MANAGEMENT AGREEMENT
This agreement ("Agreement"), dated the 1st day of October, 1998, is a AF
Datalink Equipamentos de Telecomunicacoes Ltda., a limited liability company
with head office at Xxx Xxxxxxxxx 000- Xxxxx Xxxxx, in the city of Sao Paulo,
S.P.("Company"), and Xxxxx Xxxxxxxxx, Brazilian citizen, married, engineer,
bearer of the ID card nr. RG 35.515.939-9 SSP/SP and registered as taxpayer
(CIC/MF) under the nr. 311.284.750/49, domiciled in the Capital of the State of
Sao Paulo, at Xxx Xxxx. Xxxxxxxxx Xxxxxxx 000, xxx. 00, Jardim Vitoria Regia -
Cep 05657-230 ("Managing Quotaholder").
RECITALS
1. Company and Managing Quotaholder have agreed on certain terms and
conditions of performance services which terms and conditions they desire
to reduce to a formal agreement.
2. Under those terms and conditions, Company has extended an offer to Managing
Quotaholder, and Managing Quotaholder has accepted that offer, to be
Manager.
3. The company desires to retain Managing Quotaholder, and Managing
Quotaholder desires to perform services for the Company in a position which
will allow Managing Quotaholder access to various trade secrets and
confidential information belonging to the Company and which will require
Managing Quotaholder to perform services of a unique and special nature;
and
4. The parties agree that covenants against competition, disclosure of
confidential information, solicitation of employees, and solicitation of
customers is essential to the growth and stability of the business Company
and to the continuing viability of the Company after this agreement is
terminated; and
4.1. The payments to be made before the Social Security Authorities (INSS /
FGTS) shall be borne by the Company.
1. The Managing Quotaholder has received good and valuable consideration for
the promises and covenants herein, in the form of agreements,
understandings and payments as pro-labore to the Managing Quotaholder from
Company.
2. The Managing Quotaholder acknowledges and accepts the restrictions of the
management set forth in Article VIII, First Paragraph of the Articles of
Association of the Company.
NOW THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Management. The Company hereby admits Managing Quotaholder as Manager and
the Managing Quotaholder hereby accepts management upon the terms and
conditions contained in this Agreement.
2. Term. The term of this Agreement shall be from November 1st, 1998 and shall
be from three years-to-three years thereafter.
3. Duties. During the management period, the Managing Quotaholder will devote
full working time and best efforts to the Company in fulfilling the duties
of the position set forth in paragraph 2 of the Recitals, which shall
include such duties as may from time to time be assigned by the Company.
4. Compensation. Pro-Labore. The Managing Quotaholder's pro-labore shall be
eleven thousand eighty three (R$11,083,00) per month, subject to adjustment
by the quotaholders., which shall review the pro-labore annually.
4.1. The payments to be made before the Social Security Authorities (INSS /
FGTS) shall be borne by the Company.
5. Acknowledgment. Managing Quotaholder acknowledges that the Company's
business and services are highly specialized, that the identity and
particular needs of the Company's customers and suppliers are not generally
known and that the documents and information regarding the Company's
customers, suppliers, services and methods of operation, sales, pricing and
costs are highly confidential and constitute trade secrets. Managing
Quotaholder further acknowledges that the services rendered to the Company
by Managing Quotaholder have been or will be of a special and unusual
character which have unique value to the Company and that Managing
Quotaholder has had or will have access to trade secrets and confidential
information belonging to the Company, the loss of which cannot adequately
be compensated by damages in an action at law.
6. Covenant Against Competition. During the term of the Managing Quotaholder's
management of the Company and for a period of three (3) years from the
voluntary or involuntary termination of Management Agreement with the
Company for any reason whatsoever, Managing Quotaholder will not directly
or indirectly, own, manage, operate, control, be employed by, perform
services for, consult with, solicit business for, participate in, or be
connected with the ownership, management, operation, or control of any
business which performs the services materially similar to or competitive
with those provided by the Company in any location where the Company has
had an office or has sold products or provided services to customers during
the period Managing Quotaholder is managing as Manager the Company.
7. Covenant Against Disclosure of Confidential Information. During the term of
Managing Quotaholder's management of the Company and for a period of three
(3) years after the termination of Managing Quotaholder's management of the
Company for any reason whatsoever, Managing Quotaholder shall not use for
any purpose or disclose to any person or entity any confidential
information acquired during the course of the management of the Company.
Managing Quotaholder shall not, directly or indirectly, copy, take, or
remove from the Company's premises any of the Company's books, records,
customer lists, or any other documents or materials. The term "confidential
information" as used in this Agreement includes, but is not limited to,
records, lists, and knowledge of the Company's current and former
customers, suppliers, methods of operation, processes, sales, net income
and indebtedness.
8. Non-Solicitation of Employees. During the term of Managing Quotaholder's
management of the Company and for a period of three (3) years from the
voluntary or involuntary termination of Managing Quotaholder's management
of the Company for any reason whatsoever, Managing Quotaholder shall not
either on his own account or for any person, firm, partnership,
corporation, or other entity solicit, interfere with, or endeavor to cause
any employee of the Company to leave his or her employment, or induce or
attempt to induce, any such employee to breach his or her employment
agreement with the Company.
