EXHIBIT 10.1
PRIVATE INSTRUMENT OF TRANSACTION AND RELEASE
Through the present Private Instrument of Transaction and Release ("Instrument
of Transaction") entered into on this April 30, 2003, by and between Xx. Xxxxxx
Xxx Xxxxxxx ("Xx. Xxxxxxx"), AOL Brasil Ltda. and America Online Latin America,
Inc. (jointly "AOL"), individually called "Party" and collectively "Parties".
WHEREAS Xx. Xxxxxxx has rendered services to AOL Brasil as its President and
General Manager as of May 7, 2001;
WHEREAS Xx. Xxxxxxx'x labor agreement was terminated on May 31, 2003;
WHEREAS Xx. Xxxxxxx acknowledges, for all purposes and effects that he has
received and enjoyed, at all proper times, all the amounts and rights which were
AOL's responsibility and were entitled to him by the Brazilian law, by his labor
agreement and by the collective bargaining agreement applicable to his
professional category, and further acknowledges as correct, after having
checked, the amounts that, due to the termination of his agreement, are stated
in the attached Instrument of Termination of Labor Agreement ("Exhibit A"),
submitted to the union which represents his professional category for approval
and ratification;
WHEREAS Xx. Xxxxxxx'x labor agreement assured him privileges and benefits not
set forth by law, particularly, but not limited to, indemnification equivalent
to twelve months of his basic payment, yearly unemployment bonus, medical/dental
and life insurance coverage throughout the twelve months subsequent to his labor
agreement termination or until the time of the beginning of a new job (whichever
occurs first);
WHEREAS Xx. Xxxxxxx, through the present instrument of transaction, undertakes
the commitment of keeping secret and not to make use, for his own benefit or the
benefit of third parties, of any information, projects, copyrights, know-how,
etc., owned by AOL;
WHEREAS, through this instrument of transaction, Xx. Xxxxxxx agrees not to
compete with AOL for the time period of one (1) year counted as of his release
from the latter, which prevents him from working for any company that has a
coinciding, similar or competing activity from that performed by AOL, whether as
an employee, service provider, consultant or partner, the Parties, by means of
the present transaction, agree that the aforementioned shall be governed under
the rules stipulated hereinafter;
WHEREAS, aiming at preventing eventual litigations stemming from queries that
may arise, either directly or indirectly, from any legal relationship existing
between the Parties, the Parties have decided to enter into the present
instrument, on the grounds of the Brazilian labor legislation and other
applicable ones;
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THUS, taking into consideration the end of the relationship, of the clauses and
mutual understandings, the agreement and other considerations herein contained,
the Parties state, through the present instrument of Transaction, the following:
1. Regarding the end of the relationship, the clauses and mutual
understandings, and eventual agreements set forth up to now, AOL agrees to pay
Xx. Xxxxxxx, in addition to the amounts paid, as established in Exhibit A, the
gross amount in real equivalent to three hundred and fifteen thousand and two
hundred and sixty North-American dollars (US$315,260.00).
1.1. Out of the amount set forth above in Clause 1, the portion of
one hundred and fifty-seven thousand North-American dollars
(US$ 157,000.00) corresponds to the full indemnification
payment arisen from the termination without cause of the labor
agreement.
1.2 As part of the payment set forth above in Clause 1, AOL shall
yield to Xx. Xxxxxxx the vehicle of the make Audi, model A6,
year 2001, plaque DEC 4488, which is already in Xx. Xxxxxxx'x
possession by virtue of the terminated labor agreement, for
the amount of eighty thousand real (R$ 80.000,00), making
clear that the Parties agree that such an amount corresponds
to eighty per cent (80%) of the vehicle's market value. Thus,
the Parties agree that: 1) Xx. Xxxxxxx shall remain in the
possession of the vehicle; 2) within the term of thirty (30)
days, AOL shall see to the necessary documents for the
transference of the vehicle to Xx. Xxxxxxx, including, without
limitation, the Release of any debts related to the vehicle's
leasing agreement; 3) Xx. Xxxxxxx shall be responsible for the
vehicle as well as for all its costs and taxes as of the
aforementioned date; 4) Xx. Xxxxxxx shall request the
transference of the vehicle to his name before the competent
authorities within a thirty (30)-day term as of the documents
delivery by AOL; and 5) the eventual taxes related to the
vehicle's disposal shall be borne by AOL, pursuant to the
terms of the legislation in force.
The remaining amount of two hundred and eighty-nine thousand, one hundred and
seventeen North-American dollars (US$ 289,117.00) will be paid on March 13,
2003, through a payable-to-the order-of check in Xx. Xxxxxxx'x name to be made
available at AOL's address. In order to translate the aforementioned amount into
real the exchange rate of the closing of the commercial dollar sale of the day
previous to that of the payment multiplied by 1,05 shall be used.
