(s) the
consideration of the Software and Services obtained or for which
commitments have been made elsewhere or (3) resume performance under
such Order(s) once the Force Majeure condition ceases, with an
option to extend any affected delivery or performance date up to the
length of time the Force Majeure condition endured.
(ARTICLE 3 FOLLOWS)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 34
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ARTICLE 3: SOFTWARE LICENSES/DEVELOPMENT/MAINTENANCE
3.1. SCOPE OF ARTICLE
The purpose of this Article is to provide for the license of Standard
Software by Amdocs to SBC and for the maintenance of such Standard
Software following the expiration of its warranty period, and for Software
development, all as described in such Orders as Amdocs and SBC may execute
hereunder.
3.2. PROPOSED PROJECTS
a. Whenever SBC is considering contracting with Amdocs for a proposed
Project, SBC's authorized representative shall forward to Amdocs a
letter describing the Software and transmitting the Functionality
Matrix for such proposed Project. Such letter may also include the
name of the proposed Project, the name, address and telephone number
of SBC's Project Manager, any special time requirements for the
proposed Project, the type of computer on which the Software is to
operate and the programming language desired, any methods or
criteria for testing and accepting the Software, and any other
conditions which are significant to SBC in considering the
assignment of such Project.
b. Within a reasonable time after receipt of any such letter, Amdocs
shall notify SBC as to whether Amdocs will submit to SBC a Proposal
Statement for the proposed Project specified in SBC's letter. If
Amdocs elects to submit such a Proposal Statement, it shall include,
but not be limited to, each of the following items whenever such
item is applicable to said Project:
(i) Amdocs' initial scope of the functional specifications for
such Project, and any Standard Software which will be used as
a part of the Software, if applicable;
(ii) Amdocs' license fees for any Standard Software which may be
included in the Software, if applicable;
(iii) Amdocs' estimate of the costs that will be billed to SBC for
the development of the Custom Software. Such estimate shall be
in sufficient detail that SBC may readily determine the costs
applicable to computer time, labor time and material. Such
estimate shall provide either (i) a fixed fee, or (ii) an
express statement that Amdocs proposes to accomplish the
development work on a time and charges basis; and
(iv) The Delivery Date for the Software.
c. Each such Proposal Statement shall be subject to SBC's written
acceptance prior to Amdocs' commencing any Services under the
proposed Project covered by such Proposal Statement. By written
agreement of Amdocs and
PROPRIETARY INFORMATION
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SBC's Project Manager, any such Proposal Statement may be modified
prior to its acceptance by SBC.
d. Within a reasonable time after receiving Amdocs' written Proposal
Statement covering any proposed Project, SBC shall notify Amdocs in
writing of SBC's acceptance or rejection of such Proposal Statement.
SBC shall incur no obligation to Amdocs because of any such
rejection.
e. If SBC accepts Amdocs' written Proposal Statement covering any
proposed Project, SBC shall assign the Project to Amdocs by means of
an Order. When such an Order is executed by SBC and Amdocs, Amdocs
shall proceed to develop such Custom Software in strict accordance
with such Order.
3.3. ORDERS
Each Order shall be numbered, shall be substantially in the form of
Exhibit B1 or Exhibit B3 attached hereto, and shall include, but not be
limited to, each of the following items whenever such item is applicable
to the Software covered by such Order:
a. The effective date of the Order;
b. The incorporation of this Agreement by reference;
c. The name of the Project;
d. The name and address of each party's Project Manager;
e. A complete list and description of the Software and Program Material
covered by the Order, specifying, attaching or referencing the
description, the Proposal Statement, and Functionality Matrix for
each;
f. The fixed fee or time and materials charges for the Custom Software
development, and any additional charges and costs, at rates
consistent with this Agreement;
g. The Scheduled Delivery Date;
h. A complete statement of SBC's responsibilities, if any, including to
provide access to specific employees, facilities, computers and
computer systems, information, and data to assist Amdocs during the
Project;
i. A Project plan showing the scheduled dates or intervals of time
allowed for completion of tasks and the deliverable items required
of each party, which may include the Detailed Functional
Specifications, any other items of Program Material identified in
the Project plan, test data and test cases to be provided by either
party, and the Software. The Project plan will list each
PROPRIETARY INFORMATION
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item which is a Critical Performance Milestone date and each item
having a Payment Milestone date;
j. A Project resource plan showing the planned number of man-months to
be provided each month, in each Amdocs Job Classification, to permit
tracking of planned hours versus actual hours expended;
k. The acceptance criteria and methods for testing the Software during
the Acceptance Test Period (or the means by which they will be
established if they are not established at the time when the Order
is executed);
l. The duration of the Acceptance Test Period (if other than thirty
working days);
m. A complete list, description, and any applicable license fees
associated with any Standard Software to be licensed under the Order
and included in the Custom Software;
n. The location at which the Custom Software shall be developed;
o. The location to which the Software shall be delivered, and, if
applicable, installed;
p. The billing address;
q. The identity of any Amdocs employee who is a Key Employee during the
Project;
r. Any maintenance terms and conditions if applicable; and
s. Any special terms and conditions.
3.4. LICENSE
a. General
(i) The Standard Software license shall include the Standard
Software described in the applicable Order, including all
future releases, patches, fixes, corrections, enhancements,
improvements and updates relating to such Standard Software
which are developed by Amdocs during the Warranty Period and
thereafter while Amdocs is providing maintenance services
under Section 3.8, and which are made generally available to
all Amdocs' customers purchasing maintenance for such Standard
Software. Such Standard Software is provided to SBC under a
nonexclusive license to use the Standard Software for internal
use only (and not as a service bureau) by the entity issuing
the applicable Order, on as many computer systems as SBC may
require.
PROPRIETARY INFORMATION
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(ii) With each Standard Software license provided hereunder, Amdocs
shall, on the Delivery Date and at no additional charge,
provide SBC with a minimum of one (1) copy of the source code
and two (2) copies of other Program Material, reasonably
necessary to enable SBC to adequately use such Standard
Software.
(iii) SBC shall have the right to reproduce all Program Material and
all machine-readable forms of the Standard Software, provided
that such reproduction is made solely for SBC's internal use
(including use by its Affiliates if so specified in the
applicable Order) hereunder. Any such reproductions shall
include any copyright or similar proprietary notices contained
in the items being reproduced.
(iv) SBC may retain an archival copy of the Standard Software for
so long as the Standard Software is relevant to SBC's
operations.
b. Perpetual License
The perpetual license shall commence on the date when SBC accepts
the Software and fully pays all applicable license fees therefor.
3.5. DEVELOPMENT OF CUSTOM SOFTWARE
a. Amdocs shall develop the Custom Software in compliance with the
applicable Order. During the development process, SBC shall assist
Amdocs and cooperate with Amdocs by making employees available to
Amdocs for consultation and providing information, facilities,
equipment and data required for the performance of the Services.
b. In accordance with the Project plan, Amdocs shall develop, complete
and deliver to SBC a complete Detailed Functional Specification for
each of the programs to be included in the Software in accordance
with the Functionality Matrix. Amdocs shall correct such errors and
deficiencies in the Detailed Functional Specifications as are
identified by SBC. SBC shall approve the Detailed Functional
Specifications in accordance with the timetable provided for in the
Project plan.
c. In accordance with the Project plan, and following SBC's acceptance
of the Detailed Functional Specifications, Amdocs shall develop,
complete, and deliver to SBC all programming to be included in the
Software in accordance with the Detailed Functional Specifications.
All Software developed by Amdocs shall be documented concurrently
with its programming. In accordance with the Project plan, SBC shall
provide to Amdocs the relevant test and interface data and test
scripts. All Software provided to SBC hereunder shall be tested
(including unit testing and integration testing) and debugged by
Amdocs.
d. After the completion of such testing and debugging, Amdocs shall
deliver (and install, if applicable) such Software to SBC on or
before the scheduled
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 38
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Delivery Date set forth in the applicable Order. Whenever it is
technically possible to do so, or unless SBC directs Amdocs
otherwise in writing in the Order, Amdocs shall deliver Software
electronically, either through transfer by means of
telecommunications, or in tangible form by copying the Software
directly onto SBC's hardware. Unless specified in writing by SBC,
Amdocs will not transfer any disks, tapes, or other tangible
property containing the Software (or any subsequent releases or
upgrades of the Software) to SBC.
e. The respective Project Managers of each party shall meet at such
intervals as determined in the Order or as they determine to be
necessary, to track the actual time and charges incurred against the
Project plan and Project resource plan and to prepare an explanation
of any variance in excess of any limits fixed by the Order between
projected and actual time and charges. The respective Project
Managers shall review each party's progress in meeting its
objectives under the Project plan. Upon the request of SBC's Project
Manager, Amdocs' Project Manager will provide a written progress
report identifying any circumstance (including but not limited to
any discovery of ambiguity in any previously approved Detailed
Functional Specifications) coming to light since the previous such
meeting which is likely to result in (i) a delay in Amdocs' ability
to meet its due dates, or (ii) an increase in projected amounts
likely to be billed to SBC for time and charges, or (iii) both such
an increase and a such a delay. Such report will provide Amdocs'
best estimate of the length of such projected delay and the amount
of such increased time and charges. To the extent that any such
circumstance is shown to have resulted from a failure of SBC
(including any contractor or subcontractor of SBC) to meet its
obligations with respect to the Project, Amdocs shall be granted an
equitable extension of time and an equitable adjustment of the fixed
or estimated fee to the extent necessary to remedy SBC's failure to
meet its obligations. Amdocs waives any and all claims for any such
equitable extension or adjustment to the extent that it is based on
any such circumstance which Amdocs failed to notify SBC within one
month (or otherwise specified in the Order) of Amdocs' recognition
of the problem.
f. Each equitable extension of time and each equitable adjustment of
any fixed or estimated fee shall be recorded in a Change Order which
shall be prepared in the form of Exhibit G and executed by the
respective Project Managers of each party. In addition, if SBC
desires to make a change in the Functionality Matrix or in any
previously approved Detailed Functional Specifications, then SBC
shall deliver a change request to Amdocs, and Amdocs shall respond
by providing a written change quote specifying any additional time
and any additional charges that Amdocs believes necessary to
effectuate the change. If SBC accepts the quote, the parties shall
complete a Change Order using Exhibit G. Each such Change Order
shall become an amendment to the applicable Order when signed by
the respective Project Managers for each party, except that any
Change Order which results in an estimated or actual increase in
charges to SBC in excess of the original approved amount of the
Order will require the approval of SBC's Executive Director.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 39
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g. If Program Material or Software is not delivered to SBC (and
installed, if applicable), on or before the scheduled Critical
Performance Milestone Date or Delivery Date therefor (as extended by
any Change Order), and the Arbitrator determines that such failure
is due to Amdocs' sole fault, SBC may, at its option:
(i) extend such scheduled Critical Performance Milestone Date or
Delivery Date as SBC deems necessary to permit Amdocs to
complete such Software or other Services; or
(ii) Terminate the Order covering such Software or other Services
for Cause and accept any portions of such Custom Software or
other Services as SBC deems acceptable, in which case SBC
shall pay Amdocs for such accepted portions on the basis of a
mutually agreed upon prorated charge for such accepted
portions computed in accordance with the charges set forth in
such Order. Amdocs shall deliver to SBC all accepted portions
of such Custom Software and/or the physical embodiments of
such Service pursuant to such Terminated Order, and Amdocs
shall and hereby does relinquish all right, title and interest
thereto; or
(iii) Terminate the Order covering such Software or other Services
for Cause without penalty and without incurring any obligation
to Amdocs for the payment of the Termination charges set forth
in such Order.
h. If the applicable Order states that Amdocs is to install the
Software, Amdocs shall certify to SBC that the Software has been
installed and tested by delivering to SBC a Certificate of
Installation, substantially in the form of Exhibit H ("Certificate
of Installation").
i. SBC will not be billed for more than one promotion for any specific
employee during any consecutive twelve month period, and SBC will
not be billed for rates in excess of a promotion to the next higher
Job Classification. Amdocs shall provide to SBC written notice of
all contemplated promotions relating to personnel employed on SBC's
projects. SBC shall only be billed at the rates identified in the
Appendices; no premium shall be added to the rates.
j. From time to time SBC may authorize Amdocs to use computer systems
that are physically located on SBC's premises. Such authorization
shall be limited to Projects specified in writing by SBC.
3.6. ACCEPTANCE OR REJECTION
a. After the delivery of the Software or SBC's receipt of Amdocs'
Certificate of Installation, if applicable, SBC will start the
Acceptance Test Period.
b. During the Acceptance Test period, SBC will notify Amdocs
immediately in writing of any inconsistency(ies) with the Detailed
Functional Specifications
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 40
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found by SBC, and Amdocs will promptly correct such
inconsistency(ies) and deliver to SBC the resulting corrections. SBC
shall have the right to test the Software after such corrected
and/or completed Software is redelivered to SBC, and such corrected
and/or completed Software shall thereafter be subject to SBC's
acceptance or rejection under this Section. The Acceptance Test
Period shall be extended by the greater of either (i) the number of
days during which SBC is unable to conduct any acceptance testing of
the Software, or (ii) when applicable, the number of days required
to conduct regression testing, in each case due to errors as
aforesaid which are found in the Software.
c. Any Program Material developed by Amdocs for SBC pursuant to this
Article shall be deemed to be accepted by SBC when such Program
Material are delivered in accordance with the terms of the
applicable Order. SBC shall notify Amdocs of any instance where such
Program Material are not in accordance with the terms of the
applicable Order. Upon receipt of any such notice, Amdocs shall take
prompt action to correct such Program Material.
d. If the Software conforms with the terms of the applicable Order
during the Acceptance Test Period, SBC shall sign and deliver a copy
of an Acceptance Letter substantially in the form of Exhibit A
("Acceptance Letter") to Amdocs after the completion of the
Acceptance Test Period.
e. In no event shall the use of any Software by SBC for business,
profit, revenue or any other purpose during the Acceptance Test
Period constitute acceptance of such Software by SBC prior to the
date on which SBC notifies Amdocs of SBC's acceptance of the
Software. However, commercial use of any Software by SBC for
business, profit, revenue or any other commercial purpose following
the Acceptance Test Period shall constitute acceptance of such
Software by SBC.
3.7. MODIFICATION OF SOFTWARE
a. If at any time after SBC has accepted any Software delivered
hereunder, SBC desires to have Amdocs modify, change or revise such
Software, such modification, change or revision shall be performed
in accordance with the provisions contained in the Order covering
such Software or, if not specified in the applicable Order, such
modification, change or revision shall be treated as a separate
Project or a Change Order, as applicable.
b. SBC may add to, delete from or modify the Standard Software to meet
SBC's particular requirements and those of its Affiliates permitted
to use the Standard Software. Title to any such addition or
modification shall be in SBC.
c. SBC may merge the Standard Software with other computer programs to
generate a shared program library. After Termination of the license
for the
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 41
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Standard Software for Cause, such Standard Software shall be removed
by SBC from such shared program library and shall be destroyed.
3.8. MAINTENANCE SERVICES
a. Upon expiration of the Warranty Period for any Standard Software,
Amdocs shall, if the applicable Order so states, provide maintenance
Services to correct any inconsistencies with the Detailed Functional
Specifications found in such Standard Software. Such maintenance
services shall consist of the services described in Exhibit I
attached hereto. SBC may Terminate any such maintenance Services
upon thirty (30) days notice to Amdocs. If SBC Terminates any
maintenance services for Cause pursuant to any provisions of this
Agreement or applicable law, any maintenance services charges which
SBC may have paid in advance shall be refunded to SBC on a prorata
basis.
b. Maintenance fee on Standard Software shall be negotiated by the
parties on a project by project basis, specified in the Order, and
payable ***.
3.9. TITLE
a. Standard Software
Subject to the terms of an applicable Order, and subject to the
payment of all applicable license fees, Standard Software which is
included in the delivery of Software is furnished to SBC under a
nonexclusive, nontransferable perpetual license, and title to such
Standard Software shall remain at all times in Amdocs and is not
thereby transferred to SBC.
b. Custom Software
(i) Upon acceptance by SBC, all Custom Software and modifications
thereto, which does not include as any part thereof any of
Amdocs' Standard Software, shall become the exclusive property
of SBC. Amdocs shall relinquish all right, title and interest
in and to such Custom Software, including title to copyrights
and right to register the copyright in all copyrightable
material. The ownership of all rights, titles and interests in
such materials, including but not limited to copyrights, is
hereby assigned to SBC. SBC shall have the right to obtain and
hold in its own name copyrights or other protection which may
be available or become available in such materials and it is
hereby agreed that SBC, its designees or assignees will be
given all assistance reasonably required to perfect such
rights, titles and interests. For all Custom Software which is
used by SBC (which does not include any Standard Software),
Amdocs shall place the following notice on all disks or other
media containing a copy of the Custom Software, and on all
Program Material, and shall embed it in the Custom Software so
that it appears when the Custom Software is run or printed
out:
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 42
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"This is the confidential, unpublished property of [Insert
appropriate affiliate name] Receipt or possession of it does
not convey any rights to divulge, reproduce, use, or allow
others to use it without the specific written authorization of
[Insert appropriate affiliate name] and use thereof must
conform strictly to the license agreement between user and
[Insert appropriate affiliate name]
Copyright (C) [Insert date of copyright] [Insert appropriate
affiliate name] All rights reserved."
