Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Company's confidential treatment request.
Exhibit 10.28
EBV ELEKTRONIK GmbH
Trinity 2 ASIC DEVELOPMENT AGREEMENT
(Agreement Number AS011)
This ASIC DEVELOPMENT AGREEMENT referred to, together with all exhibits hereto,
and any agreed separate writings, as the "Agreement" entered in to by and
between EBV Elektronik GmbH ("EBV') and Airspan Communications Ltd ("Customer")
with a place of business at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇, shall be effectives as the 6th July 2000 ("Effective Date"). The parties
hereby agree as follows:
1. Scope
This Agreement sets forth the terms and conditions by which EBV ELEKTRONIK GmbH
("EBV") and Customer agree to engage in the design and development of one or
more application specific integrated circuit ASIC Products ("ASIC") as defined
below, to be manufactured solely by LSI Logic Corporation of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ (`LSI"). Furthermore, this Agreement governs the terms
and conditions by which the Customer will be licensed with certain intellectual
property of LSI defined below as LSI IP, in connection with the design and
development of the ASIC. As agreed herein, EBV will provide Customer with
engineering support and assistance, and Customer with co-operate in regard to
protection of the LSI IP. EBV will act as a distributor of LSI in all
manufacturing work to be undertaken pursuant to this Agreement.
2. Definitions
2.1 "Customer Specifications" means the information including, without
-------------------------
limitation, software, schematics, netlist, micro code, designs, or techniques
supplied by Customer to EBV for use in the Program.
2.2 "ASIC" mans the device(s) described in Exhibit A hereto, or otherwise agreed
------
in writing, to be manufactured solely by LSI, including prototypes, risk pre-
production, and production units.
2.3 "LSI IP" means all LSI intellectual propery including but not limited to,
--------
design tools, the LSI Logic Flexstream(TM) Design Solution Tool Set, design and
verification methodology, library elements and models, Core ▇▇▇▇(R) and IP
Cores, and process technology e.g. Mask Works and Base Layers. LSI IP also
includes documentation that is the proprietary property of LSI and which is
released to the Customer solely for the purpose of designing, developing, and/or
testing the ASIC. LSI IP also includes updated and enhanced versions of the
foregoing , in addition to any portions thereof.
2.4 "NRE" means the standard Non-Recurring Engineering services provided by EBV
-----
to support and assist the Customer in connection with development of the ASIC
and provided Prototypes pursuant to the associated SOW.
2.5 "Engineering Services" means the extra Engineering services provided by EBV
----------------------
to support and assist the Customer in conncection with development of the ASIC
pursuant to the associated SOW. Detailed in Exhibit C Engineering Schedule.
2.6 "Program" means the design, development, testing, verification, prototyping,
---------
and manufacture of the ASIC in accordance with Customer Specifications.
2.7 "SOW" means the Statement of Work, described in Exhibit B hereto, or
-----
separately agreed in writing by the parties, that identifies the engineering
actives, assignment of responsibility, milestones, and the schedule for the
program.
2.8 "APO" means Acceptance of Development Purchase Order. APO is used to
-----
designate the initial billing milestone for NRE services occurring at order
placement.
2.9 "DKR" means Design Kick-Off Review, which is an in-depth review of the
-----
project including current project status, technical requirements, design flow,
design tools, tool installation, support requirements, Statement of Work
agreement and training requirements.
2.10 "INR" means Initial Netlist Review, which is held when Customer has
-----
released the initial gate-level netlish to EBC Elekronik for evaluation. The
netlist will be used to initiate the package bonding, floor planning and Design
Rule Checking (DRC) activites.
2.11 "TLR" means Trial Layout Review, which is held once EBV Elekronik has
------
completed the trail layout on the design. The trial layout is used to establish
the die-size and specific layout requirements, clocking, power routing, cell
placement etc to ensure that routing and timing closure can be achieved during
final layout. TLR sign-off is sued to designate an NRE billing milestone.
2.12 "PTR" means Placement timing Review, which is held once final cell
-----
placement and clock insertion has been completed using a functionally complete
netlist from customer, with all system simulations complete. After checking to
timing margins the completion of PTR releases design for final layout. All test
vectors must be complete and verified at PTR.
2.13 "FDR" means Final Design Review, which is held once post-layout timing and
-----
routing closure is completed. All test vectors have been re-verified and DRC,
NVL and EBEAM have been completed on the layout database. FDR complete releases
EBEAM data for mask manufacture. FDR sign-off is used to designate an NRE
billing milestone.
2.14 "TPR" means Test Program Release, which releases the test program to
-----
production and shipment of 20 tested prototypes to Customer.
2.15 "PAR" means Prototype Approval Review, which is completed after customer
-----
evaluation of prototype and design is ready to release to production
fabrication.
3. ASIC Development Terms and Operating Rules
3.1 EBV will exercise reasonable diligence to perform the NRE and Engineering
Services task as set out in Exhibit C and the SOW, and will use best endeavors
to procure that LSI exercises reasonable diligence to perform all activities
undertaken by LSI in relation to this Agreement whether or not set out in the
SOW.
