<PAGE>
As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-95051
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
AMERICA ONLINE LATIN AMERICA, INC.
(Exact name of registrant as specified in its charter)
Delaware 7370 65-0963212
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
6600 N. Andrews Avenue
Suite 500
Fort Lauderdale, FL 33309
(954) 229-2100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------
Charles M. Herington
Chief Executive Officer
America Online Latin America, Inc.
6600 N. Andrews Avenue
Suite 500
Fort Lauderdale, FL 33309
(954) 229-2100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------
With copies to:
Michael L. Fantozzi, Esq. Marc S. Rosenberg, Esq.
Peter S. Lawrence, Esq. Cravath, Swaine & Moore
Mintz, Levin, Cohn, Ferris, Worldwide Plaza
Glovsky and Popeo, P.C. 825 Eighth Avenue
One Financial Center New York, NY 10019
Boston, MA 02111 (212) 474-1000
(617) 542-6000
------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered or
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
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, 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 registration statement for the
same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier 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 Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth an itemization of all estimated expenses, all
of which we will pay, in connection with the issuance and distribution of the
securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................... $ 182,160
Nasdaq National Market Listing Fee............................. 95,000
NASD Filing Fee................................................ 30,500
Printing and Engraving Fees.................................... 300,000
Legal Fees and Expenses........................................ 1,450,000
Accounting Fees and Expenses................................... 700,000
Blue Sky Fees and Expenses..................................... 5,000
Transfer Agent and Registrar Fees.............................. 2,000
Director and Officer Insurance................................. 200,000
Miscellaneous.................................................. 50,340
----------
Total........................................................ $3,015,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers.
Our restated certificate of incorporation provides that we shall indemnify
to the fullest extent authorized by the Delaware General Corporation Law, each
person who is involved in any litigation or other proceeding because such
person is or was a director or officer of AOL-LA or is or was serving as an
officer or director of another entity at our request, against all expense, loss
or liability reasonably incurred or suffered in connection with such service.
Our restated certificate of incorporation provides that the right to
indemnification includes the right to be paid expenses incurred in defending
any proceeding in advance of its final disposition; provided, however, that
such advance payment will only be made upon delivery to us of an undertaking,
by or on behalf of the director or officer, to repay all amounts advanced if it
is ultimately determined that such director is not entitled to indemnification.
If we do not pay a proper claim for indemnification in full within 60 days
after we receive a written claim for such indemnification, our restated by-laws
authorize the claimant to bring an action against us and prescribe what
constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to
indemnify any director or officer of the corporation against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding brought because such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he or
she had no reason to believe his or her conduct was unlawful. In a derivative
action, (i.e., one brought by or on behalf of the corporation), indemnification
may be provided only for expenses actually and reasonably incurred by any
director or officer in connection with the defense or settlement of such an
action or suit if such person acted in good faith and in a manner that he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be provided if such person
shall have been adjudged to be liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought shall
determine that the defendant is fairly and reasonably entitled to indemnify for
such expenses despite such adjudication of liability.
Our restated certificate of incorporation contains a provision, permitted by
the Delaware General Corporation Law, that generally eliminates the liability
of a director to us or our stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liabilities arising:
. from any breach of the director's duty of loyalty to us or our
stockholders;
II-1
<PAGE>
. from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law relating to
unlawful payment of dividends or unlawful stock purchase or redemption of
stock; and
. from any transaction from which the director derived an improper personal
benefit.
We intend to enter into insurance policies insuring our directors and
officers against certain liabilities that they may incur in their capacity as
directors and officers.
Additionally, reference is made to the Underwriting Agreement to be filed as
Exhibit 1.1 hereto, which provides for indemnification by the underwriters of
AOL-LA, our directors and officers who sign the Registration Statement and
persons who control AOL-LA, under certain circumstances.
Indemnification of AOL and the Cisneros Group
Each of our restated certificate of incorporation and the stockholders'
agreement between AOL, the Cisneros Group and us provides that we will
indemnify AOL and the Cisneros Group to the fullest extent authorized by the
Delaware General Corporation Law if we or any of our stockholders or any other
person bring an action against AOL or the Cisneros Group seeking damages or
other relief based on a breach or alleged breach of a fiduciary or other duty
by AOL or the Cisneros Group based on AOL or the Cisneros Group engaging or
investing in any business activity, including those that might be similar to
and in competition with us, or based on the pursuit by AOL or the Cisneros
group of an investment or a business opportunity or prospective economic
advantage in which we could have an interest or expectancy. Each of our
restated certificate of incorporation and the stockholders' agreement further
provides that the right to indemnification includes the right to be paid
expenses incurred in defending any proceeding in advance of its final
disposition; provided, however, that such advance payment will only be made
upon delivery to us of an undertaking, by or on behalf of AOL or the Cisneros
Group, to repay all amounts advanced if it is ultimately determined that AOL or
Cisneros Group is not entitled to indemnification. If we do not pay a proper
claim for indemnification in full within 60 days after we receive a written
claim for such indemnification, our restated certificate of incorporation and
the stockholders' agreement authorize AOL or the Cisneros Group to bring an
action against us and prescribe what constitutes a defense to such action.
Item 15. Recent Sales of Unregistered Securities.
In the three years preceding the filing of this Registration Statement, we
have sold the following securities that were not registered under the
Securities Act as summarized below.
(a) Issuances of Capital Stock
On , 2000, we entered into a contribution agreement with AOL, Riverview
Media Corp., a wholly owned subsidiary of the Cisneros Group, and AOL Latin
America, S.L. under which we will issue shares of our series B preferred
stock to AOL and shares of our series C preferred stock to Riverview Media
Corp. and two current executives and one former executive of the Cisneros Group
in exchange for their contribution to us of all their interests in AOL Latin
America S.L. AOL contributed a royalty free license in exchange for shares of
our series B preferred stock. We recorded the value of the license at AOL's
historical cost basis, which was zero. The Cisneros Group has agreed to
contribute an aggregate amount of $100 million for our series C preferred
stock. To date, the Company has received $74.4 million, which was recorded as
received.
(b) Issuance of Warrant
On , 2000, we will issue a warrant to AOL to purchase any combination
of shares of series B preferred stock or class A or class B common stock
at a per share exercise price equal to the initial public offering price.
II-2
<PAGE>
(c) Grant of Stock Options
Pursuant to our 2000 Stock Option Plan, immediately prior to the
effectiveness of our initial public offering, we will issue options to purchase
an aggregate of shares of Class A common stock at the initial public
offering price.
The sale and issuance of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder, or Rule 701 promulgated
under Section 3(b) of the Securities Act, as transactions by an issuer not
involving a public offering or transactions pursuant to compensatory benefit
plans and contracts relating to compensation as provided under Rule 701. The
recipient of securities in each such transaction represented their intention to
acquire the securities for investment only and not with the view to or for the
sale in connection with any distribution thereof and appropriate legends will
be affixed to the share certificates and instruments issued in such
transactions. All recipients had adequate access, through their relationships
with AOL-LA, to information about us.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S> <C>
*1.1 Form of Underwriting Agreement.
@3.1 Restated Certificate of Incorporation of America Online Latin
America, Inc. to be effective upon completion of the initial
public offering.
@3.2 Restated By-laws of America Online Latin America, Inc. to be
effective upon completion of the initial public offering.
*4.1 Form of class A Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
on the legality of securities being registered.
@10.1 Form of America Online Latin America, Inc. 2000 Stock Option
Plan.
@+10.2 Form of Stockholders' Agreement by and among America Online
Latin America, Inc., America Online, Inc. and Riverview Media
Corp., dated as of , 2000.
@10.3 Contribution Agreement by and among America Online Latin
America, Inc., AOL Latin America, S.L., America Online, Inc. and
Riverview Media Corp., dated as of , 2000.
@10.4 Registration Rights Agreement by and among America Online Latin
America, Inc.,
America Online, Inc. and Riverview Media Corp., dated as of ,
2000.