9. Non-Solicitation of Customers. During the term of Managing Quotaholder's
management of the Company and for a period of three (3) years from the
termination of Managing Quotaholder's management of the Company with the
Company for any reason whatsoever, Managing Quotaholder shall not solicit,
induce, or attempt to induce, any past or current customer of the Company
to cease doing business in whole or in part through the Company, or to do
business with any other person, firm, partnership, corporation, or other
entity which performs services materially similar to or competitive with
those provided by the Company.
10. Reasonableness of Restrictions. Managing Quotaholder has carefully read and
considered the provisions hereof, and having done so, agrees that the
restrictions set forth in Paragraphs 6 through 9 of this Agreement,
including, but not limited to, the time periods of restriction in each of
such paragraphs and the geographical area of restrictions set forth in
Paragraphs 6, are fair and reasonable and are reasonably required for the
protection of the interests of the Company.
11. Death of Managing Quotaholder. If Managing Quotaholder should die during
the term of this Agreement, Managing Quotaholder's management of the
Company and the Company's obligations hereunder shall terminate as of the
date of the Managing Quotaholder's death.
12. Termination.
12.1.Conditions of Termination. This Agreement may be terminated as follows
prior to the expiration of its stated term:
12.1.1 The Company may terminate this Agreement immediately for cause, including
without limitation, fraud, misrepresentation, theft or embezzlement of the
Company's assets, intentional violations of law or company policies, or a
breach of this Agreement;
12.1.2. Either the Company or the Managing Quotaholder may terminate this
Agreement without cause upon ninety (90) days notice to the other party;
12.1.3. This agreement shall terminate in the event of death or disability of
the Managing Quotaholder. Disability shall be the inability of the Managing
Quotaholder to perform his duties under this Agreement because of illness
or incapacity for a period of six months.
12.2.Compensation Upon Termination. Upon termination of management pursuant to
this Paragraph 12, Managing Quotaholder shall be entitled to receive all
compensation accrued and unpaid as of the date of termination.
13. Rights and Remedies.
13.1.Both parties recognize that services to be rendered under this agreement
by Managing Quotaholder are special, unique and are of extraordinary
character. Upon breach of any provision of this Agreement, either may, at
its option, terminate this Agreement or elect to institute and prosecute
proceedings in any court of competent jurisdiction, either in law or
equity, to obtain damages, to enforce specific performance of the
Agreement, to enjoin the other party as appropriate, and to recover
reasonable attorney's fees and the costs of prosecuting such action.
13.2.Termination for any cause shall not constitute a waiver of the Company's
rights under Paragraphs 6 through 9 of this Agreement (covenants against
non-competition, disclosure of confidential information, and solicitation
of employees and customers) nor a release of Quotaholder Managing from his
obligation hereunder. The rights and remedies of the parties shall be
cumulative and in addition to any other rights and remedies provided by law
or otherwise. A party's failure to exercise its right to terminate this
Agreement or to enforce any provision of this Agreement for default or
violation by the other party shall not prejudice such party's right of
termination or enforcement for any further or other default or violation.
14. Miscellaneous.
14.1.Governing Law. It is understood and agreed that the construction and
interpretation of of this Agreement shall at all times and all respects be
governed by Brazilian law and the parties hereto hereby irrevocably submit
to the non exclusive jurisdiction of the Courts of the Capital of State of
Sao Paulo.
14.2.Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Company and Managing Quotaholder, and their respective
successors and assigns. The Company shall have the right to assign its
rights hereunder to any successor or interest, whether by merger,
consolidation, sale of assets, or otherwise. Managing Quotaholder may not
assign any of its rights or delegate any of its obligations under this
Agreement without first obtaining written consent from the Company.
14.3.Entire Agreement. This Agreement constitutes the entire agreement between
the parties respecting the management by the Managing Quotaholder, and
there are no representations, warranties or commitments, except as set
forth in this Agreement. This Agreement may be amended only by a writing
executed by the parties to this Agreement. No valid waiver of any
provisions of this Agreement at any time shall be deemed a waiver of any
other provision of this Agreement.
14.4.Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any of the provisions hereof
shall not affect the validity or enforceability of any other provision of
this Agreement.
14.5.Notices. Any notice, request, demand or other communication made under
this Agreement shall be in writing and shall be deemed to be duly given
when personally delivered to an officer of the Company or to Managing
Quotaholder, as the ease may be, or when delivered by mail at the following
address:
If to the Company: If to the Managing Quotaholder
AF Datalink Equipamentos de Xxxxx Xxxxxxxxx
Telecomunicacoes Ltda Xxx Xxxx. Xxxxxxxxx Xxxxxxx 000, xxx. 00,
Xxx Gibraltar, 314 Jardim Vitoria Regia - Cep 05657-230
Santo Xxxxx Sao Paulo, SP
Sao Paulo, SP
14.6.Nature of Relationship. The relationship between the Company and the
Managing Quotaholder resulting form the execution of this agreement is of
non employment nature.
14.7. Effective Date. The effective date of this Agreement shall be the
day of November 1st, 1998.
IN WITNESS WHEREOF, the Company and Managing Quotaholder have duly executed this
Agreement as of the 1st day of November, 1998.
___________________________________________________
AF Datalink Equipamentos de Telecomunicacoes Ltda
__________________________________________________
Xxxxx Xxxxxxxxx
Witness:
Name:
Id Card:
Tax Payer:
Name:
Id Card:
Tax Payer:
