Exhibit 10(el)1
AMENDMENT No. 1
TO
DISTRIBUTION AND MARKETING AGREEMENT
This Amendment No. 1 to Distribution and Marketing Agreement ("Amendment") is
dated as of October 8, 2003 (the "Effective Date") between Artera Group, Inc., a
Delaware corporation ("Artera"), and Avaya Inc., a Delaware corporation
("Avaya").
WHEREAS, Artera and Avaya are parties to that certain Distribution and Marketing
Agreement dated as of April 21, 2003 (the "Distribution Agreement");
WHEREAS, Avaya, either directly or through or one of its Affiliates, has an
opportunity for the distribution of Artera Turbo to Subscribers through Bell
Nordiq (defined below);
WHEREAS, the parties wish to make certain changes to the agreements contained in
the Distribution Agreement with respect to licenses to Bell Nordiq in order to
facilitate further distribution of Artera Turbo; and
WHEREAS, the parties desire to make certain changes to the amount of Unit
Royalties payable by Avaya to Artera for Units licensed by or through Avaya to
Bell Nordiq pursuant to the Distribution Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, as
well as other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 All terms capitalized but not defined in this Amendment will have the
definitions given them in the Distribution Agreement.
1.2 "Bell Nordiq" means Xxxx Nordiq Income Fund, a Canadian limited partnership
and its operating Affiliates, including Telebec Limited Partnership and Northern
Tel Limited Partnership.
2. LICENSING AND UNIT ROYALTIES
2.1 For purposes of Section 2.4 of the Distribution Agreement, and
notwithstanding anything to the contrary contained therein, Bell Nordiq will be
considered a "Major ISP" acting as a Reseller to Subscribers. Licenses for use
of the Licensed Materials and the right to act as a Reseller may be a license or
agreement between Avaya and Bell Nordiq and Units so licensed will be Royalty
Licenses.
2.2 Notwithstanding anything contained in Section 3.1 of the Distribution
Agreement, for each Unit licensed by Avaya to a Residential Subscriber through
Bell Nordiq, Avaya shall pay to Artera a Unit Royalty equal to USD 1.05 per End
User.
3. GENERAL
Except as expressly amended by this Amendment, the Distribution Agreement will
remain in full force and effect. This Amendment may be executed in one or more
counterparts. Each counterpart will be deemed an original, but all counterparts
together will constitute one and the same instrument.
IN WITNESS WHEREOF the parties have caused this Amendment to be signed by their
duly authorized representatives.
AVAYA INC. ARTERA GROUP, INC.
By: /s/ Xxx X'Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxx X'Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Group VP - Global Services Chairman & President
