Memorandum of Agreement dated 12-14-02



 



EXHIBIT 10.1


PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO THE REGISTRANT’S APPLICATION
REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.


MEMORANDUM OF AGREEMENT


     THIS MEMORANDUM OF AGREEMENT (together with the Exhibits and Annexes
attached hereto, this “MOA”) is made and entered into as of this 14th day of
December, 2002 (the “MOA Effective Date”) by and among America Online Latin
America, Inc., a Delaware corporation (“AOLA”), AOL Brasil Ltda., a Brazilian
limited liability quota company (“AOLB”), and Banco Itaú S.A., a Brazilian bank
(“Itaú”) (each a “Party” and together the “Parties”), to amend and modify the
Strategic Interactive Services and Marketing Agreement dated June 12, 2000, as
heretofore amended, by and among the Parties (including the exhibits thereto,
the “SMA”).


     WHEREAS, pursuant to the terms of the SMA, the Parties market a co-branded
version of the AOLB Service to Itaú Customers;


     WHEREAS, the Parties have agreed to amend and modify the SMA as outlined
in this MOA; and


     WHEREAS, as of the MOA Effective Date, the Parties desire to undertake the
marketing activities and other obligations described in Exhibit A;


     NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound, AOLA, AOLB and Itaú hereby agree as follows:


     1.     Binding Nature of this MOA; Entire Agreement. This MOA constitutes a
valid and binding agreement, enforceable in accordance with the terms hereof
against AOLA, AOLB and Itaú. As of the MOA Effective Date, the Parties shall
perform their respective obligations under the SMA, as it is amended by this
MOA. The terms of this MOA supersede and amend the provisions of the SMA to
the extent set forth herein, and to the extent that the terms hereof conflict
with the terms of the SMA. The representations, warranties, covenants and
agreements of the Parties contained in the SMA shall remain in full force and
effect to the extent not inconsistent with the terms of this MOA. In the event
of any conflict between the rights or obligations of a Party under this MOA and
the SMA, this MOA shall govern the rights or obligations of such Party. In all
other respects the provisions of the SMA shall continue to govern the business
relationship among the Parties, and nothing contained in this MOA should be
interpreted as invalidating the SMA. This MOA sets forth the entire agreement,
and supersedes any and all prior documents or agreements of the Parties (other
than those terms of the SMA that do not conflict herewith), with respect to the
subject matter of this MOA, including, without limitation, the “Summary of Itaú
& AOLA Negotiation” that was used by the Parties as a basis for discussion.


     2.     Intention to Formally Amend the SMA. Each of the Parties agrees to
negotiate in good faith, for a period of ninety (90) days or such longer period
as the Parties may mutually agree, with respect to amending and restating the
SMA, including, without limitation, the Marketing Plan, Technical Operating
Plan and the Finance Plan contained therein, to (a) incorporate the terms and
conditions contained in this MOA, and (b) incorporate any other amendments on
which the Parties may mutually agree. Neither (x) the agreement to negotiate
contained in this Section 2 of the MOA, nor (y) any failure or inability to
reach an agreement on any such amendment to the SMA, shall

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affect in any way the validity, enforceability or binding nature of the
obligations contained in this MOA or the fact that this MOA supersedes the SMA
to the extent that the terms hereof and thereof are inconsistent.


     3.     Marketing Obligations.


     (a)  The Parties hereby agree to undertake and perform, in lieu of the
marketing activities called for under the SMA prior to the fifth Anniversary
Date, the marketing and other obligations and to pay the amounts set forth in
Exhibit A, as may be further detailed in the Marketing Plans agreed upon by the
Parties from time to time. Notwithstanding Section 2.1.2 of the SMA, (i)
Itaú’s marketing obligations under the SMA as amended by this MOA shall not be
in Itaú’s discretion except when expressly provided herein, (ii) any Marketing
Plans shall be jointly created and agreed upon by the Parties before any such
Marketing Plans are effective, and (iii) Itaú shall be obligated to spend the
amounts, and commit the resources, described in Exhibit A. Notwithstanding
Section 6.1 of the SMA, all marketing materials shall be subject to the
approval of the Parties except as expressly provided otherwise herein.
Notwithstanding anything to the contrary in the SMA, the Marketing Committee’s
sole responsibility shall be to jointly review and agree upon those marketing
obligations that call for the approval of all Parties. For the avoidance of
doubt, notwithstanding this MOA, Itaú shall continue to have the obligation to
engage in a commercially reasonable level of marketing after the expiration of
the five-year period after the Launch Date, as required by Section 2.1.2 of the
SMA.


     (b)  Notwithstanding the definition of “Material Marketing Breach”
contained in the SMA, the term “Material Marketing Breach” shall mean a
circumstance whereby Itaú is obligated, or would have been obligated in the
absence of the annual caps specified in Sections 5(a)(iii), 5(a)(iv) and
5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the
120% factor used in calculating the Distribution Payments and Promoters
Payments), with respect to any two of the immediately preceding four Quarters,
to make Marketing Payments to AOLB of more than 50% of the maximum potential
Marketing Payments for each of such two Quarters, where the maximum potential
Marketing Payments for any Quarter shall be the maximum Marketing Payment Itaú
would have been liable to make if it had failed to perform all of its
obligations in such Quarter (excluding for the purposes of the calculation the
120% factor used in calculating the CD Distribution Payment and Promoters
Payments).


     4.     Second Anniversary Reference Payment and Minimum Marketing Commitments.
As of the MOA Effective Date, Itaú shall have no obligation to make (i) any
Reference Payment to AOLA or AOLB with respect to the second Anniversary Date
(whether pursuant to Section 8 of the SMA or otherwise), or (ii) any payment
with respect to any failure to meet the Minimum Marketing Commitments relating
to the period from the first Anniversary Date to the MOA Effective Date. AOLA
and AOLB hereby irrevocably waive any claim with respect to any such payments.


     5. Reference Payments. The Parties agree that Itaú shall pay the
Reference Payments and Marketing Payments described in Exhibit A (if due) in
lieu of any Reference Payments that would have been due under the SMA after the
MOA Effective Date in the absence of this MOA.


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     6.     Verified Members. Notwithstanding any provision of the SMA, as of the
MOA Effective Date, Itaú shall have no rights against AOLA or AOLB related to
Itaú’s obligation to achieve any particular number of Verified Members and Itaú
shall have no obligation to achieve any particular number of Verified Members
for any purpose, and any right, obligation, liability or other contingency
relating directly to the failure to achieve any particular number of Verified
Members, including any rights and remedies AOLA and/or AOLB may have been able
to exercise based on any particular number of Verified Members, shall be deemed
void and of no effect. Nothing in this Article 6 shall be deemed to make void
or of no effect the provisions of Article 5 of Exhibit A to this MOA.


     7.     Termination of Exclusivity. Notwithstanding the provisions of Section
8.4 of the SMA, neither AOLA nor AOLB will have the right to elect to release
the AOLB Parties from their obligations under Section 7.1 or 2.3 of the SMA or
Itaú from its obligations under Section 2.3 based on the number of total
cumulative Verified Members. Instead, AOLA and/or AOLB shall have the right to
release the AOLB Parties from their obligations under Section 7.1 and 2.3 of
the SMA or Itaú from its obligations under Section 2.3 in accordance with the
procedure set forth in Section 8.4 of the SMA if; on (i) the third Anniversary
Date, the Itaú Revenue Percentage is equal to or less than 10%; (ii) the fourth
Anniversary Date, the Itaú Revenue Percentage is equal to or less than 12%; and
(iii) the fifth Anniversary Date, the Itaú Revenue Percentage is equal to or
less than 14%.


     8.     Termination Fee. If Itaú is obligated to make a payment of a
Termination Fee, then the amount Itaú shall owe, in lieu of the amount that
would have been due under the SMA in absence of this MOA, shall be: (i) if the
Trigger Date occurs before the second Anniversary Date, the sum of
US$70,000,000.00; (ii) if the Trigger Date occurs on or after the second
Anniversary Date and before the third Anniversary Date, the sum of
US$40,000,000.00, plus the result of US$30,000,000.00 multiplied by a
fraction, the numerator of which is the number of days from the Trigger Date to
the third Anniversary Date and the denominator of which is 365; (iii) if the
Trigger Date occurs on or after the third Anniversary Date and before the
fourth Anniversary Date, the sum of US$15,000,000.00, plus the result
of US$25,000,000.00 multiplied by a fraction, the numerator of which is the number of
days from the Trigger Date to the fourth Anniversary Date and the denominator
of which is 365; or (iv) if the Trigger Date occurs on or after the fourth
Anniversary Date and before the fifth Anniversary Date, the result of
US$15,000,000.00 multiplied by a fraction, the numerator of which is the number of
days from the Trigger Date to the fifth Anniversary Date and the denominator of
which is 365. The amount of the Termination Fee shall be reduced by the amount
of any Reference Payment or Marketing Payment Itaú has generated and paid to
AOLA or AOLB after the Trigger Date. In addition, in such circumstances where
Itaú is obligated to pay a Termination Fee, Itaú shall be required to pay a
Type I Pro-Rata Reference Payment up to the Trigger Date.


     9.     Acceleration Payment. If Itaú is obligated to make an Acceleration
Payment (including a Type I Acceleration Payment or a Type II Acceleration
Payment), then the amount Itaú shall owe, in lieu of the amount that would have
been due under the SMA in the absence of this MOA, shall be the sum of (i) the
amount of the Reference Payment that would have been due for the Anniversary
Year in which the Trigger Date occurred calculated using the Revenue Elements
generated and incurred


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during the period from the last Anniversary Date to the Trigger Date, (ii)
the Reference Payments that would be due but for the termination of the SMA for
any Anniversary Dates subsequent to the Trigger Date calculated (without
duplication of the amount under item (i)) using the Itaú Revenue Percentage
determined in accordance with item (i), (iii) for the Anniversary Year in which
the Trigger Date occurs, the maximum Marketing Payments that could be due in
such Anniversary Year less any Marketing Payments actually made in such
Anniversary Year, and (iv) the maximum Marketing Payments that could be due in
any subsequent Anniversary Years.


     10.     Pro-Rata Reference Payment. If Itaú is obligated to make a Pro-Rata
Reference Payment (including a Type I Pro-Rata Reference Payment or a Type II
Pro-Rata Reference Payment), then the amount Itaú shall owe, in lieu of the
amount that would have been due under the SMA in the absence of this MOA, shall
be equal to the sum of (A) the product of (i) a Reference Payment for the
Anniversary Year in which a Trigger Date occurs calculated using the Revenue
Elements generated and incurred during the period from the last Anniversary
Date to the Trigger Date, and (ii) a fraction, the numerator of which is the
number of days from the last Anniversary Date to the Trigger Date and the
denominator of which is 365, and (B) all Marketing Payments, if any, that would
be due for that Quarter calculated for the period beginning on the first day of
the Quarter and ending on the Trigger Date.


     11.     Fifth Anniversary Date. For the avoidance of doubt, under no
circumstances shall Itaú be obligated to pay any Termination Fee, Acceleration
Payment or Pro-Rata Reference Payment if (i) in the case of an Acceleration
Payment or a Pro-Rata Reference Payment, the Trigger Date occurs after the
fifth Anniversary Date or (ii) in the case of a Termination Fee, the date of
the Material Breach giving rise to termination occurs after the fifth
Anniversary Date.


     12.     Release of Notes. AOLA and AOLB shall, within five (5) Business Days
after the MOA Effective Date, take any action necessary promptly to release or
cause the Escrow Agent (as defined below) promptly to release each of the First
Anniversary Reference Payment Note (Brazil), the First Anniversary Reference
Payment Note (Caymans), First Anniversary Termination Fee Note (Brazil), First
Anniversary Termination Fee Note (Caymans), Second Anniversary Reference
Payment Note (Brazil) and the Second Anniversary Reference Payment Note
(Caymans).


     13.     Replacement Notes. The Parties hereby agree to take any action
necessary to cause the Escrow Agent to deliver to Itaú the Second Anniversary
Termination Fee Note (Brazil), Second Anniversary Termination Fee Note
(Cayman), Third Anniversary Reference Payment Note (Brazil), Third Anniversary
Reference Payment Note (Cayman), Third Anniversary Termination Fee Note
(Brazil), Third Anniversary Termination Fee Note (Cayman), Fourth Anniversary
Reference Payment Note (Brazil), Fourth Anniversary Reference Payment Note
(Caymans), Fourth Anniversary Termination Fee Note (Brazil), Fourth Anniversary
Termination Fee Note (Cayman), Fifth Anniversary Reference Payment Note
(Brazil), Fifth Anniversary Reference Payment Note (Caymans), Fifth Anniversary
Termination Fee Note (Brazil) and Fifth Anniversary Termination Fee Note
(Cayman), promptly after delivery by Itaú of replacement notes (the
“Replacement Notes”) to the Escrow Agent that are exactly the same as the
Reference Payment Notes (Brazil), Reference Payment Notes (Caymans),
Termination Fee Notes (Brazil) and Termination Fee Notes (Cayman)

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identified in this Section 13 and the Reference Payment Notes (Brazil),
Reference Payment Notes (Caymans), Termination Fee Notes (Brazil) and
Termination Fee Notes (Cayman) attached to the Escrow Agreement as Exhibit A,
Exhibit B, Exhibit C and Exhibit D, except that the dates of such Replacement
Notes shall be dated the MOA Effective Date and the maximum principal amount of
such Replacement Notes shall be $26 million in the case of the Third
Anniversary Reference Payment Notes (Brazil) and Third Anniversary Reference
Payment Notes (Cayman), $21 million in the case of the Fourth Anniversary
Reference Payment Notes (Brazil) and Fourth Anniversary Reference Payment Notes
(Cayman), $13 million in the case of the Fifth Anniversary Reference Payment
Notes (Brazil) and Fifth Anniversary Reference Payment Notes
(Cayman), $70
million in the case of the Second Anniversary Termination Fee Notes (Brazil),
Second Anniversary Termination Fee Notes (Cayman), Third Anniversary
Termination Fee Notes (Brazil) and Third Anniversary Termination Fee Notes
(Cayman) (which shall replace the respective Second Anniversary Termination Fee
Notes and Third Anniversary Termination Fee Notes), $40 million in the case of
the Fourth Anniversary Termination Fee Notes (Brazil) and Fourth Anniversary
Termination Fee Notes (Cayman), and $15 million in the case of the Fifth
Anniversary Termination Fee Notes (Brazil) and Fifth Anniversary Termination
Fee Notes (Cayman). Before replacing such notes, the Parties shall undertake
any action necessary to ensure that the Replacement Notes are treated by the
Escrow Agent in exactly the same manner as the notes they replaced would be
treated under the Escrow Agreement. For the avoidance of doubt, the
Replacement Notes shall be treated under the Escrow Agreement (the “Escrow
Agreement”), dated as of August 11, 2000, by and among The Bank of New York, as
escrow agent (the “Escrow Agent”), as if they were the same as the notes they
replaced.


     14.     Anniversary Date. The Parties hereby agree that, notwithstanding the
definition of “Anniversary Date” set forth in the SMA, after the MOA Effective
Date, “Anniversary Date” shall mean the date that is 100 days after the MOA
Effective Date (which date is the “second Anniversary Date”) and each
successive one year anniversary of such date. For the avoidance of doubt,
nothing in this MOA is intended to change the date of the first Anniversary
Date.


     15.     Termination for Bankruptcy, Insolvency and Related Events. In the
event that Itaú experiences any of the events in clauses (a) through (d) of the
first sentence of Section 11.9 of the SMA, AOLB’s sole and exclusive remedy
shall be that a Type II Acceleration Payment shall become immediately due and
payable by Itaú to AOLB. Upon payment of such Acceleration Payment, Itaú shall
be relieved of its obligation to pay any Reference Payments or Marketing
Payments for Anniversary Dates which occur after the Termination Date. In the
event that AOLB experiences any of the events in clauses (a) through (d) of the
first sentence of Section 11.9 of the SMA, Itaú shall be relieved of its
obligation to pay any Reference Payments, Termination Fee, Marketing Payments,
Acceleration Payments or Pro Rata Reference Payments after the Termination
Date, except a Type II Pro-Rata Reference Payment for the Anniversary Year in
which the Termination Date occurs which shall be due and payable by Itaú to
AOLB within ten (10) Business Days.