1.2.1 Out of the total amount set forth in 1.3, the portion
of twenty-four thousand North-American dollars (US$
24,000.00) corresponds to the full compliance of
items 9(a), (b) and (c) of clause 9 of the present
instrument.
2. Complying with the terminated agreement, AOL will continue to make
available the medical/dental insurance coverage for the twelve months subsequent
to the termination of the labor agreement or until the time of the beginning of
a new job (whichever occurs first), in the same levels and conditions in force
during the labor agreement.
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3. Complying with the terminated agreement, AOL will continue to make
available the life insurance coverage for the twelve months subsequent to the
termination of the labor agreement or until the time of the beginning of a new
job (whichever occurs first), in the same levels and conditions in force during
the labor agreement.
4.The Parties further agree that, as long as Xx. Xxxxxxx unfailingly complies
with all the terms and conditions of the present instrument and its exhibits,
AOL will pay to him, as set forth in the terminated agreement and complying with
the terms and conditions of its Program of Participation in the Results related
to the year 2003, on the payment date applicable to all its employees, but not
later than April 15, 2004, the amount in real equivalent to thirty-seven
thousand and five hundred North-American dollars (US$ 37,500.00) translated into
real in the rate of the of the closing of the commercial dollar sale of the day
previous to that of the payment, for his performance related to the period of
the fiscal year of 2003, previous to the termination of the labor agreement,
multiplied by 1,05.
5. AOL agrees to retain firm Ernst & Young, until the limit of five
thousand North-American dollars (US$ 5,000.00) for the purpose of providing
consulting services and making Xx. Xxxxxxx'x annual statements of Income Tax
adjustment, related to the fiscal year of 2002, in Brazil and in the United
States. Any differences of over-payment shall be directly paid to AOL or
reimbursed to it by Xx. Xxxxxxx. Any differences of under-payment shall be
delivered to Xx. Xxxxxxx. As regards the fiscal year of 2003, Xx. Xxxxxxx shall
personally bear the costs of his annual statement.
6. Income Tax and social contributions due over the amounts set forth in
Exhibit B shall be borne by the Parties pursuant to the terms of the applicable
legislation, being AOL authorized to discount the amounts due by Xx. Xxxxxxx.
7. By receiving the aforementioned amounts, Xx. Xxxxxxx grants AOL, its
shareholders, colligated companies, affiliates, direct and indirect controlling
companies, its partners, subsidiaries, managers, directors or any other company
of the same economic group, including the companies of the economic group of AOL
Time Warner and of the Xxxxxxxx Group of Companies, AOL's controlling company,
its employees and directors, at any title, the fullest, most complete, general
and irrevocable release concerning each and all possible rights/payments, of any
order and/or nature, stemming from his relationship with AOL or from the
termination of the contracted party.
8. Provided that Xx. Xxxxxxx unfailingly complies with all the terms and
conditions of the present instrument and its exhibits, he shall be able, at any
moment, within the period of one year as of the termination of his labor
agreement, request that AOL retain outplacement services with a specialized firm
indicated by him, for assistance in Trostli's re-placement in the work market.
The costs of such a service will be fully borne by Xx. Xxxxxxx, who shall
anticipate to AOL all the necessary amounts for the fulfillment of the
obligation stipulated in this clause, through the presentation to AOL of such
amounts, on the grounds of the proposal of the provider of such services.
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8.1. In case of violation of the present clause, AOL shall pay Xx. Xxxxxxx,
besides the losses and damages corresponding to the damages to property arisen
from the violation of the obligation contained in Clause 8 above, the amount in
real equivalent to forty-five thousand American dollars (US$ 45,000.00),
translated in the rate of the of the closing of the commercial dollar sale of
the day previous to that of the payment.
9. Xx. Xxxxxxx agrees to:
a) keep absolute secrecy regarding the information which, dealt
with as secret by AOL, he came to know during the validity of
his agreement, abstaining from using it in his own benefit or
in the benefit of third parties, or, in any way convey the
aforementioned information, data, projects, copyrights,
know-how and similar ones, under the penalty of answering, in
the form of the law, for the damages caused due to the breach
of the commitment assumed with the execution of the labor
agreement entered into on March 7. 2001, particularly
regarding the rules about confidentiality and industrial
property set forth in clauses 11 and 12 of the aforementioned
labor agreement;
b) abstain from working, for the period of one (1) year, counted
as of the termination of his labor agreement, in any
activities whatsoever of: 1) internet portals which compete
with AOL; 2) access providing to internet, whether as an
employee, service provider, partner, individual or in any
other form, in the United States and in the Latin American
countries, independently of the place for the performance of
such activities;
c) not to make any public statements of negative or untrue nature
about AOL, its shareholders, affiliates, direct and indirect
controlling companies, partners, subsidiaries, managers,
directors or any other company of the same economic group,
including the companies of the AOL Time Warner's economic
group and of the Xxxxxxxx Group of Companies, AOL's
controlling companies, its employees and directors.