@+10.5 Form of AOL License Agreement by and between America Online,
Inc. and America Online Latin America, Inc., dated as of ,
2000.
@+10.6 Form of AOL Online Services Agreement by and between America
Online, Inc. and America Online Latin America, Inc., dated as of
, 2000.
@10.7 Form of Warrant to be issued by America Online Latin America,
Inc. to America Online, Inc., dated as of , 2000.
*10.8 Letter of employment for Charles M. Herington, dated February
26, 1999.
*10.9 Amended and Restated ODC Guarantee Agreement, dated as of
December 15, 1998.
+10.10 Agreement by and between Embratel and AOL Brasil Ltda., dated as
of October 18, 1999.
*10.11 Agreement by and between Netstream Telecom Ltda. and AOL Brasil
Ltda., dated as of May 3, 1999.
@21.1 Subsidiaries of America Online Latin America, Inc.
@23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(see Exhibit 5.1)
@24.1 Powers of Attorney.
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment has been requested for portions of this exhibit. These
portions have been omitted and filed separately with the Commission.
@ Previously filed.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 3 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Sao Paulo, Brazil, on March 17, 2000.
America Online Latin America, Inc.
/s/ Charles M. Herington
By: _________________________________
Charles M. Herington
Chief Executive Officer
As required by the Securities Act of 1933, this Amendment No. 3 to the
Registration Statement has been signed by the following persons in the
capacities held on the dates indicated.
<TABLE>
<S> <C> <C>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Charles M. Herington Chief Executive Officer March 17, 2000
______________________________________ (principal executive
Charles M. Herington officer)
* Chief Financial Officer March 17, 2000
______________________________________ (principal financial and
Javier Aguirre accounting officer)
* Director March 17, 2000
______________________________________
Steven I. Bandel
* Director March 17, 2000
______________________________________
Gustavo A. Cisneros
* Director March 17, 2000
______________________________________
Ricardo J. Cisneros
* Director March 17, 2000
______________________________________
Miles R. Gilburne
* Director March 17, 2000
______________________________________
J. Michael Kelly
* Director March 17, 2000
______________________________________
Michael Lynton
* Director March 17, 2000
______________________________________
Robert S. O'Hara, Jr.
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director March 17, 2000
______________________________________
Cristina Pieretti
* Director March 17, 2000
______________________________________
Robert W. Pittman
* Director March 17, 2000
______________________________________
Gerald Sokol, Jr.
</TABLE>
* By executing his name hereto, Charles M. Herington is signing this document
on behalf of the persons indicated above by the powers of attorney duly
executed by these persons and filed with the Securities and Exchange
Commission.
/s/ Charles M. Herington
By: _________________________________
Charles M. Herington
(Attorney-in-fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S> <C>
*1.1 Form of Underwriting Agreement.
@3.1 Restated Certificate of Incorporation of America Online Latin
America, Inc. to be effective upon completion of the initial
public offering.
@3.2 Restated By-laws of America Online Latin America, Inc. to be
effective upon completion of the initial public offering.
*4.1 Form of class A Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
on the legality of securities being registered.
@10.1 Form of America Online Latin America, Inc. 2000 Stock Option
Plan.
@+10.2 Form of Stockholders' Agreement by and among America Online
Latin America, Inc., America Online, Inc. and Riverview Media
Corp., dated as of , 2000.
@10.3 Contribution Agreement by and among America Online Latin
America, Inc., AOL Latin America, S.L., America Online, Inc. and
Riverview Media Corp., dated as of , 2000.
@10.4 Registration Rights Agreement by and among America Online Latin
America, Inc.,
America Online, Inc. and Riverview Media Corp., dated as of ,
2000.
@+10.5 Form of AOL License Agreement by and between America Online,
Inc. and America Online Latin America, Inc., dated as of ,
2000.
@+10.6 Form of AOL Online Services Agreement by and between America
Online, Inc. and America Online Latin America, Inc., dated as of
, 2000.
@10.7 Form of Warrant to be issued by America Online Latin America,
Inc. to America Online, Inc., dated as of , 2000.
*10.8 Letter of employment for Charles M. Herington, dated February
26, 1999.
*10.9 Amended and restated ODC Guarantee Agreement, dated as of
December 15, 1998.
+10.10 Agreement by and between Embratel and AOL Brasil Ltda., dated as
of October 18, 1999.
*10.11 Agreement by and between Netstream Telecom Ltda. and AOL Brasil
Ltda., dated as of May 3, 1999.
@21.1 Subsidiaries of America Online Latin America, Inc.
@23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(see Exhibit 5.1)
@24.1 Powers of Attorney.
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment has been requested for portions of this exhibit.
These portions have been omitted and filed separately with the Commission.
@ Previously filed.
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
EXHIBIT 10.10
[*]=CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
MASTER AGREEMENT FOR VALUE ADDED SERVICES
(BRAZIL)
AOL BRASIL LTDA., a Brazilian corporation having headquarter offices at Avenida
Industrial 600, 2o. Andar, Santo Andre, 08090-500, Sao Paulo - SP, registered
with Ministerio da Fazenda under number 03.032.579/0001-62, represented by its
President and General Manager, Francisco Loureiro, hereinafter called AOL, and
EMPRESA BRASILEIRA DE TELECOMUNICACOES S.A. - EMBRATEL, a Brazilian corporation
having offices at Av. Presidente Vargas, 1012, CEP 20179-900, Rio de Janeiro -
RJ, registered with Ministerio da Fazenda under the number 33.530.486/0001-29,
represented by its Services Director, Eduardo Levy Cardoso Moreira, and Regional
Director, Luiz Claudio A. Cyriaco, hereinafter called EMBRATEL, both
collectively referred to as Parties, have determined to establish and agree with
terms of the following agreement (this "Agreement"):
WHEREAS, AOL is an Internet and online service provider which desires to
build a proprietary AOLnet data communications network in Brazil through the
purchase of value added services;
WHEREAS, AOLnet is defined to be the subset of AOL's member access network
in which AOL has control of (i) the usage, location and quantities of the
applicable equipment; (ii) the purchase, usage, and deployment of all hardware
and software utilized to support the network infrastructure; and (iii) the right
to resell all available capacity to third parties.
WHEREAS, EMBRATEL is a provider of value added services, including Internet
access network services;
WHEREAS, EMBRATEL has agreed to build out a portion of AOLnet in Brazil and
provide value added services (including Internet access network services) to AOL
as detailed elsewhere in this Agreement;
WHEREAS, the parties desire to formalize their relationship;
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties agree as follows:
1. Scope of Services. EMBRATEL shall install, activate, maintain, and operate
-----------------
Modems for AOL's nationwide dial-up network in AOL-designated cities in Brazil,
as set forth in Exhibit C ("Deployment Plan"). The parties further agree to
negotiate in good faith regarding future expansion of AOL-designated cities
within Brazil. The initial total network size shall be [*] Modems. For purposes
of this Agreement, "Modem" shall mean an individual data channel, having the
bandwidth specified in Section 2.1("Network Charges") from a specified location
in Brazil to any of the then-current AOL data centers. This channel may be
established via an analog or digital ingress (e.g., a channelized E-1 and other
future
-1-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
technologies determined by the Parties to be appropriate under this Agreement)
to a Modem Box. "Modem Box" shall mean the physical product, which houses the
Modems and the netserver capacity to provide intelligence regarding the network.
1.1 Commitments. AOL agrees to order from EMBRATEL a minimum of [*]
-----------
Dedicated Modems for the buildout of AOLnet in Brazil during the term of this
Agreement; provided, however, that EMBRATEL meets all required performance
criteria as defined in Exhibit A as updated from time to time consistent with
AOL's reasonable criteria applicable to all of its network and value added
services providers. Such performance criteria include, but are not limited to:
(i) meeting the monthly buildout targets specified by AOL, and (ii) meeting the
requisite service levels for such buildout (including without limitation the
performance levels specified in Exhibit A making allowances for factors beyond
EMBRATEL's control when they can be proven). If in any month EMBRATEL fails to
meet any of its installation commitments, AOL's minimum commitment for all
following months shall be [*] of the percentage by which EMBRATEL has fallen
short of its quality and capacity requirements for such month. The above-
described reduction in commitment shall not limit any of AOL's other rights and
remedies hereunder or at law. Except for the specific commitments expressed
above, AOL shall not otherwise be committed to purchase modems or services from
EMBRATEL.