     16.     AOLB/Itaú Subscriber. The Parties hereby agree that, notwithstanding
the definition of “AOLB/Itaú Subscriber” set forth in the SMA, after the MOA
Effective Date “AOLB/Itaú Subscriber” shall mean either (a) a subscriber that
was an AOLB/Itaú Subscriber (as that term is defined in the SMA) prior to the
MOA Effective Date, or (b)


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a subscriber to the Co-Branded Service that has registered for a plan
described in Section 1(b) or Section 1(e) of Exhibit A (or such other plan as
may be agreed between the Parties) in accordance with the procedures set forth
in Section 1(c) of Exhibit A (or such other procedure as may be agreed to by
the Parties), in each case whose account has not been cancelled or terminated
as a result of a violation of the Terms of Service or at the direction of Itaú.


     17.     Publicity. As permitted by Section 6 of the SMA, the Parties shall
issue a jointly agreed press release no later than 8:00 AM Eastern Standard
Time on the second business day following the MOA Effective Date (Tuesday,
December 17, 2002). In addition thereto, and for the avoidance of doubt, each
party shall be permitted to make any necessary disclosure required by
securities laws in the United States or Brazil or by the exchange or market on
which such Party’s shares are listed or traded.


     18.     Governing Law. This MOA shall be governed by and construed and
interpreted in accordance with the laws of the State of New York, without
reference to the conflict of laws provisions thereof except for N.Y. G.O.L. §§
5-1401 and 5-1402.


     19.     Severability. Any provision of this MOA which is held invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this MOA invalid,
illegal or unenforceable in any other jurisdiction.


     20.     Costs and Expenses. Each of the Parties shall be responsible for and
pay all costs and expenses, including the fees of attorneys, accountants and
other professionals, that it incurs in connection with the drafting and
negotiation of this MOA, including the costs and expenses associated with
obtaining any necessary governmental approvals.


     21.     No Waiver of Rights. No failure or delay on the part of any Party in
the exercise of any power or right hereunder shall operate as a waiver thereof.
No single or partial exercise of any right or power hereunder shall operate as
a waiver of such right or of any other right or power. The waiver by any Party
of a breach of any provision of this MOA shall not operate or be construed as a
waiver of any other or subsequent breach hereunder. All rights and remedies
existing under this MOA are cumulative with, and not exclusive of, any rights
or remedies otherwise available.


     22.     Governmental Consents and Filings. Each Party shall use its
commercially reasonable efforts to obtain all required governmental consents
and make all governmental filings that may be necessary in connection with this
MOA.


     23.     Company Approvals. Each of the Parties represents and warrants that it
has full corporate power and authority to execute and deliver this MOA, that
this MOA has been duly authorized by all necessary corporate action on the part
of such Party and that when executed and delivered by each such Party, this MOA
will constitute a valid and legally binding obligation of such Party
enforceable against such Party in accordance with its terms.


     24.     Commercial Disputes. The Parties will act in good faith and use
commercially reasonable efforts to reach agreement with regard to any terms in
this

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MOA that require the Parties to cooperate or to reach mutual agreement.
If any dispute, controversy or disagreement (each a “Disagreement”) relating to
such terms arises that cannot be promptly resolved by the Parties, either party
may submit the Disagreement to the Marketing Committee for resolution. If the
Marketing Committee is unable to amicably resolve the Disagreement in three
Business Days following submission of the Disagreement to the Marketing
Committee, the Disagreement will be escalated on the Business Day following the
last day of such three day period to the Management Committee for resolution in
a period of three Business Days. If the Management Committee is unable to
amicably resolve the Disagreement in the three Business Day period following
submission of the Disagreement to the Management Committee, the Disagreement
will be escalated to the President of AOLB and the Executive Director of Itaú
responsible for marketing on the Business Day following the last day of such
three Business Day period for resolution in a period of three Business Days.
If such persons are unable to amicably resolve the Disagreement in the three
Business Day period following submission of the Disagreement, the Disagreement
will be escalated to the President and Chief Executive Officer of AOLA and the
Executive Director of Itaú responsible for the business relationship with AOLB
(presently Milton Monteiro) on the Business Day following the last day of such
three Business Day period for resolution in a period of three Business Days.


     25.     Disputes; Continued Performance.


     (a)  Any dispute, controversy or claim arising out of or relating to this
MOA (including, without limitation, claims that a party has not acted in good
faith and used commercially reasonable efforts to reach agreement with regard
to any terms in this MOA that require the parties to cooperate or to reach
mutual agreement) shall be submitted to arbitration in accordance with Article
13 of the SMA; provided, however, that the arbitrators shall not have the
authority to alter or amend any term of this MOA or resolve any disagreements
in a manner inconsistent with the terms of this MOA. As provided in Section
13.8 of the SMA, the Parties shall continue to perform their obligations under
the SMA and this MOA during the pendency of any arbitral or mediation
proceeding.


     (b)  In the event that, after following the procedures set forth in Section
24, the Parties are unable to reach mutual agreement with regard to any terms
in Exhibit A that require the parties to cooperate or to reach mutual agreement
with respect to the marketing activities described in Exhibit A, and a party
refers such Dispute to arbitration, then Forty Five Day Arbitration shall apply
provided, however, that the arbitrators shall not have the authority to alter
or amend any term of this MOA or resolve any disagreements in a manner
inconsistent with the terms of this MOA. Such a Dispute may be resolved ex
aequo et bono in the discretion of the arbitrators, and in the event (x) an
award is granted in favor of Itaú, then Itaú shall undertake the marketing
activities that were the subject of such Dispute in accordance with such award
and as provided in Exhibit A and AOLB shall have the right to direct Itaú, in
writing, not to undertake such activities and if so directed Itaú shall not
undertake such activities, provided that Itaú shall be relieved of any
obligation to pay any Marketing Payment that would have been required if Itaú
had not undertaken such marketing activities that were the subject of such
Dispute; or (y) an award is granted in favor of AOLB, then Itaú shall undertake
the marketing activities that were the subject of such Dispute in accordance
with such award and as provided in Exhibit A, provided, however, that either
Party may elect to not have Itaú undertake such marketing activities (in either
case by providing

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written notice to the other), in which case Itaú shall pay the Marketing
Payment for the marketing activities that were the subject of such Dispute.
Notwithstanding Section 24, any marketing activities requiring the agreement of
the Parties that are directly impacted by the subject matter of a Dispute
resolved in accordance with this Section 25 shall be stayed pending the
resolution of such Dispute, and if such marketing activities are stayed until
after the fifth Anniversary Date, then notwithstanding anything to the contrary
(other than this Section 25), such marketing activities shall be performed
after the fifth Anniversary Date.


     26.     Counterparts and Facsimiles. This MOA may be executed in one or more
counterparts, all of which shall collectively be effective as one single
original. This MOA may be signed via facsimile signature with the same binding
effect as a signed original.


     27.     Headings. The descriptive headings contained in this MOA are inserted
for convenience only and do not constitute a part of this MOA. References in
this MOA, or one of its Exhibits or Annexes to a Section or Article shall mean
such Section or Article in the MOA, or such Exhibit or Annex, unless stated
otherwise.


     28.     Definitions. Unless separately defined in this MOA, all capitalized
terms used herein shall have the same meaning given to them in the SMA.


     29.     Rules of Construction. In the event that any conflict arises between
this Memorandum of Agreement, the Exhibits attached hereto and any Annexes
attached hereto, any arbitrator or court (if applicable) shall resolve such
conflict by according priority of construction first to this Memorandum of
Agreement, second to the Exhibits attached hereto and third to the Annexes
attached hereto. In no event will any Marketing Plan be effective to modify
this MOA except by means of a formal amendment to this MOA expressly to that
effect. In the event of any conflict between any Marketing Plan and this MOA,
this MOA shall prevail over the Marketing Plan.


     30.     Indemnity Procedures. If a Party entitled to indemnification pursuant
to Sections 2(a)(v) or 2(b)(vii) of Exhibit A (the “Indemnified Party”) becomes
aware of any claim, action, suit, investigation, arbitration or other
proceeding (each an “Action”) for which the other Party is obligated to
indemnify the Indemnified Party, the Indemnified Party will give the other
Party (the “Indemnifying Party”) prompt written notice of such Action. Such
notice will (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 the Indemnified Party.
The Indemnified Party will, to the extent possible under law (i) request the
dismissal of the lawsuit on the grounds that it was filed against an improper
party (parte ilegítima); or, (ii) in the event such Indemnified Party does not
succeed in such attempt, the Indemnified Party will seek to cause the
Indemnifying Party to be joined to the law suit (denunciação da lide),
according to Articles 70 to 76 of the Brazilian Civil Procedural Code. In the
event the Indemnified Party does not succeed in any of the abovementioned
attempts, it will actively defend against such Action in a commercially
reasonable manner, and shall bear all costs and expenses of the defense of such
Action, including legal fees. The Indemnified Party shall be promptly
indemnified for any claims, losses, damages and awards (but not any costs and
expenses of the defense of such Action, including legal fees) in accordance
with the provisions of Sections 2(a)(v) or 2(b)(vii) of Exhibit A, as
applicable. In the event the Indemnified Party and the

8






 




Indemnifying Party are deemed co-defendants in such Action, they will
cooperate, at their own expense, with each other in the defense against such
Action. Neither Party shall compromise or settle any Action without the prior
written consent of the other Parties hereunder, such consent not to be
unreasonably withheld, delayed or denied. The amount to be indemnified shall be
adjusted by the CDI (Certificado de Depósito Interbancário) from the date of
the disbursement by the Indemnified Party to the date of the effective
reimbursement by the Indemnifying Party. For the purposes of this MOA, “CDI”
means the interest rate applicable to the Interbank Deposit Certificate,
calculated by the daily average rate of interbank deposits denominated “Taxa DI
- operações extra grupo”, expressed in an annual percentage, based on a 252-day
year, daily published by Brazilian Custody and Financial Liquidation of
Securities Center (CETIP).


[Signatures Follow on Next Page]


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	AOLB BRASIL LTDA.	 	 
	 
	 
	/s/ Carlos D. Trostli


Name: Carlos D. Trostli

Title: President	 	 
	 
	 
	 
	 
	AMERICA ONLINE LATIN AMERICA, INC.	 	 
	 
	 
	/s/ Charles M. Herington


Charles M. Herington

Title: President and Chief Executive Officer	 	 
	 
	 
	 
	 
	BANCO ITAU S.A.	 	 
	/s/ Milton Luis Ubach Monteiro	 	
/s/ Heli de Andrade
	
	 	


	Name: Milton Luis Ubach Monteiro

Title: Executive Vice-President	 	
Name: Heli de Andrade

Title: Managing Director
	 
	 
	 
	 
	WITNESSES:	 	 
	 
	 
	/s/ Eliana Ribeiro dos
Santos



Eliana Ribeiro dos Santos

R.G. #1859009-1 (SSP-SP)	 	 
	 
	 
	/s/ Milton R. Camargo



Milton R. Camargo

R.G. #3972823-1 (SSP-RJ)	 	 



10






 



Exhibit A



	 	 	 
	1.	 	
Marketing Efforts




	 	 	 	 
	 	a.	 	
Marketing Plans. From the MOA Effective Date through the
fifth Anniversary Date, the Parties will conduct their marketing
efforts with respect to the Co-Branded Service in accordance with
the SMA as amended by this MOA and Marketing Plans to be jointly
agreed upon and signed by the Marketing Committee pursuant to the
SMA as amended by this MOA. The Marketing Plans may further detail
Itaú’s obligations set forth in this MOA, with the cooperation of
AOLB as necessary, to make Itaú bank branches available for and
otherwise facilitate the marketing activities contemplated by this
MOA. Any Marketing Plan or changes to a Marketing Plan shall be
subject to the approval of the Marketing Committee before any
marketing activities described therein may be undertaken, provided
that, if the Parties are unable to reach agreement in any Marketing
Plan with respect to the implementation of any marketing activities
described in this Exhibit A that requires the agreement of the
Parties, and such dispute is submitted to the dispute resolution
procedures described in Sections 24 and 25 of the body of the MOA,
then those marketing activities that are directly impacted by the
subject matter of such Dispute shall be stayed pending the
resolution of such Dispute.
	 
	 	b.	 	
Price Plans; Free Trial Period; Discontinuance of Free Hours.
AOLB may, in its discretion, set the price for subscriptions to the
AOLB Service. Except as provided otherwise in Section 1(e) with
respect to certain existing AOLB/Itaú Subscribers, from the MOA
Effective Date through the remainder of the Term, the only
subscription plans available for the Co-Branded Service shall be
those available for the AOLB Service, and the price for such
subscription plans to the Co-Branded Service shall be: (i) for an
unlimited hours access subscription plan, the then-standard price
for the AOLB Service, less a discount of 20% off the then-standard
price, which discount shall be provided by and on the account of
AOLB, and (ii) for all other then-standard subscription plans
available for the AOLB Service, the price for such subscription plan
without any price discount (except as AOLB may permit in its
discretion). Any changes AOLB may implement from time to time to
the monthly subscription price for the AOLB Service shall apply to
the price for the Co-Branded Service using the formula for
determining the subscription prices for the Co-Branded Service set
forth above. Any discounts provided for herein to the then-current
or then-standard price shall mean the price as may be adjusted by
the immediately preceding sentence.
	 
	 	 	 	
Any AOLB/Itaú Subscriber to any price plan may select among other
price plans offered by AOLB to AOLB/Itaú Subscribers by using the
Keyword “cobrança” when available or by calling the AOLB call
center.



1






 




	 	 	 
	 	 	
Such price plans will provide for a free trial period of one month
(or such shorter period as AOLB determines in its discretion);
provided, that if AOLB offers a free trial period for the AOLB
Service that is longer than one month with respect to any price
plan in any promotion with a third party (other than promotions
with a third party that are (i) Other Qualifying Promotions, (ii)
OEM promotions, (iii) not offered for more than one month and that
do not involve mass media as described in clause (x) of the
definition of “Other Qualifying Promotion” below, (iv) targeted to
classes of consumers based on their social needs or charitable
purposes, such as schools, school children, handicapped consumers
and underprivileged consumers, and (v) fully subsidized by a third
party partner), then potential AOLB/Itaú Subscribers will be
offered the same longer free trial period with respect to such
price plan (for as long as the other promotion lasts). For
purposes of clause (v) above, the Parties agree that any Affiliate
of AOLA or AOLB shall not be considered a “third party.”
	 
	 	 	
AOLB will apply to potential AOLB/Itaú Subscribers who previously
were subscribers to the AOLB Service the same restrictions on free
trial periods upon re-registration as AOLB applies to its
potential subscriber base generally.
	 
	 	 	
For any free trial plan offered for the AOLB Service that is
longer than one month and that is fully subsidized by a third
party partner, AOLB shall promptly after the launch of such plan
notify Itaú of the details of such plan and Itaú may, within 30
days of such notification, elect by notifying AOLB in writing to
fully subsidize a substantially similar offer to potential
AOLB/Itaú Subscribers for the same price AOLB charges such third
party (but, for unlimited access plans, for no more than AOLB’s
then-standard price plan with the 20% discount described herein),
for the same time period (both the duration of the free trial and
the duration that the offer is available) and subject to any other
limitations for such offer, including any limitations on the
number of potential subscribers that may accept such offer. Itaú
shall launch such subsidized promotion within the 30-day period
following its written notice to AOLB of its intent to subsidize
the promotion, provided that the period shall be extended, if
necessary, until such time as AOLB provides Itaú with any
technical conditions that are necessary for such launch that AOLB
offered to the third party.
	 