9.1. In case of violation of the present clause, Xx.
Xxxxxxx shall pay AOL, besides the damages
corresponding to the damages to property arisen from
the violation of the items (a), (b) and (c), the
amount established in the criminal clause regularly
set forth between the Parties pursuant to the terms
of clause 12 hereinafter, and shall also lose the
right to receive the amounts set forth in clause 4 of
the present instrument of transaction;
9.2. Xx. Xxxxxxx further states, for all purposes and
effects of law, that, by virtue of his having
received the aforementioned amounts, he has no
further claims and has nothing else to receive from
AOL, at any title;
9.3. For the purposes of the non-competition clause, set
forth in item 9 (b) above, besides the
afore-specified term, Xx. Xxxxxxx is aware and agrees
that the said clause is valid for the Brazilian
territory and for the territories of the countries
where the companies of the same group of AOL's
operate.
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10. Xx. Xxxxxxx declares that the restrictions and clauses set forth in the
present instrument of transaction are reasonable and necessary for the
protection of the business and for AOL's interests and that they are not
overbroad, overlong or unfair.
11. The Parties expressly state and agree that, regarding the object of the
present Instrument of Transaction and other covenants herein set forth (a) there
are no other agreements, either oral or written, entered into between the
Parties, with the exception of Exhibit B; and (b) the present Instrument of
Transaction (i) represents the final and most complete negotiation between the
Parties herein established; (ii) prevails over any negotiation, offers,
proposals, agreements, commitments, promises, acts, conducts, representations,
statements, assertions and understandings, either previous or contemporary, oral
or written, express or implicit that there have been between Xx. Xxxxxxx and
AOL, including but not limited to the present agreement and (iii) cannot be
altered or opposed by any oral agreement subsequent to the present instrument.
This document can be entered into in several counterparts, and each one shall
have the same force and effect as the original.
12. In case Xx. Xxxxxxx violates any clause of this agreement, particularly
clause 9 and its items (a), (b) and (c), for this kind of breach of the present
Instrument of Transaction, AOL shall have the right to receive from Xx. Xxxxxxx,
as a criminal clause, the amount in real equivalent to one hundred thousand
American dollars (US$ 100,000.00), corresponding to nearly twenty per cent (20%)
of the amount involved in the present instrument of transaction, translated to
the rate of the closing of the commercial dollar sale of the day previous to
that of the payment.
13. The present instrument sets right each and every controversy eventually
existing between the Parties, being that in no circumstances it shall be
interpreted as an admission or confession, on the part of any of the Parties, of
any past, present or future responsibility or obligation, concerning the other
Party, at any title.
14. Any notification which may be given by one Party to the other, by
virtue of the present instrument, shall be made in writing and conveyed by means
of registered mail, with Receipt Notice, forwarded to the addresses indicated in
the Introduction, or to any other address that the Parties may eventually
indicate.
15. The present instrument binds the Parties and their respective
successors (whether by legal provision or by any other form) and their
authorized assignees, but, neither the present instrument nor any of the rights,
interests and obligations set forth herein, can be transferred by any of the
Parties without the previous express consent of the other Party.
16. Each Party declares and guarantees that it has had the opportunity of
carefully reading and revising the present instrument, having, inclusive, been
assisted by their respective attorneys and that they have understood its
content, clauses, aims and effects, and that each Party is entering into and
executing the present instrument on its own free will.
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17. The present instrument represents the sole, exclusive, total and
complete agreement between the Parties regarding its object. In case of
omission, the Parties invoke articles 840 to 850 of the New Brazilian Civil
Code, where relevant.
18. In case any of the provisions of the present Agreement is considered
unlawful, invalid or unfeasible before the current or future legal provisions,
the other provisions shall remain in full effect.
19. The present instrument was entered into and must be interpreted and
governed pursuant to the Brazilian laws. The Parties mutually agree and elect
the court of the County of the Capital of the State of Sao Paulo to settle any
issues arisen from this instrument.
In witness whereof, the Parties execute the present instrument in two (2)
counterparts of equal form and content, in the presence of the two (2)
undersigned witnesses.
Sao Paulo, May 1, 2003.
/s/ Xxxxxx Xxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
America Online Latin America, Inc.
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
AOL Brasil Ltda.