1.2 EMBRATEL Obligations.
--------------------
(a) EMBRATEL shall deploy any capacity requests accepted by EMBRATEL
within ninety (90) days of acceptance. The parties agree that EMBRATEL may not
implement any changes with respect to the manufacturer of the Modems and
Adjacent Routers deployed throughout the network without mutual agreement of the
parties. EMBRATEL also agrees to [*] at AOL's sole discretion and cost, within
ninety (90) days after AOL's request for such [*]. If EMBRATEL refuses to accept
a capacity request or does not deploy a capacity request within ninety (90) days
after accepting such request, AOL shall be free to request installation of such
capacity from another provider. Further, any such capacity request that EMBRATEL
refuses or does not timely fulfill shall nevertheless be counted towards AOL's
minimum commitment as specified in Section 1.1 ("Commitments"). EMBRATEL also
agrees to implement [*] on an expedited basis for AOL who in its sole
discretion, shall determine [*] and related equipment and, in the event of
significant changes to cost directly resulting therefrom, the parties may
revisit Fees.
(b) AOL will have the right to direct EMBRATEL to withdraw Returnable
Dedicated Modems (as defined below) within 90 days of deployment, subject to
item 1.2(d). "Returnable Dedicated Modems" mean [*] of the number of Dedicated
Modems EMBRATEL is deploying in connection with an AOL initial buildout request,
as defined in item 1.
(c) For the Returnable Dedicated Modems, EMBRATEL shall not "acquire"
network access server equipment. It is AOL's responsibility to negotiate the
"loan" to EMBRATEL of such equipment (i.e., the right to return such equipment
without charge), including all hardware, software, spare parts, installation and
deinstallation services necessary for the operation of the service for 90 days.
(d) Ten (10) days before the end of the 90-day period, AOL shall
provide EMBRATEL with a written communication defining how many of the
Returnable Dedicated
-2-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
Modems will be kept, and how many will be returned. For each 30 returnable
dedicated modems (E1) returned, AOL shall pay EMBRATEL a service fee for removal
thereof in the amount of [*] which EMBRATEL shall invoice to AOL in accordance
with Section 2.4 below.
1.3 Implementation of Network and Value Added Services. AOL shall have
-------------------------------------------------------
absolute control to define the local dialing geographical area being served and
the establishment of a reasonable schedule for installations. In the event that
AOL directs a change in service location or circuit type or a reallocation of
Modems among locations after tasking has been issued or Modems have been
activated, any additional costs incurred by EMBRATEL, including any service
termination or service activation costs, will be reimbursed by AOL. AOL shall
retain control of how the users connect to the network and how the network
connects to AOL. EMBRATEL shall control the design and use of the network
backbone, the value added services, and the backhaul circuits from the virtual
points of presence ("POPs") to the physical POPs. EMBRATEL shall determine the
location of actual Modem installation, and EMBRATEL shall also identify the
number and location of spare Modems necessary to ensure compliance with the
performance specifications described in Exhibit A.
2. Fees.
----
2.1 Network Charges. In exchange for the network services and value added
---------------
services to be provided hereunder, AOL will pay Embratel the following for
Modems accepted by AOL in accordance with monthly buildout targets specified by
AOL, without taxes (all prices are quoted in Brazilian reais, base month Sept.
1999):
(a) [*] (the "Base Price"), provided that such fee per [*] Modem will
not be charged with regards to a [*] Modem at such time that it is returned
or withdrawn in accordance with Section 1.2(b).
(b) [*] in cities over [*] inhabitants where EMBRATEL has a POP of
its dial-in network and [*] in cities at or under [*] inhabitants where EMBRATEL
has a POP of its dial-in network.
(c) In the event that AOL orders a [*] Modem(s) where [*] Modem
capacity is available, the price of using the [*] Modem will be the [*] Modem
price until such time the [*] Modem(s) is installed. The Access Number used with
the [*] Modem will be a number exclusively for AOL traffic and will be the same
as that used upon installation of the [*] Modem.
(d) The Base Price paid to EMBRATEL shall include all costs relating
to the management and operation of the dial-up network, including but not
limited to: (a) the network circuit requirement (E-3), a LEC circuit requirement
of E1 per 30 Modems, and a backhaul requirement of 1 E1 per 256 Modems; (b)
recurring Local Exchange Carrier (LEC) circuit charges; all the public domestic
network infrastructure necessary to route the traffic from the Modem Boxes up to
the international hub in Brazil; (c) routing through Internet international
circuits ; (d) recurring backhaul circuit charges; (e) amortization of all one-
time circuit installation fees; (f) analog telephone lines; (g) non-capital
equipment; (h) site maintenance; (i) recurring co-location charges; (j) co-
location installation fees; (k) other one-time
-3-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
installation fees; (l) Modem management fees; (m) equipment lease expenses at
EMBRATEL sites; and (n) the cost of any spare equipment.
For purposes of this paragraph, the E-3 requirements are as follows;
Throughput Modems per E-3 (or equivalent)
---------- ------------------------------
[*] [*]
The parties agree that E-3s shall be defined as network circuits with 34-megabit
capacity with no greater than [*] peak utilization per individual circuit,
measured as an average over recurring five minute windows.
(e) The Base Price is valid for [*] bps service only. Each additional
[*] bps increment as set forth above that is requested by AOL will result in an
additional [*] per Modem per month to the Base Price. The parties agree that the
network sizing assumes that backhaul and backbone circuits are sized at no
greater than [*] peak utilization per individual circuit, measured as an average
over recurring five minute windows.
(f) Additionally to the fees described in this section, subject to
Sections 10 and 11, AOL agrees to pay all applicable goods and services taxes
relating to the services provided under this Agreement as identified in the
relevant invoice provided pursuant to Section 2.4.
(g) AOL shall not be required to pay for the use of any Modem or
Modem Box for any period of time during a billing cycle in which such Modem or
Modem Box is inoperable or otherwise out of service. A discount shall be
deducted from the monthly AOL invoice equal to the percentage during which time
modems were unavailable over the course of a month.
2.2 Volume Discounts. In exchange for AOL committing to the capacity set
forth in Paragraph 1.1 ("Commitments"), EMBRATEL agrees to immediately provide
the following discounts to AOL during the term of the agreement;
(a) For Modem orders that result in a total installed Modem base of
between [*] and [*] Modems, a cumulative discount of [*] will be applied to the
combined per Modem cost for the entire Modem base, including the newly ordered
Modems.
(b) For Modem orders that result in a total installed Modem base of
between [*] and [*] Modems, a cumulative discount of [*] will be applied to the
combined per Modem cost for the entire Modem base, including the newly ordered
Modems.
(c) For Modem orders that result in a total installed Modem base of
greater than [*] Modems, a cumulative discount of [*] will be applied to the
combined per Modem cost for the entire Modem base, including the newly ordered
Modems
2.3 Price Adjustments.
Price adjustment may be done, upon EMBRATEL's sole decision, on a yearly basis,
or in the shortest period permitted by Brazilian law, from the Effective Date,
or from the last price
-4-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
adjustment. Embratel shall communicate AOL at least 30 (thirty) days prior to
applying price adjustments as set forth herein. Effective Date shall mean the
date of signature of this Agreement.
The prices defined on 2.1 shall be adjusted according to the "'Indice Geral de
Precos - Disponibilidade Interna" (IGP-DI), published by Fundacao Getulio
Vargas, or any other index defined by Brazilian law, considering the base month
of the prices in this Agreement.