	 	 	
“Other Qualifying Promotion”, as used in clause (i) above, means
an offer of the AOLB Service where (x) such offer does not involve
television, radio, newspapers or magazines (mass media), provided
that AOLB may promote such offer in newspaper or magazine inserts
or advertisements that primarily promote the products or services
offered by such third party, (y) such offer is designed to
principally target customers of the third party with which the
promotion is made, and (z) the monthly fee (less any applicable
discounts) for subscribing to the AOLB Service in response to such
offer, when multiplied by the result of 18 minus the number of
months of the related free trial period, is more than the
then-current price for the similar price plan of the Co-Branded
Service (after



2






 




	 	 	 
	 	 	
the 20% discount described above if applicable) multiplied by the
result of 18 minus the number of months in the free trial period
then being offered for the Co-Branded Service price plan.
	 
	 	 	
Except as otherwise set forth in this MOA, notwithstanding those
sections of the SMA obligating Itaú to pay for certain free hours,
Itaú shall not be obligated to pay, nor shall it be permitted to
pay, on behalf of any AOLB/Itaú Subscribers, directly or
indirectly, any free hours subsidy (including the payments for
free hours provided in Section 2.1.3 and elsewhere in the SMA) for
the Co-Branded Service. In addition, Sections 3, 4 and 5 of the
Finance Plan of the SMA are hereby terminated and of no further
force or effect. Itaú shall not offer to any AOLB/Itaú Subscriber
a subscription to the Co-Branded Service for a price other than
those prices described in Section 1(b), except (i) as expressly
agreed otherwise by the Parties in a future Marketing Plan
(including a fully subsidized offer for an extended free trial as
described above in this Section) and (ii) with respect to the
following classes of AOLB/Itaú Subscribers:




	 	 	 	 	 
	 	 	
(1)
	 	Itaú employees, for whom the price will be a
30% discount to the then-standard unlimited access price plan
for the AOLB Service. AOLB may raise this discount percentage
at its discretion. At Itaú’s discretion, Itaú may pay
directly to AOLB none, 50% or 100% of the discounted price on
behalf of the employees, and the employees will be
responsible for the balance, if any. The Parties will work
together to determine the feasibility and desirability of
having employees pay AOLB directly. AOLB, in its discretion,
may offer greater discounts, limited access plans or other
plans to specific segments of the Itaú employee base. Itaú
shall not be responsible for any non-payment by its employees
(other than any portion of the price Itaú may agree to pay
pursuant to this Section)
	 
	 	 	
(2)
	 	Itaú Private Bank customers (but only those
Itaú elects to designate and limited to ten thousand
customers), for whom Itaú shall pay directly to AOLB the
subscription fee described in Section 1(b) above.




	 	 	 
	 	 	
The Parties may market, offer and promote the Co-Branded Service
to the Itaú Customers identified in subsection (b) of the
definition of “Itaú Customers” in the SMA subject to the
limitations of this Section; provided, however, that such Itaú
Customers shall not be entitled to any discount off the price of
the AOLB Service. Notwithstanding the foregoing, if such Itaú
Customers later meet the requirements of subsection (a) of such
definition, then Itaú may so inform AOLB in writing in a form to
be agreed upon by the Parties, and such Itaú Customers shall be
entitled to the applicable price discount (if any) on the
subscription price for the Co-Branded Service beginning with the
billing cycle following receipt of the notice by AOLB. AOLB will
provide to Itaú the same level of information regarding these
subscribers



3






 




	 	 	 
	 	 	
as AOLB is required to provide with respect to other AOLB/Itaú
Subscribers.
	 
	c.	 	
Registration Process. Registration for the Co-Branded
Service shall only be permitted by one of the following three
methods (each of which is described in more detail in Article 2 of
this Exhibit A): (i) installation of the Customized Client by the
potential AOLB/Itaú Subscriber using a CD-ROM provided by AOLB or
Itaú as described elsewhere herein, (ii) in-person at an Itaú
branch, and (iii) Sign-up by Phone (“SUBP”) if AOLB elects to offer
SUBP for the AOLB Service, provided that Itaú may not promote SUBP
registration or any phone numbers associated therewith unless AOLB
has pre-approved such promotion in writing. If in the future AOLB
develops other registration methods, AOLB and Itaú will discuss the
need to include such new methods in the list of potential
registration methods. The registration process will be based upon
the registration process for the AOLB Service. Any Itaú Customer
that registers for the Co-Branded Service shall be provided a
special Itaú promotion code that such Customer shall be required to
input (or in the case of SUBP, that the telephone operator will
input) as part of the registration process.
	 
	 	 	
In the case of registrations by the methods described in clauses
(i) and (ii), the registration screens will contain, among other
screens, the following: (A) the subscription price and the length
of the free trial period (clearly stating that, beginning
immediately after the end of the free trial period, the monthly
charges will be collected in advance); (B) the available payment
options (direct debit or credit card are the payment options
although AOLB may, in its discretion, hereafter provide fewer,
additional or different payment methods provided that AOLB shall
offer the direct debit method to AOLB/Itaú Subscribers throughout
the Term); (C) a requirement that the potential AOLB/Itaú
Subscriber read and accept the Terms of Service during
registration; and (D) a notice that subscription to the Co-Branded
Service is subject to validation by Itaú. In addition, subject to
applicable laws and regulations, for those AOLB/Itaú Subscribers
who have subscribed to an unlimited access plan and who have
elected direct debit as the form of payment, Itaú shall note the
20% discount as part of the AOLB debit entry in their account
statements.
	 
	 	 	
In the case of SUBP, the registration will be accomplished in two
phases. In the first phase, the Itaú Customer will call the AOLB
call center and will provide his or her details to the AOLB
attendant who will complete the registration of a Co-Branded
Service account on behalf of the Itaú Customer. The AOLB
attendant will inform the Itaú Customer (i) of the price and the
length of the free trial period (clearly stating that, beginning
immediately after the end of the free trial period, the monthly
charges will be collected in advance), (ii) of the payment options
(direct debit or credit cards are the payment options although
AOLB may, in its discretion, hereafter provide fewer, additional
or different payment methods provided that AOLB shall offer the
direct debit method to AOLB/Itaú Subscribers throughout the Term),
and (iii) that the Itaú



4






 




	 	 	 
	 	 	
Customer will be required to read and accept the Terms of Service.
Once this initial process is completed, (i) the account shall be
activated so that it is accessible by the Itaú Customer from any
computer that has an AOL browser, (ii) the Itaú Customer will be
deemed an AOLB/Itaú Subscriber for the purposes of the SMA, and
(iii) if the AOLB/Itaú Subscriber does not have a computer with an
AOL browser, AOLB will ship a copy of the Customized Client or the
AOLB Client to such AOLB/Itaú Subscriber, at AOLB’s expense. In
the second phase, the AOLB/Itaú Subscriber will, in the first
login, be prompted to read and accept the Terms of Service through
a pop-up screen. It is understood by the Parties that any CD-ROMs
containing the Customized Client shipped by AOLB pursuant to
sub-section (iii) above shall reduce the aggregate amount of the
CD-ROMs (or interactive marketing) that Itaú is required to
Distribute or direct mail (or purchase) pursuant to Section 2 and
Section 3 of this Exhibit A.
	 
	 	 	
If any Itaú Customer who subscribes to the Co-Branded Service
after the MOA Effective Date requests in writing (within ten (10)
days after such Itaú Customer is first billed for the subscription
(i.e., the first bill after any free trial period)) the
cancellation of his or her subscription and the reimbursement of
the first subscription fee, Itaú and AOLB agree that Itaú shall
provide such reimbursement immediately and shall charge back AOLB
for such reimbursement as set forth in Section 10.2.5 of the SMA.
Upon such cancellation and reimbursement by Itaú, AOLB shall have
the right to take all appropriate actions to terminate such
Subscriber’s account immediately and to take any such other
actions with regard to such account as it deems reasonable in
accordance with the policies applied to AOLB Members. Regardless
of the payment methods available during the registration process,
after registration AOLB shall make available to all AOLB/Itaú
Subscribers the same payment methods as are available to
subscribers to the AOLB Service.
	 
	 	 	
In addition, Itaú Customers who are current subscribers to the
AOLB Service, that are identified in subsection (a) of the
definition of “Itaú Customers” in the SMA, who enter an Itaú bank
branch and who express to a Promoter an interest in the Co-Branded
Service will be directed by the Promoter (or, in Itaú’s
discretion, by Itaú employees if no Promoter is deployed to such
bank branch) to call the AOLB call center for purposes of enabling
AOLB to attempt to cause the Itaú Customer to migrate to the
Co-Branded Service. Such AOLB Subscribers who migrate to the
Co-Branded Service will not be entitled to a new free trial period
and will be counted as a registration from the commencement of the
billing cycle immediately following the date on which the AOLB
Subscriber migrates. No subscriber to the AOLB Service may be
migrated to the Co-Branded Service unless Itaú verifies such
subscriber as an Itaú Customer as provided below and such
subscriber is identified in subsection (a) of the definition of
“Itaú Customers” in the SMA.
	 
	 	 	
Verification and validation will be done on all registrants to the
Co-Branded Service. AOLB will send a file to Itaú daily, which
will identify all registrants that register with the Itaú
promotion code. Itaú



5






 




	 	 	 
	 	 	
will review this file and respond to AOLB within ten (10) days
with (x) a list that identifies each registrant as either persons
who meet subsection (a) of the definition of Itaú Customers, or
registrants who do not so meet such subsection and consequently
shall not be entitled to the 20% discount and (y) if direct debit
from an Itaú account is the payment method, the branch number and
the account number so that AOLB can process the collection at the
billing cycle of each AOLB/Itaú Subscriber. AOLB shall make
available boleto bancário as a payment method only when an Itaú
Customer does not elect credit card or direct debit as the means
of payment. Itaú further agrees to inform AOLB of when it is not
possible for an AOLB/Itaú Subscriber to use direct debit as a
means of payment and AOLB shall inform such AOLB/Itaú Subscriber
that it must choose a different method of payment.
	 
	 	 	
In order to guarantee the quality of the billing information of
AOLB/Itaú Subscribers that elect boleto bancário as the means of
payment, AOLB may block the access to the Co-Branded Service of,
and if applicable cancel the accounts of such AOLB/Itaú
Subscribers in order to process the validation of billing address
and CPF of the AOLB/Itaú Subscriber in accordance with the
policies applied to AOLB Members. After the initial validation of
a registrant, changes to the payment method will be processed by
using the Keyword “cobrança” when available or by calling the AOLB
call center.
	 
	 	 	
The Parties will use good faith efforts to study, within sixty
(60) days of the MOA Effective Date, the development of a new
methodology and process for verification and validation of
AOLB/Itaú Subscribers. If the Parties do not agree on a
methodology and process, the current validation/verification
methodology will remain unchanged. In addition, Itaú will study
whether, but shall have no obligation, to provide the systems and
databases to support online validation of the registration of Itaú
Customers for all registration methods and real-time verification
of such Itaú Customers.
	 
	d.	 	
Banking Benefits. Itaú will make available, beginning within
thirty (30) days of the MOA Effective Date, exclusively to all
AOLB/Itaú Subscribers, at no cost to the AOLB/Itaú Subscribers, at
least two banking benefits, as well as additional benefits that
shall be developed by Itaú, the type of which will be at Itaú’s
discretion, but which benefit shall be subject to AOLB’s approval
(not to be unreasonably withheld) before being made available to the
AOLB/Itaú Subscribers. Such benefits shall begin with the following
two benefits: (i) special Itaú e-mail services, including the
provision of certain account information (excluding account
statement information) sent via AOLB’s e-mail system and (ii)
AOLB/Itaú Subscribers will be able to conduct higher value
transactions online than do other Itaú Customers. Itaú may provide
these banking benefits to customers other than the AOLB/Itaú
Subscribers so long as it (x) charges such other customers for these
banking benefits or (y) provides an additional benefit exclusively
to AOLB/Itaú Subscribers in accordance with the foregoing. Itaú may
discontinue any benefit in its discretion, provided that (i) it
continues to offer at least two (2) other



6






 




	 	 	 
	 	 	
banking benefits exclusively to all AOLB/Itaú Subscribers in
accordance with the foregoing, and (ii) AOLB/Itaú Subscribers will
be able to conduct higher value transactions online (which benefit
will count toward the number in clause (i)) until such time as
Itaú reasonably concludes that the Co-Branded Service does not
provide better security for Itaú online banking services than does
another ISP Product. In connection with Itaú’s marketing
obligations hereunder, the Co-Branded Service shall be marketed
and promoted as the premier and the principal means of accessing
Itaú’s interactive Financial Services and related Content by means
of ISP Products. Until such time as Itaú reasonably concludes
that the Co-Branded Service does not provide better security for
Itaú online banking services than does another ISP Product, Itaú
shall include in such communication a statement that Itaú will
allow AOLB/ Itaú Subscribers to conduct higher value transactions
online than do other Itaú Customers because of the higher level of
security offered by the direct access through the Co-Branded
Service. Notwithstanding anything in the foregoing to the
contrary, Itaú shall be entitled to provide to Private Banking
customers, free of charge, any benefits described above as being
exclusive to AOLB/Itaú Subscribers.
	 
	e.	 	
Existing Member Base. During the last six (6) Contract
Months (as defined below) of the seven (7) Contract Month period
beginning on the MOA Effective Date, with respect to each AOLB/Itaú
Subscriber existing as of the MOA Effective Date, the Parties shall
(x) transition such AOLB/Itaú Subscriber to a plan for the
Co-Branded Service that does not include any subsidy by Itaú or (y)
terminate such AOLB/Itaú Subscriber, all as is described in more
detail below, provided that any AOLB/Itaú Subscriber granted a
written offer before the MOA Effective Date for any subsidy that
does not terminate within seven (7) Contract Months after the MOA
Effective Date shall continue to receive such subsidy pursuant to
the terms of such offer until the expiration of such offer and Itaú
shall continue to pay for such subsidy as provided in (i) and (ii)
below, provided further, that no such pre-existing offer may be
renewed without the prior written consent of AOLB. The form of all
communications described below (as opposed to the content which
shall be determined in accordance with this Section 1(e)) shall be
agreed upon by the Parties. “Contract Month” shall mean a period
extending from a specified day to (but not including) the
corresponding day of the next month (e.g., January 6th to February
5th), and subsequent Contract Months shall be measured from the same
day of the month (e.g., February 6th to March 5th and so on)




	 	 	 	 	 
	 	 	
(i)
	 	All AOLB/Itaú Subscribers that either (A) (i)
have registered prior to the MOA Effective Date, (ii) have
not accessed the Co-Branded Service at any time during the
ninety (90) day period ending on the MOA Effective Date, and
(iii) are not subscribers to a paid plan (each, an “Inactive
AOLB/Itaú Subscriber”) or (B)(i) have registered prior to the
MOA Effective Date, (ii) are not Inactive AOLB/Itaú
Subscribers, and (iii) are not subscribers to a paid plan,
will receive from Itaú at its expense, and at AOLB’s
direction, at least one and no more than three printed (or



7






 




	 	 	 	 	 
	 	 	 	 	telephone, at AOLB’s option and expense) communications as
follows. The first communication shall inform such
AOLB/Itaú Subscribers that the free hours plan will no
longer be offered by Itaú and that if they wish to continue
to use the Co-Branded Service, they may subscribe to the
unlimited price plan described in Section 1(b) of this
Exhibit A before the end of Itaú’s then-current free hours
offer for such AOLB/Itaú Subscriber. Subsequent
communications may be the same or similar, or, if the
AOLB/Itaú Subscriber elects not to accept the offer for the
unlimited paid plan with the discount, the communications
may offer other standard AOLB plans to such AOLB/Itaú
Subscribers that AOLB, in its discretion, may elect to
offer with or without any discount. In any case, at least
the final offer (which, in AOLB’s discretion may be the
first, second or third communication but which must be sent
to the AOLB/Itaú Subscriber, if practicable, at least
thirty (30) days before the end of Itaú’s then-current
free-hours offer) sent to each such AOLB/Itaú Subscriber
shall note that if he or she does not subscribe to one of
the offered plans, the AOLB/Itaú Subscriber’s account will
be terminated at the later of (x) thirty (30) days after
the date of such final offer, and (y) at the end of Itaú’s
then-current free hours offer, if applicable, and such
AOLB/Itaú Subscriber’s account shall so be terminated if
such offer is not accepted, provided that in no
circumstances shall such AOLB/Itaú Subscriber’s account be
permitted to stay active seven (7) Contract Months after
the MOA Effective Date except as provided in this Section
1(e). For any such AOLB/Itaú Subscribers who are still
benefiting from the free trial period as of the MOA
Effective Date, such communications will be sent only after
the end of such free trial period. During the period
before such AOLB/Itaú Subscribers have been terminated or
agreed to one of the plans offered pursuant to this Section
1(e), Itaú shall pay to AOLB (x) in the case of AOLB/Itaú
Subscribers that have not accessed the Co-Branded Service
during the billing cycle, R$0,11 (eleven cents of reais)
per Subscriber per month within ten (10) days after invoice
thereof and (y) in the case AOLB/Itaú Subscribers that have
accessed the Co-Branded Service during the billing cycle,
the rate calculated as set forth in the Third Amendment to
the SMA.
	 
