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EXHIBIT 10.1(a)
Next Generation Network, Inc.
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
To Whom It May Concern:
Reference is made to the E*DISPLAY AGREEMENT, dated January 17, 2000 (the
E*DISPLAY AGREEMENT") BY and between Next Generation Network, Inc. ("NGN") and
Xxxx Elevator Company ("Xxxx"). Terms used but not defined herein shall have the
meaning ascribed thereto in the E*DISPLAY AGREEMENT.
NGN and Xxxx acknowledge that notwithstanding their mutually working together to
promote e*Display in Xxxx Venues, Xxxx customers and other third parties will
nevertheless from time to time decide to procure products that are competitive
with the Products or determine that while they wish to procure the Products,
they do not wish to utilize the services of Xxxx for the installation or
servicing of the Products. In consideration of this acknowledgement, NGN and
Xxxx hereby agree as follows:
The parties agree that the following shall be added to the end of the Section
3.1.1.1. of the E*DISPLAY AGREEMENT:
"NGN shall, notwithstanding the sole exclusive worldwide marketing
rights granted heretofore to Xxxx, be permitted to sell the Products,
or products Substantially similar in functionality to the Products
(under a name other that e*Display) in an Xxxx Venue in those instances
where the owner of the Xxxx Venue is unwilling to permit Xxxx to
provide, install or service the Products or products substantially
similar in functionality to the Products (e.g. should an Xxxx Venue
being maintained by a competitor of Xxxx enter in a contract with NGN
for the provisions of Products or products substantially similar in
functionality to the Products, notwithstanding NGN's and Otis's
unsuccessful efforts to market the Products to said Xxxx Venue, then
NGN shall not be prohibited from using any third party, even one which
is a competitor of Xxxx, from providing the installation or servicing
of the Ebillboard to the Xxxx Venue). As to any location in which Xxxx
does not provide installation or service the Products or products
substantially similar in functionality to the Products, such location
shall not be considered an Xxxx Installation and Xxxx shall not be
entitled to any
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payments, including, without limitation, revenue sharing or other fees
payable under any Product Schedule or otherwise."
The parties agree that the following shall be added to the end of Section
3.1.1.2. of the E*DISPLAY AGREEMENT:
"Notwithstanding the foregoing, Xxxx shall nevertheless be permitted to
undertake any of the installation and servicing activities otherwise
prohibited by this Section 3.1.1.2. in those instances where a contract
has been entered into between third parties for the provision of a
product that is competitive with the Products (e.g. should an Xxxx
Venue enter into a contract with X company for the provision of a
competitive product, notwithstanding Otis's and NGN's unsuccessful
efforts to market the Products to said Xxxx Venue, then Xxxx shall not
be prohibited from providing, upon request, the installation or
servicing of the competitive product to the Xxxx Venue).
These amendments to the E*DISPLAY AGREEMENT as set forth in agreement shall
become effective as of the date that Capital Communications CDPQ Inc. purchases
$30 million of Series D 8% Convertible Participating Preferred Stock of NGN.
Except as expressly amended hereby, the E*DISPLAY AGREEMENT shall remain in full
force and effect.
This agreement and the performance of the parties hereunder shall be governed
and construed in accordance with the substantive laws of the State of
Connecticut without regard to its conflict of laws provisions.
This agreement may be executed in counterparts, all of which when taken together
shall be considered one and the same agreement. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
If you find the foregoing to be an acceptable description of the understanding
between us, please indicate NGN's acceptance by signing and returning by
facsimile (860-676-5010) a copy and subsequently forwarding one copy with an
original signature to my attention. Xxxx shall contemporaneously send one copy
to you by facsimile (952-943-4299) and will forward an original signature to
your attention.
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Sincerely,
Xxxx Elevator Company
/s/ Xxxxxxx X. Xxx
Xxxxxxx X. Xxx
Assistant Secretary
On behalf of G. Xxxxx Xxxxx
Senior Vice President, Product Strategy
Acknowledged and Agreed to:
NEXT GENERATION NETWORK, INC.
BY: /s/ Xxxxxxx X. Xxxxxxxx
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TITLE: CFO