All time-scales quoted are best estimates but are not guaranteed. Customer will
fully assist and co-operate with EBV pursuant to the obligations set forth in
the SOW. EBV shall not be responsible for the successful completion of
activities designated in the SOW to the extent these are contingent upon the
timely fulfillment by Customer of its own obligations in the SOW.
3.2 Any data relating to the ASIC design that Customer furnishes to EBV must be
compatible wit the design tools (insofar as EBV makes them know to Customer) by
which EBV will verify all design and engineering work. Customer agrees and
acknowledges that all engineering milestone time scales, Prototype, RISK/PRE
product delivery schedules are best estimates only. EBV confirms that it will
exercise reasonable diligence in setting such engineering milestones and
prototype deliver schedules. The sign-off of the Final Design Review ("FDR")
and of the Trial Layout Review ("TLR") and all other milestones throughout the
design phase by Customer's responsible managing engineer, or by any other
authorized employee of Customer, shall serve as conclusive evidence of
Customer's acknowledgement of successful completion of those respective
development milestones.
3.3 As consideration for the NRE and Engineering Services as described in the
SOW Exhibit B and Engineering Schedule Exhibit C hereto, or described in an
agreed separate writing, customer shall pay EBV the agreed NRE and Engineering
Services Charges as stated. Invoices are to be raised at the stated billing
TLR, FDR and TPR milestones after successful completion and sign-off of the
applicable development stage.
NRE and Engineering Services charges under this Agreement will be adjusted in
accordance with changes to the SOW requested by Customer in the course of the
Program.
3.4 Customer may submit written requests to EBV for changes to the SOW Exhibit
B, the Engineering Schedule Exhibit C or as ASIC design change during the course
of the Program. Upon receipt thereof, EBV shall inform Customer of the effect
on the SOW, the estimated date for completion of the development work in
incorporate any requested changes, and the change, if any, in the NRE and
Engineering Services charge and adjustments in the piece price for the ASIC,
Any additional NRE or Engineering Services charges will be payable in accordance
with an adjusted milestone schedule or on a time and material basis per written
agreement of the parties. EBV may, however, continue work without regard to the
requested change until EBV and Customer agree in writing to terms for an
adjusted price and estimated completion date, unless Customer notifies EBV in
writing to cease work.
3.5 Upon successful completion of FDR and TPR sign-off, EBV shall deliver within
the state time-scale 20 fully test Prototypes of each ASIC. Customer may order
Additional Prototypes (PRAs) for a fee, as set forth in Exhibit C hereto or
otherwise agreed in writing, provided such order is received not later than for
(4) days prior to FDR sign-off EBV shall make reasonable efforts to ship
Additional Prototypes within the stated time-scale from the Prototype shipment
date and in any event as soon as reasonably practicable. Customer accepts 100%
financial liability for all Additional Prototypes ordered whether they function
or not in the Customers system, for product that confirms to the agreed FDR
sign-off and is free from manufacturing defects.
4. Risk/Pre-Production Units (RSK/PRE Product) Terms
Customer acknowledges that the standard procedure recommended by EBV is to
supply ASIC products only after the design has been successfully prototyped and
approved in writing by Customer as document in the Prototype Approval Form and
released to production. Nevertheless upon request of the customer and subject
to these RSK/PRE product terms and conditions sale stared herein, RSK/PRE
product can be ordered. "RSK/PRE" product means product ordered by Customer for
which manufacture is commenced prior to receipt of written Customer approval of
the Prototypes. RSK product refers to silicon manufacture and PRE product
refers to final assembly and test.
RSK/PRE must be ordered not later than four (4) days prior to FDR sign-off.
RSK/PRE product orders placed after this cut off date shall be subject to the
same lead times as production ASIC product. RSK line items must be booked with
a PRE line item and must be booked released. PRE line items must be booked
with a RSK line item. PRE line items can be booked released (fully manufactured
and shipped) or unreleased (silicon held prior to metallisation). PRE line items
will be booked released unless Customer indicates PRE product is unreleased on
the purchase order. To release product previously ordered as unreleased the
Customer must notify EBV in writing.
The agreed price and quantity is set forth in Exhibit C hereto or other wise
agreed in writing, and is subject to technology, die size and quantity
limitations.
Invoices will be raised: 1) for fully released product 100% of agreed price on
shipment of RISK (RSK/PRE) product or 20 70% of agreed RSK/PRE price at Silicon
ready and held at Die Bank then 30% at shipment to Customer of RS/PRE product.
Customer understands and accepts the inherent risk in building ASIC product
prior to prototype approval and accepts the EBV cannot warrant RSK/PRE product
will conform to certain specification and/or will function as expected by the
Customer. Customer accepts the full financial obligation to pay EBV in full the
agreed RSK/PRE purchase price for all ordered RSK/PRE product that conforms to
the agreed FDR sign-off and is free from manufacturing defects.
Customer further acknowledges and accepts the risk that RSK/PRE product may be
subject to lower than expected manufacturing yields. If as a result of lower
than expected yields, Customer requires additional RSK/PRE product, production
restarts will only be made upon mutual agreement of the parties with respect to
quantities and delivery times based on a review of product faults and yields.