	 	 	
(ii)
	 	For each AOLB/Itaú Subscriber that is not
described in Section 1(e)(i) above that registered for the
Co-Branded Service prior to the MOA Effective Date, Itaú
shall pay (unless it elects otherwise as provided below) the
entire difference between (A) the price for the then-current
plan (with the 20% discount in the case of the unlimited
hours plan) for the AOLB Service most closely resembling the
plan for which such AOLB/Itaú Subscriber is registered, and
(B) the amount such AOLB/Itaú Subscriber is obligated to pay,
provided that AOLB will not cancel the structure of any price
plan offered during the seven (7)



8






 




	 	 	 	 	 
	 	 	
 	 	Contract Month period after
the MOA Effective Date; and provided further that AOLB shall
be permitted in its discretion, subject to Section 1(b), to
increase or decrease the price at which such plan is offered.
For the avoidance of doubt, AOLB shall be paid the full
subscription price (with the 20% discount in the case of the
unlimited hours plan) for the Co-Branded Service, part from
the AOLB/Itaú Subscriber and the remainder from Itaú. Itaú
shall pay such amounts monthly in accordance with the
procedures in the SMA for the payment of free hours (i.e.,
those procedures governing the timing and method of payment,
but not the sections governing the amount of payments due).
The Parties will coordinate communications to those AOLB/Itaú
Subscribers who are participating in a paid plan that is not
the unlimited plan, for purposes of trying to induce them to
subscribe to the unlimited price plan. For any such
AOLB/Itaú Subscriber that Itaú elects not to pay such amount,
Itaú shall so notify AOLB in writing and, beginning in the
next billing cycle for such AOLB/Itaú Subscriber, such
AOLB/Itaú Subscriber shall be treated as if they were subject
to Section 1(e)(i) above.




	 	 	 
	 	 	
The provisions of this Section (e) shall not apply to the classes
of AOLB/Itaú Subscribers provided for in Section 1(b)(1) and (2)




	 	 	 
	2.	 	
Subscriber Acquisition Efforts: AOLB and Itaú shall engage in the
following three types of subscriber acquisition efforts for the Co-Branded
Service: “In-Branch,” “Direct Mail” and, at AOLB’s discretion, “SUBP.”




	 	 	 
	a.	 	
In-Branch Efforts. The Parties shall deploy a program for
the acquisition of new AOLB/Itaú Subscribers inside Itaú bank
branches. The Parties will jointly approve the Marketing and
Communication Materials in accordance with Section 3(a) of this
Exhibit A. The program shall contain the following elements:




	 	 	 	 	 
	 	 	
(i)
	 	Branch selection. The initial branches and
rollout schedule will be as set forth on Annex 1. In
addition, Annex 1 shall set forth the maximum number of
Promoters that shall be permitted in each Itaú branch. The
initial number of branches may not be decreased and the
maximum number of Promoters for any branch may not be
increased without the agreement of the Parties; provided, (a)
that Itaú at its discretion may reduce the number of branches
without the consent of AOLB so long as there are always 100
more positions available for Promoters in branches than the
number determined by the Total Performance Criteria, and (b)
that any reduction in the maximum number of Promoters per
branch will be effective only after the number of Promoters
for the next Quarter has been determined.
	 
	 	 	
(ii)
	 	Management. The in-branch program will be
managed by AOLB. AOLB will contract, maintain and dismiss,
as employees of AOLB or as third-party contractors (at AOLB’s
option), and arrange for the training (as described on Annex
2) of individuals



9






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	who will work in Itaú bank branches (x) marketing the
Co-Branded Service to Itaú Customers (“Promoters”) and (y)
as supervisors for the Promoters (“Supervisors”). The list
of qualifications of the Promoters and the Supervisors,
including the range of fixed compensation wages, are
described on Annex 2, which may change from time to time
upon the agreement of the Parties. AOLB may hire or cause
to be hired Promoters and Supervisors with overall
qualifications reasonably consistent with the
qualifications attached as Annex 2 without any additional
approval from Itaú. The Parties shall adjust such wage
range annually by an amount agreed upon by the Parties. If
the Parties are unable to agree then the wages shall be
adjusted by the rate set by the applicable collective
bargaining agreement or, in the absence of such an
agreement, by an amount equal to the change in the official
governmental consumer inflation rate from the prior year to
the then-current year. Unless the Parties agree otherwise,
the contracting and/or hiring of such in branch Promoters
and/or Supervisors will take place after the receipt of
competitive bids from at least three of the following
employment or contracting agencies: [**], [**], [**], and [**]. This list of
acceptable employment or contracting agencies shall be
valid for one year and thereafter any revisions to this
list of acceptable employment or contracting agencies shall
be subject to the mutual agreement of the Parties. AOLB
will make the final decision as to which employment or
contracting agency it will use for the project, based on a
combination of cost, quality and past experience with the
employment or contracting agencies. Notwithstanding the
foregoing, without Itaú’s written consent, AOLB may not
award the contract to any employment or contracting agency
whose bid projected costs more than twenty percent (20%)
above the lowest-cost bid AOLB received during the bidding
process. In the event that AOLB decides to contract
Promoters and/or Supervisors through an employment or
contracting agency, AOLB shall use commercially reasonable
efforts to verify whether such employment or contracting
agency complies with Brazilian labor laws regarding payment
of wages and related charges as described in Annex 2 in its
relationship with such Promoters and Supervisors; provided
that the failure to undertake such efforts shall not be
deemed a breach of this MOA.
	 
	 	 	 	 	(iii)
	 	Expenses. Itaú will reimburse AOLB for the
actual expenses listed in (A) and (B) below which relate to
the in-branch marketing activities (in addition to those
related to the CD-ROMs, as described below). Furthermore,
Itaú will reimburse or directly pay all actual costs listed
in (C), (D), (E), (F), (G) and (H) below, which relate to the
in-branch marketing activities.




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	(A)
	 	All costs of AOLB with respect to
Promoters, including all fees charged by an agency for
the same in case AOLB contracts with such agency to
provide Promoters as third-



10






 




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	 	 	party contractors; provided that, solely for the
purposes of this reimbursement, Itaú may notify AOLB
that it will not permit AOLB to deploy the full
number of Promoters that AOLB is entitled to deploy
hereunder. Such notice shall state the number of
Promoters that Itaú will allow AOLB to deploy and
for how long such number shall apply (but subject to
any reduction in the number of Promoters to be
deployed pursuant to Section 2(b), not less than 60
(sixty) days). Starting fifteen (15) days after the
provision of such notice, Itaú shall only be
required to reimburse AOLB for the number of
Promoters stated in such notice, it being
acknowledged that if the number of promoters
deployed pursuant to such notice is less than the
maximum number of promoters that AOLB has the right
to deploy pursuant to Section 2(b)(i) or (ii), as
applicable, AOLB will entitled to a Promoter Payment
in accordance with Section 5(a)(ii);
	 
	 	 	 	 	 	 	(B)
	 	All costs of AOLB with respect to
1 Supervisor for each 7 branches staffed with
Promoters, including all fees charged by an agency for
the same in case AOLB contracts with such agency to
provide Supervisors as third-party contractors;
	 
	 	 	 	 	 	 	(C)
	 	All reasonable costs for the
items described on Annex 2;
	 
	 	 	 	 	 	 	(D)
	 	All costs of uniforms (1 new kit
per Quarter, per Promoter as agreed by the Parties);
	 
	 	 	 	 	 	 	(E)
	 	All costs for the following point
of purchase materials: (i) materials used to advertise
the availability of the promotions in the branches,
including banners, posters, displays, etc., and (ii)
other materials to entice customers, such as business
cards, mouse pads, and welcome kits (not to exceed
R$3.50 per created account);
	 
	 	 	 	 	 	 	(F)
	 	All cost for hardware (CPU,
keyboard, monitor and mouse). Any other hardware
shall be further discussed and agreed upon;
	 
	 	 	 	 	 	 	(G)
	 	All costs of installing and
maintaining telephone lines or other computer network
connections; and
	 
	 	 	 	 	 	 	(H)
	 	All costs of creating and
installing kiosks.




	 	 	 	 	 	 	 
	 	 	 
	 	 
	 	AOLB shall not hire such Promoters and Supervisors directly
until AOLB has received at least three bids from the
employment or contracting agencies identified in Section
2(a)(ii). In the event AOLB hires Promoters and
Supervisors directly, Itaú’s obligation to reimburse AOLB
for (A) and (B) above shall not exceed the cost that would
have been reimbursable if AOLB had hired them



11






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	through an employment or contracting agency that could have
been selected after following the procedures described in
Section 2(a)(ii) of this Exhibit A.
	 
	 	 	 	 	 	 	With respect to item (B) above, the number of Supervisors
shall be adjusted in accordance with the number of branches
each Quarter.
	 
	 	 	 	 	 	 	The logistics for items (A) through (C) will be arranged by
AOLB and will be paid by Itaú to AOLB pursuant to an
invoice (which invoice will be paid by Itaú within ten (10)
days of receipt and will include any additional taxes paid
or owed by AOLB as required by law), as the Parties will
determine. It is understood and intended by the Parties
hereto that the allocation of Promoters and Supervisors in
Itaú’s bank branches pursuant to this Section shall not
establish any employer-employee relationship between Itaú
and such Promoters and Supervisors.
	 
	 	 	 	 	 	 	The logistics of items (D) and (E) will be arranged and
paid by Itaú after a joint agreement by the Parties on the
best provider and with respect to the items described in
item E above, on the quantity of materials to be purchased.
AOLB shall direct Itaú to purchase the items described in
item (E)(ii) above, and if, after the use of such items is
discontinued at AOLB’s direction, the surplus inventory of
such items exceeds 10% of the amount actually distributed,
then AOLB shall reimburse Itaú for the items in excess of
10% at Itaú’s actual cost. Itaú shall deliver such surplus
inventory to AOLB, at AOLB’s expense, which shall
thereafter be the owner of such items.
	 
	 	 	 	 	 	 	The logistics of items (F) through (H) will be arranged by
Itaú and will be paid directly by Itaú
	 
	 	 	 	 	 	 	With respect to the compensation of Promoters and
Supervisors, on average the total variable compensation
paid to them shall not exceed 15% of the total fixed
compensation paid to them (and AOLB shall have the
discretion to allocate the variable portion as either
monetary payments or non-monetary incentives). In
addition, for the avoidance of doubt, Itaú will be
responsible for the costs of each Promoter for the period
beginning when such Promoter is hired for deployment at the
branches until the Promoter is removed from the branches
(e.g., in the event that the number of Promoters from one
Quarter to the next Quarter increases, Itaú will be
responsible for the cost of the additional Promoters only
from the time the Promoter is actually hired), provided
that if the time period between hiring and deployment
exceeds fifteen (15) days, Itaú shall not be responsible
for the cost between the end of the 15-day period and the
time of deployment; conversely, if the number of Promoters
is decreased from one Quarter to the next Quarter, Itaú
will be responsible for the cost of the “excess Promoters”
until it is determined how



12






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	many Promoters will be deployed for the subsequent Quarter
and thereafter for ten (10) days (or until each such
Promoter is removed if sooner but never exceeding the first
thirty (30) days of the then-current Quarter unless the
failure to remove such Promoter is a result of failure to
comply with the terms of this MOA). In the event there is
a good faith dispute between the Parties regarding the
number of Promoters to be deployed or removed, the Parties
shall cooperate in good faith to reach a prompt resolution
of the matter in accordance with Sections 24 and 25 of the
body of the MOA.
	 
	 	 	 	 	(iv)
	 	In-Branch CD-ROM Distribution. AOLB has the
right to require from time to time in writing the
Distribution of up to an aggregate of [**] CD-ROMs to
Itaú’s bank branches as directed by AOLB on the following
schedule: (A) [**], for the period from the MOA
Effective Date through the second Anniversary Date (provided
that AOLB has deployed the Promoters for such period as
described herein), (B) [**], for the period from the
second Anniversary Date through the third Anniversary Date,
(C) [**], for the period from the third Anniversary Date
through the fourth Anniversary Date, and (D) [**], for
the period from the fourth Anniversary Date through the fifth
Anniversary Date. Notwithstanding the foregoing, AOLB in
its discretion may increase or decrease the required quantity
of CD-ROMs for Distribution for any Anniversary Year by up to
20% with any such increase or decrease deducted or added, as
applicable, to the required Distribution for the following
period, provided that some or all of the CD-ROMs scheduled to
be Distributed during the 100 Days may be transferred, at
AOLB’s discretion, to the third Anniversary Year. Except as
provided otherwise in Section 25(b) of the body of this MOA,
in no event will AOLB have the right to require that the
Distribution of any CD-ROMs be effected by Itaú after the
fifth Anniversary Date. The Parties may mutually agree to
quantity increases or decreases in excess of 20% per
Anniversary Year.
	 
	 	 	 	 	 	 	For the purposes of the MOA and this Exhibit A,
“Distribution” or “Distribute” shall mean (A) for bank
branches without Promoters, picking up from Itaú’s
Distribution Center and delivering to such branches such
number of CD-ROMs (previously delivered by AOLB to Itaú’s
Distribution Center) that is specified in written
instructions provided by AOLB to Itaú pursuant to this
Section, (B) paying the CD-ROM Costs for the production of
CD-ROMs for Distribution both in branches with and without
Promoters, (C) either (i) for branches with Promoters,
permitting Promoters to give out such CD-ROMs to Itaú
Customers in Itaú bank branches, or (ii) for branches
without Promoters, making CD-ROMs available to Itaú
Customers (including but not limited to through take-one
displays located in



13






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	the customer circulation area), and (D) such other
activities as are reasonably necessary to achieve (A)
through (C) above.
	 
	 	 	 	 	 	 	Such CD-ROMs will be provided to Itaú Customers by
Promoters in those branches that have Promoters, and by
Itaú personnel in those branches without Promoters, with
the allocation between such branches as directed by AOLB.
In the event [**] CD-ROMs are not Distributed to Itaú
Customers in the 100 Days because there are not a
sufficient number of Promoters to reasonably enable such
Distribution to Itaú Customers, then with respect to that
quantity of CD-ROMs not so Distributed in such period as a
result of the shortage of Promoters, Itaú shall have no
liability for such failure.
	 