The adjustment formula to be applied to the prices defined in item 2.1 is:
Pn = Pb x (I / lb), where:
Pn = price after adjustment;
Pb = base price prior to adjustment;
I = IGP-DI index, corresponding to the month before the adjustment month;
Ib = IGP-DI index corresponding to the month before the base month of the prices
in this Agreement or the month before the month of the last adjustment applied
to the prices in this Agreement.
2.4 Payment Terms. At such point that AOL accepts Modems in
-------------
accordance with this Agreement, EMBRATEL will invoice AOL on a monthly basis the
charges specified in this Section 2 for all services provided to AOL under this
Agreement. Invoices shall identify applicable taxes as agreed upon by the
parties. All payments due to EMBRATEL under this Agreement shall be invoiced in
arrears to AOL. All undisputed invoices shall be payable within [*] days of
receipt of the invoice. EMBRATEL acknowledges that it is AOL's billing policy
not to honor any invoices for services performed more than [*] days before the
receipt of the invoice by AOL.
(a) In the event AOL fails to pay EMBRATEL any undisputed amount [*]
due in accordance with the payment schedule and terms provided herein, EMBRATEL
shall provide AOL with notice of such non-payment and AOL shall pay EMBRATEL, as
damages for financial distress, a fine of [*], plus interest of [*] per month,
in addition to the amount originally due, calculated from the date such amount
should have been paid until its actual receipt by EMBRATEL. Such value shall be
adjusted in order to compensate EMBRATEL for inflationary losses, if any, as per
Paragraph 2.3 ("Price Adjustments"). EMBRATEL, in its sole discretion, shall
have the option of [*].
2.5 [*]
3. Acceptance Testing.
------------------
3.1 Acceptance Criteria and Data. Newly activated Modem Boxes will be
----------------------------
subject to an acceptance test by AOL. Each acceptance test shall last for a
period of six (6) days. AOL shall have the option of rejecting a Modem Box and
associated circuits which meets or exceeds one or more of the following failure
thresholds: (a) [*] of user sessions terminate without a user-initiated logoff
sequence; (b) [*] of user calls fail to connect to the Modem Box
-5-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
(such data will be provided by EMBRATEL for the Modem Boxes on a daily basis.
The six day acceptance period will be contingent upon receiving this data on a
daily basis beginning with a Modem Box activation); (c) greater than [*] of user
calls which successfully connect to the Modem Box fail to connect to the AOL
front end. EMBRATEL shall provide to AOL all of the performance data necessary
to conduct the acceptance tests on a daily basis during the testing period. If
such data is not received by AOL daily, the applicable Modem Box shall
automatically be deemed rejected.
3.2 Notice of Failure. In the event that a newly activated Modem Box
-----------------
meets or exceeds any of the failure thresholds specified in Paragraph 3.1
("Acceptance Criteria_and Data") within the six (6) day test period, AOL may, at
its option, send EMBRATEL an e-mail notice of rejection, specifying the failure
thresholds which were met or exceeded during the test. In determining
acceptance, AOL shall not hold EMBRATEL accountable for problems due to AOL's
client software. Provided that all relevant daily performance data has been
provided to AOL as required by Section 3.1 ("Acceptance Criteria_and Data") any
Modem Boxes that have not been rejected by AOL by the end of the sixth day
following activation will be deemed accepted.
3.3 Rejected Modem Boxes. Rejected Modem Boxes shall be removed from
--------------------
service pending further troubleshooting and corrective action by EMBRATEL.
Following such troubleshooting and corrective action by EMBRATEL, EMBRATEL may
re-activate the Modem Boxes for customer use, and a new six-day acceptance
period shall commence. No fees relating to any rejected Modem Box(es) shall be
charged to AOL during the period in which EMBRATEL is implementing
troubleshooting and corrective action or during the subsequent new six (6) day
testing period.
3.4 Payment Obligations. The payment obligation of AOL for any Modem
-------------------
Box begins at the end of the six (6) day testing period and only upon acceptance
of such Modem Box by AOL.
4. Technical and Operational Requirements. EMBRATEL shall provide services
--------------------------------------
that meet the specifications as set forth in this Section 4 and in Exhibit B
("Operational Requirements"):
4.1 Netserver and Backbone Capacity.
-------------------------------
(a) from the netserver to the backbone, there will be no more than
[*] Modems per T1 line or [*] Modems per E1 line;
(b) the backbone is sized for aggregate dial and Internet traffic.
(c) the EMBRATEL Internet backbone facility to AOL shall be sized at
[*] of peak utilization as measured over recurring five minute windows.
4.2 Access and Connection Protocol. EMBRATEL shall provide support
------------------------------
for the following AOLnet access methods, access technology, connection protocols
and hub architecture:
(a) the proprietary AOL P3 protocol
-6-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
(b) PPP
(c) TCP/IP
(d) L2TP
(e) UDP
(f) Routing to multiple services including but not limited to AOL
and any other AOL-offered service as requested by AOL, provided that the user's
TCP/IP connection terminates at a site, which is subject to subparagraph (h)
below.
(g) Routing to resale customers that may be part of AOL's overall
network allocation, provided that the user's TCP/IP connection terminates at a
site which is subject to subparagraph (h) below.
(h) Routing to other AOL-specified sites in addition to, Reston,
Virginia, Manassas, Virginia, and Dulles, Virginia, provided that the cost of
routing to the other AOL-specified sites does not exceed the cost of routing the
equivalent traffic to Reston, Manassas, or Dulles, subject to prior agreement by
EMBRATEL and AOL on how IP routing is implemented.
The following access methods may be supported by EMBRATEL in the future, subject
to agreement between both parties:
(i) ISDN synchronous & asynchronous (v.120)
(j) 128K Multi-link ISDN
(k) xDSL
(l) 1-way Cable
4.3 IP Addresses. EMBRATEL shall acquire and manage IP addresses for
------------
all protocols utilized by AOL during the term of this Agreement. Each
individual [*] shall be provided a [*] such that [*] and EMBRATEL further agrees
that IP addresses be allocated in contiguous class C/24 blocks when technically
necessary. AOL shall be provided the source IP addresses prior to use two weeks
in advance of implementation within the network. EMBRATEL acknowledges and
agrees that it must assign IP addresses in connection with its implementation of
the PPP protocol in a manner that permits AOL to reliably identify the location
and identity of users. EMBRATEL shall provide additional IP blocks from the
allocated EMBRATEL space in accordance with the rules of Registro.BR.
4.4 IETF Standards. EMBRATEL shall, in its network design and topology,
--------------
comply with IETF approved and adopted standards applicable to the access methods
set forth in Section 4.2.
4.5 Domain Name Services. EMBRATEL shall provide domain name service as
--------------------
follows:
-7-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
(a) Answer and route domain name service queries to AOL destinations
(b) support domain name service for AOL service access to the AOL
domain and any zones resident on AOL name servers
(c) maintaining domain name service servers
4.6 Changes in Operating Requirement. AOL may direct changes to the
--------------------------------
operating requirements described in this Section 4 to provisioned bandwidth,
AOLnet access methods, access technology, and hub architecture, and EMBRATEL
will respond promptly with any adjusted pricing related to such request. In the
event that such changes necessitate an extension of the timeframe originally
scheduled for the installation of Modems, the installation schedule shall be
extended the same amount of time required to execute such changes.
5. Network Performance.
-------------------
5.1 Service Performance Levels. The network shall perform in accordance
--------------------------
with the service performance levels set forth in Exhibit A ("Service Performance
Levels"). AOL shall notify EMBRATEL in the event that the network fails to meet
or exceed the Service Performance Levels in two consecutive months or on an
average over a three-month period. EMBRATEL shall have three (3) months
following the receipt of such notice to cure such failure. If EMBRATEL fails to
cure such failure within such three (3) month period, AOL may, at its sole
option, either (i) terminate this Agreement for default, in accordance with
Paragraph 8.2 ("Termination") or (ii) suspend the minimum network order
commitments of Paragraph 1.1 ("Commitments") until such time as the network
meets or exceeds the Service Performance Levels (based on average measurements
over three (3) calendar months). For purposes of the foregoing, suspending the
minimum network order commitments shall mean that for each month until the
network has been brought into compliance with the Service Performance Levels,
AOL shall have no obligation to place any orders for network capacity with
EMBRATEL for such month. Further, AOL shall have no obligation following any
period of suspension to make up for any network capacity orders not made during
such period of suspension
5.2 EMBRATEL shall ensure that the network be Year 2000 compliant and
shall represent and warrant to such compliance. Year 2000 compliant shall mean:
(a) Business processes and procedures must contain no logical or
arithmetic inconsistencies and will function without interruption prior to,
during and after Year 2000.