(ii) Upon acceptance by SBC, ownership of any Custom Software which
consists partially of Amdocs' Standard Software ("Amdocs
Portion") and partially of Custom Software specifically
written by Amdocs for SBC ("SBC Portion"), shall be as
follows:
(a) The SBC Portion shall become the exclusive property of
SBC, including title to copyrights and right to register
the copyright in all copyrightable material in the SBC
Portion. The ownership of all rights, including but not
limited to copyright, is hereby assigned to SBC.
(b) The Amdocs Portion shall be specifically identified as
being Amdocs' Standard Software in the applicable Order
and shall remain the exclusive property of Amdocs;
provided, however, that, subject to payment of all
applicable license fees, SBC shall have a nonexclusive,
perpetual, nontransferable license to reproduce, use,
and modify the Amdocs Portion for SBC internal use (and
not as a service bureau). The same rights granted to SBC
for the Amdocs Portion shall apply to any software
provided to Amdocs under license from another supplier.
(c) If the Amdocs Portion contains software provided to
Amdocs under license from another supplier, such
software shall be deemed Standard Software and shall
remain the property of such other supplier. Any such
Standard Software shall be so identified on the
applicable Order.
(iii) On all copies of Software which are used by SBC, Amdocs shall
place the following notice on all disks or other media
containing a copy of the Custom Software, which includes
Amdocs' Standard Software, and on all Program Material, and
shall embed it in the Custom Software so that it appears when
the Custom Software is run or printed out:
"This contains material which is the confidential, unpublished
property of [Insert appropriate affiliate name] and AMDOCS.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 43
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Receipt or possession of it does not convey any rights to
divulge, reproduce, use, or allow others to use it without the
specific written authorization of [Insert appropriate
affiliate name] and AMDOCS and use must conform strictly to
the license Agreement between user and [Insert appropriate
affiliate name] and AMDOCS.
Copyright (C) [Insert date of copyright] AMDOCS, INC. [or name
of other owner of copyright in Amdocs Portion]. All rights
reserved.
Copyright (C) [Insert date of copyright] [Insert the
appropriate affiliate name], All rights reserved."
(iv) Before Amdocs uses independent contractors in the preparation
of Custom Software, Amdocs will require such contractors to
make written assignment to Amdocs of all their right, title
and interest in the Custom Software and Program Material,
including but not limited to copyrights, and provide SBC with
copies of those assignments.
(v) Notwithstanding SBC's ownership rights of the Custom Software
modules as aforesaid, AMIDOCS retains the rights to redevelop
similar software for itself and for other Amdocs' customers,
where such development does not include and is not a
derivative of any of the actual software code developed for
SBC as aforesaid.
3.10. WARRANTIES
a. Amdocs warrants that:
(i) During the applicable warranty period, Amdocs will fix any
nonconformance of the Software with the applicable Detailed
Functional Specifications at no charge to SBC; and
(ii) Services shall be performed promptly, with diligence, in a
competent and professional manner, in accordance with the
description of such Services in the applicable Order; and
(iii) Amdocs owns and possesses all rights and interests in the
Standard Software necessary to enter into and perform under
this Agreement. The warranty set forth in this subparagraph
(iii) shall survive the Warranty Period.
(iv) The Standard Software will perform on and be compatible with
the platform designated in the applicable Order.
b. Year 2000 Compliance
Amdocs further warrants that any Software delivered to SBC
hereunder, as further specified in the Detailed Functional
Specifications, or any Services
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 44
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provided by Amdocs are designed to be "Year 2000 Compliant", which
means, with respect to the Software that it is designed to:
(i) correctly and unambiguously handle and process date
information before, during and after January 1, 2000. This
includes, but is not limited to, accepting date input,
providing date output, storing and retrieving dates and the
ability to perform calculations on dates or portions of dates;
(ii) correctly process functions that are programmed to commence
and/or end on a particular date, including, but not limited to
month-end, year-end, leap year and any combination thereof,
irrespective of the change in the century identifier;
(iii) function accurately and without interruption before, during,
and after January 1, 2000 without any change in operations
and/or parameters associated with the advent of the new
century; and
(iv) respond to date input in a way that resolves the ambiguity as
to the century in a disclosed, defined and predetermined
manner to be defined in the DFS; and to store and provide
output of date information in ways that are unambiguous as to
the century.
SBC shall provide Amdocs with a suitable testing environment and
data to enable Amdocs to test the conformity of the Software with
such warranty, in accordance with a timetable agreed between the
parties. Furthermore, SBC shall test during the Acceptance Testing
Period, to the fullest extent possible, the compliance of the
Software with the foregoing warranty.
The foregoing warranty shall remain in full force and effect during
the period commencing upon Acceptance of the Software and ending on
December 31, 2000. In the event of any breach of such warranty,
Amdocs will promptly correct at its own cost any errors or
deficiencies in the Software with respect to the foregoing to
achieve compliance therewith, provided the error is reported to
Amdocs in writing by no later than 12/31/2000.
Amdocs does not make any representations or warranties as to the
ability of the Software to be Year 2000 Compliant when used or
interfaced with other system(s), software, hardware, data or
equipment which is not Year 2000 Compliant or which does not allow
correct exchange of date-related data. Furthermore, the above
warranties shall not apply in the event that the platform or any
module of the Software is altered, modified or adjusted in any
manner by SBC or any third party without Amdocs' prior written
consent.
Amdocs will have no liability for the Year 2000 readiness of, or for
any Year 2000 defect or error or deficiency in any system, software
or service
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 45
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which is not provided by Amdocs under this Agreement, including,
without limitation, SBC's production and legacy systems.
c. The warranty period for any Software will last for a period agreed
to in an applicable Order; provided, however, that such warranty
period shall be extended by a period of time equal to the time
during which the Software is not operational as a result of any
Software not meeting its warranties. In determining the length of
the warranty period for Custom Software, the Parties shall take into
account, among other factors, the complexity of the Custom Software
and the cost thereof. For any Standard Software for which standard
license fees are paid, the standard warranty period will be six
months.
d. If during the warranty period SBC believes that there is a material
breach of any such warranty, SBC will notify Amdocs, setting forth
the nature of such claimed breach. Amdocs shall promptly investigate
such breach and shall either (1) provide information satisfactory to
SBC that no breach of warranty in fact occurred, or (2) advise SBC
of Amdocs' planned corrective action. If a breach of warranty in
fact occurred, Amdocs shall, at no additional charge to SBC,
promptly take such action as may be required to correct such breach.
(ARTICLE 4 FOLLOWS)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 46
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ARTICLE 4: ONGOING SUPPORT
4.1. SCOPE OF ARTICLE
This Article sets forth the terms and conditions under which Amdocs agrees
to furnish the Services of certain of its employees to provide computer
programming, training, consulting and technical support to assist SBC's
software development teams as provided in such Ongoing Support Orders
("OGS Orders") as Amdocs and SBC may execute hereunder.
4.2. ADMINISTRATION OF ARTICLE 4
a. Amdocs and SBC shall each appoint a Project Manager who shall be
responsible for managing certain obligations of the respective
parties whom they represent. These Project Managers will meet
monthly, or more or less frequently as they may agree, to (i) review
each party's performance of its respective obligations under
outstanding OGS Orders; and (ii) within the limits of their
delegated authority, take such other actions as are necessary and
convenient for the administration of this Article.
b. Whenever SBC wishes to contract with Amdocs for Services within the
Scope of this Article, SBC shall send Amdocs a letter which shall
include a Statement of Services describing the Services SBC wishes
to obtain. If Amdocs and SBC reach agreement concerning the
Services, SBC shall obtain the Services by issuing a OGS Order.
4.3. ORDERS
Each Order shall be numbered, shall be substantially in the form of
Exhibit E-2 attached hereto, and shall include, but not be limited to,
each of the following items whenever such item is applicable to the
Services covered by such Order:
a. The effective date of the Order;
b. The incorporation of this Agreement by reference;
c. The name and address of each party's Project Manager;
d. A complete list and description of the Services covered by the
Order; including a schedule of due dates for completion of tasks,
delivery of materials, and payments;
e. The number and job titles (as agreed by SBC and Amdocs) to perform
the Services, and the interval of time during which such Services
are required;
f. The charges for Services, which shall be either:
(i) on a time and charge basis in accordance with the rates agreed
to pursuant to the provisions of this Agreement, or
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 47
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(ii) on a fixed fee basis in accordance with a fixed fee amount
agreed to in advance by Amdocs and SBC;
g. A description of any deliverable items or materials to be provided
by Amdocs, with a due date for each;
h. When appropriate, a resource plan showing the planned number of full
time equivalent employees to be provided each month, in each Amdocs
Job Classification;
i. A complete statement of SBC's responsibilities, if any, including to
provide access to specific employees, facilities, computers and
computer systems, information, and data;
j. The location at which the Services shall be performed;
k. The billing address;
l. A knowledge transfer plan;
m. The identity of any Amdocs employee who is expressly designated as a
Key Employee for purposes of the Order; and
n. Any special terms and conditions.
4.4. PERFORMANCE OF SERVICES
a. Amdocs shall furnish employees to perform the Services in the
Statement of Services in compliance with the applicable OGS Order.
The Services shall be performed at the locations where employees are
directed to report in the applicable Order. If employees are
directed to perform work from time to time at other locations,
Amdocs will be reimbursed for the actual travel, lodging, and like
expenses of placing such employees at such other location in
accordance with the Exhibit E (Reimbursable Expenses).
b. SBC will provide the necessary work space with network access,
telephone service, and computer equipment required to fulfill the
Order. Amdocs will be reimbursed for actual travel, lodging, and
like expenses in accordance with Exhibit E (Reimbursable Expenses)
for out-of-town employees identified as having special skills and
experience. SBC will not be billed for more than one promotion for
any specific employee during any consecutive twelve month period,
and SBC will not be billed for rates in excess of a promotion to the
next higher Job Classification. Amdocs shall provide to SBC written
notice of all contemplated promotions relating to personnel employed
on SBC's projects. SBC shall only be billed at the rates identified
in the Appendices; no premium shall be added to the rates.
c. SBC's Project Manager and Amdocs' Project Manager shall meet
monthly, or at such more or less frequent intervals as they
determine to be necessary, to track the actual time and charges
incurred against the OGS Order.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 48
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d. During the performance of the Services hereunder, SBC shall assist
and cooperate with Amdocs by making SBC's employees available to
Amdocs for consultation and providing other information and data
required for the performance of Services, whenever such employees,
information and data are reasonably available to SBC.
4.5. TITLE
a. Upon acceptance by SBC, all material prepared for SBC pursuant to
the performance of Ongoing Support Services by Amdocs shall become
the exclusive property of SBC, as provided in Article 3.9.b.(i).
b. The copyright, trade secret, ownership, and title interests granted
to SBC in the preceding paragraph of this section shall not extend
or transfer to SBC any copyright, trade secret, or other previously
existing intellectual property interest in any of Amdocs'
pre-existing Standard Software or other design tools, case tools, or
methodologies which SBC's employees or Amdocs' employees may
practice or incorporate into SBC's software in the course of
performing Services, but SBC is granted a perpetual, nonexclusive
license to practice and incorporate (for internal use only and not
as a service bureau) such Standard Software, tools, and
methodologies in the maintenance, support, further development of
SBC's software.
c. Exhibit L entitled "Confidentiality and Invention Agreement" is
attached to and made a part of this Agreement. Amdocs understands
that SBC will require Amdocs' employees working at SBC's premises
to sign a copy of this Exhibit before performing Services for SBC.
Amdocs agrees to cooperate with SBC in obtaining such signatures.
d. The ideas, concepts, know-how and techniques relating to data
processing developed during the course of this Agreement by Amdocs
employees or jointly by Amdocs and SBC employees can be used by
either party in any way it may deem appropriate.
e. Amdocs shall promptly notify SBC in writing of any invention,
improvement or discovery made or conceived in the course of and
resulting directly from, the OGS services performed under this
Agreement, and Amdocs hereby grants, and shall require its employees
to grant, to SBC all right, title and interest to any such
invention, improvement or discovery. Amdocs shall assist, and shall
require its employees to assist, SBC in every reasonable way, at
SBC's expense, during and subsequent to the term of this Agreement
in obtaining patents and copyrights for any such invention,
improvement or discovery in the name of SBC or SBC's designee.
4.6. WARRANTIES
a. Amdocs hereby warrants and represents that all Services provided
hereunder shall be performed by qualified employees promptly and
with diligence, in a
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 49
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professional and workmanlike manner, in accordance with the
applicable OGS Order.
b. If during the term hereof, SBC believes that there is a breach of
the above mentioned warranty, SBC will notify Amdocs, setting forth
in writing the nature of such claimed breach. Amdocs shall promptly
investigate such breach and advise SBC of Amdocs' planned corrective
action. Thereafter, Amdocs shall promptly correct such breach by
providing other employees or taking such other action as may be
reasonably required to correct such breach of warranty at no
additional charge to SBC.
4.7. TRAINING MATERIALS AND TRAINING PROGRAMS
a. For the purposes of this Section, "Training Material" includes, but
is not limited to, all training programs, proposals, research,
records, reports, recommendations, manuals, findings, evaluations,
forms, reviews, information or other material or data furnished,
originated or prepared by Amdocs in the performance of the training
Services hereunder. Training Material provided by Amdocs, if any,
shall be current and complete.
b. SBC may reproduce any Training Material or Programs provided by
Amdocs for the purpose of training SBC's personnel in the use of the
Software. Any such reproduction shall include any copyright or
similar proprietary notices contained in the item being reproduced.
c. Amdocs shall, pursuant to an applicable Ongoing Support Order,
provide sufficient training, technical support and training
materials to SBC's operating and training personnel to enable such
personnel to properly use the Standard Software as required by SBC.
(ARTICLE 5 FOLLOWS)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 50
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ARTICLE 5: STRATEGIC JOINT DEVELOPMENT PROJECTS
5.1 ALLIANCE MANAGEMENT COUNCIL
a. To further strengthen the strategic relationship between SBC and
Amdocs and their respective Affiliates, the parties hereby establish
the Alliance Management Council ("Council") to create business
value. The Council shall focus on projects for joint development of
new software products ("JDP") and strategic enhancements of existing
projects, as well as the working relationship between the parties.
b. Council activities shall include, but are not limited to:
o establishing long range strategic direction and priorities;
o authorizing Joint Development Projects;
o determining the work structure of agreed upon JDPs (i.e.,
allocation of SBC/Amdocs resources within the various stages
of the System Development Life Cycle); and
o facilitating dispute resolution.
c. The Council shall meet a minimum of twice per year and shall
comprise of upper management personnel and officers from both SBC
and Amdocs. The roster of participating Council members may be
amended as deemed appropriate by the Council, but preliminarily
shall include the following members:
SBC: Amdocs:
---- -------
Steve Welch Chanan Epstein
Gary Gottschalk Senior Management (TBD)
Rick Felts Moshe Kozlovski
Jim Pappas
d. Any disputes arising in connection with the activities of the
Council in connection with this Agreement shall be settled in
accordance with the provisions of Section 2.42. As used in Section
2.42, the term "More Senior Executives" shall mean the Council
members.
5.2. CREDITS FROM JOINT DEVELOPMENT PROJECTS
SBC and Amdocs will partner on new JDPs of mutual interest which the
Council agrees have strategic value. Amdocs' investment in the JDPs
determined by the Council (e.g., Convergence Billing, Data, and
other projects) will take the form of credits which will be provided
to SBC in the amount of up to *** (in addition to any credits that
may otherwise be provided to directory Affiliates in Appendix B).
The Council will
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 51
-49-
determine whether the credits will be provided to SBC through the
mechanism described in Option 1 or Option 2 below, or any combination
thereof. In return, Amdocs will have the right to license, sell, market
and distribute generic/core products resulting from these JDPs.
Option 1:
For each JDP, Amdocs shall credit SBC an agreed upon amount which shall be
determined by the Council (based on size and scope of the JDP). Amdocs'
credits will be reported as non-billed services, direct credit or waived
license fees for existing non-SBC developed software modules. Credits
being provided to SBC will be tracked on a monthly basis. SBC Council
members, shall, in their sole discretion, determine the distribution among
the SBC Affiliates of all Amdocs credits provided to SBC.
Option 2:
In the event Amdocs requests that SBC provides resources for the JDPs or
for any strategic enhancements of existing projects, SBC may, at its
option, commit a number of Full Time Equivalent ("FTE") personnel to such
efforts at any stage of the JDP or the strategic enhancement project life
cycle. As SBC applies FTEs thereto, Amdocs will progressively credit SBC
throughout the term of this Agreement. For all such JDPs and strategic
enhancements, an FTE will be valued at ***. The credit shall be the
number of FTEs applied to the JDPs or strategic enhancements multiplied by
the agreed upon value of an FTE. The number of FTEs provided to Amdocs,
and the credits provided to SBC will be tracked on a monthly basis. SBC's
Council members, shall, in their sole discretion, determine the
distribution among the SBC Affiliates of all Amdocs credits provided to
SBC.
(ARTICLE 6 FOLLOWS)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 52
-50-
ARTICLE 6: ENTIRE AGREEMENT
6.1. TERMINATION OF CERTAIN AGREEMENTS
The following agreements are hereby terminated as of the date hereof,
except with respect to (i) any outstanding Software development and
Ongoing Support Services Orders which shall remain in full force and
effect until full performance of the respective parties' obligations
thereunder, and (ii) any rights with respect to prior breach or
performance of such agreements, which shall survive termination thereof:
a. Joint Development Agreement between Southwestern Bell Mobile
Systems, Inc. and Amdocs Inc. dated 1993.
b. Agreement for Joint Development and Marketing between Southwestern
Bell Telephone Company and Amdocs Inc. dated June 19, 1991.
c. Marketing Rights Agreement between Southwestern Bell Communications
Services, Inc. and Canadian Directory Technology Limited, dated as
of February 15, 1996.
d. Marketing Rights Agreement between Southwestern Bell Mobile Systems,
Inc. and Canadian Directory Technology Limited, dated as of May 4,
1994.
e. Joint Development Agreement between Southwestern Bell Communications
Services, Inc. and Amdocs Inc., dated as of February 15, 1996.
6.2. ENTIRE AGREEMENT
The applicable Order which incorporates this Agreement constitutes the
entire agreement between the parties with respect to the subject matter
thereof. All prior agreements, representations, statements, negotiations,
understandings and undertakings are superseded hereby.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 53
-51-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
AMDOCS, INC.
By: /s/ Amos Galon
---------------------------------------
Amos Galon
------------------------------------------
(Print Name)
Title: Vice President
------------------------------------
Date Signed: 3-05-99
------------------------------
SBC OPERATIONS, INC.
By: /s/ Margaret A. Rawls
---------------------------------------
Margaret A. Rawls
------------------------------------------
Title: Director
------------------------------------
Date Signed: 3-10-99
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 54
-52-
APPENDIX A: SPECIAL COMMITMENTS
1. SCOPE OF APPENDIX
This Appendix shall constitute an order submitted under that certain
Master Agreement for Software and Services, effective July 7, 1998,
between Amdocs, Inc. and SBC Operations, Inc., which Master Agreement is
hereby incorporated by reference. This Appendix sets forth special terms
and conditions which will apply to Software and Services that Amdocs will
provide to SBC Services Inc. for the benefit of SBC Services, Inc. and its
Affiliates, including but not limiting to (i) Southwestern Bell Mobile
System, Inc. ("SBMS"), (ii) Pacific Bell Mobile Services ("PBMS"), and
(iii) Southwestern Bell Communications Services, Inc. ("SBCS"). As used in
this Appendix, the term Affiliate shall only include those Affiliates of
SBC which are in the business of providing telephone services in the
United States (including wireline, cellular, PCS and long-distance
services). The provisions relating to the directories Affiliates are
included in Appendix B to this Agreement.
2. SBC's *** YEAR COMMITMENT
SBC or its Affiliates will enter into Orders sufficient to command the
resources of *** of Service of Amdocs' employees per year, during each
year of the initial *** year term of this Agreement, as follows:
a. SBC or its Affiliates will enter into Orders under Article III
("Custom Software Development") sufficient to command the resources
of *** of Service, more or less, per year;
b. SBC or its Affiliates will enter into Orders under Article IV
("On-going Support") sufficient to command the resources of *** of
Service, more or less, per year; and
c. the Orders described in (i) and (ii), above, when combined, will be
sufficient to command the resources of *** of Service of Amdocs'
employees per year. However, the commitment of *** of Service per
year may vary on an annual basis by a reasonable variance, provided
that the SBC's aggregate *** year commitment totals *** of Service
Both work performed on a time and charges basis and work performed on a
fixed fee basis shall be taken into account when measuring the extent to
which SBC has met its obligation to command the resources of *** of
Service during each year of the initial term of this Agreement.
The parties may extend such commitment beyond the initial *** year term of
the Agreement by future written agreement.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 55
-53-
3. CERTAIN SPECIAL CONSIDERATIONS GIVEN BY AMDOCS
a. Amdocs shall grant and hereby does grant to SBC and its Affiliates,
during the initial *** year term of the Agreement, certain discounts,
credits, advances, and deferred payment arrangements, as follows:
(i) First, in consideration of the obligation described in Section
2 (the *** Year Commitment), a discount of *** from Amdocs'
standard hourly rates for all work performed under Article III
(Custom Software Development) and Article IV (Ongoing Support)
for the Affiliates. The parties may extend such discount beyond
the initial *** year term of the Agreement by future written
agreement.
(ii) Second, a credit in the amount of *** to be provided by Amdocs
during 1998 and 1999, in consideration of the grant to Amdocs
of a perpetual, irrevocable, worldwide license to use, market,
sell, and license to other parties the right to use certain
computer programs related to an adaptation of the Telegence
billing application for *** technology. If Amdocs should prove
unable to license such adaptations to *** or more customers in
the United States and Canada by September 30, 2001, then SBC
shall refund to Amdocs the amount of *** per customer for each
customer by which Amdocs falls short of ***.
(iii) Third, in further consideration of the obligation described in
Section 2, a credit in the amount of *** which SBC may take,
beginning in 1998, against invoices for work performed under
any Order for work related to the *** conversion described
above;
(iv) Fourth, a deferred payment arrangement, under which all
remaining payments owed to Amdocs for certain work related to
the *** conversion in 1998 (after deducting the foregoing
credits and advances) shall be deferred until January 1999; and
(v) Fifth, a credit in the amount of *** which is granted in
consideration for the standardization of the rates and charges
which have previously differed among different Affiliates of
SBC. SBC may take this credit against invoices for any work
performed by Amdocs in 1998 or 1999. The standardization of
rates is reflected in Annex A1 to this Appendix; however, such
rates will only be implemented with respect to Services
provided by Amdocs to SBC effective as of October 1, 1998.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 56
-54-
b. In the event SBC and its Affiliates place any Order for a *** which
increases the aggregate annual commitment of SBC and the Affiliates
over *** man years, the parties shall in good faith negotiate the
additional benefits (which may take the form of Project specific
discounts, credits or some combination thereof) which Amdocs shall
grant to SBC and the Affiliates in consideration therefor, which in no
event shall be less than (i) benefits representing a *** discount from
Amdocs' standard hourly rates for the additional man years beyond ***
and up to and including *** man years, and (ii) benefits representing
a *** discount from Amdocs' standard hourly rates for the additional
man years beyond *** man years. The benefits specified above will
include credits to be provided by Amdocs to SBC pursuant to the
provisions of Article 5 of the Agreement.
c. If for any reason SBC and its Affiliates should fall short of the
commitment described in clause (iii) of Section 2 above, then at the
end of such Initial Term or any year thereof, as the case may be, SBC
will refund to Amdocs an amount to be determined by multiplying (a)
the credits allowed and taken under 3.a.(iii) and 3.a.(v) plus the
cumulative discounts allowed and taken under 3.a.(i)(and not
previously recaptured pursuant to the provisions of this section
3.c.), by (b) a fraction, the numerator of which is the aggregate ***
year commitment minus the number of man years actually utilized by SBC
and the Affiliates, and the denominator of which is the aggregate
commitment; such amount to be better described as follows:
***
where, x = the cumulative discount allowed and taken under 3.a.(i)
y = the number of man years utilized
The remedies provided in this Section 3.c. shall be the sole and
exclusive remedies of Amdocs and the sole and exclusive liability of
SBC for shortfall of SBC as described above.
d. In addition to the considerations to be granted pursuant to the
provisions of Section 3(a) above, Amdocs agreed to increase its labor
rates only pursuant to the provisions of Section 2.4. of the Agreement
for the *** year duration of the Agreement. Therefore, in
consideration of Amdocs' aforesaid undertaking, the parties to this
Appendix A shall at the end of the initial *** year term of the
Agreement, in good faith negotiate the corresponding value to be
provided to Amdocs from SBC for years *** and *** of the Agreement,
which may take the form of resource commitments.
4. JOINT TELEGENCE COMMITTEE
Amdocs and SBC shall each appoint one (1) member of an executive
committee, which shall be responsible for managing certain obligations of
this Agreement. Said committee will meet quarterly, or more frequently as
the committee may decide to review each party's performance of its
respective obligations under this Appendix
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 57
-55-
and take such other actions as are necessary and convenient for the
administration of this Article. From time to time, SBC will forecast the
volume of work it expects Amdocs to perform during the following year and
communicate such information to Amdocs in the meetings called for above.
Each party shall bear its own expenses for all work performed under this
Section 4 without charge to or remuneration from the other.
5. RIGHT TO USE, SELL, AND MARKET AND LICENSE CERTAIN SBC INTELLECTUAL PROPERTY
a. Amdocs shall have the perpetual, worldwide right to use, sell,
market and license certain software owned or controlled by SBC and
its Affiliates, as follows:
(i) Certain software comprising part of the Long Distance Billing
and Customer Care System ("LDS") (A) previously developed for
SBC under the terms of that certain DEVELOPMENT AGREEMENT
BETWEEN SBC, NC. AND AMDOCS, INC. effective February 15, 1996
and (B) not previously sold to AMDOCS, INC. or any of its
Affiliates under the terms of that certain MARKETING RIGHTS
AGREEMENT BETWEEN SBC AND CANADIAN DIRECTORY TECHNOLOGY
LIMITED, as amended by AMENDMENT NO. 1 thereto effective
September 22, 1997. That certain software is more particularly
described as LDS Releases 1.4 through 1.y, inclusive.
(ii) Certain software comprising part of the SBMS Systems ("SBMS")
(A) previously developed for SBMS under the terms of that
certain JOINT DEVELOPMENT AGREEMENT BETWEEN SOUTHWESTERN BELL
MOBILE SYSTEMS, INC. AND AMDOCS, NC. effective 1993 and (B)
not previously sold to AMDOCS, INC. or any of its Affiliates
under the terms of that certain MARKETING RIGHTS AGREEMENT
BETWEEN SOUTHWESTERN BELL MOBILE SYSTEMS, INC., AND CANADIAN
DIRECTORY TECHNOLOGY LIMITED, as amended by AMENDMENT NO. 1
thereto effective September 22, 1997. That certain software is
more particularly described as SBMS Releases 1.12 through
1.13, inclusive. SBC represents and warrants that it has full
authority to grant the foregoing license as agent for its
Covered Affiliate, SBMS.
(iii) All *** software to be developed pursuant to Orders to be
placed by SBC and the Affiliates under the Agreement during
the initial term.
b. In consideration for the perpetual worldwide right to use, sell,
market and license the Custom Software described in the foregoing
paragraph of this Section A.5, and in addition to the credit
provided in clause (ii) of Section A.3, paragraph a., above, Amdocs
shall grant SBC certain credits to be used during each year of the
Initial Term of this Agreement. The amount of such
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 58
-56-
credit to be allowed during each of the second and third years
of the Initial Term shall be *** per year. The amount of such
credit to be allowed during the first year of the Initial Term of
the Agreement shall be the actual exchange value to Amdocs of all
*** software and *** software developed and to be developed as of
October 1, 1997 through May 30, 1999 and identified as useful to
Amdocs. Such "actual exchange value" shall be determined by the
parties, negotiating in good faith, but in no event shall the
amount of the net credit so determined and allowed fall below ***.
Amdocs shall have no other obligation to account to SBC or any
Affiliate for its use, sale, marketing, and licensing of such
software, except through the credits allowed under this Appendix.
c. ***
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 59
-57-
***
d. SBC and its Affiliates, after due notice from Amdocs and at their
own reasonable discretion, will provide Amdocs with reasonable
marketing assistance on a per case basis, for which Amdocs will
reimburse each the cost thereof.
e. If during the term of this Agreement, SBC or any of the Affiliates
shall request to license any generic upgrades or new releases that
Amdocs may develop in connection with its own marketing, license and
sale of the Standard Software, including but not limited to generic
upgrades to LDS, the parties shall negotiate the license fees
therefor in good faith, and, if their negotiations are successful,
then Amdocs shall license said generic upgrades or new releases to
SBC or its Affiliate at the agreed upon fee under terms and
conditions governed by Article Ill. Amdocs hereby grants SBC a
license to the Telegence Internet package/application under
development by Amdocs. Amdocs shall waive the license fee for the
Telegence Internet package/application. The license to the Telegence
Internet package/application includes all functionalities currently
in the product or planned for development as of 9/30/98. This
license excludes any customization work requested or required by
SBC.
6. SPECIAL PUBLICITY CONCERNS RELATING TO *** CONVERSION
The parties understand and acknowledge that any premature publication of
certain information pertaining to the *** conversion transaction more
particularly described in clause (iii) of Section 3, paragraph a., above
could disrupt the relationship between *** and its current software
provider so seriously as to jeopardize the ability of *** to maintain its
billing system. Therefore, Amdocs shall not make public any information
concerning that transaction, in any matter or at all, without the express
prior written personal approval of the President of ***. Amdocs'
obligations under this section are in addition and subject to its
obligations under paragraph 2.22 ("Publicity").
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 60
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7. SPECIAL APPLICATION INFRASTRUCTURE SUPPORT SERVICES
Amdocs agrees to provide certain technical support services (on a time and
materials basis), during the term of this agreement, to SBC in the support
of Telegence application development and support performed by SBC's
employees and contractors. The tools will be provided on an as is basis.
The following infrastructure tools are explicitly included: Operation
tool, online infrastructure, DOMGEN, SQLGEN and NESTCOPY (SQL generators),
TPGEN (generates C Code of Tuxedo interface), Data Layer Generator, Error
Handler, and the Configuration Control tool. The following code generators
will be supported: MPS RBMS and the Flexible Bill Formatter tool (RBMS).
Any other unnamed infrastructure tools developed by Amdocs, and essential
to the development and support of Telegence or Telegence-LD are implicitly
included. Support is defined as follows:
a. Amdocs will provide the same level of support to SBC developers as
provided to internal developers. Turnaround on resolution will be
reasonable and commensurate with the impact.
b. Maintenance and upgrades to infrastructure tools will be provided to
SBC on the same schedule as provided to Amdocs internal developers.
Amdocs will publish to SBC the availability dates for future
upgrades when dates become known.
c. Reasonable turnaround on work performed on behalf of SBC in
maintaining dictionaries, libraries, rule generators, etc. when such
changes are requested.
d. Amdocs agrees to keep SBC informed in the future direction of
infrastructure components and involve SBC in any decisions that will
alter the underlying infrastructure of applications developed, or
being developed on behalf of SBC.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 61
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IN WITNESS WHEREOF, the parties hereto have caused this Appendix to be executed
by their respective duly authorized representatives.
AMDOCS, INC.
By: /s/ Amos Galon
---------------------------------------
Amos Galon
------------------------------------------
(Print Name)
Title: Vice President
------------------------------------
Date Signed: 4-12-99
------------------------------
SBC SERVICES, INC.
By: /s/ Edward L. Glotzbach
---------------------------------------
Edward L. Glotzbach
------------------------------------------
Title: Exec VP & CIO
------------------------------------
Date Signed: March 11, 1999
------------------------------
FORM APPROVED FOR SBC SERVICES, INC.
Pacific Telesis Legal Group
By: /s/ H. L. Baker
---------------------------------
H. L. BAKER SENIOR COUNSEL
Date: March 8, 1999
-------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 62
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ANNEX A-I TO APPENDIX A
RATES AND CHARGES
Hourly Rates Per Job Classification (in effect from the effective date hereof to
December 31, 1998)
<TABLE>
<CAPTION>
Job Classification Hourly rates
- ------------------ ------------
<S> <C>
Senior Project Manager $***
Project manager $***
Senior Application Analyst $***
Programmer Analyst $***
Programmer $***
</TABLE>
Hourly Rates Per Job Classification (effective from January 1, 1999 through
December 31, 1999)
<TABLE>
<CAPTION>
================================================================================
Job Classification Hourly Rates
<S> <C>
- --------------------------------------------------------------------------------
Senior Project Manager $***
- --------------------------------------------------------------------------------
Project Manager $***
- --------------------------------------------------------------------------------
Senior Application Analyst $***
- --------------------------------------------------------------------------------
Programmer Analyst $***
- --------------------------------------------------------------------------------
Programmer $***
================================================================================
</TABLE>
Job Classification Descriptions
Senior Project Manager:
An employee, typically with twelve (12) years or more experience, proven ability
to manage and lead projects, and a reputation for excellence in the industry.
Project Managers.
An employee, typically with eight (8) years or more experience, specialist in at
least two applications or systems areas, ability to learn new tools quickly, and
excellent communications skills.
Senior Application Analyst:
An employee, typically with four (4) years or more experience, good
communication skills, specialist in at least one application or system area, and
ability to create design documents.
Programmer Analyst:
An employee, typically with one (1) year or more experience, program design
experience, and ability to write documentation.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 63
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Programmer:
Entry level. An employee, typically with a university degree or equivalent
qualification, with less than one (1) year programming experience, and
knowledgeable of structured programming.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 64
-62-
APPENDIX B: SPECIAL COMMITMENTS
Attached to this Appendix and incorporated hereto is the Letter Of Intent
("LOI") between Southwestern Bell Yellow Pages, Inc. ("SWBYP"), Pacific Bell
Directory ("PBD") and Digital Graphics Advantage ("DGA"), which sets forth
certain principles, agreements and understandings relating to the provision by
Amdocs of Software and Services to SWBYP and PBD. It is the intention of the
Parties to the Agreement that within ninety days of the execution of the
Agreement to which this Appendix is annexed, the LOI will be transformed into an
Appendix to the Agreement which will embody the understanding and agreements
between the Parties relating to the subject matter of the LOI.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 65
ANNEX B-I to APPENDIX B
<PAGE> 66
Mr. Amos Galon
Vice president
AMDOCS INC.
1610 DesPeres,
Saint Louis, MO 63133
Dear Mr. Galon
This letter is written to serve as the acceptance by Pacific Bell
Directory, Southwestern Bell Yellow Pages, Inc., and PBD Holdings d/b/a/ Digital
Graphics Advantage (herein Buyers) of the attached Letter of Intent between
AMDOCS and Buyers. If AMDOCS concurs with this letter and also accepts the
Letter of Intent, please so indicate by signing the concurrence line at the
conclusion of this letter.
Negotiations between AMDOCS and Buyers have resulted in the attached
Letter Of Intent (LOI). This document serves to establish AMDOCS' and Buyer's
working relationship, and it is effective as of January 1, 1998. But, several
issue areas, which are specified below, remain to be clarified and may be
modified in a future General Agreement between the Parties.
(l) The specific amount of the applicable ILF and SLF for the license
to use the AMDOCS software according to the provisions of the LOI. A
list of the relevant software systems and applicable ILF and SLF shall
be annex to such General Agreement.
(2) AMDOCS' software warranty to Buyers; and
(3) AMDOCS change request exclusivity and On-Going Support exclusivity
at Digital Graphics Advantage regarding the existing pagination system;
Provisions related to these areas in the Letter Of Intent will be further
clarified and may be modified in the General Agreement as aforesaid. All parties
will make best efforts to reach an understanding and consent with respect to
these areas within two months (from the date all parties sign this letter) by
personal involvement of Buyer's and AMDOCS' senior management at increasing
authority levels as may be needed. Buyers and AMDOCS acknowledge that
(i) resolving the three issues specified above may affect the agreement the
parties have reached as reflected in the LOI, and (ii) that modifying the LOI's
provisions related to these areas may result in modifying other provisions of
the LOI.
<PAGE> 67
The Letter Of Intent shall provide guidance for all matters addressed
in the LOI, but in the event questions arise concerning any matter not addressed
in the LOI (including, without limitation, matters of liability, termination,
dispute resolution and a like), the Parties shall refer to and comply with the
applicable provisions in previous agreements between each of the Buyer and
AMDOCS, respectively.
Sincerely yours,
/s/ Forrest E. Miller /s/ Forrest E. Miller /s/ Forrest E. Miller
- ------------------------- ------------------------- -----------------------
PBD Holding (DGA) PBD SWBYP
FORREST E. MILLER FORREST E. MILLER FORREST E. MILLER
- ------------------------- ------------------------- -----------------------
Name Name Name
PRESIDENT & CEO PRESIDENT & CEO PRESIDENT & CEO
- ------------------------- ------------------------- -----------------------
Title Title Title
AMDOCS CONCURRENCE:
/s/ Amos Galon
- -------------------------
AMDOCS INC.
AMOS GALON
- -------------------------
Name
VICE PRESIDENT
- -------------------------
Title
<PAGE> 68
LETTER OF INTENT
This is a Letter of Intent reflecting positions of Southwestern Bell
Yellow Pages, Inc. ("SWBYP"), Pacific Bell Directory ("PBD"), each as "Buyer" of
services from AMDOCS, and AMDOCS, as a "Seller" of services, on the negotiation
of services agreements between the companies. Included within this letter of
intent are principles which the senior leadership of the affected companies
believe to be very significant, and about which the senior leadership have had
discussions and arrived at agreements in principle.
This Letter of Intent does not rise to the level of a separately
enforceable agreement, but does embody core principles which the two Buyers and
AMDOCS intend to include in fully negotiated and signed agreements which the
parties intend to become effective JANUARY 1,1998. The signatures on this Letter
Of Intent reflect the strong commitments made by senior level leadership in the
companies to timely achieve fully negotiated agreements consistent with the core
principles and major terms summarized herein.
1. PRELIMINARY PRINCIPLES - DEFINING THE PARTIES.
A. SEPARATE AGREEMENTS FOR SWBYP AND FOR PBD.
Each Buyer will enter into separate agreements with AMDOCS,
and each Buyer will have the right to use developed systems/software
licensed by the other Buyer. The rates and procedures established for
SWBYP and for PBD will also apply to the Buyers' subsidiaries. The
Buyers' present and future owned/controlled subsidiaries may license
software produced under the parties' Agreements. When such subsidiaries
license this software, they shall have Buyers' rights and
responsibilities with respect to that software. For purposes of this
Letter of Intent, PBD and SWBYP are each a Buyer.
1. Each separate agreement will include
geographically appropriate core principles and terms.
2. SWBYP and PBD are affiliates within the SBC
Communications Inc. family of companies.
3. The two Buyers have common goals and interests,
and each Buyer has had a separate contractual relationship
with AMDOCS, to date. Each Buyer has paid for the development
of certain systems, and each has paid use, volume related, or
other licensing fees for certain systems.
B. SEPARATE AGREEMENT OF DIGITAL GRAPHICS ADVANTAGE ("DGA").
DGA, a subsidiary of PBD, will also have the benefits of a
"Buyer" to the extent described herein. DGA and AMDOCS will
modify their existing
<PAGE> 69
agreement by amendment to terminate when new agreements are
negotiated and signed by PBD, SWBYP, and AMDOCS. The modified
DGA agreement will preserve necessary terms and conditions
from the original agreement, but the rates and procedures
established for PBD will apply thereafter to DGA. Also see SEC
II. A. 2.
C. AMDOCS is the "Seller" and is now and will continue to be an
independent contractor providing services to the Buyers and to DGA.
D. Each Buyer and AMDOCS, and DGA and AMDOCS, will negotiate
terms and conditions in good faith, relying on this Letter of Intent as
a controlling guideline to the development of fully stated terms,
conditions and rates.
II. CORE PRINCIPLES.
A. SWBYP AND PBD VIEW THE FOLLOWING AS IMPORTANT PRINCIPLES WHICH
MUST BE INCORPORATED IN AN AGREEMENT.
l. PRICE STABILITY. SWBYP and PBD desire to achieve more price
stability and/or predictability as Buyers of AMDOCS' services.
2. CLARIFIED RIGHTS TO USE AND LICENSE FEE ARRANGEMENTS. SWBYP
and PBD wish to clarify and expand the Buyer' rights, as well as rights
of their present and future subsidiary companies that are controlled by
one of the Buyers, to use current and developed systems/software
subject to this Letter of Intent. For the two Buyers, this would
include rights of use of such systems/software licensed by the other
Buyer. Each separate agreement will include lists of such software
along with an agreed approach concerning charges for any incremental
use, volume related, or other such fees for use by the other Buyer or
by either Buyer's subsidiaries OR AFFILIATES(1). AMDOCS may charge the
Buyers' subsidiaries and affiliated companies a Subsequent License Fee
(SLF) for use of systems/software developed by AMDOCS for the Buyers,
but no Initial License Fees (ILF) would be levied in this situation
since one of the Buyers would have already paid these fees for a given
software product. The SLF rates for subsidiaries and affiliated
companies would be negotiated for each software product, and would be
expected to be *** than the amount/unit charges paid by the Buyers.
(1) FOR THE PURPOSE OF THIS LETTER OF INTENT "AFFILIATES" MEANS COMPANIES
AT LEAST 51% OWNED BY SBC, WHOSE ONGOING BUSINESS ACTIVITIES ARE
MANAGED DIRECTLY BY BUYERS OR WHICH HAVE COMBINED OPERATIONALLY WITH
BUYERS.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 70
3. COMPETITIVE CHARGES. The two Buyers want AMDOCS to warrant
that its charges during the life of the agreement shall be competitive
with those in the industry for similar services, and that AMDOCS' rates
will be at least commensurate with those used for similarly situated
AMDOCS customers.
4. OPEN ARCHITECTURE. The two Buyers want AMDOCS to develop
all systems for the two Buyers and for DGA in accordance with the open
architecture guidelines established by the two Buyers. AMDOCS could use
alternative open architecture components when developing systems for
the Buyers or their subsidiaries, with the express written consent of
the two Buyers. AMDOCS should cease development of proprietary systems
at either of the two Buyers' locations and at DGA, except where the
maintenance of existing proprietary systems requires additional
proprietary code and AMDOCS has received written authorization from the
two Buyers to use proprietary program code.
5. AMDOCS INDUSTRY PLANS AND INITIATIVES. The two Buyers
desire that AMDOCS keep them informed as to its plans and strategies in
the directory publishing industry. This will be particularly true in
the area of AMDOCS' plans for development of new products and AMDOCS'
perspectives on hardware and software platform evolution. Further, the
two Buyers will be partners of choice for AMDOCS' initiated development
efforts designed to bring the benefits of new software or hardware
developments to the directory industry. As such, AMDOCS will offer each
Buyer a right of first refusal to participate in all directory related
joint development projects initiated by AMDOCS provided that the
development is not specifically directed to another AMDOCS customer as
part of an AMDOCS marketing/sales effort. The terms of such joint
development efforts and associated costs and benefits accruing to each
party in the undertaking will be negotiated on a case by case basis as
the projects are specified.
6. THIRD PARTY DISCOUNTS. The two Buyers want AMDOCS to allow
them (by purchasing through AMDOCS) the benefit of the hardware and
software discounts that AMDOCS from time to time receives from third
party vendors and value added resellers. AMDOCS may recover from Buyers
any administrative costs it may have in facilitating this benefit to
Buyers.
B. AMDOCS VIEWS THE FOLLOWING PRINCIPLES AS IMPORTANT FOR ITS AGREEMENTS
WITH THE BUYERS.
1. DURATION AND VOLUME COMMITMENTS MADE BY BUYERS. In exchange
for giving certain price stability and predictability, AMDOCS
<PAGE> 71
desires to have an agreement with both Buyers and with DGA,
and with any controlled subsidiaries of PBD or SWBYP now or in
the future for *** years, with minimum volume or dollar
commitments from the Buyers as described in Section VII.
2. AMDOCS WISHES TO BE THE PREFERRED PROVIDER for
systems/software supporting the Buyers' operations. AMDOCS
wants the two Buyers to agree that AMDOCS is the preferred
software vendor/developer for projects requiring specific
knowledge of the directory publishing business systems. The
two Buyers agree to invite AMDOCS to bid on all new
development projects related to the Buyers' core directory
publishing business systems. The two Buyers will retain
control of sole decision making powers to determine whether
AMDOCS is, in their sole judgment, qualified as one of the top
vendors capable of providing the software or of developing an
envisioned system. If AMDOCS has submitted a proposal for a
project, that Buyer would award the work to AMDOCS if, in its
sole judgment, the proposal is at least equal to the price and
quality of the proposals of other vendors and the Buyer has
determined that AMDOCS is qualified to provide the software or
develop the envisioned system.
3. STRATEGIC DIRECTION. AMDOCS wishes to be informed
of and to provide input regarding the two Buyers' broad
systems technology, strategies and overall approaches. The two
Buyers agree to create a process that keeps AMDOCS informed of
their respective broad technology strategy plan.
4. WORK LOCATION. AMDOCS agrees that it will perform
development work at locations that produce the lowest costs to
Buyers. If use of a particular production location is believed
by any party to jeopardize completion schedules or work
quality, a discussion by Buyers and AMDOCS, on a project by
project basis, of resource availability, skill sets, price
consequences and other relevant considerations will be
conducted to determine if and how Buyers should permit AMDOCS
to diverge from the "lowest cost" location criteria. Also See
Sec. VIII C.
III. STATEMENTS OF INTENT CONCERNING AMDOCS' PROVISION OF ONGOING
MAINTENANCE AND SUPPORT ("OGS") OF SYSTEMS FOR THE TWO BUYERS.
A. OVERVIEW OF SIGNIFICANT PRINCIPLES.
1. FIXED PRICE. OGS for Current Systems will be
provided by AMDOCS on a fixed price basis. More detail
regarding intent and principles regarding prices for services
is set forth in Section V.
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<PAGE> 72
2. TWO CATEGORIES OF SYSTEMS FOR OGS WORK.
a) "Current Systems" - Those currently in
production and use and supported by AMDOCS OGS
resources on the date the agreement is signed and
becomes effective. ADS/Selling is a current PBD
system, but will be treated as an exception to the
extent described below.
b) "New Systems" - A term of art for
purposes of this Letter of Intent and for purposes of
the fully negotiated agreements. New Systems are
newly created major applications not implemented into
a production environment as of the date the agreement
is signed and becomes effective. The term also
includes significant revisions to existing
systems/applications, which the parties agree rise to
the level of replacing a currently existing
application. If the parties cannot agree on whether a
revised application is a replacement, dispute
resolution procedures may be invoked by either party.
Such procedures will be set forth in the fully
negotiated agreements. Ongoing maintenance and
support for New Systems does not encompass
"Development" work as described below.
3. SOLE PROVIDER. For both New and Current Systems
developed by AMDOCS, AMDOCS will be the sole provider
of OGS for Buyers and DGA For The Term Of The
Agreement.
4. PRICE/RATES AND RESOURCES LEVELS. Procedures for
determining prices for work and changes to resource levels
will be set forth in fully negotiated agreements. The parties
agree that a productivity review for OGS work for Current
Systems will be conducted two and one-half (2 1/2) years
subsequent to the effective date of the Agreement (its
midpoint). Productivity gains identified in that review will
thereafter be shared *** between AMDOCS and the Buyers for
the residual period of the Agreement. Example: if AMDOCS
resource level for the first period of 2 1/2 years is ***
persons, and the productivity gain identified is *** persons,
then for the remaining 2 1/2 years AMDOCS will charge for ***
persons. AMDOCS' monthly billing will set forth charges for
Current System OGS work, charges for OGS work for New Systems,
and (although not part of OGS) separately stated charges for
development work.
5. STAFF KNOWLEDGE TRANSFER. At approximately the end of each
year, the Buyers may give notice that they will, within a
reasonable period, replace with their own employees up to ***
of the AMDOCS OGS staff level as of December 31st of the
previous year in
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<PAGE> 73
order to promote the transfer of knowledge. This replacement
right for any specific year will not "carry forward" if
unused; i.e., the annual percentage is not cumulative.
B. DEFINITIONS APPLICABLE TO MONTHLY PRICES/RATES FOR OGS SERVICES
FOR CURRENT SYSTEMS.