	 	 	 	 	 	 	In addition, AOLB may (A) reduce or increase the number of
CD-ROMs for in-branch Distribution in any given year and
consequently increase or reduce by the same amount the
number of CD-ROMs that are directed to direct mail (as
provided in Section 2(c)(ii)) limited to 20% of the amounts
described in Sections 2(a)(iv) and 2(c)(i) in this Exhibit
A (unless the Parties agree to a higher percentage) or (B)
elect to use some of the CD-ROMs intended for Distribution
or direct mailing in any given year as part of the SUBP
program for potential AOLB/Itaú Subscribers; provided in
each case that such CD-ROMs shall still be deducted from
the total amount of CD-ROMs Itaú is required to Distribute
or direct mail, as applicable, under this Exhibit A. AOLB
shall not have the foregoing right with respect to any
CD-ROMs for which Itaú has incurred production costs
following and as a result of AOLB’s written direction to
Distribute such CD-ROMs. Notwithstanding anything to the
contrary herein, in the event that AOLB increases the
number of CD-ROMs directed to direct mail as set forth in
this paragraph, AOLB shall be solely responsible for any
postage costs related thereto. Nothing herein shall limit
Itaú’s right to purchase, at its cost, from AOLB,
additional CD-ROMs, subject to the other terms and
conditions of this MOA, and such CD-ROMs shall not count
towards Itaú’s Distribution and/or direct mailing
obligations as described in this MOA. Nothing in this MOA
shall be interpreted as requiring Itaú to purchase such
CD-ROMs as provided herein from AOLB.
	 
	 	 	 	 	 	 	At least thirty (30) days prior to the beginning of each
Quarter, AOLB shall provide Itaú with an estimate of the
number of CD-ROMs AOLB desires to allocate for Distribution
at each Itaú branch and for direct mailing. Thereafter, at
least thirty (30) days prior to the end of the Quarter,
AOLB shall provide to Itaú in writing the quantity of
CD-ROMs to be Distributed and direct-mailed in such
Quarter. Itaú shall be responsible for all costs related
to the production, Distribution and direct mailing of the
CD-ROMs (including those it elects voluntarily to
distribute), including, without limitation, (A) the cost of
producing such CD-ROMs (provided that the amount Itaú is
obligated to pay per CD-



14







 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	ROM shall not be greater than the cost AOLB would have to
pay if it ordered the CD-ROMs for its use from a producer
selected by AOLB in accordance with an agreement with or a
quote from such producer), (B) the cost of shipping such
CD-ROMs up to the point of delivery to the Itaú
Distribution Center (in the case of direct mailing and with
respect to CD-ROMs for Distribution in those Itaú branches
without Promoters) or to AOLB’s contracted promotional
agency in each city (in the case of in-branch Distribution)
and handling, (C) backer cards, (D) labels and postage
(with respect to those CD-ROMs that are direct mailed), and
(E) an administration fee equal to 15% of all of AOLB’s
costs for items (A) through (C) above ((A) through (E)
collectively, the “CD-ROM Cost”). AOLB shall provide all
CD-ROMs for Distribution and/or direct mailing in each
Quarter at least thirty (30) days prior to the end of such
Quarter.
	 
	 	 	 	 	 	 	AOLB will have the right at any time and from time to time
to direct that Itaú, in lieu of Distributing some or all of
the quantity of CD-ROMs described in this Section 2(a)(iv),
purchase interactive marketing on the AOLB Service or the
Co-Branded Service during the period in which Itaú would
have Distributed the CD-ROMs. The price of the interactive
marketing will be an amount equivalent to the aggregate
CD-ROM Costs that would have been incurred by Itaú (except
mailing costs) if the CD-ROMs and related materials had
been ordered and Distributed. For this purpose, the CD-ROM
Costs will be based on the applicable amount (on a
per-CD-ROM basis) that was actually incurred with respect
to the lot of CD-ROMs that was purchased most immediately
prior to the time for which the calculation is to be made.
Itaú may only be required to pay for interactive marketing
with respect to each Quarter relating to the following
maximum number of CD-ROMs:
	 
	 	 	 	 	 	 	      (1) for each of the first, second and third Quarters
of each Anniversary Year, the result of: (i) one-third of
the maximum number of CD-ROMs that AOLB could require Itaú
to Distribute in such Anniversary Year (including any
number of CD-ROMs that has been reallocated from another
Anniversary Year as provided herein), less (ii) the number
of CD-ROMs actually Distributed by Itaú in such Quarter;
and
	 
	 	 	 	 	 	 	      (2) for the fourth Quarter of each Anniversary Year,
the remaining CD-ROMs AOLB could require Itaú to Distribute
in the applicable Anniversary Year (including any number of
CD-ROMs that has been reallocated from another Anniversary
Year as provided herein)
	 
	 	 	 	 	 	 	For the avoidance of doubt, in no event may AOLB direct
Itaú to purchase interactive marketing in lieu of the
in-branch Distribution of CD-ROMs as required hereunder for
an Anniversary Year in an amount greater than the number of
CD-



15






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	ROMs required to be Distributed in-branch during an
Anniversary Year (including any number of CD-ROMs that has
been reallocated from another Anniversary Year as provided
herein). Notwithstanding the 20% discount set forth in
Section 12.1.4 of the SMA, such interactive marketing shall
be purchased at the then-prevailing rate card rates.
Notwithstanding the foregoing, if AOLB directs Itaú to
Distribute a certain number of CD-ROMs in any given
Quarter, once Itaú has incurred any costs in connection
with such CD-ROMs, following and as a result of AOLB’s
written direction to Distribute such CD-ROMs, AOLB may not
reduce this number or require Itaú to re-allocate any or
all of such CD-ROM Costs to interactive marketing
purchases.
	 
	 	 	 	 	 	 	As used in this MOA, the term “CD-ROMs” shall refer to
CD-ROMs containing the Customized Client, unless the
context requires otherwise.
	 
	 	 	 	 	(v)
	 	Branch Environment Guidelines. In implementing
the in-branch program, the Parties acknowledge that it is
important that (i) Itaú Customers who enter the branches
perceive the kiosk and promotional materials as naturally
integrated into the branch environment and as an endorsement
by AOLB and Itaú of the Co-Branded Service and the Itaú
Bankline service, and (ii) the activities of the Promoters
respect the existing dynamic of the branch environment and
minimize any adverse impact on branch activities (to be part
of training). Accordingly, during any period in which a
Promoter is present in an Itaú bank branch, Itaú shall
install in such branches a kiosk and promotional signage,
and, to keep the kiosks and signage consistent with overall
Itaú marketing policy, Itaú will be in charge of defining (i)
promotional signage size and positioning (provided that the
size of any promotional materials advertising the Co-Branded
Service in any bank branch will be at least 0.7 square
meters) and (ii) the location and size of the kiosks within
Itaú’s branches. Each Promoter will be provided scripts for
interacting with Itaú Customers that are jointly developed
and approved by Itaú and AOLB.
	 
	 	 	 	 	 	 	AOLA and AOLB shall be responsible (for purposes of
Brazilian laws) and shall indemnify Itaú for any claims,
losses, awards or damages involving injury or damage to the
extent caused by a Promoter or Supervisor to Itaú property
or to an Itaú Customer or his/her property, except to the
extent the act or omission giving rise to such claim, loss
or damage was authorized by any Itaú branch manager
(Gerente Titular, Gerente de Conta or Gerente Operacional)
or by any other person acting at the direction of these
managers to authorize such act or omission by the Promoter
or Supervisor. Itaú shall be responsible (for purposes of
Brazilian laws) and shall indemnify AOLA and AOLB for any
claims, losses, awards or damages to the extent not caused
by Promoters



16






 




	 	 	 	 	 
	 	 	
 	 	and/or Supervisors carrying out the in-branch marketing
activities provided for in this MOA, except to the extent
AOLA and AOLB are responsible and are obligated to
indemnify Itaú pursuant to the foregoing sentence.




	 	 	 	 	 
	 	 	
b.
	 	Promoters




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	Initial Promoters. From the MOA Effective Date
to March 24, 2003 (such period, the “100 Days”) and from
March 25, 2003 through June 24, 2003 (such period, “Quarter
Zero” and together with the 100 Days, the “Initial Period”),
AOLB will have the right to place up to [**] ([**])
Promoters in Itaú branches subject to the restrictions set
forth in Annex 1. Itaú will have no obligation to pay for
those Promoters who are not actually deployed in Itaú’s bank
branches during such period (it being understood that, for
the purposes of this sentence, Promoters shall be considered
deployed for the 15-day period provided for in Section
2(a)(iii) whether or not such Promoters are placed in bank
branches, and shall not be considered deployed thereafter
until such Promoter is actually deployed in a bank branch).
In addition, to the extent Itaú delays the deployment of the
initial Promoters, AOLB may require Itaú to purchase
interactive marketing with a price equal to the sum of (x)
(A) the number of Promoters delayed, multiplied by (B) a
fraction the numerator of which is the number of days delayed
and the denominator of which is the number of days such
Promoter would have been in a branch during the Initial
Period, multiplied by (C) the average per Promoter “all in
costs” (i.e., all costs identified in items (A) of Section
2(a)(iii)) that were expended by Itaú during the Initial
Period, and (y) the costs of additional Supervisors (i.e.,
all costs identified in item (B) of Section 2(a)(iii)) that
would have been deployed if such delayed Promoters had been
deployed.
	 
	 	 	 	 	(ii)
	 	Future Number of Promoters. For each
three-Contract Month period (the “New Quarter”) that begins
after Quarter Zero (hereinafter referred to as Quarters 1 to
11), the number of Promoters to be deployed in the Itaú
branches shall be the greater of (A) the number of Promoters
guaranteed by Itaú for the New Quarter pursuant to subsection
(iii) below and (B) the number of Promoters determined by the
Total Performance Criteria as set forth in subsection (iv)
below, but in no event more than [**] Promoters in any
Quarter. Notwithstanding the foregoing, the number of
Promoters AOLB shall be entitled to place in Itaú branches
shall not decrease until thirty (30) days after the end of
the previous Quarter (or until each such Promoter is removed
from the Itaú bank branch if sooner). AOLB shall remove any
excess Promoters within such thirty (30) days, and Itaú shall
be obligated to pay for all Promoters and Supervisors for
such period. Any reference to “Quarters” in this MOA shall
mean any one of Quarters Zero to 11.



17






 




	 	 	 	 	 	 	 
	 	 	
 
	 	(iii)
	 	Guaranteed Promoters. The number of Promoters
guaranteed by Itaú independently of the Total Performance
Criteria is as follows: Quarter 1-[**] Promoters; Quarters 2
and 3- [**]; Quarters 4, 5, 6, and 7- [**]; and Quarters 8, 9,
10 and 11- [**].
	 
	 	 	 	 	(iv)
	 	Total Performance Criteria. The Total
Performance Criteria determines the number of Promoters for a
New Quarter as a function of the performance in the Prior
Quarter (as hereinafter defined), as set forth in the
following formula:




	 	 	 	 	 	 	 
	 	 	 
	 	 
	 	NP = Qualifying Registrants

Minimum Production Level
	 
	 	 	 	 	 	 	Where
	 
	 	 	 	 	 	 	“NP” means the number of Promoters for a New Quarter
	 
	 	 	 	 	 	 	“Minimum Production Level” means the expected production
for the Prior Quarter




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	•
	 	For Quarters Zero, 1, 2 and
3: the product obtained by multiplying [**] and
the number of Working Days in the last two Contract
Months of the applicable quarter
	 
	 	 	 	 	 	 	•
	 	For Quarters 4, 5, 6 and 7: the product obtained by multiplying [**] and the
number of Working Days in the last two Contract
Months of the applicable quarter
	 
	 	 	 	 	 	 	•
	 	For Quarters 8, 9 and 10: the product obtained by multiplying [**] and the
number of Working Days in the last two Contract
Months of the applicable quarter




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	“Working Days” means all weekdays (Monday through Friday)
on which the branches are open for business during normal
business hours.
	 
	 	 	 	 	 	 	“Qualifying Registrants” means the sum of: (i) the lesser
of (A) the number of Itaú Customers who became AOLB/Itaú
Subscribers pursuant to the in-branch subscription efforts
of this Section 2 during the last Contract Month of the
three-Contract Month period immediately prior to the New
Quarter for which the calculation is being made (the “Prior
Quarter”), whether or not such Itaú Customers remained
AOLB/Itaú Subscribers at the end of the Prior Quarter, and
(B) the Turnover Limit for the Prior Quarter, and (ii) Itaú
Customers who become AOLB/Itaú Subscribers pursuant to the
in-branch subscription efforts of this Section 2 during the
second Contract Month of the Prior Quarter and make a
payment (or for which Itaú makes or is required to make a
payment) either during the last Contract Month of the Prior
Quarter or within the first 20 days of the New Quarter. If
it cannot be determined if an individual has made a payment
by



18






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	such 20th day due to a delay by Itaú in providing AOLB with
the information required by AOLB to make such
determination, the individual will be deemed to have made a
timely payment. In addition, to the extent Itaú delays the
deployment of Promoters or notifies AOLB pursuant to
Section 2(a)(iii)(A), Qualifying Registrants shall also
include an additional amount equal to the number of
Promoters delayed or reduced multiplied by the average
number of AOLB/Itaú Subscribers acquired by the Promoters
in the Prior Quarter.
	 
	 	 	 	 	 	 	“Turnover Limit” means the quotient obtained by dividing
(x) the total number of AOLB/Itaú Subscribers who register
pursuant to the in-branch subscription efforts of this
Section 2 during the last Contract Month of the Prior
Quarter and who remain AOLB/Itaú Subscribers as of the last
day of such Contract Month, by (y) the result of (A) one
minus (B) the product obtained by multiplying [**] and
Average Turnover for the Prior Quarter.
	 
	 	 	 	 	 	 	“Average Turnover” means one minus the quotient obtained by
dividing (x) the sum of (A) the number of AOLB/Itaú
Subscribers who registered pursuant to the in-branch
subscription efforts of this Section 2 during the first
Contract Month of the Prior Quarter and who remain
AOLB/Itaú Subscribers as of the last day of such Contract
Month and (B) the number of AOLB/Itaú Subscribers who
register pursuant to the in-branch subscription efforts of
this Section 2 during the second Contract Month of the
Prior Quarter and who remain AOLB/Itaú Subscribers as of
the last day of such Contract Month, by (y) the sum of (A)
the number of AOLB/Itaú Subscribers who registered pursuant
to the in-branch subscription efforts of this Section 2
during the first Contract Month of the Prior Quarter
(regardless of whether or not they remain AOLB/Itaú
Subscribers as of the last day of such Contract Month) and
(B) the number of AOLB/Itaú Subscribers who register
pursuant to the in-branch subscription efforts of this
Section 2 during the second Contract Month of the Prior
Quarter (regardless of whether they remain AOLB/Itaú
Subscribers as of the last day of such Contract Month)
	 
	 	 	
 
	 	(v)
	 	Allocation of Promoters Among Branches. For the
Initial Period, Promoters will be placed in the branches as
directed by AOLB, subject to the restrictions set forth in
Annex 1. At all times following such Initial Period, AOLB
will have the discretion to allocate Promoters among the
branches, subject to (A) the restrictions set forth in
Annex 1, and (B) the maximum number of Promoters for each
branch, as determined based on the Allocation Number, as
described below. If Itaú opens new branches, it will
inform AOLB of the maximum number of Promoters that can be
active in such new branches. If Promoters are removed from
a branch pursuant to this Section (other than Promoters
removed from a branch pursuant to subsections (viii)



19






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	or (ix)), AOLB may not increase the number of Promoters in
that branch in the next New Quarter.
	 
	 	 	 	 	 	 	“Allocation Number” for any New Quarter means the quotient
obtained by dividing (A) the total number of Qualifying
Registrants for each branch in the Prior Quarter, by (B)
the product obtained by multiplying (1) the total number of
Working Days worked by Promoters in the branch in the last
two Contract Months of the Prior Quarter and (2) [**].
	 
	 	 	 	 	 	 	If the Allocation Number for a branch is greater than or
equal to 3, AOLB can allocate up to the maximum number of
Promoters set forth in Annex 1 to such branch.
	 