(b) The Year 2000 must have the ability to recognize and manage
business processes and procedures that occur in association with the leap year.
(c) All interfaces and processes must be able to handle the data
storage, display and output of date driven information as it relates to the
century, in order to eliminate date ambiguity.
-8-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
(d) Successfully and reliably process date relevant functions and
data containing dates from, into and between the twentieth and twenty-first
centuries.
(e) The above definitions apply, provided that all other products
(e.g., hardware, software, and firmware) interfacing with AOL and CompuServe
properly exchange date data with it.
5.3 Architectural Independence
(a) Alternate Carriers. In the event that EMBRATEL determines that
------------------
another carrier's offerings represent a superior value, or other factors which
may make another carrier's offerings preferable, EMBRATEL may utilize a carrier
other than its current carrier for the network or any portion thereof. EMBRATEL
acknowledges AOL's goal is to achieve architectural independence among its
service providers to minimize the probability that a single failure could impact
more than one AOL service provider. EMBRATEL shall solicit AOL's input prior to
the use of a carrier other than its current carrier.
(b) In the event that significant changes in [*] the parties may
revisit fees.
5.4 EMBRATEL Representation. EMBRATEL represents and warrants that
------------------------
any and all Modem and Modem Box, as defined above have been certified by the
relevant authorities in Brazil and in accordance with the applicable laws and
regulations.
6. Project Management. EMBRATEL shall set up an AOL project team, staffed
------------------
with an EMBRATEL Regional Director and an AOL customer service representative
(subject to AOL's reasonable approval), who will be responsible for directing
the building, maintaining, and operating of AOLnet and the AOL Internet access.
The EMBRATEL project manager shall be AOL's primary point of contact and [*],
for guidance and advice. An AOL dedicated project manager shall be set up by
EMBRATEL when deemed necessary by both parties.
7. Audits.
------
7.1 In the event of an unresolved disagreement between the parties (as
reasonably determined by either party) regarding technical issues, each party
reserves the right to audit the other party's relevant records to verify the
audited party's technical compliance with the terms of this Agreement. No
commercial or financial data shall be audited. This audit by one party of the
records of the other party shall be performed by an independent certified public
accounting firm as follows: (i) following at least ten (10) business days'
prior written notice to the audited party; (ii) at the auditing party's sole
cost and expense; (iii) in a reasonable scope and duration; (iv) in a manner so
as not to interfere with the audited party's business operations; and (v) in
compliance with the audited party's security requirements. Unless the parties
mutually agree otherwise, the number of audits that each party may conduct shall
not exceed one per year. Nothing contained in this paragraph is intended to
allow either party access to or review of confidential information, the
disclosure of which would violate the terms of an agreement with any third
party. Materials of the audited party reviewed by such independent certified
public accounting firm in the course of the audit shall be deemed confidential
and their use by the independent certified public accounting firm shall be
limited to the conduct of the audit and any resulting report shall not contain
any confidential information of the audited party or any third party.
-9-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
Such accounting firm shall, prior to conducting such audit, execute a
nondisclosure agreement acceptable to the audited part containing the
substantive provisions of this paragraph. Any report or other information
produced or reviewed by the auditor shall not be distributed within the auditing
party except to such persons with a need to know. The foregoing report and/or
information shall be made available to the audited party on request. Each party
shall maintain complete and accurate records and shall retain such records for a
period not less than the term of this Agreement or such other longer period as
may be required by applicable law, rule, or regulation. The disclosure of any
documents, records or any other information shall be limited to portion of the
documents, records or information that relate to this Agreement.
7.2 Within 10 days of AOL's written request, a senior executive officer of
EMBRATEL will certify, through sworn affidavit, that [*].
8. Term and Termination.
--------------------
8.1 Term. The term of this relationship shall be three (3) years from the
----
Effective Date. The Agreement may be renewed if mutually agreed upon by the
parties in writing for additional one-year periods upon six months notice. At
the end of the Agreement, the parties will implement a six-month transition
period to allow for the orderly migration of AOL's customers during which the
terms of this Agreement will remain in effect to the extent applicable,
specifically including, without limitation, fees and payments, but excluding,
without limitation, the Commitments on Dedicated Modems. The parties will
resolve all transition issues in a good faith and equitable manner.
8.2 Termination. Either party shall have the right to terminate for
-----------
material breach, provided that any such breach is uncured after forty-five (45)
days written notice. Upon such termination, each party will work reasonably with
the other party and such party's designees to ensure a smooth and timely
transition of the network control and management to AOL within one hundred
eighty (180) days of the effective date of termination. In the event of any
termination, EMBRATEL will transfer ownership of the telephone numbers (and not
the telephone lines) in the network to AOL or its designee, subject to the legal
and regulatory restrictions of this procedure, if any.
9. Confidentiality. The parties agree that all disclosures of confidential
---------------
and/or proprietary information before and during the term of this Agreement
shall constitute confidential information of the disclosing party. Such
confidential information shall include, but not be limited to, AOL usage
statistics, calling patterns, ANI data, and all member information. Each party
shall use commercially reasonable efforts to ensure the confidentiality of such
information supplied by the disclosing party, or which may be acquired by either
party in connection with or as a result of the provision of the services under
this Agreement. Each party agrees that it shall not disclose, modify, or
otherwise divulge such confidential information. The parties may use or copy or
reproduce confidential information only when it is strictly necessary for the
performance of the services as agreed herein. Each party further agrees to hold
harmless and indemnify the other party in the event of any disclosure by such
party. Each party further agrees to hold harmless and indemnify the other party
in the event of any disclosure by such party
9.1 The non disclosure obligation shall not be applicable to:
-10-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
(a) Information that is in or becomes part of the public domain
without violation of this Agreement by the receiving party;
(b) Information that was known to be in the possession of the
receiving party on a non-confidential basis prior to the disclosure thereof to
the receiving party by the disclosing party, as evidenced by written records;
(c) Information that was developed independently by the receiving
party's employees;
(d) Information that is disclosed to the receiving party by a third
party under no obligation of confidentiality to the disclosing party and without
violation of this Agreement by the receiving party; or
(e) Information that is authorized by the disclosing party in writing
for disclosure or release by the receiving party.
(f) In the event recipient is required by law, regulation or court
order to disclose any of owner's confidential information, recipient will
promptly notify owner in writing prior to making any such disclosure in order to
facilitate owner seeking a protective order or other appropriate remedy from the
proper authority. Recipient further agrees that if owner is not successful in
precluding the requesting legal body from requiring the disclosure of the
confidential information, it will furnish only that portion of the confidential
information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
confidential information.
10. Certain Conditions.
------------------
10.1 In the event of changes in the [*] under this Agreement, as applied
on the Effective date, EMBRATEL will work with AOL to modify the allocation of
fees to reflect appropriate splits between domestic and international network
services in order to minimize the overall impact to AOL of [*]. Furthermore,
with regard to any [*], the parties will actively cooperate to [*].
10.2 EMBRATEL will not be responsible for directly supporting AOL
customers at EMBRATEL call centers; AOL directly supports its customers but will
itself be supported by EMBRATEL in accordance with this Agreement.
10.3 EMBRATEL's provision of Internet access network services for AOL's
interactive services does not make EMBRATEL responsible for damaging
interactive actions taken by AOL customers such as "spamming" and similar
actions, however, EMBRATEL shall cooperate with AOL on the investigation and
interruption of such acts.
10.4 At such time EMBRATEL negotiates a benefit or [*] in relation to
[*], EMBRATEL hereby agrees to enter into good faith discussions with AOL to
[*]. Further, if, at any time during the term of this Agreement, EMBRATEL [*],
then EMBRATEL agrees to immediately [*]. Within 10 days of AOL's written
request, a senior executive officer of EMBRATEL will certify, through sworn
affidavit, EMBRATEL's compliance with this Section
-11-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
10.2. EMBRATEL hereby agrees that the foregoing covenant is a material term of
this Agreement.
10.5 EMBRATEL shall destinate [*] of invoiced amount less taxes due to
this Agreement to [*].
11. Indemnity. EMBRATEL agrees to indemnify, defend, and hold AOL harmless
---------
from damages, losses, or liabilities (including reasonable attorneys' fees)
arising from (i) any third party claims of [*] arising from [*]; (ii) any third
party claims arising out of [*]; and (iii) any third party claims relating to
any [*]; (iv) any [*] resulting from [*] in connection with this Agreement. AOL
covenants that its agreement with members will state that [*] and that, among
other things, in no case shall there be [*].
11.1 Indemnification process. If AOL becomes aware of any matter it
believes is indemnifiable hereunder involving any claim, action, suit,
investigation, arbitration or other proceeding against AOL by any third party
(each an "Action"), AOL shall give EMBRATEL prompt written notice of such
Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of AOL.
EMBRATEL shall have a period of tem (10) days after delivery of such notice to
respond. If EMBRATEL elects to defend the Action or does not respond within the
requisite ten (10) day period, EMBRATEL shall be obligated to defend the Action,
at its own expense. AOL shall reasonably cooperate, with EMBRATEL and its
counsel in the defense, and AOL shall otherwise have the right to participate
fully, at its own expense, in the defense of such Action. If EMBRATEL responds
within the required ten (10) day period and elects not to defend such Action,
AOL shall, without prejudice to any of AOL's rights hereunder (including Section
11 above), defend (and control the defense of) such Action. In such case,
EMBRATEL shall cooperate, at its own expense, with AOL and its counsel in the
defense against such Action and EMBRATEL shall have the right to participate
fully, at its own expense, in the defense of such Action. Any compromise or
settlement of an Action shall require the prior written consent of EMBRATEL, in
consultation with AOL and reasonable EMBRATELconsideration of AOL's positions,
provided however that the final decision will be taken by EMBRATEL.
12. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
-----------------------
STATED OR IMPLIED HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING LOST
PROFITS) SUFFERED BY THE OTHER OR BY ANY ASSIGNEE OR OTHER TRANSFEREE OF THE
OTHER, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, WHICH
INCLUDES, BUT IS NOT LIMITED TO, LOSS OF PROFITS, REVENUES OR BUSINESS
OPPORTUNITIES.
13. Ownership and Remedies upon Termination or Expiration.
13.1 EMBRATEL shall retain title and ownership to the dial-up network
equipment, including but not limited to, Modems and related equipment; provided,
however, that as a condition of such ownership, the parties agree that (i) AOL
shall recoup all of the economic benefit of any endorsement by AOL of a
specified technology or vendor for the Modems and related equipment and (ii) AOL
shall own the telephone numbers to each of the dial-up
-12-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
points of presence, and EMBRATEL shall not transfer such telephone numbers to
any third party without written permission from, subject to the legal and
regulatory restrictions of transferring the telephone numbers to AOL, if any.
13.2 Upon termination of this Agreement arising from a material uncured
breach by EMBRATEL, the parties agree that (i) AOL (or its designee) shall be
allowed to manage the operation of the AOL portion of the network utilizing AOL
personnel and staff and EMBRATEL equipment and software at EMBRATEL locations,
and EMBRATEL shall permit such AOL personnel and staff to have free and
unobstructed access to such EMBRATEL locations for the purpose of managing such
operations, all at [*] of cost for [*] days followed by no cost for [*] days;
(ii) the parties shall implement a six month transition period to allow for
AOL's assumption of management and control of the network; and (iii) EMBRATEL
agrees to the ability of AOL to seek injunctive relief and specific performance
regarding the remedies set forth herein.
13.3 EMBRATEL shall not itself encumber or permit the Modems to be
encumbered (except to the extent beyond its control due to governmental or
judicial action) by any liabilities, liens, claims, charges, security interests
or encumbrances of any kind other than such encumbrances as existed at the time
EMBRATEL obtained the Modems.
13.4 Notwithstanding anything to the contrary in this Agreement, any
changes in the AOL telephone numbers shall require prior written communication
to AOL. 13.5 AOL shall also retain title and ownership to all data contained in
written reports prepared and delivered to AOL hereunder.
13.6 Any software developed by EMBRATEL incidental to the performance of
services for AOL, the cost of which is charged to, and reimbursed by, AOL shall
be jointly owned by EMBRATEL and AOL, and EMBRATEL may not use such software for
the benefit of a third party unless EMBRATEL pays to AOL the cost that was
charged to AOL for the development of such software. Notwithstanding the
foregoing, in no event shall EMBRATEL use such software for the benefit of any
entity reasonably construed to be a top ten competitor of AOL. EMBRATEL further
agrees to execute any and all necessary documentation to perfect AOL's ownership
rights in such software as reasonably requested by AOL. EMBRATEL further agrees
that it has no ownership rights or usage rights (except as necessary to fulfill
its obligations as set forth in this Agreement) to any AOL proprietary
information or software provided hereunder, including but not limited to any AOL
proprietary information or AOL software which may be incorporated into written
material or software delivered under this Agreement.
14. General.
-------
14.1 Governing Law and Jurisdiction. This Agreement shall be governed and
------------------------------
construed under the laws of the Brazilian Federative Republic, and the court of
Rio de Janeiro is hereby elected to settle any disputes arising herefrom, with
the exclusion of any other no matter how privileged it may be.
14.2 Press Release. The terms of this Agreement are confidential, and
-------------
neither party shall disclose to any third party (other than bankers and lenders,
and legal and other
-13-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
professional advisers with a need to know) the terms and conditions of this
Agreement. Such obligations shall apply except as required by law or government
regulation. In addition, any press release or public announcement with respect
to this Agreement shall be subject to the mutual approval of the parties, unless
such major press releases or public announcements are required by law.
14.3 Force Majeure.
-------------
(a) During the term of this Agreement, neither party shall be in
default of its obligations to the extent that its performance is delayed or
prevented by Force Majeure, as defined in Brazilian law, including but not
limited to acts of God, natural disasters, bankruptcy of a vendor, strikes and
other labor disturbances, acts of war or civil disturbance, or other equivalent
or comparable events.
(b) In such event, the non-performing party will be excused from any
further performance obligations so affected for as long as such circumstances
prevail and such party continues to use commercially reasonable efforts to
recommence performance without delay. [*]
(c) Any party so delayed in its performance will immediately notify
the party to whom performance is due by telephone (to be confirmed promptly in
writing) and describe in reasonable detail the circumstances causing such delay.
(d) If any of the circumstances described in this Section prevent,
hinder, or delay performance of a material portion of the Services necessary for
the performance of AOL's critical functions (taken as a whole) for more than [*]
hours, then AOL may (i) terminate this Agreement with respect to the
geographical area(s) affected by such force majeure circumstances, in which case
an equitable adjustment will be made to AOL's Commitments to Modems under
Section 1.1, as applicable to the affected area(s), and/or (ii) terminate this
Agreement in its entirety, if more than [*] of the Modems provided by EMBRATEL
are affected by such force majeure circumstances. Termination shall be effective
as of a date specified by AOL in a notice of termination to EMBRATEL. For the
avoidance of doubt, at all times, AOL may procure such services from an
alternate source.