1. "INITIAL OGS CHARGE." The parties will agree on the initial
annual charges for the first year of the agreement for OGS services for
Current Systems which is to be determined by applying agreed upon
monthly billing rates to an agreed upon level of equivalent person
years (based on Table 1 of Schedule B of this Letter of Intent and
Section III.C.3. below).
2. "OGS RESOURCE RATE." The annual billing rate when applied
to an equivalent full time person year is referred to as the "OGS
Resource Rate." The "Monthly OGS Resource Rate" is the annual rate
divided by 12.
C. ESTABLISHMENT OF INITIAL FIXED CHARGE FOR 1998 FOR OGS
SERVICES FOR CURRENT SYSTEMS.
1. STEP ONE. Each Buyer will review, among other things, 1997
service levels and corresponding OGS resources and determine, in
conjunction with AMDOCS, each Buyer's own anticipated 1998 service
levels and corresponding level of OGS resources to be provided by
AMDOCS for OGS for Current Systems. PBD's ADS/SELLING system will
require 1998 AMDOCS OGS resources and these will be determined as part
of the overall evaluation of starting resources numbers, OGS resource
levels and service levels for Current Systems. However, unlike OGS
staffing for other Current Systems, the ADS/Selling staffing
requirement will be reviewed annually and adjusted as appropriate. In
January 1998, the current OGS staffing level is *** for ADS/Selling;
however, a review between Buyer and Seller will take place and this
level of resources may be adjusted as a result.
2. STEP TWO. The two Buyers will prepare performance and/or
expected responsiveness and quality standards which are observable and
measurable, and which will apply to the OGS work in each of the
negotiated agreements with AMDOCS.
3. STEP THREE. The parties shall meet and agree on standards
and required resources for OGS work based upon agreed service levels.
Mutually acceptable agreement language will be prepared for each
Buyer's negotiated agreement with AMDOCS.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 74
a) Each agreement will identify the anticipated
number of OGS resources required to meet business needs, given
staffing levels required to efficiently achieve the service
levels and standards described in Steps One and Two. The
parties agree that AMDOCS' starting resource level will be
approximately *** of 1997 level (after reduction of ***
resource personnel for BCC) as specified in Schedule B., and
adjusted thereafter in accordance with Sections III. A. 4. and
5., and Section V. C. The number of OGS resources agreed upon
by Buyer and Seller for 1998 are as shown in Schedule C.
b) Each agreement will specify the initial annual
base rate for each OGS resource for each Buyer. Schedule A to
this Letter Of Intent sets forth the OGS base rates and
discounted rates for each Buyer, and these rates will be used
in the fully negotiated agreements with AMDOCS.
c) Each agreement will state the initial price of OGS
services, and will include the initial OGS price calculation
showing the agreed upon equivalent person years multiplied by
the applicable OGS resource rate.
4. STEP FOUR. Monthly billing rates will be calculated so that
the fixed charges can be spread evenly throughout the year for both
Buyers. A prorated share of a month would be billed if and only if
AMDOCS worked only a portion of a month because of the decommissioning
of a system or the implementation of a New System.
5. SERVICE LEVEL. Buyers and AMDOCS acknowledge that the
number of personnel required to provide OGS service to keep the Current
Systems at a service level as of 1997, is as described in Schedule B.
Table 1 (1997 resources). Existing service level can be adjusted
according to the provisions of Section V. C.
D. ESTABLISHMENT OF AMDOCS' CHARGES FOR PROVISION OF OGS FOR "NEW
SYSTEMS." ANNUAL RATHER THAN MIDPOINT REVIEW AS WITH "CURRENT SYSTEMS."
1. STEP ONE. The same OGS resource rates applicable to OGS
services for Current Systems will be used in establishing
annual/monthly charges for ongoing support of New Systems.
2. STEP TWO. AMDOCS will provide OGS services for New Systems
developed by AMDOCS, when such systems essentially replace
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<PAGE> 75
existing systems. AMDOCS and Buyers will agree on service levels and
corresponding OGS resources required to carry out that support for the
following twelve months. Buyers may seek alternate OGS suppliers for
other non-AMDOCS developed New Systems.
3. STEP THREE. The monthly price charged for OGS services for
a New System will be determined by ***.
4. STEP FOUR - CHANGES. As service levels for New Systems will
vary over time, Buyers and Seller agree to review and make appropriate
changes to assigned OGS resources for such New Systems at ***
intervals.
IV. DEVELOPMENT WORK - STATEMENTS OF INTENT.
A. RATES FOR DEVELOPMENT OF SYSTEMS OR CHANGE REQUESTS.
1. RATE OPTIONS: HOURLY OR FIXED RATE. The two Buyers will
each have the option, on a project by project or module by module
basis, to order development work on either an hourly basis, with rates
varying by the specific location where work is to be performed by
AMDOCS, or on a fixed price basis, where the Buyer and Seller agree on
the price for the project. For purposes of defining rates for
development work, the terms "project" and "module" will be flexibly
defined such that, for example, all of "new gen" is not considered to
be one project or module.
2. HOURLY RATES. Hourly rates, varying by specific work
location, contained in the negotiated agreement will be as specified in
Schedule A to this agreement. Hourly rates for work done will not vary
depending upon which of the two Buyers requested the work. Rather, work
site specific location is and will be the key for determining
appropriate hourly rates for development work. Each Buyer's agreement
with AMDOCS will specify hourly rates by location where the work is
performed, in four tiers of rates, starting with rates for the least
experienced workers, and moving up to the most experienced. The two
Buyers and AMDOCS will agree on the requisite skills required or deemed
acceptable for inclusion in each tier.
B. OTHER TERMS AND CONDITIONS RELATED TO DEVELOPMENT WORK RATES.
1. THERE WILL BE SPECIFICITY ON DEVELOPMENT PROPOSALS, WHETHER
WORK IS CONDUCTED ON AN HOURLY BASIS OR ON A FIXED FEE CONTRACT BASIS.
The level of specificity of the proposal will increase as
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<PAGE> 76
the complexity and size of the development project increases. The
parties will, on a project by project basis, as appropriate, develop an
appendix for a project for the Buyers and Seller to identify issues of
importance to both in the development work to be done, particularly
project schedules, location where the work will be done, deliverables
and deadlines. Such appendices will be used as a basis for determining
as appropriate project incentives and penalties. Seller will also
provide, on request, detailed estimates of hours associated with the
project and the mix and location of such resources. Overall and in its
selection of work locations, AMDOCS will use ALL REASONABLE EFFORT to
minimize Buyers' costs, consistent with quality goods. AMDOCS will
maintain communications with Buyer when determining work locations so
Buyer is aware of Seller's location decisions.
2. FIXED PRICE RATES PER PROJECT OR MODULE. When Buyer decides
to purchase development work on a fixed price basis, the parties will
capture, in an agreed written format, a description of the project, the
roles and responsibilities of the parties, the hour requirements
estimated by AMDOCS, a proposed schedule for development work, the mix
of resources which AMDOCS proposes to use, detail on the location where
the work will be performed, and a total estimated price for the
development project including contingencies. This description, on a
project by project basis, will be associated and filed with the
negotiated agreements, as appendices.
3. CONSEQUENCES FOR FAILURE TO ABIDE BY AGREEMENTS RELATED TO
SPECIFIC FIXED PRICE PROJECTS. The two Buyers believe it important that
the negotiated agreement contain penalties for untimely delivery of
systems or for the delivery of substandard quality in the systems. Such
penalties will be negotiated, along with expected delivery dates, as
appropriate on a case by case basis. The above is not intended to imply
that all development projects will include such penalties.
C. DEVELOPMENT RATES DURING TERM OF AGREEMENTS.
1. YEAR 1998. Initial Development Rates, both nondiscounted
and fully discounted rates, are outlined in Schedule A and will be
incorporated in the agreements with the two Buyers and will be
applicable in 1998. These rates will serve as the basis for any rate
adjustments as required by other terms and conditions outlined in this
Letter of Intent.
2. YEAR 1999. Hourly rates may be adjusted, using the formula
set forth in Section VI below (i.e., the same procedure to make price
changes to OGS rates annually).
<PAGE> 77
3. YEARS 2000-2002. Thereafter, there can be rate adjustments
by AMDOCS, for development work, for each geographic location,
determined in the same manner as set forth in Section VI.
D. OTHER PROVISIONS RELATED TO DEVELOPMENT WORK.
1. The parties agree that if the Buyers (including DGA) should
jointly, within a calendar year, spend more dollars for new project
development work with another individual vendor than they jointly spend
with AMDOCS for development work (which includes change requests, work
orders, and general non-OGS hourly work), then AMDOCS may request that
the Buyers meet in good faith to renegotiate the terms and conditions
of the Agreement for that current year, as well as the remaining years,
and the Buyers shall do so.
2. If AMDOCS is not the vendor used for development of the
ISIS project, which is defined as the core directory publishing and
sales systems for SBC Directory Operations, then any party may reopen
the terms of the five year agreements, in which case Buyers and Seller
agree to renegotiate the terms and conditions of their agreements for
that current year, as well as the remaining years, in good faith.
3. The parties agree that AMDOCS' charges to the Buyers
jointly will be at rates such that if an equivalent amount of
development work is performed in 1998 as was performed in 1997, the
costs for 1998 work would be the same as the costs for 1997 development
work. In no way should this be interpreted that Buyers are committing
to perform as much development work in 1998 as 1997 but in fact may
purchase more or less development work, depending on the Buyers'
business requirements. The parties agree that charges to the Buyers are
dependent upon the following: hourly rates, skill levels of the
resource, location of the work and number of hours. The parties will
agree and state in their agreement(s) the hourly rates by skill level
by location, and where the work will be performed to ensure equivalent
charges to the Buyers for equivalent 1997 work volumes.
4. AMDOCS shall have exclusivity on change requests for
current systems developed by AMDOCS, and shall submit all estimates and
design criteria for this work to Buyers. The work will commence only
when Buyers indicate that they have (1) decided to proceed with a
particular change request, and (2) have approved AMDOCS' estimates and
designs, said approval not to be unreasonably withheld.
V. BASE RATES AND LEVELS OF RESOURCES CAN BE CHANGED FOR OGS WORK RELATED
TO CURRENT SYSTEMS IN ONE OF
<PAGE> 78
THREE WAYS.
A. CHANGES TO BASE RATES CAN OCCUR IN THE FIRST INSTANCE WHEN SYSTEMS
ARE DECOMMISSIONED.
1. Buyers and Seller agree, on a case by case basis, to
appropriately adjust monthly OGS resources in good faith, thereby
creating a new "base monthly charge" and base level of resources if and
when a Buyer decommissions a major application. Prior to such change in
the applications environment, AMDOCS will meet with the affected Buyer
and those parties will agree on the decrease in the OGS resources
associated with the specific application changes, and the corresponding
change to the base level of OGS resources, thereby adjusting the cost.
When decommissioning of a Current System results in an
agreed upon reduction in the number of OGS resources, the monthly
charges for OGS will be reduced effective as of the date on which said
reduction of OGS resources has occurred.
B. CHANGES TO LEVELS OF RESOURCES FOR OGS WORK FOR CURRENT SYSTEMS CAN
ALSO OCCUR AS A RESULT OF THE "REVIEW" AT THE END OF 30 MONTHS OF THE
AGREEMENT (THE MIDPOINT OF THE FIVE-YEAR AGREEMENTS).
1. Buyers expect that Seller will continuously improve the
productivity of its resources, and thus over time reduce OGS resource
requirements, in carrying out all types of OGS functions, on both
Current as well as on New Systems.
2. Buyers and Seller agree that at the midpoint in the term of
the separate five-year agreements between Buyers and Seller, they will
cooperate in reviewing the level of OGS resources required to carry out
the OGS work for Current Systems of each Buyer. Seller will provide to
Buyers analyses of OGS resources actually devoted to carrying out the
OGS work over the preceding two and a half years of the agreements. The
analysis will take into account both peak load requirements and slack
periods in determining overall resources applied to the tasks. Seller
is not required to track resources applied to OGS on an hourly basis;
however, Seller will provide an estimate, within plus or minus *** of
the actual resources devoted to the work, at the time of the review.
3. Based upon the analysis in June 2000, each Buyer and Seller
will agree on the appropriate level of resources to be devoted to
providing OGS services for Current Systems for the remainder of the
Agreement, meaning the remaining two and a half years, according to the
provisions of Section III. A. 4. Any disputes as to the appropriate
level of
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 79
OGS resources will be resolved pursuant to the dispute resolution
procedures which will be outlined more fully and completely in the
fully negotiated agreements between Seller and each Buyer.
4. Should the above productivity review result in a reduction
in the number of OGS resources required to provide support for
Current Systems, then both Buyer and Seller will share *** in the
benefit from any resources productivity gain determined to exist
in the review, according to the provisions of Section III. A. 4.
C. Notwithstanding any other provision of this Letter of Intent, the
parties agree it is their mutual intent that Buyers may at any time
during the Agreement, request an adjustment of OGS service levels or
standards, communicate the same to Seller, and obtain an adjustment to
the base level of resources and resulting cost as a result of such
adjustment.
VI. ANNUAL PRICE CHANGES AS OF JANUARY 1999. (THESE ARE CHANGES OTHER THAN
THOSE DESCRIBED IN V.A., B. AND C.)
A. From January 1, 1999 through the end of each Buyer's five year
agreement, there can be an annual OGS fixed charge repricing adjustment
by AMDOCS, for each geographic location. There may also be increases in
hourly development cost rates beginning in 1999 using these formulas.
B. FIRST. The formula for determining a rate increase will contain a
factor for the annual increase, if any, in local Consumer Price Index
(CPI). "Local CPI" is intended to mean the best available governmental
or other ongoing authoritative pricing index measurement for ***. In
the year 1999, the rate increase will be based upon CPI increase by
location. For the years 2000-2002, the rate increase will be weighted
*** on CPI increase, and *** on AMDOCS' average change in base salaries
plus standard bonuses in each of the two cities for that year. AMDOCS
shall have the burden of documenting/ substantiating salary, bonus and
CPI criteria.
C. SECOND. In 1999, if the Local CPI increase is between *** and ***,
including ***, then AMDOCS will be permitted to raise rates by ***. If
Local CPI increase is above *** and up to ***, then AMDOCS can adopt a
rate change based on actual Local CPI. If the formula produces a rate
change of *** to and including ***, then AMDOCS can adopt a *** rate
change. In the years 2000-2002, if application of the formula leads to
a conclusion that charges should be raised between *** and ***, AMDOCS
will reflect that specific rate. If the increase is between *** and
***, AMDOCS will reflect an increase of *** plus one-half of the
increase over *** but less than ***. For example, if the formula
produces a *** result, AMDOCS could increase *** (*** plus ***).
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 80
D. THIRD. If application of the formula in any year produces a rate
in excess of ***, the parties will renegotiate the formula,
utilizing, if necessary, the dispute resolution procedure in the
Agreement. Renegotiation will take account of Buyers' need for
price stability and predictability and of Seller's need to cover
the costs of its personnel resources and average cost pressures
associated with inflation.
E. FOURTH. Once the applicable price percent change is known, the
resulting percentage change will be made to the hourly
development rates and to the OGS work price which is billed
monthly, applicable as of December 31 of the year prior to the
year in which the price change is applicable.
VII. DOLLAR VOLUME COMMITMENTS WHICH THE TWO BUYERS ARE WILLING TO MAKE DURING
TERM OF AGREEMENTS WITH AMDOCS.
A. HOW DOLLAR VOLUME COMMITMENT WILL BE CALCULATED.
The two Buyers will each acknowledge in its separate agreement with
AMDOCS that the affiliate Buyer also has an agreement with AMDOCS.
Collectively, the two Buyers agree to spend certain dollar volumes
(including dollar volumes spent by any current or future controlled
subsidiary of the two Buyers, subject to the provisions of Section
I.A.) with AMDOCS, during the term of each agreement, as follows:
1. YEARS 1998-1999. The two Buyers will together commit to
spend no less than $*** a year total, inclusive of use, volume
related or other licensing fees, and OGS and development work,
with AMDOCS.
2. YEARS 2000-2002. The two Buyers will together commit to
spend no less than $*** a year, total, inclusive of use, volume
related or other licensing fees, and OGS and development work,
with AMDOCS.
B. OVERAGES OR SHORTFALLS.
1. OVERAGES. If the Buyers spend more than their volume
commitment in a given year, the amount exceeding the commitment,
if any, will be deducted from the following year's commitment,
resulting in a new reduced base commitment for the succeeding
year; i.e., any overage in a particular year will be deducted
from the next following year's commitment only, but to the extent
there are overages, this commitment reduction will be applied
each year of the Agreement.