	 	 	 	 	 	 	If the Allocation Number is less than 3 but greater than or
equal to 2 and the number of Promoters in the Prior Quarter
was (i) 3, then AOLB may allocate no more than 2 Promoters
to such branch; (ii) 2 or 1, then AOLB may allocate up to
the maximum number of Promoters set forth in Annex 1 to
such branch.
	 
	 	 	 	 	 	 	If the Allocation Number is less than 2 but greater than or
equal to 1 and the number of Promoters in the Prior Quarter
was (i) 3 or 2, then AOLB may allocate 1 Promoter to such
branch; (ii) 1, then AOLB may allocate up to the maximum
number of Promoters set forth in Annex 1 to such branch.
	 
	 	 	 	 	 	 	If the Allocation Number is less than 1 then no Promoters
can be allocated to the branch.
	 
	 	 	 	 	(vi)
	 	Additional Promoters or Interactive Marketing
Purchase. For any given New Quarter (Quarters 1 to 11) if the
number of Promoters calculated by the Total Performance
Criteria (“Required Promoters”) is less than the number of
Promoters guaranteed by Itaú, AOLB will have the option to
(A) require the deployment of up to the number of Promoters
guaranteed by Itaú or (B) require Itaú to purchase
interactive marketing on the AOLB Service or the Co-Branded
Service during the then-current Quarter. The price of the
interactive marketing purchase will be an amount equal to the
sum of (x) the product of (1) the number of Promoters
guaranteed by Itaú, minus the total number of Promoters that
AOLB elects to deploy, and (2) the average per Promoter “all
in costs” (i.e., all costs identified in item (A) of Section
2(a)(iii) expended by Itaú during the Prior Quarter pursuant
to Section 2(a)(iii)) and (y) the costs of additional
Supervisors (i.e., all costs identified in item (B) of
Section 2(a)(iii) that would have been required if AOLB had
exercised the option (A) above deploying the additional
number of Promoters guaranteed by Itaú). Notwithstanding the
20% discount set forth in Section 12.1.4 of the SMA, all such
interactive marketing shall be purchased at the
then-prevailing card rates.



20






 




	 	 	 	 	 	 	 
	 	 	
 
	 	(vii)
	 	Indemnity. AOLA and AOLB shall be responsible
(for purposes of Brazilian laws) and shall indemnify Itaú for
any claims, losses, awards or damages arising out of any
claims by Promoters or Supervisors for wages, benefits and
related labor matters, including, without limitation, claims
resulting from the non-compliance with Brazilian labor laws
or any action by any governmental authority or union that may
result in a similar outcome, subject to the following two
sentences. Itaú shall bear the costs of any losses, awards
or damages arising out of any claims by Promoters or
Supervisors that such Promoters and/or Supervisors are
employees of Itaú, provided that such costs are limited to
(i) the difference in wages, benefits and related labor
matters directly related to the fact that such Promoters or
Supervisors are deemed banking employees; and (ii) penalties
and interest directly related to the fact that such Promoters
or Supervisors are deemed banking employees. Itaú shall be
responsible (for purposes of Brazilian laws) and shall
indemnify AOLA or AOLB for any disbursement related to such
losses, awards or damages arising out of claims by Promoters
or Supervisors that such Promoters and/or Supervisors are
employees of Itaú, subject to the limitations of the
preceding sentence.
	 
	 	 	 	 	(viii)
	 	Duties of Promoters. The Promoters will be instructed to
mention to Itaú Customers the Itaú banking features offered
to AOLB/Itaú Subscribers and will be instructed not to market
or distribute CD-ROMs for the AOLB Service (as opposed to
CD-ROMs for the Co-Branded Service) within the branches. In
the event that a Promoter does not mention such Itaú banking
features when appropriate or distributes CD-ROMs for the AOLB
Service (as opposed to CD-ROMs for the Co-Branded Service),
the Promoter will be subject to removal from Itaú bank
branches, at Itaú’s discretion, within thirty (30) days upon
written notice to AOLB stating the reason for requesting such
removal, provided that if in this period the Promoter
thereafter engages in further activity that would permit
his/her removal pursuant to this Section, such Promoter shall
be removed immediately. AOLB shall not deploy the removed
Promoter in any Itaú branch, but may replace the removed
Promoter with another Promoter. In the event that a Promoter
is removed pursuant to this Section and is not replaced by
AOLB, such Promoter shall nevertheless be counted as deployed
for the purpose of calculating whether the guaranteed number
of Promoters has been deployed pursuant to Section 2(b)(iii)
	 
	 	 	 	 	(ix)
	 	Compliance with Itaú Code and Guidelines. All
Promoters shall be subject to any Itaú guidelines for ethics
and conduct applicable to Itaú employees in Itaú bank
branches, as specified in (i) Itaú’s Code of ethics, and (ii)
guidelines communicated to the Promoters during the training
programs. Itaú shall provide a copy of the Code of ethics to
AOLB promptly after the MOA



21






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 	 	Effective Date, and promptly thereafter at any time such
guidelines Code is modified. In the event that a
Promoter’s violation of these guidelines or Code of ethics
is deemed by Itaú to be substantial, then Itaú shall inform
AOLB in writing of such violation and the Promoter will be
subject to immediate removal from the branches, at Itaú’s
discretion, and AOLB may replace such Promoter in the
branch with another Promoter. In the event such violation
is deemed by Itaú to be non-substantial, Itaú shall
immediately notify AOLB of such violation in writing,
provided that if the Promoter who committed the violation
thereafter commits another non-substantial violation, such
Promoter shall immediately be removed from Itaú bank
branches. AOLB may take action to cure such violation in
30 days or AOLB may replace such Promoter in the branch
with another Promoter.




	 	 	 	 	 
	 	 	
c.
	 	Direct Mailing Efforts




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	Direct Mailing Objectives. Subject to AOLB’s
discretion as limited by this Section 2(c), Itaú shall engage
in direct mailing of CD-ROMs to Itaú Customers who are not
AOLB/Itaú Subscribers and who are not subscribers to the AOLB
Service, as described in Section 2(c)(ii) and according to
the following guidelines: (A) Itaú Customers at the A and B
socioeconomic levels (as defined by Itaú) will be the primary
target groups, (B) further segmentation based on test results
for specific areas and (C) a maximum of [**] CD-ROMs per Itaú
Customer per year. In accordance with the timing specified
in Section 2(a)(iv), AOLB shall provide Itaú with the number
of CD-ROMs necessary for the above direct mailing at least
thirty (30) days prior to the expiration of the Quarter in
which such direct mailing is to take place. AOLB will also
implement a test process that includes, for each test, two
test panels of 40,000 names each. AOLB may implement as many
test processes as it may choose in its discretion. Itaú
shall either pay directly or reimburse AOLB for the actual
costs of the tests and the new creatives for each test (in
accordance with Section 3(e)(ii)), provided that if any
creatives are used to offer products or services other than
the Co-Branded Service, AOLB shall reimburse Itaú for a
proportional cost of such creatives. The CD-ROMs used in
such tests shall count towards the CD-ROM direct mailing
requirements specified in Section 2(c)(ii)
	 
	 	 	 	 	(ii)
	 	Direct Mailing of CD-ROMs. AOLB has the right
to require Itaú to engage in direct mailing, in accordance
with Section 2(c)(i), from the MOA Effective Date through the
fifth Anniversary Date up to an aggregate of [**]
CD-ROMs on the following schedule: (A) [**], for the
period from the MOA Effective Date through the second
Anniversary Date, (B) [**], for the period from the
second Anniversary Date through the third Anniversary Date,
(C) [**], for the period from the third Anniversary
Date through the fourth Anniversary Date, and (D)



22






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	[**], for the period from the fourth Anniversary
Date through the fifth Anniversary Date. Notwithstanding
the foregoing, AOLB in its discretion may increase or
decrease the required direct mailing number for any
Anniversary Year by up to 20% with any such increase or
decrease deducted or added, as applicable, to the required
direct mailing number for the following Anniversary Year,
provided that in no event will AOLB have the right to
require that the direct mailing of any CD-ROMs be effected
by Itaú after the fifth Anniversary Date. Subject to the
foregoing parameters, Itaú will engage in direct mailing of
the CD-ROMs at such times and in such amounts as are
designated by AOLB. AOLB, at its discretion, has the right
to reallocate CD-ROMs from Distribution to direct mailing,
as described in Section 2(a)(iv) of this Exhibit A. Itaú
shall be responsible for CD-ROM Costs relating to the
production and direct mailing of the CD-ROMs as set forth
in Section 2(a)(iv) of this Exhibit A.
	 
	 	 	 	 	 	 	AOLB will have the right at any time and from time to time
to direct that Itaú, in lieu of direct mailing a number of
CD-ROMs designated by AOLB (for which Itaú has not yet
incurred any costs following and as a result of AOLB’s
written direction to mail such CD-ROMs), purchase
interactive marketing on the AOLB Service and/or Co-Branded
Service during the period in which Itaú would have engaged
in direct mailing of the CD-ROMs. The price of the
interactive marketing purchased in lieu of the direct
mailing of CD-ROMs will be an amount equivalent to the
aggregate CD-ROM Costs that would have been incurred by
Itaú if the CD-ROMs and related materials had been ordered
and mailed. For this purpose, the CD-ROM Costs will be
deemed to be the applicable amount (on a per-CD-ROM basis)
as were actually incurred with respect to the lot of
CD-ROMs that were purchased immediately prior to the time
for which the calculation is to be made. The mailing costs
will be calculated based on the average historical CD-ROM
mailing cost in the most recent Contract Month in which
Itaú performs such a mailing, except for the first such
Contract Month where the mailing cost will be R$0,30
(thirty cents of real) per CD-ROM.
	 
	 	 	 	 	 	 	Itaú may only be required to pay for interactive marketing
with respect to each Quarter relating to the following
maximum number of CD-ROMS:
	 
	 	 	 	 	 	 	      (1) for each of the first, second and third Quarters
of each Anniversary Year, the result of: (i) one-third of
the maximum number of CD-ROMs that AOLB could require Itaú
to direct mail in such Anniversary Year (including any
number of CD-ROMs that has been reallocated from another
Anniversary Year as provided herein), less (ii) the number
of CD-ROMs actually direct mailed by Itaú in such Quarter;
and



23






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 	 	      (2) for the fourth Quarter of each Anniversary Year,
the remaining CD-ROMs AOLB could require Itaú to direct
mail in the applicable Anniversary Year (including any
number of CD-ROMs that has been reallocated from another
Anniversary Year as provided herein)
	 
	 	 	 	 	 	 	For the avoidance of doubt, in no event may AOLB direct
Itaú to purchase interactive marketing for an Anniversary
Year in an amount greater than the number of CD-ROMs
required to be direct mailed during an Anniversary Year.
Notwithstanding the 20% discount set forth in Section
12.1.4 of the SMA, such interactive marketing shall be
purchased at the then-prevailing rate card rates.
Notwithstanding the foregoing, if AOLB directs Itaú to
direct mail a certain number of CD-ROMs in any given
quarter, once Itaú has incurred any costs in connection
with such CD-ROMs, following and as a result of AOLB’s
written direction to mail such CD-ROMs, AOLB may not reduce
this number or require Itaú to re-allocate any or all of
such CD-ROM Costs to interactive marketing purchases.
	 
	 	 	 	 	(iii)
	 	AOLB shall be deemed to have fully satisfied
its CD-ROM production and distribution obligations pursuant
to Sections 2(a)(iv) and 2(c) by producing the CD-ROMs
required to be Distributed and mailed pursuant to those
Sections and delivering such produced CD-ROMs to the
applicable Itaú Distribution Center and/or bank branch in
accordance with the timing and procedures set forth in
Section 2(a)(iv)




	 	 	 	 	 
	 	 	
d.
	 	Sign Up By Phone. The television commercials described in
Section 3(b) may in AOLB’s discretion, promote an AOLB call center
number by encouraging viewers to call and register with the
Co-Branded Service. With the exception of the production and
broadcast of the television commercials (the costs of which will be
borne by Itaú as described in Section 3), AOLB will be responsible
for all costs related to the call center as well as costs related to
the SUBP (including, at AOLB’s discretion, a special telephone
number)




	 	 	 
	3.	 	
Communication Strategy




	 	 	 	 	 
	 	 	
a.
	 	Principles. All advertising, merchandising and communication
materials to be generated in accordance with this MOA (including,
without limitation, television commercials (“TVCs”), point of
demonstration materials (“POP”), letters to clients, posters,
banners and the Itaú Interactive Sites) (collectively, the
“Marketing and Communication Materials”), shall adhere to the
following principles:




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	The online banking benefits described in
Section 1(d) will be clearly communicated through all printed
materials (other than Advertising on newspapers and
magazines) and clearly communicated through online materials
pertinent to Itaú’s online banking services whenever the Itaú
Interactive Site



24






 




	 	 	 	 	 	 	 
	 	 	 	 	 	 	(www.itau.com.br) or Itaú’s internet banking services are
available online.
	 
	 	 	
 
	 	(ii)
	 	Itaú’s endorsement of the AOLB Service in the
Marketing and Communication Materials shall comply with Annex
3 to this Exhibit A.
	 
	 	 	 	 	(iii)
	 	All Marketing and Communication Materials
shall be jointly approved by the Parties in accordance with
the following:




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	(A)
	 	The Marketing Committee will be
in charge of approving all Marketing and Communication
Materials before they are produced.
	 
	 	 	 	 	 	 	(B)
	 	The Marketing Committee will
approve: (I) the creative briefings provided to the
agency, (II) the creative alternatives to be
considered and (III) the media plans.
	 
	 	 	 	 	 	 	(C)
	 	In the event the Marketing
Committee does not reach an Agreement on any of the
Marketing and Communication Materials, the Parties
shall resolve the issue as provided in Section 24 of
the body of this MOA.




	 	 	 	 	 
	 	 	
b.
	 	Television Commercials. Itaú, at its cost, shall produce in
each of 2003, 2004 and 2005, [**] TVCs ([**] in total)
promoting the Co-Branded Service, and shall cause them to be
broadcast in Brazil in the [**] of
each of those years. The TVCs shall be developed, produced and
broadcast in accordance with a media plan that will be jointly
approved by the Parties. The media plan shall provide for national
broadcasting of such TVCs that is expected to generate at least [**]
([**]) national target ratings points (“TRPs”) (considering
as its target the AB25+ TV viewers, as such term is understood by
major Brazilian media companies) for each TVC. AOLB may separately,
at its own expense, broadcast such TVCs provided that Itaú approves
AOLB’s separate media plan (which approval shall not be unreasonably
withheld or delayed), and provided further that AOLB does not alter
the TVCs and makes any royalty, guild or other required payments to
third parties (i.e., artists and rights holders) to the extent such
royalty payments are required above and beyond the payments made to
broadcast the TVCs by Itaú as provided above, and AOLB shall get the
benefit of any royalty payments Itaú may have already made in
connection with broadcasting the TVCs (i.e., AOLB shall have no
obligation to make any pro-rata payments to Itaú or otherwise
reimburse Itaú for any rights for which it has paid in connection
with broadcasting the TVCs). Itaú will bear all out-of-pocket costs
associated with the development, production and broadcast of the
TVCs. TVCs will be produced and aired according to the following
principles:



25






 




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	The TVCs will be Co-Branded and shall have
equal time and space allocated to each brand in order to
guarantee visibility and awareness of both brands.
	 
	 	 	 	 	(ii)
	 	The TVCs will promote the Co-Branded Service as
provided in Section 3(a)(ii) above.
	 
	 	 	 	 	(iii)
	 	At AOLB’s discretion, all TVCs and all other
Itaú printed materials related to online banking (at Itaú’s
discretion), may present a call to action (e.g. “call now and
subscribe.........”) showing a phone number designated by
AOLB (if available)
	 
	 	 	 	 	(iv)
	 	Itaú shall use existing AOLB advertising
concepts, messages and images as a reference for the creation
of the TVCs, in order to create communications synergy
between AOLB and Itaú campaigns.
	 