14.4 Assignment. Neither party may assign this Agreement or its
----------
rights or obligations under this Agreement to a third party without the prior
written consent of the other party, whose consent shall not be unreasonably
withheld, except that either of the parties may assign this Agreement to a
parent, subsidiary, affiliate, or joint venture partner without the other
party's approval. AOL shall have the right to terminate this Agreement without
penalty in the event of: (a) the consummation of a merger or sale or other
disposition of substantially all of the assets of EMBRATEL by any individual,
entity or group that directly competes with AOL, or (b) the acquisition by any
individual, entity or group that directly competes with AOL, of beneficial
ownership of more than a controlling interest of EMBRATEL.
14.5 Notices. All notices or reports permitted or required under this
-------
Agreement shall be in writing and shall be delivered by personal delivery,
telegram, or facsimile transmission or by registered mail, return receipt
requested. Notices shall be sent to the signatories of this Agreement at the
address set forth at the beginning of this Agreement or
-14-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
such other address as either party may specify in writing. Notices shall be
effective upon receipt. In the case of AOL, any and all notices to be provided
to AOL under this Agreement must also be provided to AOL Latin America
Management LLC, [Address to be provided], to the attention of its General
Counsel.
14.6 No Agency. Nothing contained herein shall be construed as
---------
creating any agency, partnership, or other form of joint enterprise between the
parties.
14.7 Full Power. Each party warrants that it has full power to enter
----------
into and perform this Agreement, and the person signing this Agreement on such
party's behalf has been duly authorized and empowered to enter into this
Agreement. Each party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by it.
14.8 Survival. Sections 2.4 ("Payment Terms"), 8.2 ("Termination"), 9
--------
("Confidentiality"), 10 ("Certain Conditions"), 11 ("Indemnity"), 12
("Limitation of Liability"), 13 ("Ownership") and 14 ("General") of this
Agreement shall survive cancellation, termination or expiration of this
Agreement for two (2) years unless by the nature of the provision survival is
reasonably construed to be for a different period (i.e., longer or shorter).
14.9 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof. This Agreement
may only be changed by mutual agreement of authorized representatives of the
parties in writing.
14.10 Waiver. No failure on the part of either party to exercise, and
------
no delay in exercising any right or remedy hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted hereby or by law.
14.11 Language and Counterparts. This Agreement is executed in English,
-------------------------
and AOL shall, within 30 days as of the Effective Date, provide EMBRATEL a
translation of this Agreement into Portuguese to be executed by both parties.
The Parties shall agree upon the final version of the Portuguese translation as
soon as practicable. In case of any discrepancies, the Portuguese version shall
always prevail. This Agreement may be executed in several counterparts and
exchanged via facsimile, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same instrument.
14.12 Currency. Unless otherwise expressly stated herein, all amounts
--------
identified in this Agreement shall be in Brazilian Reais.
-15-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the Effective Date.
Sao Paulo, October 18, 1999
AOL BRASIL LTDA. EMBRATEL - EMPRESA BRASILEIRA DE
TELECOMUNICACOES S.A.
/s/ Francisco Loureiro /s/ Eduardo Levy Cardoso Moreira
By: __________________________ By: _______________________________
Name: Francisco Loureiro Name: Eduardo Levy Cardoso Moreira
Title: President Title: Services Director
/s/ Luiz Claudio A. Cyriaco
By: ___________________________ By: _______________________________
Name: Name: Luiz Claudio A. Cyriaco
Title: Title: Regional Director
WITNESSES:
/s/ Luciana C. Zanata /s/ Cyn Ovalle Jr.
1. _____________________________ 2. ____________________________
Luciana Cristina Zanata Cyn Ovalle Jr.
Nome: _______________________ Nome:_______________________
RG: ________________________ RG:_________________________
-16-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
EXHIBIT A
Service Performance Levels
I. Reports
-------
EMBRATEL will provide to AOL the following reports:
1. Usage Reports
A. Daily reports on hourly usage by modem by city
B. Daily reports on percentage of ineffective calls
2. Daily reports on circuit utilization, including but not limited to E1s, DS-
3s, OC-3s. These reports will include (i) 5 minute in and out bit rates; (ii)
packet loss (average, median and 95th percentile for each major router pair);
(iii) round trip delays between major router pairs. Embratel will provide all
reports according to AOL's requirements no longer than 3 months after beginning
of operations.
3. Read only access by AOL to SNMP variables to be defined by mutual agreement
of the parties, on AOL demarcation routers
II. Service Level Requirements
--------------------------
EMBRATEL shall meet or exceed the AOLnet network average in the following areas:
1. Connection Success (getting connected to the AOL service)
A. [*] Percentages (excluding busies)
B. [*]
C. Training
D. Ineffectives E. Customer Reported Problems
2. Connection Quality (staying connected)
A. Percentage of [*]
B. [*]
C. [*]
3. Problem Resolution
A. Modem Availability
B. Trouble Tickets Resolution Time
-17-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
C. Service Down Time
4. Ability to Fill Orders
A. Modem Plan
B. Backbone Capacity Plan
Sample Service Performance Levels from September 1999
- -----------------------------------------------------
(incomplete)
- ------------
1. Connection Success (getting connected to the AOL service)
A. [*] Percentages (excluding busies) [*]
B. [*] Average running total of blocked calls per day
C. Training [*] of calls did not train
D. Ineffectives [*]
E. TBD
2. Connection Quality (staying connected)
A. Percentage of [*]
B. [*] [*]
C. TBD
3. Problem Resolution
A. Modem Availability: [*]
B. Trouble Tickets Resolution Time: TBD
C. Service Down Time
a) Accepted Call Rates: [*]
(calls from AOL users shall be delivered from Provider's point
of interconnect to the AOL Circuits)
b) Successful Transmission of Packets: greater than [*].
(average number of packets successfully transmitted)
d) Call Failure Rates: less than [*].
(percentage of calls failing across the provider's modems)
e) Abnormal disconnects: TBD.
-18-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
EXHIBIT B
---------
Operational Requirements
------------------------
I. Network Engineering
EMBRATEL agrees to provide network engineering to address
operational and long-term planning issues.
II. Operations
EMBRATEL will continue to provision, staff, and operate a Network
Operations Center ("NOC") with dedicated support for AOL and a backup NOC at a
separate location at least 300 miles away. The scope of this task will include
the following EMBRATEL support and value added services for the network:
A. Operation of the NOC and co-located systems with trained and
qualified personnel on a continuous 24 hours per day, 7 days per
week basis.
B. Operation of all NOC equipment, monitoring, and fault isolation
functions.
C. Coordinating the dispatch maintenance representatives for
corrective maintenance activities and recording information in a
Problem Report ("PR") as follows:
1. In the Sao Paulo and Rio de Janeiro metropolitan area, the
EMBRATEL field service will respond within [*] hour for all
repairs that cannot be completed through remote means
2. EMBRATEL will provide field service within [*] hours for
all repairs that cannot be completed through remote means
for all other locations.
3. Initiation of a corrective maintenance request, plus
recording the time that the call is received by the
EMBRATEL maintenance representative.
4. Upon arrival of the maintenance representative at the site,
the NOC confirms the reported problems and records the site
arrival time with the representative.
5. Upon notification to the NOC by the on-site maintenance
representative of any of the following conditions, AOL
representatives are conferred with for advice or
assistance: work stoppage, delay, denial of access to the
equipment.
6. Upon restoration of service by the maintenance
representative, the NOC confirms operation of the equipment
and records the time when service was restored and the
reason for the outage in concert with the maintenance
representative.
-19-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
D. Initiation of PRs, maintenance of a log of all PRs, coordination
of PRs with support personnel and tracking of problems until
resolution using a commercial trouble reporting system.
E. Utilizing the SNMP capabilities and EMBRATEL diagnostic software
resident in the NOC for:
1. Daily testing of modems and local access numbers
2. Measurements of the usage of each modem several times
during each 24 hour period
3. Monitoring and recording the backbone and trunk
availability and utilization
4. Accounting for the disposition of each call placed to
AOLnet (i.e. how many calls were placed, how many calls
were sent successfully to AOL, how many calls were lost in
the network due to routing problems, how many calls were
sent to AOL, but AOL did not accept them, etc.)