2. SHORTFALLS. Notwithstanding any other provision herein:
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<PAGE> 81
a) If in any given year during the term of the
agreements, collectively the two Buyers obtain *** to and
including *** of the guaranteed dollar volume for a given year
in the agreements, AMDOCS shall consider that volume as meeting
the stated guarantee for that year and no shortfall shall be
applied. If collectively the two Buyers spend between ***, and up
to *** of the dollar volume level guaranteed in a given year,
then the Buyers are permitted to carry over the amount of
shortfall between *** and up to *** (not to exceed *** of the
volume commitment for that year), to the next year's promised
volume, and to make up the shortfall in the next succeeding year
of the negotiated agreements. The "rollover" of a shortfall in
volume guarantee as described above shall also apply in the final
year of the Agreements; i.e., if volume is in the *** to ***
range in the last year, Buyers may extend their Agreements, under
then current terms, until the shortfall is met (***).
b) In a given year, if the Buyers only spend between
*** and up to *** of the guaranteed dollar volume, then AMDOCS
may retroactively reduce its Hourly Development Rates' and OGS
rates' discount to the Buyers by *** (of the maximum discount)
for the year (calendar year) in which the shortfall occurred. If
the volume level is only between *** and ***, AMDOCS Hourly
Development Rates' and OGS rates' discount to the Buyers for that
year will be reduced retroactively for the year (calendar year)
by ***. If the volume level should be less than ***, AMDOCS may
reduce retroactively its Hourly Development Rates' and OGS'
discount by *** for that calendar year; i.e., those charges
would be at the then current undiscounted rate. The 1998
undiscounted rate and the maximum discounted rate, are shown in
Schedule A. In cases where volume discounts are lost shortfall
volumes do not carry forward to the following years.
c) The provisions of this Section VII. B. 2. above
shall not affect OGS resource levels except as provided by
Sections III A. 4. & 5. and V.C.
3. The parties jointly desire that as much advance notice as
possible of any anticipated shortfall in the dollar volume guarantee
be communicated to AMDOCS. The Buyers will use reasonable efforts to
provide not less than 60 days' notice of such shortfall in regard to
development work.
4. AMDOCS as Seller should not be concerned with which of the
two Buyers is making the warranted dollar expenditures, so long as the
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<PAGE> 82
dollar volume collectively is being met. Buyers and Seller desire to
collect and share a six-month rolling average view of expenditures to
be able to assess commitments made under these anticipated agreements.
VIII. OTHER TERMS AND CONDITIONS RELATED TO SELLER'S WORK.
A. FAILURE TO MEET BUYERS' PERFORMANCE STANDARDS.
If a Buyer believes that AMDOCS is failing to meet performance
standards, it will so notify Seller.
B. PROCEDURES TO BE IMPLEMENTED IN CASE OF FAILURE OF SELLER TO MEET
BUYERS' PERFORMANCE STANDARDS.
Increases in OGS resources required to meet agreed performance
standards will be the responsibility of Seller. Seller may not charge
Buyers for any associated costs. The parties agree that standards must
be jointly established prior to initiation of OGS work, and that the
standards must have a degree of specificity sufficient to determine a
departure from Buyer's requirements/expectations. The following
procedures shall apply for Seller's (1) acknowledged or (2) disputed
failure of OGS performance standards.
1. Seller will in good faith acknowledge its failure to
meet performance standards should such a situation arise. Seller
will, at its own costs, cure any failure as quickly as possible,
and in any case, within 30 days after Buyers provide written
notice to Seller of the performance standards problem.
2. Seller will dispute Buyers' allegations of failure to
meet Buyers' performance standards when Seller, in good faith,
cannot agree that such a failure has occurred. Dispute resolution
procedures described in the fully negotiated agreements will be
used to resolve disagreements concerning whether or not
performance standards are being/have been met. Should Seller
dispute Buyers' claim of Seller's failure to meet the subject
standards, Buyers may nevertheless have an urgent need to proceed
expeditiously. In this event Buyer(s) will declare that situation
to exist and request that certain actions, which Buyer(s)
reasonably believe are related to the alleged failure of
performance, be undertaken by AMDOCS during the pendency of the
dispute. AMDOCS will honor these requests. The costs of such
changed/additional work shall remain unbilled until dispute
resolution is concluded to resolve the issue. Should Buyer(s),
through arbitration or otherwise, ultimately pay some or all of
Seller's charges for this work, a reasonable interest charge for
the delay of payment of that amount may be levied by Seller. The
Buyers and Seller will make every reasonable effort to expedite
the dispute resolution process.
<PAGE> 83
C. AMDOCS' FLEXIBILITY TO DEPLOY RESOURCES.
AMDOCS, as an independent contractor, will retain flexibility to
deploy people and combine or relocate resources as deemed necessary,
provided that: (1) AMDOCS is meeting the agreed performance standards in
the two agreements; (2) AMDOCS will use all reasonable efforts to ensure
that at least *** of its personnel assigned to perform services subject to
this Letter of Intent will be hired locally in the United States; (3) that
AMDOCS will take reasonable steps to ensure that tours of duty for its
personnel will generally be a minimum of ***; (4) that Buyers
shall be able to request where the AMDOCS work will be performed. SHOULD
AMDOCS RELOCATE ANY KEY PERSONNEL WHO HAVE BEEN PROVIDING SERVICES AT A
BUYER'S SITE AND A BUYER BELIEVES, IN ITS SOLE JUDGMENT, THAT COMMUNICATION
OR RESPONSIVENESS IS BEING OR WILL BE UNACCEPTABLY AFFECTED BY THE
RELOCATION, A BUYER MAY COMPLAIN TO AMDOCS WHICH SHALL TIMELY RESOLVE THE
COMPLAINT TO THE MUTUAL SATISFACTION OF BUYER AND AMDOCS. SHOULD THE
COMPLAINT NOT BE RESOLVED WITHIN A REASONABLY SHORT TIME PERIOD, THE
DISPUTE RESOLUTION PROVISIONS OF THE SEPARATE BUYER AGREEMENTS MAY BE
INITIATED TO ADDRESS THE BUYER'S COMPLAINT AND AMDOCS' RESPONSE. And (5),
in selecting work locations, AMDOCS will endeavor to minimize Buyers' costs
consistent with the provisions set forth in Section II. B. 4. AMDOCS will
maintain communications with Buyers when determining work location.
D. DISPUTE RESOLUTION PROCEDURES.
Each agreement will contain written dispute resolution procedures such
that operationally, there will be a procedure to follow in escalating up
through the lines of management of Seller and Buyers any disputes under the
terms of the two agreements. Each company will name people to serve on
standing committees to facilitate communications and sharing of issues of
common interest. If disputes cannot be resolved, binding arbitration
procedures utilizing an expert third party arbitrator selected by both
parties will be provided for in the fully negotiated agreement.
E. NEED TO MINIMIZE DISRUPTION FROM CHANGE IN PERSONNEL; ADJUSTMENT WHEN
LESS EXPERIENCED PERSONNEL ARE SUBSTITUTED.
Buyers desire to minimize disruption which can be caused when AMDOCS,
as Seller, changes personnel or moves inexperienced personnel onto OGS or
development work. The two agreements will address these concerns and
further describe approvals and notification periods associated with
the movement of key personnel. The agreements, insofar as they pertain to
development work, should provide credit/discounts for new people unfamiliar
with Buyers'
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 84
businesses, that replace existing people and the replacement is not made at
Buyers' request.
F. USE OF "EXPERTS" OR "SPECIAL EXPERTS".
The two agreements will define and clarify if and when AMDOCS would or
could make use of "special experts" or "experts." A more complete definition of
expert status will be contained in the Agreements between Buyers and Seller,
but it is the parties' intent that only very highly trained specialist skills,
not typically required for Buyers' OGS and development work, could be
considered "expert"; i.e., if the subject skills are required in the normal
course of Buyers' business, processes, and technology (in Buyers' OGS or
development work) then standard discount rates rather than expert or special
expert rates would apply. The higher rates would apply only when Buyer(s)
request these exceptional skills outside of regular OGS and development work.
AMDOCS will inform Buyers when any requested skill/work requires use of an
"expert" or "special expert."
G. UNFORESEEN EVENTS.
The two agreements will provide a general clause permitting, or even
encouraging renegotiation for completely unforeseen events which appear to
change materially the assumptions underlying the major terms of the agreements.
<PAGE> 85
Page 1 of 2 of App. A
APPENDIX A
- ----------
- -------------------------------------------------
OGS RATES
- ---------
Non-discounted Discounted
Rate Per Rate per
OGS Resource OGS Resources (%)
-----------------------------------------
1998 1998
---- ----
***
1. *** *** ***
--------- *** ***
2. *** ***
-------------
BCC SYSTEM *** ***
*** ***
ALL OTHER SYSTEMS ***
*** ***
*** ***
NOTE: AMDOCS travel and living expenses (specified in this Appendix A) will be
reimbursed only when such expenses are made according to Buyer's specific
request.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 86
Page 2 of 2 of App. A
HOURLY DEVELOPMENT RATES
- ------------------------
<TABLE>
<CAPTION>
Maximum
Nondiscounted Discounted Rate
Development Rate (Based on volumes)
Location 1998 1998
- ---------------------------------------- -----------
<S> <C> <C>
***
SWBYP *** ***
Junior Programmer $ *** ***
Programmer *** ***
Team Leader/Analyst *** ***
Project Manager *** ***
*** ***
*** ***
***
Development Center
Junior Programmer *** ***
Programmer *** ***
Team Leader/Analyst *** ***
Project Manager *** ***
*** ***
*** *** ***
Junior Programmer *** ***
Programmer *** ***
Team Leader/Analyst *** ***
Project Manager *** ***
*** ***
***
Junior Programmer *** ***
Programmer *** ***
Team Leader/Analyst *** ***
Project Manager *** ***
--------------------------------------
</TABLE>
SPECIAL EXPERT RATES -talent not normally assigned, but available on Buyer
request basis:
Special Expert Analyst ***
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 87
Special Expert Senior Applications Analyst ***
Special Expert Project Manager ***
Special Expert Manager ***
In addition, Buyers shall reimburse Seller for reasonable expenses of Seller's
personnel incurred hereunder with respect to travel as required for the
development and OGS services performed under the Agreements and related
lodging, per diem (currently ***), and transportation expenses. Receipts of
expenses related to transportation and lodging expenses will be provided when
reimbursement is sought. All receipts will be reviewed by Seller's management
to verify reasonableness prior to submission for reimbursement. To avoid any
doubt, reimbursement of air fair expenses means reimbursement of coach
tickets only. Seller shall first submit to the applicable Buyer an estimate
of such travel and living expenses associated with development services, as
part of the applicable development efforts estimate, for Buyer's approval.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 88
Page 1 of 1 of App. B
SCHEDULE B
TABLE 1. OGS - CURRENT ESTIMATE FOR 1997
(All costs given in $000)
<TABLE>
<CAPTION>
_____________________________________________________________________________________________________________________
PBD SWBY
P
_____________________________________________________________________________________________________________________
Project People MM Total People MM Total Grand Grand
Cost PBD Cost SWBY Total Total
Cost P People Cost
Cost
_____________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C> <C> <C>
IMS/ADS *** *** *** *** *** *** *** ***
Sales 2
_____________________________________________________________________________________________________________________
Selling *** *** *** *** *** *** *** ***
_____________________________________________________________________________________________________________________
BCC(a)/AR+ *** *** *** *** *** *** *** ***
CSO+NARS
_____________________________________________________________________________________________________________________
Graphics *** *** *** *** *** *** *** ***
System
_____________________________________________________________________________________________________________________
CDW/MDSS *** *** *** *** *** ***
/
ADVS
_____________________________________________________________________________________________________________________
TOTAL *** *** *** *** *** ***
MONTHLY
_____________________________________________________________________________________________________________________
TOTAL YEARLY *** *** ***
_____________________________________________________________________________________________________________________
</TABLE>
NOTE TO TABLE 1:
(a) AMDOCS is providing *** personnel for maintenance and support of the
BCC system, but does not have overall responsibility in this area.
*** CONFIDENTIAL TREATMENT REQUESTED.
<PAGE> 89
Page 1 of 1 of App. C
SCHEDULE C
TABLE 1. OGS - RESOURCES LEVEL FOR 1998
(All costs given in $000)
<TABLE>
<CAPTION>
_____________________________________________________________________________________________________________________
PBD SWBY
P
_____________________________________________________________________________________________________________________
Project People MM Total People MM Total Grand Grand
Cost PBD Cost SWBY Total Total
Cost P Cost People Cost
_____________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C> <C> <C>
IMS/ADS *** *** *** *** *** *** *** ***
Sales 2
_____________________________________________________________________________________________________________________
Selling *** *** *** *** *** *** *** ***
_____________________________________________________________________________________________________________________
BCC(a)/AR+ *** *** *** *** *** *** *** ***
BOS/CIS
_____________________________________________________________________________________________________________________
Graphics/ *** *** *** *** *** *** *** ***
Image
System
_____________________________________________________________________________________________________________________
CDW/ *** *** *** *** *** ***
Marketing
_____________________________________________________________________________________________________________________
TOTAL *** *** *** *** *** ***
MONTHLY
_____________________________________________________________________________________________________________________
TOTAL YEARLY *** *** ***
_____________________________________________________________________________________________________________________
</TABLE>
NOTE TO TABLE 1:
(a) The resource level for the PBD Selling System is currently being
reviewed and may be adjusted.
(b) AMDOCS is providing *** personnel for maintenance and support of the
BCC System, but does not have overall responsibility in this area.
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 90
- 63 -
LIST OF EXHIBITS
A -- Form of Acceptance Letter
B1-- Form of Software Development Order
B2 -- Form of Ongoing Support Order
B3 -- Form of Maintenance Services Order
C -- NDA for Auditors
D -- Executive Orders and Associated Regulations
E -- Reimbursable Expenses
F1 -- MBE Participation Plan
F2 -- MBE Plan
G -- Form of Change Order
H -- Certificate of Installation
I -- Description of Maintenance Services
J -- Confidentiality and Invention Agreement
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 91
-64-
EXHIBIT A
FORM OF ACCEPTANCE LETTER
CUSTOM SOFTWARE DEVELOPMENT
[Type on Letterhead Paper]
AMDOCS, INC.
1610 Des Peres Road
St. Louis, MO 63131-1831
Attn: President
In accordance with the section entitled "Acceptance or Rejection" of that
certain Master Agreement, effective July 7, 1998, between AMDOCS, INC. and SBC
OPERATIONS, INC., the undersigned accepts the Software described on Order No.
___ as of ____________, 199_.
SBC OPERATIONS, INC.
By:_________________________
____________________________
Title:______________________
Date Signed:________________
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 92
-65-
EXHIBIT B1
FORM OF SOFTWARE DEVELOPMENT ORDER
Order No. ___ for Software Development
under
MASTER AGREEMENT SOFTWARE AND SERVICES
Effective Date of Order:__________________
1. Project Name: [Insert]
2. Project Managers
<TABLE>
<CAPTION>
-------------------------------------------------------
SBC Project Manager Amdocs Project Manager
- --------------------------------------------------------------------------------
<S> <C> <C>
Name
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
Telephone Number ( ) - ( ) -
- --------------------------------------------------------------------------------
Fax Number ( ) - ( ) -
- --------------------------------------------------------------------------------
E-mail Address
- --------------------------------------------------------------------------------
</TABLE>
3. Software and Program Material Ordered
a. Incorporation of Functionality Matrix and Proposal Statement
This Order incorporates the Proposal Statement (Attachment "1") and the
Functionality Matrix (Attachment "2") for the Project.
b. Description and Delivery Date(s)
Amdocs shall deliver the Software and Program Material as listed and described
in the following table, on or before the Delivery Date(s) specified in the
following table:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Description Delivery Date
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 93
-66-
4. Amdocs Compensation:
Amdocs shall provide the Software and Program Material [insert whichever
applies] [a fixed fee in the amount of ____________________ dollars
($_____.00).] [or] [at the following hourly rates for the job classifications of
Amdocs' personnel who will be providing services under this Order.
<TABLE>
<CAPTION>
================================================================================
JOB CLASSIFICATION HOURLY RATE IN
U.S. DOLLARS
- --------------------------------------------------------------------------------
<S> <C>
Senior Project Manager
- --------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------
Senior Application Analyst
- --------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------
Programmer
================================================================================
</TABLE>
Insert if applicable: The foregoing establishes the entire compensation to be
paid to Amdocs for the Project, except for the following additional charges and
costs:
a.
b.