	 	 	 	 	(v)
	 	The approval process for the TVCs will be as
follows and at Itaú’s cost:




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	(A)
	 	Following the approval by the
Marketing Committee of at least three creative
alternatives for a particular TVC, these alternatives
will be tested in focus groups interviews (“FGIs”) by
an institute designated by Itaú, from the following
list: (i) Escritório de Pesquisa e Planejamento Vilma
Rocca, (ii) Carlini Associados, (iii) SP Marketing –
ÁBACO, (iv) Fátima Belo Consultoria e Estratégia e (v)
Vera Aldrighi Consultoria, to ensure that the TVC
performs in the manner contemplated by the Marketing
Committee.
	 
	 	 	 	 	 	 	(B)
	 	Once an FGI is carried out the
parties will choose the best creative route based on
the FGI. If there is no approved creative route, then
the process will restart. The approved creative route
will be tested by the then current AOL quantitative
methodology (which currently is CRT, a Time Research
Methodology)
	 
	 	 	 	 	 	 	(C)
	 	Once the CRT is completed, the
decision as to the final creative alternative (the
choice of which will be based on the CRT) will be
based on the following metrics: (I) Convincingness,
(II) Intent to purchase, (III) Advertising message (as
agreed on in the previous briefing) and, (IV)
Enjoyability. The Parties shall mutually agree on the
initial target CRT (“Initial CRT”). The following
rules shall apply for any TVC to be approved for
production: (i) for the first TVC, the CRT shall be
greater than or equal to the Initial CRT; (ii) for the
second TVC, the CRT shall be greater than or equal to
the average between the Initial CRT and the CRT
measured for the first TVC; and (iii) for the
subsequent TVCs, the CRTs shall be greater than



26






 




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	 
	 	or equal to 95% of the average of the CRTs measured
for all previous TVCs.




	 	 	 	 	 	 	 
	 	 	
 
	 	(vi)
	 	Compliance with these requirements (the airing
of the commercials and compliance with the media plan
agreed-upon by the Parties) will be verified by a checking
institute designated by Itaú at Itaú’s cost; provided, that
AOLB at its own cost may elect to designate its own checking
institute. If the institute observes that the amount of time
the commercials were aired is not consistent with the media
plan, then Itaú shall air the commercials as necessary to
make up for any shortfall.




	 	 	 	 	 
	 	 	
c.
	 	Other Creative Materials. Other creative materials (i.e., all
Marketing and Communications Material other than TVCs, POPs, backer
cards and any other material not related to Advertising on
television, radio, newspapers and magazines) should be extensions of
the TVC creative and must be approved in advance by the Marketing
Committee.
	 
	 	 	
d.
	 	Media Plan. The media plan shall be approved by the Marketing
Committee, and the following guidelines shall be followed:




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	The media plan should be coordinated with
AOLB’s media plan for the respective period to avoid (i)
overload in the AOLB call center or (ii) airing the TVCs
required hereunder and AOLB TVCs at the same TV program
break.
	 
	 	 	 	 	(ii)
	 	The media plan should concentrate no less than
60% of the TRPs in the two principal open television channels
(broadcasting) in terms of major average audience for the
previous two full calendar months preceding the broadcast of
TVC.
	 
	 	 	 	 	(iii)
	 	All TRPs should be concentrated in open TV
channels.
	 
	 	 	 	 	(iv)
	 	The target should be an audience of social
economic level AB25+.
	 
	 	 	 	 	(v)
	 	The TVCs should be broadcast in national media.





	 	 	 	 	 
	 	 	
c.
	 	Production of the Marketing Materials.






	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	The advertising agency designated by Itaú will
be responsible for producing the TVCs and other mass market
materials.
	 
	 	 	 	 	(ii)
	 	The creation of backer cards, booklets,
leaflets and other marketing and promotional material related
to the Co-Branded Service that accompany CD-ROMs and POPs
will be responsibility of the advertising agency designated
by AOLB. The production (e.g., volume, etc.) of these
materials will be jointly agreed to by Itaú and AOLB. AOLB
will submit to Itaú the agency costs prior to the job
execution. Such costs may be presented on a per job or on a
monthly fee basis. If Itaú



27






 




	 	 	 	 	 	 	 
	 	 	 	 	 	 	reasonably considers such costs too high, Itaú may use its
own marketing agency to propose new creatives.
	 
	 	 	
 
	 	(iii)
	 	The agency used to create the posters,
banners, web site advertisements and letters will be
designated by Itaú; provided that for the creation of the
letters, AOLB will have the right to participate in the
briefing meeting with the agency.
	 
	 	 	 	 	(iv)
	 	The creation of other marketing will be the
responsibility of a jointly approved agency. If the Parties
do not agree on the agency, then each Party will have its own
agency (and each Party shall pay its respective agency’s
costs) work on the briefings and will jointly select the
final approach.




	 	 	 	 	 
	 	 	
f.
	 	AOL Keywords. AOL Keywords for Itaú will be communicated on
all printed Marketing and Communications Materials pertaining to
online banking (e.g., booklets), on the television commercials
described in Section 3(b) and, at Itaú’s discretion (and with AOLB’s
consent), on other media material. The Parties shall jointly
develop a list of AOL Keywords to be used in connection with the
marketing contemplated in this MOA. The AOL Keyword “Itaú” shall be
used until the Parties agree upon additional or other AOL Keywords.




	 	 	 
	4.	 	
Reference Payments
	 
	 	 	
The calculation of the Reference Payments that may be due under the SMA
for the third Anniversary Date, the fourth Anniversary Date and the fifth
Anniversary Date are hereby amended as described below. For the purposes
of this MOA and the SMA, “Reference Payment” shall have the meaning given
such term in Section 4(a) of this Exhibit A.




	 	 	 	 	 
	 	 	
a.
	 	Revenue Targets
	 
	 	 	 	 	In the event that, on any of the third Anniversary Date, fourth
Anniversary Date or fifth Anniversary Date, the Itaú Revenue
Percentage is less than the Target Revenue Percentage for that
Anniversary Date (as set forth in the table below), then Itaú
shall make a Reference Payment to AOLB in accordance with the
procedures of Article 8 of the SMA (but not based on the amounts
set forth in the SMA)
	 
	 	 	 	 	As of the MOA Effective Date, the “Reference Payment” for the
third, fourth and fifth Anniversary Dates shall be calculated
using the following formula:




	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	Reference Payment
	 	=
	 	MRP x (Target Revenue Percentage – Itaú Revenue Percentage)
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	Target Revenue Percentage




	 	 	 	 	 
	 	 	
 
	 	Where:
	 
	 	 	 	 	“MRP” means the Maximum Reference Payment as set forth in the
table below.



28






 




	 	 	 	 	 
	 	 	
 
	 	“Target Revenue Percentage” means the percentage (expressed as a
decimal) set forth in the table below.
	 
	 	 	 	 	“Itaú Revenue Percentage” with respect to any Anniversary Date
means the quotient obtained by dividing (i) the sum of (A) the
product obtained by multiplying (1) the Itaú Ending Member Share
by (2) the difference between AOLB Total Revenues and the sum of
elements “A,” “B” and “E” in the definition of Revenue Elements
for the Applicable Period, and (B) the sum of elements “B” through
“F” in the definition of Revenue Elements for the Applicable
Period, by (ii) the sum of AOLB Total Revenues for the Applicable
Period and the sum of elements “C”, “D” and “F” in the definition
of Revenue Elements for the Applicable Period.
	 
	 	 	 	 	“Itaú Ending Member Share” means, for any Anniversary Date, the
quotient obtained by dividing (i) the total number of Ending
Members of the Co-Branded Service by (ii) the total number of
Ending Members of the Combined Services.
	 
	 	 	 	 	“Ending Members” as used in this definition refers to the number
of AOLB/Itaú Subscribers or registered members of the Combined
Services, as the case may be, on the applicable Anniversary Date.
	 
	 	 	 	 	“AOLB Total Revenues” means, for any period, the amount of revenue
AOLB receives for that period directly related to the Combined
Services, but excluding Reference Payment Interactive Marketing to
the extent it would otherwise constitute revenue for that period.
For the avoidance of doubt, AOLB Total Revenues does not include
elements “C”, “D” or “F” in the definition of Revenue Elements.
	 
	 	 	 	 	“Revenue Elements” means: (A) the amount of revenue AOLB receives
for subscriptions to the AOLB Service, (B) the amount of revenue
AOLB receives for subscriptions to the Co-Branded Service from
Itaú Customers, (C) the sum of the value of the following, which
Itaú is required to pay directly to AOLB: (x) the free hours used
by AOLB/Itaú Subscribers, (y) the fee payable with respect to
inactive AOLB/Itaú Subscribers and (z) any extended free trial
period subsidized by Itaú pursuant to Section 1(b), (D) the value
of free hours or AOL packages paid by Itaú for its employees or
private banking customers, (E) the amount of interactive marketing
purchased by Itaú, including, but not limited to banners, pop-ups,
sponsorships, CD-ROM production administration fee and interactive
marketing actually purchased by Itaú in its discretion or at the
option of AOLB in lieu of the Distribution or direct mailing of
CD-ROMs, or the deployment of additional Promoters, but in all
cases excluding Reference Payment Interactive Marketing, and (F)
if the number of Required Promoters is less than the number of
Promoters guaranteed by Itaú pursuant to Section 2(b)(iii), the
incremental costs actually incurred by Itaú in excess of the cost
of the Required Promoters (if any), as a result of AOLB election
to deploy Promoters numbering in excess of the number of Required
Promoters. Each Revenue Element described above is exclusive of
all other Revenue Elements; that is, revenue that is included in
“A” above shall not be



29






 




	 	 	 	 	 
	 	 	
 
	 	deemed included in “B” through “F”, and likewise for each other
Revenue Element.
	 
	 	 	 	 	“Applicable Period” means, for any Anniversary Date, the 12
Contract Month period ending on that Anniversary Date.
	 
	 	 	 	 	“Reference Payment Interactive Marketing” means the price of
interactive marketing that is purchased by Itaú pursuant to
Section 5(a)(i), as a consequence of not meeting a CD-ROM
Distribution or direct mailing target.




	 	 	 	 	 	 	 
	 	 	Target Revenue	 	Maximum Reference
	Year	 	Percentage (TRP)	 	Payment (MRP)
	
	 	
	 	

	third Anniversary Date	 	 	
39%
	 	 	US$11 million
	fourth Anniversary Date	 	 	
46%
	 	 	US$6 million
	fifth Anniversary Date	 	 	
56%
	 	 	US$3 million



AOLB shall provide, within the first 20 days after the end of each calendar
month, a monthly report, showing the Itaú Revenue Percentage, each of the
Revenue Elements, the Ending Member Share and the AOLB Total Revenues. For the
avoidance of doubt, such report shall be deemed the Confidential Information of
AOLB.



	 	 	 
	5.	 	
Marketing Payments. For purposes of this MOA, the term “Marketing Payment”
shall mean the TVC/Media Payment (as defined below), together with the Promoter
and Distribution Payment (as defined below) and the Banking Benefits Payment
(as defined below)




	 	 	 	 	 
	 	 	
a.
	 	Marketing Commitments




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	CD-ROM Distribution/Interactive Marketing. If
Itaú does not comply with its obligations to make in-branch
Distributions pursuant to Section 2(a)(iv) or direct mailings
pursuant to Section 2(c)(ii) (including, but not limited to
the purchase of interactive marketing on the AOLB Service or
Co-Branded Service if so directed by AOLB), AOLB will collect
from Itaú, and Itaú shall pay, an amount equal to 120% of the
CD-ROM Cost relating to the CD-ROMs not Distributed, direct
mailed, or, if applicable, interactive marketing not
purchased as required (the “CD Distribution Payment”).
Notwithstanding the above, the number of CD-ROMs containing
the Customized Client allocated through SUBP shall count
towards Itaú’s obligations under Section 2(a)(iv) and Section
2(c)(ii). The determination as to whether Itaú has complied
with its obligations shall be made at the end of



30






 




	 	 	 	 	 	 	 
	 	 	 	 	 	 	every Quarter and at the end of the 100 Days, and any payment due
therefor shall be made within ten (10) days of the
calculation thereof.
	 
	 	 	
 
	 	(ii)
	 	Promoters. In the event that the maximum
number of Promoters that AOLB has the right pursuant to
Section 2(b)(i) or (ii), as applicable, subject to the
provisions of Sections 6(b) and 6(c), to deploy for any
period are not deployed, either because Itaú fails to permit
the deployment of such Promoters, provides the notice to AOLB
pursuant to Section 2(a)(iii)(A), fails to undertake all its
obligations set forth in Sections 2(a)(iii) and 2(a)(v),
unreasonably interferes with Promoter’s efforts to conduct
their in-branch activities as provided for in Section 2(a) of
this Exhibit A, or fails to make available the quantity of
bank branches for deployment of Promoters set forth in
Section 2(a)(v), Itaú shall pay to AOLB an amount equal to
the sum of (x) (A) the average “all in cost” to employ a
Promoter in the relevant period (i.e., all costs identified
in item (A) of Section 2(a)(iii) during the relevant Quarter
averaged on a per Promoter actually deployed basis, or the
costs identified in item (A) of Section 2(a)(iii) per
Promoter that would have been incurred if no Promoters were
actually deployed), multiplied by (B) the number of Promoters
not actually deployed that AOLB had the right to deploy
during such period, and (y) the costs of additional
Supervisors (i.e., all costs identified in item (B) of
Section 2(a)(iii)) that would have been deployed if such
delayed Promoters had been deployed; and the result of the
sum of (x) and (y) shall be multiplied by 120% (the
“Promoters Payment,” and together with the CD Distribution
Payment, the “Promoter and Distribution Payment”), provided,
that the failure to make sufficient CD-ROMs available in
Itaú’s bank branches shall not be deemed to constitute the
failure to provide the conditions necessary for the Promoters
to conduct their in-branch activities for purposes of this
Section 5(a)(ii). The determination as to whether the full
number of Promoters have been deployed shall be made at the
end of every Quarter and at the end of the 100 Days, and any
payment due therefor shall be made within ten (10) days of
the calculation thereof.
	 
	 	 	 	 	(iii)
	 	Cap. Notwithstanding anything herein to the
contrary, the aggregate Promoter and Distribution Payment due
from Itaú to AOLB in any Anniversary Year (or in the case of
the third Anniversary Year, the period consisting of the
third Anniversary Year and the 100 Days) shall not exceed (i)
US$11,830,000.00 in the third Anniversary Year and the 100
Days, (ii) US$11,830,000.00 in the fourth Anniversary Year,
and (iii) US$6,830,000.00 in the fifth Anniversary Year.
	 
	 	 	 	 	(iv)
	 	Banking Benefits. Subject to the thirty-day
grace period provided for in Section 1(d), in the event that
Itaú fails to provide, for more than an aggregate of five
days, whether or not consecutive, during



31






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 
	 	the relevant Quarter, the banking benefits to the AOLB/Itaú
Subscribers or fails to promote the banking benefits
in each case as required pursuant to Section 1(d), Itaú
shall pay to AOLB US$ [**] (the “Banking Benefits
Payment”) (with a maximum of one such payment for the
Quarter in which such failure occurs). For the avoidance
of doubt, any failure to provide or promote the banking
benefits as a result of any Force Majeure Event as defined
in the SMA shall be excluded from the five-day calculation
specified herein. The determination as to whether Itaú has
failed to provide the required banking benefits to
AOLB/Itaú Subscribers shall be made at the end of every
Quarter and at the end of the 100 Days, and any payment due
therefor shall be made within ten (10) days of the
calculation thereof.