F. Providing on-site analyst support Monday through Friday
(excluding EMBRATEL holidays) during normal working hours. A
dedicated access number shall be maintained for AOL's exclusive
use, which shall always be operational. Analyst support is
defined as including the following:
1. Supporting short-term and long-term AOLnet problem
identification, analysis, and resolution.
2. Ensuring that proper steps are taken to resolve the problem
3. Identifying and tracking all software, baseline and
patches, deployed in the AOLnet and NOC platforms
4. Supporting the deployment of new software and hardware to
the AOLnet and NOC equipment as coordinated with AOL
5. Providing support to network provisioning requirements
6. Maintaining a technical library for the NOC
G. Performing on-call analyst support to AOLnet on a continuous 24
hour per day, 7 days per week basis. On-call analyst personnel
respond to urgent requests from the NOC in conjunction with the
on-site EMBRATEL personnel. Procedures for the conduct of network
testing are in accordance with those developed in conjunction
with AOL representatives.
H. Providing operational support to AOLnet in the area of network
testing in association with provisioning actions. Such testing
shall be conducted from the NOC in conjunction with the on-site
EMBRATEL installation team personnel.
-20-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
I. Maintaining and providing updates and changes to NOC maps
J. Maintaining an authorized outage listing for NOC controller use
K. Actively cooperate with AOL in network security matters on a day-
to-day basis in accordance with commercially reasonable practices
and making recommendations for improvements
L. Using commercial teleconferencing facilities in the resolution of
network problems, escalation of problems, and planning activities
M. Providing electronic mail service support for the NOC via the e-
mail
N. Providing a facsimile service resident in the NOC equipment
O. Delivering the following reports to the AOL representatives
designated:
1. Daily modem and site usage
2. Daily call disposition reports
3. Weekly summary of the amount of time required to close PRs
4. Daily ineffective call report
5. Daily backbone utilization statistics
6. Daily network latency and congestion statistics
7. Trace data as required to debug client and AOLnet problems
AOL may request additional reports that assist in improving
AOLnet quality. EMBRATEL will provide these additional reports,
or the raw data, subject to technical reasonableness.
III. Design and Topology of AOLnet
EMBRATEL intends to continue to improve the network design to: reduce
risk, improve robustness, and enhance the price/performance of the transmission
system.
A. Traffic Assumptions
B. Location of Points of Presence
C. Network Architecture
D. Network Topology
-21-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
AOL shall be allowed to establish a route of last resort on the
EMBRATEL network. EMBRATEL will manage such traffic and provision their network
to maintain a maximum circuit load as defined in Paragraph 2.1(d).
IV. Network Support Organization
EMBRATEL has structured the program so that we can both rapidly build
out a network and deliver quality service, and it can provide to AOL value added
services.
A. Program Management: The program management group is responsible
for the management of the project as a whole. The program
management team is led by a program executive who has direct and
immediate access to the senior management of EMBRATEL
Communications and a program manager who reports to the program
executive. The program management team is the primary point of
contact between EMBRATEL and AOL and coordinates the activity of
all functional groups within EMBRATEL and is responsible for
project and financial management of the program.
B. Engineering: Network engineering handles the technical aspects of
the project, resolution of problems escalated by the NOC,
planning for future network expansion, and improving performance
and process. Engineering interacts directly with AOL and the NOC.
C. Deployment: The deployment team consists of field engineers and
technicians and others who have experience dealing directly with
local carriers, preparing sites, and installing equipment. Part
of the team will be based at EMBRATEL to coordinate activities
and provide support for installers.
D. Operations: A NOC handles the operation and maintenance of the
network. The NOC is connected to AOL's central facilities,
including a telephone and fax connection to the AOL operations
center. The NOC's monitoring capability is set up to detect and
correct most network problems before they are visible to AOL or
its customers.
E. The NOC directs the maintenance activity based on input from the
monitoring systems and AOL. EMBRATEL handles the large majority
of repair tasks over the telephone with technicians at the POPs
by storing hardware at the POPs, establishing working agreements
with the POPs and other service providers and by providing
written procedures. When it is necessary to send technicians to
deal with problems, EMBRATEL uses its existing infrastructure of
satellite offices and field engineers.
F. EMBRATEL shall support AOL in the acquisition of IP address
blocks as requested by AOL. EMBRATEL shall not require return of
address blocks currently in use by AOL and shall provide
additional blocks from the allocated EMBRATEL space as requested
by AOL during the term of this Agreement. The provision at
additional address blocks must continue for at least the next two
years, and EMBRATEL must give AOL a minimum of one-year notice
should EMBRATEL choose to terminate this service.
-22-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
G. EMBRATEL agrees not to restrict traffic to and from AOL unless
requested to do so by AOL or required to do so by court order or
applicable law.
H. EMBRATEL shall manage the backbone and interconnection points
with other Internet providers and customers to minimize loss and
delay of AOL traffic. Such management shall include creation of
new interconnection points as required.
I. Each party shall use reasonable efforts to aggregate routing
information sent to the other and to control the addition and
withdrawal of routing information.
J. EMBRATEL shall announce AOL routing information at EMBRATEL
interchange points as agreed by AOL.
-23-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
EXHIBIT C
Deployment Plan
AOL Designated City Phase 1 Phase 2 Total
- ------------------------------------------------------------------------------
Sao Paulo - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Rio de Janeiro - RJ [*] [*] [*]
- ------------------------------------------------------------------------------
Belo Horizonte - MG [*] [*] [*]
- ------------------------------------------------------------------------------
Brasilia - DF [*] [*] [*]
- ------------------------------------------------------------------------------
Curitiba - PR [*] [*] [*]
- ------------------------------------------------------------------------------
Porto Alegre - RS [*] [*] [*]
- ------------------------------------------------------------------------------
Campinas - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Sao Bernardo do Campo [*] [*] [*]
- ------------------------------------------------------------------------------
Santo Andre - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Osasco - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Sao Jose dos Campos [*] [*] [*]
- ------------------------------------------------------------------------------
Ribeirao Preto [*] [*] [*]
- ------------------------------------------------------------------------------
Niteroi - RJ [*] [*] [*]
- ------------------------------------------------------------------------------
Uberlandia [*] [*] [*]
- ------------------------------------------------------------------------------
Sorocaba - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Juiz de Fora [*] [*] [*]
- ------------------------------------------------------------------------------
Londrina [*] [*] [*]
- ------------------------------------------------------------------------------
Santos - SP [*] [*] [*]
- ------------------------------------------------------------------------------
S. Jose Rio Preto [*] [*] [*]
- ------------------------------------------------------------------------------
Jundiai - SP [*] [*] [*]
- ------------------------------------------------------------------------------
Bauru [*] [*] [*]
- ------------------------------------------------------------------------------
Florianopolis [*] [*] [*]
- ------------------------------------------------------------------------------
Presidente Prudente [*] [*] [*]
- ------------------------------------------------------------------------------
Barueri [*] [*] [*]
- ------------------------------------------------------------------------------
Araraquara [*] [*] [*]
- ------------------------------------------------------------------------------
TOTAL [*] [*] [*]
- ------------------------------------------------------------------------------
The first phase will be accomplished by routing through [*]international
circuits (via submarine optical fiber) up to Cable&Wireless Internet network.
Network utilization in Phase 1 is not EMBRATEL's responsibility as the number of
ports was defined by AOL, based on the international bandwidth allocated by
EMBRATEL to AOL.
According to AOL's requirements, the network access servers equipment will be
acquired from [*].
-24-
HIGHLY CONFIDENTIAL
<PAGE>
[Embratel Letterhead] Contract Number VES-8-IDN-1-1999
- --------------------------------------------------------------------------------
Schedules:
Embratel will deploy the dedicated modems in the distribution defined above as
follows:
Phase 1: November 15
Phase 2: December 6
TRADOCS:1308144.2(s1dc02!.DOC)
-25-
HIGHLY CONFIDENTIAL