[NOTE: Make cross-reference to Standard Software License Fees, if
any are to be included in Section 11, and charges for maintenance
services, if any are provided in Section 15.]
5. SBC's Responsibilities
SBC shall be responsible for providing Amdocs access to the specific employees,
a. Specific Employees: [Insert List, if Applicable]
b. Facilities: [Insert List, if Applicable]
c. Computers and Computer Systems: [Insert List, if Applicable]
d. Information and Data: [Insert List, if Applicable]
6. Project Plan (including Critical Performance Milestones and Payment
Milestones)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Item No. Responsible Description of Due Critical Payment
Party Task, Delivery, or Payment Item Date Performance Milestone
("Amdocs" or Milestone Amount or
"SBC") ("Yes" or Percentage
"No") (if
applicable)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
7. Project Resource Plan
The following table sets forth the projected number of man-months to be provided
in each Amdocs Job Classification in each month of the Project.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 94
-67-
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
JOB Month 1 Month 2 Month 3 Month ... Month ... Month..
CLASSIFICATION
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Senior Project Manager
- --------------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------------
Senior Application
Analyst
- --------------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------------
Programmer
- --------------------------------------------------------------------------------------
</TABLE>
8. Key Employees
The following Amdocs Employees are considered to be Key Employees for purposes
of the Project:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Amdocs Job
Classification
- --------------------------------------------------------------------------------
<S> <C>
- --------------------------------------------------------------------------------
</TABLE>
9. Acceptance Criteria and Methods for Testing the Software:
10. Duration of Acceptance Period: ____ Working Days
11. Standard Software to be licensed (and included in Custom Software):
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Name and Description License Fee
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
</TABLE>
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 95
-68-
12. Location Where Custom Software is to be Developed
13. Software [Delivery] [or] [Installation] Address
14. Billing Address:
15. Maintenance Terms and Conditions: [Insert if Maintenance for Standard
Software is included this Order.] Following the expiration of the Warranty
Period prescribed by Article 3 (Software Licenses/Development/Maintenance),
Amdocs will provide Maintenance services for the Standard Software in accordance
with in Exhibit I (Description of Maintenance Services) at the following
charges: ____________________dollars ($__________.00) per [month/year] for a
term of [Insert number of months/years] beginning on the date beginning [insert
date immediately following the date when the Warranty Period expires by its
terms].
16. Special Terms and Conditions Applicable to this Order.
a.
(Signature Page follows)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 96
-69-
This Order No. __ incorporates by reference the provisions of that certain
Master Agreement for Software and Services effective July 7, 1998, between the
Amdocs, Inc. and SBC OPERATIONS, INC.
AMDOCS, INC.
By:
---------------------------------------
------------------------------------------
(Print Name)
Title:
------------------------------------
Date Signed:
------------------------------
SBC OPERATIONS, INC.
By:
---------------------------------------
------------------------------------------
Title:
------------------------------------
Date Signed:
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 97
-70-
EXHIBIT B2
FORM OF ONGOING SUPPORT ORDER
Order No.-- for Ongoing Support
under
MASTER AGREEMENT SOFTWARE AND SERVICES
Effective Date:____________
1. Project Name: [Insert]
2. Project Managers
<TABLE>
<CAPTION>
-------------------------------------------------------
SBC Project Manager Amdocs Project Manager
- --------------------------------------------------------------------------------
<S> <C> <C>
Name
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
Telephone Number ( ) - ( ) -
- --------------------------------------------------------------------------------
Fax Number ( ) - ( ) -
- --------------------------------------------------------------------------------
E-mail Address
- --------------------------------------------------------------------------------
</TABLE>
3. Services Ordered
Amdocs shall deliver the Services as listed and described in the following
table, on or before the Delivery Date(s), and SBC shall render payments on the
Payment Date(s) specified in the following table:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Description Delivery Date
or Payment Date
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 98
-71-
4. Amdocs' Compensation:
Amdocs shall provide the Services during the period of time from [Insert date 1
to [insert end date] of [insert 1.a or 1.b, and 2, or 3, whichever applies]
[insert 1.a] [the following number of employees
<TABLE>
<CAPTION>
================================================================================
JOB CLASSIFICATION NUMBER
- --------------------------------------------------------------------------------
<S> <C>
Senior Project Manager
- --------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------
Senior Application Analyst
- --------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------
Programmer
================================================================================
</TABLE>
] [or] [insert 1.b] [the number of full time equivalent employees specified in
Section 7 ("Resource Plan") below] [insert 2] for a fixed fee in the amount of
___________________ dollars ($_____.00).] [or] [insert 3] [at the following
hourly rates for the job classifications of Amdocs' personnel who will be
providing services under this Order.
<TABLE>
<CAPTION>
================================================================================
JOB CLASSIFICATION NUMBER HOURLY RATE IN
U.S. DOLLARS
- --------------------------------------------------------------------------------
<S> <C> <C>
Senior Project Manager
- --------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------
Senior Application Analyst
- --------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------
Programmer ]
================================================================================
</TABLE>
]
[Insert if applicable: The foregoing establishes the entire compensation to be
paid to Amdocs for the Services except for the following additional charges and
costs:
a.
b.
5. SBC's Responsibilities
SBC shall be responsible for providing Amdocs access to the specific employees,
a. Specific Employees: [Insert List, if Applicable]
b. Facilities: [Insert List, if Applicable]
c. Computers and Computer Systems: [Insert List, if Applicable]
d. Information and Data: [Insert List, if Applicable]
6. Deliverable Items and Materials to be provided by Amdocs
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Description of Due
- --------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 99
-72-
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Deliverable Item and Materials Date
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
7. Resource Plan
The following table sets forth the projected number of man-months (full-time
equivalent employees) to be provided in each Amdocs Job Classification in each
month of the Project.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
JOB Month 1 Month 2 Month 3 Month ... Month ... Month..
CLASSIFICATION
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Senior Project Manager
- --------------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------------
Senior Application
Analyst
- --------------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------------
Programmer
- --------------------------------------------------------------------------------------
</TABLE>
8. Key Employees
The following Amdocs Employees are considered to be Key Employees for purposes
of the Project:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Amdocs Job
Classification
- --------------------------------------------------------------------------------
<S> <C>
- --------------------------------------------------------------------------------
</TABLE>
9. Location Where Services are to be Performed
10. Delivery Address
11. Billing Address:
12. Knowledge Transfer Plan
13. Special Terms and Conditions Applicable to this Order.
a.
(Signature Page follows)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 100
-73-
This Order No. __ incorporates by reference the provisions of that certain
Master Agreement for Software and Services effective July 7, 1998, between the
Amdocs, Inc. and SBC OPERATIONS, INC.
AMDOCS, INC.
By:
---------------------------------------
------------------------------------------
(Print Name)
Title:
------------------------------------
Date Signed:
------------------------------
SBC OPERATIONS, INC.
By:
---------------------------------------
------------------------------------------
Title:
------------------------------------
Date Signed:
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 101
-74-
EXHIBIT B3
FORM OF MAINTENANCE SERVICES ORDER
Order No.____ for Maintenance Services
under
MASTER AGREEMENT SOFTWARE AND SERVICES
Effective Date of Order:_____________
1. Standard Software to be Maintained:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Name and Description
- --------------------------------------------------------------------------------
<S> <C>
- --------------------------------------------------------------------------------
</TABLE>
2. Software Delivery [or Installation] Address
3. Billing Address:
4. Maintenance Terms and Conditions: Following the expiration of the
[Insert either] [Warranty Period prescribed by Article 3 (Software Licenses/
Development/Maintenance) for Standard Software previously licensed under Order
No. __ for Software Development] [or] [maintenance term for Standard Software
previously licensed and maintained under Order No. __ for Software Development]
[or] [maintenance term for Standard Software previously maintained under Order
No. __ for Maintenance Services] (the "Prior Order"), Amdocs will provide
Maintenance services for the Standard Software covered the Prior Order in
accordance with in Exhibit I (Description of Maintenance Services) at the
following charges: ______________________dollars ($__________.00) per
[month/year] for a term of [Insert number of months/years] beginning on the date
beginning [insert date immediately following the date when the Warranty Period
or maintenance expires by terms of the Prior Order].
5. Special Terms and Conditions Applicable to this Order.
a.
(Signature Page follows)
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 102
-75-
This Order No. __ incorporates by reference the provisions of that certain
Master Agreement for Software and Services effective July 7, 1998, between the
Amdocs, Inc. and SBC OPERATIONS, INC.
AMDOCS, INC.
By:
---------------------------------------
------------------------------------------
(Print Name)
Title:
------------------------------------
Date Signed:
------------------------------
SBC OPERATIONS, INC.
By:
---------------------------------------
------------------------------------------
Title:
------------------------------------
Date Signed:
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 103
-76-
EXHIBIT C
NDA FOR AUDITORS
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
("Agreement") is made as of the __________ day of __________, __________
BETWEEN:
AMDOCS INC., a corporation organized and existing under the laws of the
State of Missouri, having its principal offices at 1610 Des Peres Rd, MO
(hereinafter referred to as "AMDOCS");
AND
__________ a __________ [corporation, partnership, etc.] organized and
existing under the laws of __________, having its principal offices at
__________ (hereinafter referred to as the "Receiving Party").
WHEREAS AMDOCS (or any of its affiliated companies) is the owner and/or
author of and/or has the right to license certain valuable proprietary
routines, computer programs, documentation, trade secrets, systems,
methodology, know-how, marketing and other commercial knowledge,
techniques, specifications, plans and other proprietary information,
whether in oral, written, graphic, electronic, or any other form or medium
whatsoever, including any related ideas and look-and-feel, which are
referred to in this Agreement as "the AMDOCS Proprietary Information"; and
WHEREAS SBC OPERATIONS, INC. ("SBC") would like the Receiving Party to
provide it with certain services the "Services"); and
WHEREAS in order to perform the Services, the Receiving Party must have
access to the AMDOCS Proprietary Information, and AMDOCS agrees to provide
the Receiving Party with such access to the AMDOCS Proprietary
Information, subject to the Receiving Party first obligating itself to
confidentiality by signing this Agreement.
NOW THEREFORE, the parties agree as follows:
1. In this Agreement, "AMDOCS Confidential Information" means the software
and any other AMDOCS Proprietary Information received by the Receiving
Party from SBC or Amdocs where the AMDOCS Proprietary Information is
clearly so marked or where the Receiving Party has otherwise been made
aware that the AMDOCS
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 104
-77-
Proprietary Information is confidential. For greater certainty, if AMDOCS
notifies the Receiving Party that certain AMDOCS Proprietary Information
already disclosed is confidential, that AMDOCS Proprietary Information
shall become AMDOCS Confidential Information under this Agreement.
2. The Receiving Party agrees to hold in confidence the AMDOCS Confidential
Information, including derivatives thereof in any form (e.g., reports or
analyses relating to such information, whether or not provided by AMDOCS),
and to refrain from copying, distributing, disseminating or otherwise
disclosing the AMDOCS Confidential Information to anyone, other than to
employees of the Receiving Party who have a need to know such information
for purposes of performing the Services.
3. Furthermore, the Receiving Party hereby undertakes:
(a) not to use the AMDOCS Confidential Information for any purposes other than
performance of the Services;
(b) not to sell, grant, make available to, or otherwise allow the use of the
AMDOCS Confidential Information by any third party, directly or
indirectly; and
(c) not to use, directly or indirectly, the AMDOCS Confidential Information in
the development and/or sale of software systems, for itself or for a third
party, and/or in the provision of any services to a third party, except
for the Services to be provided by the Receiving Party to SBC.
4. Upon the termination or expiration of this Agreement for any reason or
upon the conclusion of the Services and/or at the request of AMDOCS, the
Receiving Party shall:
(a) return to AMDOCS any document or other material in tangible form in its
possession being part of the AMDOCS Confidential Information; and
(b) destroy any document or other material in tangible form that contains the
AMDOCS Confidential Information together with confidential and/or
proprietary information of a third party, and confirm such destruction in
writing to AMDOCS.
5. Disclosure of the AMDOCS Confidential Information to the Receiving Party
may be made in writing or other tangible form, electronically, or by
demonstration of any product
6. Disclosure of the AMDOCS Confidential Information to the Receiving Party
shall in no way serve to create, on the part of the Receiving Party, a
license to use, or any proprietary right in, the AMDOCS Confidential
Information or in any other proprietary product, trade mark, copyright or
other right of AMDOCS.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 105
-78-
7. Any use by the Receiving Party of the AMDOCS Confidential Information
permitted under this Agreement is conditioned upon the Receiving Party
first taking the safeguards and measures required to secure the
confidentiality of such Proprietary Information. Without limiting the
generality of the foregoing, the Receiving Party shall draw to the
attention of its employees who will have access to the AMDOCS Confidential
Information, all the obligations concerning the AMDOCS Confidential
Information contained in this Agreement, and shall require each and every
such employee to sign a written acknowledgment with respect to such
obligations substantially in the form of the Annex attached hereto and
made a part hereof.
8. The confidentiality obligations of the Receiving Party regarding the
AMDOCS Confidential Information shall have not apply to such information
which:
(a) becomes public domain without fault on the part of the Receiving Party;
(b) is lawfully obtained by the Receiving Party from any source other than
AMDOCS, free of any obligation to keep it confidential;
(c) is previously known to the Receiving Party without an obligation to keep
it confidential, as can be substantiated by written records;
(d) is expressly released in writing from such obligations by AMDOCS; or
(e) is required to be disclosed pursuant to law, regulation, judicial or
administrative order, or request by a governmental or other entity
authorized by law to make such request; provided, however, that the
Receiving Party first notifies AMDOCS to enable it to seek relief from
such requirement, and renders reasonable assistance requested by AMDOCS
(at AMDOCS' expense) in connection therewith.
9. This Agreement shall be in full force and effect for a period of seven (7)
years commencing on the date first stated above. However, the provisions
of Section 2(c) above shall survive the termination and/or expiration of
this Agreement for any reason.
10. The Receiving Party acknowledges that a breach of this Agreement may cause
AMDOCS extensive and irreparable harm and damage, and agrees that AMDOCS
shall be entitled to injunctive relief to prevent use or disclosure of its
Proprietary Information not authorized by this Agreement, in addition to
any other remedy available to AMDOCS under applicable law.
11. This Agreement constitutes the entire agreement between the parties and
supersedes any prior or contemporaneous oral or written representation
with regard to the subject matter hereof. This Agreement may not be
modified except by a written instrument signed by both parties.
12. If, however, any provision of this Agreement is determined to be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate
or render
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 106
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unenforceable the entire Agreement, but rather the entire Agreement shall
be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the parties
shall be construed and enforced accordingly. In addition, the parties
hereby agree to co-operate with each other to replace the invalid or
unenforceable provision(s) with a valid and enforceable provision(s) which
will achieve the same result (to the maximum legal extent) as the
provision(s) determined to be invalid or unenforceable.
13. This Agreement shall be governed and construed under the laws of the State
of New York, USA without giving effect to its provisions regarding
conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first stated above.
AMDOCS, INC. ____________________________________
By:______________________________ By:_________________________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 107
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[Annex To Non-Disclosure and Confidentiality Agreement]
ACKNOWLEDGMENT OF NON-DISCLOSURE OBLIGATIONS
I have read and understand the Non-Disclosure and Confidentiality Agreement
dated ___________ between AMDOCS INC. and ____________, and agree to be bound by
all the provisions of that Agreement as if I were a party thereto.
___________________________________
Signature
___________________________________
Name
___________________________________
Employer
___________________________________
Title
___________________________________
Date
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 108
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EXHIBIT D
EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
Work under this contract may be subject to the provisions of certain Executive
Orders, federal laws, state laws, and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws, and associated regulations apply to the work
under this contract, and only to that extent, Contractor agrees to comply with
the provisions of all such Executive Orders, federal laws, state laws, and
associated regulations, as now in force or as may be amended in the future,
including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT
CONTRACTORS
In accordance with 41 C.F.R.ss.60-1.4(a), the parties incorporate herein
by this reference the regulations and contract clauses required by that section,
including but not limited to, Contractor's agreement that it will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, or
national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R.ss.60-1.8, Contractor agrees that it does not
and will not maintain or provide for its employees any facilities segregated on
the basis of race, color, religion, sex, or national origin at any of its
establishments, and that it does not and will not permit its employees to
perform their services at any location, under its control, where such segregated
facilities are maintained. The term "facilities" as used herein means waiting
rooms, work areas, restaurants and other eating areas, time clocks, rest rooms,
wash rooms, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees; provided, that separate or
single-user restroom and necessary dressing or sleeping areas shall be provided
to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Contractor agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R. ss.60-1.4(b).