	 	 	 	 	 
	 	 	
b.
	 	TV/Media




	 	 	 	 	 	 	 
	 	 	
 
	 	(i)
	 	Payments
	 
	 	 	 	 	 	 	(A) If the Parties fail to agree upon a TVC and (i) an
award is granted in favor of AOLB (after submitting to
Sections 24 and 25 of the MOA) and either Itaú or AOLB
decides not to undertake the TVC production and broadcast
it (which each Party shall have the right to decide) in
accordance with the award and Exhibit A, Itaú shall pay
AOLB the average cost of production of such TVC and the
average cost to broadcast nationally such TVC targeted to
achieve [**] TRPs, such average costs to be calculated based
on the estimate provided by two advertising agencies (one
designated by AOLB and one designated by Itaú) (the
“TVC/Media Payment” ), or (ii) an award is granted in
favor of Itaú (after submitting to Sections 24 and 25 of
the MOA) and AOLB requires Itaú not to undertake the TVC
production and broadcasting (which AOLB shall have the
right to require), then Itaú shall be released from the
obligation to pay a TVC/Media Payment in relation to such
TVC;
	 
	 	 	 	 	 	 	(B) If the Parties fail to agree upon a media plan and (i)
an award is granted in favor of AOLB (after submitting to
Sections 24 and 25 of the MOA) and either Itaú decides not
to undertake the media plan (which Itaú shall have the
right to decide) or AOLB reasonably requires Itaú not to
undertake such media plan (which AOLB shall have the right
to require), then Itaú shall pay AOLB the TVC/Media Payment
related to such TVC, provided that if such request was
unreasonable, then Itaú shall be released from the
obligation to pay such TVC/Media Payment; or (ii) an award
is granted in favor of Itaú (after submitting to Sections
24 and 25 of the MOA) and AOLB requires Itaú not to
undertake the media plan (which AOLB shall have the right
to require), then Itaú shall be released from the
obligation to pay a TVC/Media Payment in relation to such
TVC;



32






 




	 	 	 	 	 	 	 
	 	 	
 
	 	 	 	(C) If Itaú complies with a material portion of the jointly
approved media plan but fails to comply with the entire
jointly approved media plan, then Itaú shall pay to AOLB
the cost of broadcasting such TVC as defined by the
shortfall of the jointly approved media plan or if Itaú
fails to comply with all or a material portion of the
jointly approved media plan, then Itaú shall pay to AOLB a
TVC/Media Payment related to such TVC; provided in either
case that if a commercial is produced and broadcast but the
TV channel company fails to broadcast all or a part of the
media plan, Itaú will be released of the applicable
TVC/Media Payment if the shortfall is broadcast in the next
Quarter.
	 
	 	 	 	 	 	 	In its reasoned written decision the arbitrator shall
provide for which Part the award was granted in favor.
	 
	 	 	 	 	 	 	The determination as to whether Itaú has complied with its
obligations shall be made at the end of every Quarter, and
any payment due therefore shall be made at the later of (A)
ten (10) days from the calculation thereof and (B) if the
decision rendered pursuant to Section 25 is rendered after
the end of the relevant Quarter, promptly upon such
decision.
	 
	 	 	 	 	(ii)
	 	Cap. In no event will the aggregate amount of
the TVC/Media Payment made pursuant to clause (i) exceed US$[**] million per annum.




	 	 	 	 	 
	 	 	
c.
	 	Treated as Reference Payments
	 
	 	 	 	 	(i) To the extent applicable and not inconsistent with the
provisions of this MOA, Sections 8.2.3, 8.2.4, 8.2.5, 8.2.6, 8.3,
10.2.2, 10.3. 10.4 and 10.7 and Article 9 and the definition of
Material Payment Breach in the SMA shall apply to the Marketing
Payments payable pursuant to this Section 5 as if such Marketing
Payments were “Reference Payments”. For the avoidance of doubt, it
is understood by the Parties that the amount of the Replacements
Notes delivered pursuant to this MOA will include the Marketing
Payments amounts payable pursuant to this Section 5, and that the
Replacement Notes for the Reference Payments Notes (Brazil) and
Reference Payments Notes (Cayman) shall be released to AOLB in
accordance with the SMA if any Marketing Payment is not made to
AOLB when due and payable. In the event any Marketing Payments
amounts are payable pursuant to this Section 5 for any Anniversary
Date, the corresponding Reference Payment Notes (Brazil) and
Reference Payment Notes (Cayman) shall not be released to Itaú
until such Marketing Payments amounts payable pursuant to this
Section have been paid in full by Itaú
	 
	 	 	 	 	(ii) All Marketing Payment payments made pursuant to this Section
5 shall be made in accordance with the payment provisions of
Section 10.2.2, 10.3. 10.4 and 10.7 of the SMA. To the extent
applicable, for purposes of the foregoing payment provisions, any



33






 




	 	 	 	 	 
	 	 	 	 	references to “Reference Payments” in the foregoing provisions
shall include the Marketing Payments payable pursuant to this
Section 5.
	 
	 	 	
d.
	 	Payments in General. Any payment due hereunder, whether to
AOLA or AOLB, shall be deemed to be a payment to either AOLA or AOLB
as designated by AOLA in its discretion.
	 
	 	 	
e.
	 	Acknowledgement of the Parties. The Parties acknowledge (A)
that a breach of an obligation by Itaú giving rise to a Marketing
Payment would cause AOLA and AOLB damage, including without
limitation denying AOLB the benefits afforded AOLB by virtue of
Itaú’s access to Itaú Customers by means of Distributing CD-ROMs in
Itaú’s branches and direct mailing CD-ROMs to Itaú Customers as
provided herein, which as a group may be accessed directly only by
Itaú (and not by any other entity, including AOLA and AOLB), and
consequently is not available to AOLB without Itaú’s participation
in the marketing activities, (B) it would be difficult or impossible
to determine actual damages in the event of such a breach, (C) the
amount of Marketing Payments specified in this Section 5 are a
reasonable estimate of the actual damages that AOLA and AOLB would
suffer if the marketing commitments are not conducted as required by
this MOA, and (D) such amount of Marketing Payments is not a
penalty. The Parties further acknowledge that the totality of their
rights and obligations under this MOA, the SMA and the Related
Agreements, including the number of Shares issued to Itaú on the
Effective Date (as such term is defined in the SMA), have been
determined based on the performance of the marketing obligations
under the SMA, as amended herein, and the failure to perform the
marketing obligations hereunder, unless rectified, will result in
AOLA and AOLB receiving less value from the MOA, the SMA and the
Related Agreements than contemplated by the Parties. Accordingly,
AOLB shall be entitled to receive the Marketing Payments as provided
in this Section 5 as the sole and exclusive remedy for AOLA and AOLB
for any failure by Itaú to perform any obligation that results in a
Marketing Payment under Section 5(a) or 5(b), except for any remedy
provided in the SMA that provides for the payment of any Termination
Fee, Acceleration Payment or Pro-Rata Reference Payment required by
the terms of the SMA. For the avoidance of doubt, it is understood
by the Parties that this exclusive remedy, and Itaú’s obligation to
make Marketing Payments, shall not affect Itaú’s obligation to make
other payments described herein, or relieve Itaú from its obligation
to reimburse AOLB for any actually incurred costs and expenses
subject to reimbursement hereunder, including, without limitation,
the CD-ROM Costs, the costs associated with in-branch promotion, the
costs associated with AOLB’s or an agency’s employment of Promoters
and Supervisors and the amounts due for AOLB/Itaú Subscribers as set
forth in Section 1(e).




	 	 	 
	6.	 	
Regulatory Matters




	 	 	 	 	 
	 	 	
(a)
	 	In the event that laws, regulations or rules of the Brazilian
government or governmental agencies, including the Brazilian Central
Bank, prohibit Itaú from (i) offering non-bank products inside its
branches (and



34






 




	 	 	 	 	 
	 	 	
 
	 	pursuant to the applicable rules the Co-Branded Service is
considered a non-bank product) or, (ii) carrying-out any in-branch
marketing activities as provided for in this MOA (collectively a
“Regulatory Event”), then Itaú will be released from all
obligations prohibited as a result of such Regulatory Event
(“Prohibited Obligations”) after the date of the Regulatory Event
(“Regulatory Event Date”). In the event a Regulatory Event
results in all of or a material portion of Itaú’s in-branch
marketing obligations under Sections 2(a) and (b) of this Exhibit
A being deemed Prohibited Obligations, the Target Revenue
Percentage shall be deemed to be zero for the remaining term of
the SMA.
	 
	 	 	 	 	In consideration for such release, Itaú shall pay AOLB the sum of
(A) the product of (i) a Reference Payment for the Anniversary
Year in which such Regulatory Event occurs calculated using the
Revenue Elements generated and incurred during the period from the
last Anniversary Date to the Regulatory Event Date occurred, and
(ii) a fraction, the numerator of which is the number of days from
the last Anniversary Date to the Regulatory Event Date, and the
denominator of which is 365, (B) if, in the absence of the release
in the foregoing paragraph, the failure to perform a Prohibited
Obligation(s) would result in any Marketing Payment, any such
Marketing Payment that would be due for the Quarter in which the
Regulatory Event Date occurs calculated based on Itaú’s
performance of the Prohibited Obligation(s) during the period
beginning on the first day of the Quarter and ending on the
Regulatory Event Date, and (C) the maximum Marketing Payment
related to the Prohibited Obligation(s) that could be due for
those Quarters commencing after the Regulatory Event Date.
	 
	 	 	 	 	In addition, if the Target Revenue Percentage is deemed to be zero
due to such Regulatory Event, then AOLB shall have the option,
after such Regulatory Event, to release Itaú from all of Itaú ‘s
marketing obligations hereunder, including without limitation,
those obligations set forth in Sections 1(a), 1(d), 2, 3 and 5.
In consideration for such release, Itaú shall pay to AOLB the
maximum Marketing Payments that could be due for those Quarters
commencing after the exercise of such option.
	 
	 	 	
(b)
	 	If any Brazilian judicial authority of competent jurisdiction
determines that all Promoters and/or Supervisors deployed in Itaú
bank branches are deemed banking employees for purposes of
determining the wages and benefits of Promoters and/or Supervisors,
but not that such Promoters or Supervisors must be hired by or
otherwise become employees of Itaú, then, within twenty days of
AOLB’s receipt of written notice of such judicial determination from
Itaú, AOLB shall notify Itaú in writing that it will either (i) bear
one-half of the additional incremental expenses of the Promoters and
Supervisors that are a direct result of such determination (and Itaú
shall bear the other one-half of such amount), or (ii) decrease the
number of Promoters and Supervisors required under this MOA (such
decreased Promoters and Supervisors, the “Decreased Promoters”) such
that the expenses associated with the Decreased Promoters is equal
to one half of the additional incremental expenses that would have
been



35






 




	 	 	 	 	 
	 	 	
 
	 	incurred by Itaú as a direct result of such judicial determination
without such a reduction.
	 
	 	 	
(c)
	 	An “Employee Labor Event” shall be deemed to have occurred if
any Brazilian judicial authority of competent jurisdiction
determines that all Promoters and/or Supervisors deployed in Itaú
bank branches must be hired by or otherwise become employees of
Itaú. At any time during the one-hundred twenty (120) day period
after the occurrence of the Employee Labor Event, Itaú may elect to
accept such determination, in which case it shall promptly so notify
AOLB in writing, and AOLB within twenty (20) days after such notice
shall notify Itaú in writing that (i) it will bear one-half of the
additional incremental expenses of the Promoters and Supervisors
that are a direct result of such determination (and Itaú shall bear
the other one-half of such amount), or (ii) that it will decrease
the number of Promoters and Supervisors required under this MOA
(such decreased Promoters and Supervisors, the “Decreased
Promoters”) such that the expenses associated with the Decreased
Promoters is equal to one half of the additional incremental
expenses that would have been incurred by Itaú as a direct result of
such Employee Labor Event without such a reduction.
	 
	 	 	 	 	Immediately after the occurrence of the Employee Labor Event, Itaú
shall (i) promptly notify AOLB of such judicial determination,
(ii) pursue the applicable avenues of appealing or overturning any
such determination (unless it elects to accept such determination
in accordance with the immediately preceding paragraph), and (iii)
continue to provide all in-branch marketing activities described
in this Exhibit A for a period of one-hundred twenty (120) days
after the occurrence of such Employee Labor Event, unless
prohibited by such judicial determination, in which case Itaú
shall continue to reimburse AOLB for the actual expenses listed in
Section 2(a)(iii) (A) and (B) of this Exhibit A for the remaining
period of the one-hundred twenty (120) days after the occurrence
of such Employee Labor Event. If after pursuing the applicable
avenues of appealing or overturning any such determination Itaú
has not successfully overturned such determination within
one-hundred twenty (120) days after the occurrence of such
Employee Labor Event, then Itaú shall have the option, exercisable
within twenty (20) days after such 120th day, to be released from
all in-branch obligations under this MOA other than Distribution
of CD-ROMs and pay to AOLB: (A) all Promoters Payments, if any,
that would be due for the Quarter in which the Employee Labor
Event occurs, calculated based on Itaú’s performance of its
obligations during the period beginning on the first day of the
Quarter and ending on the day one-hundred twenty (120) days after
such Employee Labor Event, and (B) the maximum Promoters Payments
that could be due for those Quarters after the day one-hundred
twenty (120) days after such Employee Labor Event; provided that
AOLB shall have the option to relieve Itaú of all its obligations
in this Exhibit A (including, without limitation, all of its
marketing obligations hereunder and any obligation to pay future
Reference Payments, Marketing Payments, Termination Fee, Pro Rata
Reference Payments or Acceleration Payments), and require Itaú to
pay to AOLB an



36






 




	 	 	 	 	 
	 	 	
 
	 	Acceleration Payment where, for the purpose of calculating such
Acceleration Payment, the day AOLB notifies Itaú it is relieved of
all of its obligations in this Exhibit A is deemed the Trigger
Date.
	 
	 	 	 	 	If Itaú does not or ceases to pursue the applicable avenues of
appealing or overturning any such determination (except as a
result of its successful overturning of such determination) at any
time during the one-hundred twenty (120) day period after the
occurrence of the Employee Labor Event, then the Parties will
promptly retain a mutually agreeable Brazilian labor counsel to
determine, within ten (10) days from the date when the parties
hire such counsel, whether there is no reasonable prospect of
successfully appealing such determination; provided, that, in no
event will the Parties retain counsel that does not agree in
advance to render a definitive decision as to whether or not there
was a reasonable prospect of successfully appealing such
determination. If such Brazilian labor counsel concludes there
was a reasonable prospect of successfully appealing such
determination, then AOLB shall have the option, exercisable within
one hundred twenty (120) days after such labor counsel informs the
Parties of its conclusion, to relieve Itaú of all its obligations
in this Exhibit A (including, without limitation, all of its
marketing obligations hereunder and any obligation to pay future
Reference Payments, Marketing Payments, Acceleration Payments or
Pro Rata Reference Payments), and require Itaú to pay to AOLB a
Termination Fee where, for the purpose of calculating such
Termination Fee, the date of the occurrence of the Employee Labor
Event is deemed the Trigger Date. If such Brazilian labor
counsel concludes there was no reasonable prospect of successfully
appealing such determination, then Itaú shall have the option,
exercisable within twenty (20) days after such labor counsel
informs the Parties of its conclusion, to be released from all
in-branch obligations under this MOA other than Distribution of
CD-ROMs and pay to AOLB: (A) all Promoters Payments, if any, that
would be due for the Quarter in which the Employee Labor Event
occurs, calculated based on Itaú’s performance of its obligations
during the period beginning on the first day of the Quarter and
ending on the day one-hundred twenty (120) days after such
Employee Labor Event, and (B) the maximum Promoters Payments that
could be due for those Quarters after the day one-hundred twenty
(120) days after such Employee Labor Event; provided that AOLB
shall have the option to relieve Itaú of all its obligations in
this Exhibit A (including, without limitation, all of its
marketing obligations hereunder and any obligation to pay future
Reference Payments, Marketing Payments, Termination Fee or Pro
Rata Reference Payments), and require Itaú to pay to AOLB an
Acceleration Payment where, for the purpose of calculating such
Acceleration Payment, the day AOLB notifies Itaú it is relieved of
all of its obligations in this Exhibit A is deemed the Trigger
Date.




37