Witnesses::
1. - /s/ Xxxxxxx Xxxxxxxx Nobre Xxxxxxx
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Name: Xxxxxxx Xxxxxxxx Nobre Xxxxxxx
Identity Card no:
2. -
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Name:
Identity Card no:
EXHIBIT A
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INSTRUMENT OF TERMINATION OF LABOR AGREEMENT
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Board of Officers: Cost Center: PRESIDENCY
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Employer's Identification
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01 National Registry of Legal Entities/ Center of 02 Corporate Name
Statistics and Information
03.032.579/002-43 AOL Brasil Ltda
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03 Address (site, n(0), floor, flat) 04 Area
MARGINAL DO RIO PINHEIROS 5200 MORUMBI
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05 Town/City 06 Unit of the 07 Zip Code 08 National 09 National
SAO PAULO Federation 05693000 Classification of Registry of Legal
SP Economic Activity Entities /Center of
6420305 Statistics and
Information
Requesting Party/Work
--
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Employee's Identification
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10 Program of Social Integration/ Program for the 11 Name
Formation of Civil Servants' Patrimony
XXXXXX XXXXXXX XXX X XXXXXXX
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12 Address 13 Area
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14 Town/City 15 Unit of the Federation 16 Zip Code 17 Labor Card (n(0),
SAO PAULO SP series, unit of the
Federation)
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18 National Registry of Individual 19 Date of Birth 20 Mother's Name
Taxpayers
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Data of the Agreement
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21 Pay for Purpose of 22 Admission Date 23 Date of Prior Notice 24 Date of Dismissal
Termination
05/07/2001 03/31/2003 03/31/2003
55.580,45
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25 Reason for Dismissal 26 Dismissal Code 27 Alimony 28 Employee's Category
DISMISSAL WITHOUT CAUSE
01 ----- 1
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List of the Termination Amounts
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Payments Reference Amount
1020 Indemnified Prior Notice 30,00 55.580,45
1030 Proportional Vacations 12,00 55.580,45
1031 1/3 Additional Proportional Vacations 12,00 18.526,82
1032 Salary Difference -- 116.115,02
1046 Indemnification -- 55.580,45
0000 00xx Xxxxxxxxxxx Salary 1,00 4.631,70
0000 00xx Xxxxxxxxxxx Salary 3,00 13.895,11
46 TOTAL GROSS 319.910,00
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Discounts Reference Amount
TRANSLATOR'S NOTE:
INSS = National Institute of Social Security
IRRF = Withholding Income Tax
2027 INSS 13rd Salary 11,00 171,77
2029 Advance Payment 13rd Salary -- 27.790,23
2031 INSS Termination 11,00 171,77
2032 IRRF Termination 27,50 31.373,86
2063 IRRF Vacations Termination 27.50 19.868,97
2064 IRRF 13rd Salary Termination 27,50 4.537,11
2226 Dentalcare -- 28,80
2422 Ticket Meal -- 39,60
2427 Healthcare -- 430,52
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54 TOTAL OF DISCOUNTS 84.412,63
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55 NET AMOUNT TO BE RECEIVED 235.497,37
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FORM OF THE TERMINATION ACT
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56 Place and Date of Receipt 57 Stamp and Signature of Employer or Representative
SAO PAULO - 04/09/2003 AOL BRASIL LTDA
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58 Employee's Signature 59 Signature of the Employee's Legal Responsible Party
---
--
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60- Ratification
Free assistance has been rendered to the employee, pursuant to the terms of
477,ss.1st of the Consolidation of the Labor Laws, in this act having the
effective payment of the aforementioned specified termination amounts been
effected.
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Place and date
--------------------------------
Assistant's stamp and signature
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61 Employee's Fingerprint 62 Fingerprint of the Legal Responsible Party
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63 Identification of the Ratifying Body
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64 Receipt by the Bank (date and stamp)
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ASSISTANCE IN THE ACT OF TERMINATION OF AGREEMENT IS FREE
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EXHIBIT B
Chart stating the amounts to be acquitted:
REFERENCE AMOUNTS AMOUNT (US$)
1 Indemnification for termination of agreement 157,000.00
2 Air tickets Brazil-United States 5,000.00
3 Salary differences arisen from exchange variation 14,907.53
4 Benefit from vehicle purchase (20% of the vehicle's market value) 7,362.50
5 Convencional fine 20,800.00
6 Vacations due 2002/2003 + 1/3 27,700.00
7 Confidentiality Agreement, Non-Competition and Ownership Rights 24,000.00
8 Payment of aid for education purposes 1,000.00
9 Differences of the Unemployed Compensation Fund + 40% 30,650.00
10 Reflexes of the utility salary on the 13th salary 2,600.00
11 Reflexes of the utility salary on Vacations + 1/3 2,500.00
TOTAL 315,607.50