4. AGREEMENT OF FILING
Contractor agrees that it will file, per current instructions, complete
and accurate reports on Standard Form 100 (EEO-1), or such other forms as may be
required under 41 C.F.R. ss.6O-l.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS, VETERANS
OF THE VIETNAM ERA.
In accordance with 41 C.F.R.ss.60-250.20 and 41 C.F.R.ss.60-741.20, the
parties incorporate herein by this reference the regulations and contract
clauses required by those provisions to be made a part of government contracts
and subcontracts.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 109
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6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United states that small business concerns,
small business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
sub-contracts for systems, assemblies, components, and related services for
major systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant to the terms of the subcontracts with small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business Administration
or the awarding agency of the United States as may be necessary to determine the
extent of the Contractor's compliance with this clause.
(c) As used in this contract, the term small business concern shall mean a
small business as defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern owned and controlled by socially and economically disadvantaged
individuals shall mean a small business concern which is at least 51 percent
unconditionally owned by one or more socially and economically disadvantaged
individuals; or, in the case of any publicly owned business, at least 51 percent
of the stock of which is unconditionally owned by one or more socially and
economically disadvantaged individuals; and (2) whose management and daily
business operations are controlled by one or more such individuals. This term
also means small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native Hawaiian
Organization, or a publicly owned business having at least 51 percent of its
stock unconditionally owned by one of these entities which has its management
and daily business controlled by members of an economically disadvantaged Indian
tribe or Native Hawaiian Organization, and which meets the requirements of 13
CRF part 124. The Contractor shall presume that socially and economically
disadvantaged individual include Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small Business Act. The
Contractor shall presume that socially and economically disadvantaged entities
also include Indian Tribes and Native Hawaiian Organizations.
(d) The term "small business concern owned and controlled by women" shall
mean a small business concern (i) which is at least 51 percent owned by one or
more women, or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more women, and (ii) whose management
and daily business operations are controlled by one or more women; and
(e) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as a small business concern, a
small business concern owned and controlled by socially and economically
disadvantage individuals or a small business concern owned and controlled by
women.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 110
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7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUB-CONTRACTING
PLAN. The sub-contractor will adopt a plan similar to the plan required by
48 CFR Ch. 1 at 52.219-9.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 111
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EXHIBIT E
REIMBURSABLE EXPENSES
The following guidelines set forth the standards to be applied in reimbursing
Amdocs for the actual costs of expenses incurred in the performance of its
Services, and may be updated by the parties from time to time. The parties may
also agree on a fixed price reimbursement policy, which price will include all
the applicable reimbursable expenses. Amdocs shall obtain SBC's prior approval
for the travel of any Amdocs employee for which Amdocs shall seek reimbursement.
SBC shall have no obligation to pay any reimbursable expenses for which Amdocs
has failed to obtain advance written approval. Amdocs shall provide receipts for
all authorized reimbursable expenses (except for the per-diem reimbursable).
1) Airfare: SBC will reimburse Amdocs for airfare at coach or lower rate.
Amdocs shall submit to SBC copies of all used airline tickets. SBC will
not reimburse Amdocs on any airfare for international travel, unless there
is prior written approval from a SBC executive director.
2) Ground Transportation: SBC will reimburse Amdocs for travel from the
originally assigned work location (or, if no work location is so assigned,
Amdocs' principal place of business) to and from the temporary work
location (any address other than the originally assigned work location) as
follows:
a) at the reimbursement rate accepted by IRS for 1040 return purposes
without specific accounting per mile for use of Amdocs' personal
automobile; or
b) for reasonable car rental. SBC will only reimburse for a "compact"
or smaller sized car.
3) Incidental Transportation Expenses: SBC will reimburse Amdocs for
incidental transportation expenses such as bridge tolls and parking fees
incurred during authorized ground transportation.
4) Lodging and Per-Diem: SBC will reimburse Amdocs for reasonable lodging
expenses. SBC will not reimburse for extravagant lodging expenses incurred
by Amdocs (i.e. Suite vs. Single Room). Meals and other incidental
expenses shall be reimbursed at a flat rate of *** per day.
5) Telephone: SBC will not reimburse Amdocs for any personal telephone calls.
6) Delivery: SBC will reimburse Amdocs for delivery services including
messenger, overnight delivery and any other express mail services only in
accordance with the terms covering delivery in the applicable Order.
Entertainment: SBC will not reimburse Amdocs for entertainment expenses.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
***CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 112
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EXHIBIT F1
- --------------------------------------------------------------------------------
PRIME SUPPLIER
MBE/WBE/DVBE PARTICIPATION PLAN
- --------------------------------------------------------------------------------
PRIME SUPPLIER NAME: ___________________________________________________________
ADDRESS: ___________________________________________________________
TELEPHONE NUMBER: ___________________________________________________________
DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DESCRIBE YOUR M/WBE-DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL
DEDICATED TO THAT PROGRAM:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE
PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
o MINORITY BUSINESS ENTERPRISES (MBEs)
____________________%
o WOMEN BUSINESS ENTERPRISES (WBEs)
____________________%
o DISABLED VETERANS BUSINESS
____________________%
ENTERPRISES (DVBEs)
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH PACIFIC BELL?
____________ SOUTHWESTERN BELL TELEPHONE COMPANY ("SWBT")? ______OTHER SBC
AFFILIATE? ____________
Note: Indicate dollar award(s) as it applies to this contract (i.e.,
Pacific Bell, SWBT and/or Affiliate).
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE PURCHASES?
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 113
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o MINORITY BUSINESS ENTERPRISES (MBEs)
____________________%
o WOMEN BUSINESS ENTERPRISES (WBEs) ______________
____________________%
o DISABLED VETERANS BUSINESS ENTERPRISES (DVBEs)
* SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE,
WBE, AND DVBE*
2. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO MBE/WBE/DVBEs
OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DETAILED PLAN FOR USE OF M/WBEs-DVBEs AS
SUBCONTRACTORS. DISTRIBUTORS, VALUE ADDED
RESELLERS
For every product and service you intend to use, provide the following
information:
(Attach additional sheets if necessary)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Company name Classification Products/Serv $ Value Date to
(MBE/WBE/DVBE) ices to be Begin
provided
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND RECORDS TO
SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE PARTICIPATION GOAL(S). SELLER
ALSO ACKNOWLEDGES THE FACT THAT IT IS RESPONSIBLE FOR IDENTIFYING, SOLICITING
AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND VALUE ADDED
RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR SELLER, WILL:
o ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
o SUBMIT SUMMARY REPORTS, AND
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 114
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o COOPERATE IN ANY STUDIES OR SURVEYS AS MAY REQUIRED IN ORDER TO
DETERMINE THE EXTENT COMPLIANCE BY THE SELLER WITH THE PARTICIPATION
PLAN.
NAME: (PRINTED)_________________________________________________________________
TITLE:__________________________________________________________________________
TELEPHONE NUMBER:_______________________________________________________________
AUTHORIZED SIGNATURE:___________________________________________________________
DATE:___________________________________________________________________________
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 115
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EXHIBIT F2
[deleted]
<PAGE> 116
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EXHIBIT G
FORM OF CHANGE ORDER
Change Order No. __
under
Order No. ___ for Software Development
under
MASTER AGREEMENT SOFTWARE AND SERVICES
Effective Date of Change Order:_________________
Order No. __ for Software Development (the "Order") is hereby modified as
follows:
1. Proposal Statement
The Proposal Statement (Attachment "1" to the Order) is hereby
modified as follows:
2. Functionality Matrix
The Functionality Matrix (Attachment "2" to the Order) is hereby
modified as follows:
3. Description and Delivery Date(s)
The table in the Section of the Order entitled "Description and Delivery
Date(s)" is hereby modified as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Item No. Description Delivery Date
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 117
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4. [insert if applicable] Amdocs Compensation
The Section of the Order entitled "Amdocs Compensation" is
hereby modified to read as follows: "Amdocs shall provide the
Software and Program Material [a fixed fee in the amount of
____________________ dollars ($_____.00)."]
5.. Project Plan (including Critical Performance Milestones and Payment
Milestones)
The table in the Section of the Order entitled "Project Plan" is hereby modified
as follows:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Item No. Responsible Description of Due Critical Payment
Party Task, Delivery, or Payment Item Date Performance Milestone
("Amdocs" or Milestone Amount or
"SBC") ("Yes" or Percentage
"No") (if
applicable)
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
6. Project Resource Plan
The table in the Section of the Order entitled "Project Plan" is hereby modified
as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
JOB Month 1 Month 2 Month 3 Month ... Month ... Month..
CLASSIFICATION
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Senior Project Manager
- --------------------------------------------------------------------------------------
Project Manager
- --------------------------------------------------------------------------------------
Senior Application
Analyst
- --------------------------------------------------------------------------------------
Programmer Analyst
- --------------------------------------------------------------------------------------
Programmer
- --------------------------------------------------------------------------------------
</TABLE>
7. Acceptance Criteria and Methods for Testing the Software
The Section of the Order entitled "Acceptance Criteria and Methods for Testing
the Software" is hereby notified as follows:
8. Duration of Acceptance Period: The Acceptance Period is extended by
an additional__ Working Days, for a total Acceptance Period of __
Working Days.
Except as modified by this Change Order No. __, the terms of the Order [insert
it applicable] [as previously modified], remain in force and effect.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 118
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This Change Order No. __ incorporates by reference the provisions of that
certain Master Agreement for Software and Services effective July 7, 1998,
between the Amdocs, Inc. and SBC OPERATIONS, INC and that certain Order No. _
for Software Development thereunder.
AMDOCS, INC.
By:
---------------------------------------
------------------------------------------
(Print Name)
Title:
------------------------------------
Date Signed:
------------------------------
SBC OPERATIONS, INC.
By:
---------------------------------------
------------------------------------------
Title:
------------------------------------
Date Signed:
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 119
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EXHIBIT H
CERTIFICATE OF INSTALLATION
CUSTOM SOFTWARE DEVELOPMENT
This Certificate of Installation certifies that on ______________ 199__
("Installation Date"), the Software described in Order No. ___ of that certain
Master Agreement, effective July 7, 1998, between AMDOCS, INC. and SBC
OPERATIONS, INC. have been delivered to the location specified in such Order,
installed, tested and prepared for Acceptance Tests.
AMDOCS, INC.
By:
---------------------------------------
------------------------------------------
(Print Name)
Title:
------------------------------------
Date Signed:
------------------------------
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 120
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EXHIBIT I
DESCRIPTION OF MAINTENANCE SERVICES
AMDOCS will provide Maintenance Services with respect to the Standard Software
licensed by SBC hereunder, consisting of correction of errors found in unaltered
modules of the current version of such software, provision of improvements,
enhancements, modifications and new releases (not including major new features
defined by AMDOCS as separately priced components of the Standard Software), and
reasonable consultation by telephone ("Maintenance Services"), subject to
payment of the applicable Maintenance Fees.
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 121
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EXHIBIT J
CONFIDENTIALITY AND INVENTION AGREEMENT
This Agreement ("Agreement") dated ____________________ is made by the
individual named below ("I" or "me"). who is engaged to perform work at SBC,
Inc. ("SBC"), as an employee of Amdocs, Inc. ("Amdocs") under the terms and
conditions of the Agreement No. XXXXX.
I. Status
1. I agree and acknowledge that my work at SBC and the payments it will make
to Amdocs for my services are contingent on my acceptance and compliance
with this Agreement.
2. I agree and acknowledge that I am a full time employee or temporary
employee of Amdocs.
3. I agree and acknowledge that I am not an employee of SBC, I will not be
classified as an SBC employee, and I am NOT ELIGIBLE for any benefits and
WILL NOT BECOME ELIGIBLE for employee benefits provided by SBC. This
exclusion applies to pension benefits, deferred compensation plans, health
benefits, group insurance coverage, separation pay, stock option or stock
purchase plan participation, or any other form of employee benefit
provided by SBC.
4. I agree and acknowledge that SBC is not responsible for withholding and
payment of any payroll taxes based on my compensation for work in
accordance with this Agreement, including but not limited to, federal and
state income taxes, social security taxes, state disability insurance
taxes, Medicare taxes, unemployment insurance taxes, and any other
required taxes.
II. Work Policies and Rules
1. I agree to observe all working rules and policies, including but not
limited to the SBC Code Of Business Conduct and any other SBC rule or
policy.
2. I understand that it is my responsibility to ensure that my personal
conduct and comments in the workplace support a professional environment
which is free of certain behaviors, casual language, jokes or movements
which could be perceived as sexual harassment or as demeaning, offensive,
or threatening with regard to gender and/or personal self-respect.
III. Information
1. I agree and understand that the term "Information" means any technical,
customer or business information in written, graphical, oral or other
tangible or intangible forms, including but not limited to,
specifications, records, data, computer programs, tax returns, tax
workpapers, drawings, models and secrets which SBC may have in its
possession or be legally obligated to keep confidential. I understand that
during the course of my work at SBC, I may have access to Information that
belongs to SBC, its customers or other parties, or may be subject to
privacy laws and laws regarding secrecy of communications, and that
unauthorized disclosure of such Information may be harmful or prejudicial
to the interests of SBC. I agree not to disclose, copy, publish, or any
way use, directly or indirectly, such Information for my purposes or the
purposes of others, unless such disclosure or use is expressly authorized
in writing by SBC. I agree to keep such Information in a secure
environment to prevent the inadvertent disclosure of such Information to
others. I acknowledge and agree that all such Information remains the
exclusive property of SBC and I agree not to remove such Information from
SBC's possession or premises by physical removal or electronic
transmission unless I have written authorization
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 122
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from SBC to do so, or unless the agreement named below requires such
actions for the fulfillment of Amdocs' obligations thereunder.
IV. Innovations
1. I understand that during and incident to my work at SBC, I may create
inventions, discoveries, improvements, computer or other apparatus
programs, and related documentation and other works of authorship
("Innovations"), whether or not patentable, copyrightable, or subject to
other forms of legal protection. I assign to SBC all of my rights, title
and interest (including rights in copyright) in and to all Innovations I
make, create or develop, either solely or jointly with others, during my
work at SBC for which Amdocs was paid by SBC for my work or for which I
used SBC's materials or facilities. I agree that the above assignment is
binding upon my estate, administrators, or other legal representatives or
assigns.
2. I agree to promptly notify SBC of all such Innovations. Whenever requested
by SBC, I shall promptly execute, without additional compensation, any and
all instruments which SBC may deem necessary to assign and convey to SBC
all of my rights, title and interest in and to all such Innovations. In
addition, I agree to assist SBC in preparing copyright or patent
applications and to execute such applications and all documents required
to obtain copyrights or patents for such Innovation, all at SBC's expense
including compensation to me at the rates specified in the agreement named
below. I agree that my obligation to execute such instruments shall
continue after the expiration of my work with SBC.
3. THIS AGREEMENT DOES NOT APPLY TO ANY INVENTION MADE IN THE STATE OF KANSAS
FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITIES OR TRADE SECRET INFORMATION
OF SBC WAS USED AND WHICH WAS DEVELOPED ENTIRELY ON MY OWN TIME, UNLESS
(1) THE INVENTION RELATES TO THE BUSINESS OF THE SBC OR SBC's ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OR (2) THE INVENTION
RESULTS FROM ANY WORK PERFORMED BY ME FOR SBC. THIS AGREEMENT DOES NOT
APPLY TO AN INVENTION MADE IN CALIFORNIA WHICH QUALIFIES FULLY UNDER THE
PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870.
4. Section IV, Paragraphs 1 and 2 do not apply to any Innovation which, under
the provisions in the agreement named below, is to be other than the sole
and exclusive property of SBC; the title provisions of said agreement
apply to any such above Innovation.
V. Administrative Terms
1. This Agreement shall be effective as of the date executed below, and shall
remain in effect notwithstanding my termination of employment with Amdocs
or termination of my work at SBC.
2. In the event that any provision of this Agreement is held to be invalid or
unenforceable, then such invalid or enforceable provisions shall be
severed, and the remaining provisions shall remain in full force and
effect to the fullest extent permitted by law.
3. For purposes of this Agreement, the agreement referenced in Paragraph 1 of
Section III and Paragraph 4 of Section IV shall mean the Master Agreement
for Software and Services between Amdocs, Inc. and SBC, Inc.
I have read, understand and agree to abide by this Agreement.
______________________________________
Signature
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
<PAGE> 123
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____________________________________
Print Name
____________________________________
Date
____________________________________
Social Security Number
________________________________________________________________________________
________________________________________________________________________________
Address
PROPRIETARY INFORMATION
Not for use or disclosure outside SBC or Amdocs except under written agreement.