EBV shall have the right without liability to Customer, to dispose of any
RSK/PRE Product that remains unaccepted by Customer six months after manufacture
of such RSK/PRE Product
5. Orders
5.1 Customer shall provide a written purchase order to cover the NRE
Development, Engineering Services, additional Prototypes and RISK/PRE product as
required state in Exhibited C, or otherwise agreed in writing, Such order shall
be deemed accepted only if acknowledge in writing by EBV. Except as otherwise
expressly provided herein, no term or condition of any purchase order or order
acknowledgement or other form shall be binding on the parties.
5.2 EBV shall have obligation to consider supply of production units unless and
until Customer has delivered to EBV completed Prototype Approval and Production
Release Authorization forms for ASIC signed by an authorized representative of
Customer.
6. Payment Terms
6.1 As Agreed between the parties Customer shall pay the first NRE billing mile
stone APO ($*) plus any ordered Engineering Services (synthesis $* and or test
Insertion $*) on the terms "cash with order." Customer also agrees to supply
EBV Elektronik GmbH with a binding Parental payment Guarantee from Airspan
Network Inc. USA to cover the balance of payments accruing under this Agreement.
If this Parental Payment Guarantee is not put in place then EBV reserves the
right to suspend all engineering works until an alternative payment method has
been agreed.
6.2 Based on the Parental Payment Guarantee being in place, Customer agrees to
pay all further accrued invoices within 30 days from the invoice date (further
to item 6.1). Disputed invoices shall be resolved in good faith by both parties
and Customer agrees to pay resolved invoices within 14 days of resolution.
EBV's Credit Department may request different payment terms at it discretion.
Customer agrees to provide EBV's Credit Department with financial information
required in connection with the reassessment of credit terms. EBV reserves the
right to charge late payment on all sums overdue at a rate of 4% over the bank
of England's base rate from time to time in force.
6.3 Unless specifically stated other wise, any prices or charges detailed or
referred to in this Agreement are exclusive or VAT or other applicable sales
taxes
7. Shipment
Delivery of Prototypes, RISK/PRE product will be ex-works and good will be
packed to EBV's normal specification in non-returnable packing. Carriage will
be arranged at the Customers request and expense. Time of deliver shall not be
of the essence and any delivery period quoted is an estimate only. Provided EBV
take all reasonable steps to deliver the goods at the time stated, and gives the
Customer reasonable notice if it is unable to meet any delivery date quoted,
(which shall in any event be give as soon as EBV is aware of any delay ) then
EBV shall be under no liability for any delay or failure in delivery. The
Parties shall act in good faith to negotiate a mutually acceptable revised
delivery date. All contracts for export from Germany shall be in accordance
with INCOTERMS 1990 Edition or any amendment or re-publication thereof for the
time being in force at the date of the contract. EBV reserves the right to
deliver in more than one consignment and to invoice each consignment separately.
8. Title
Legal title goods shall remain with EBV until such time as EBV has received
payment for the price of the goods whereupon such title shall pass to the
Customer.
Notwithstanding the retention by EBV of the legal title to the goods (i) risk in
goods shall pass to the Customer on shipment ex-works and the Customer shall
arrange for EBV's interest in the same to be noted on all relevant insurance
policies, (ii) EBV shall be entitled to maintain an action against the Customer
for the price of the goods or any part thereof.
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
9. Cancellation
Prior to the delivery of Prototypes, Customer may cancel the NRE and Engineering
Services work under the applicable SOW for the ASIC by giving written notice to
EBV. Whereupon EBV shall cease work in connection with ASIC. EBV will invoice
the Customer a cancellation charge of i) 100% of Ordered Engineering Services
ii) NRE charges through the next billing milestone as listed in Exhibit C
hereto, NRE Schedule otherwise agreed in writing. Customer agrees to pay the
invoiced amount within 30 days of the invoice date. Customer may cancel work on
any single ASIC without consequence for the work performed for any other ASIC.
10. Intellectual Property
10.1 LSI Shall retain sole rights; title, ownership and interest in and to all
LSI IP furnished by LSI to Customer. Customer shall acquire no rights or
interests in or such intellectual property by any means.
10.2 For the sole purpose of facilitating the program with EBV, Customer may be
granted, directly by the licensee (LSI), a revocable, non-exclusive, non-
transferable, personal license to use certain LSI IP subject to the terms and
conditions of the then current LSI IP license agreements.
10.3 EBV acknowledge that all Customer Specifications regarding ASIC are the
property of Customer. EBV agrees that the Customer Specification or any
customized ASIC netlist, database, test vectors, or tooling generated
exclusively for ASIC in the course of development will not be used other than
for the manufacture of ASIC on behalf of Customer. The rights of Customer in
ASIC shall be strictly limited to the customized configuration of ASIC created
by the interconnections of such LSI IP library elements and Customer
Specification information as such appear in the ASIC manufactured for Customer.
10.4 Customer acknowledges and agrees that place and route data, database tapes,
mask sets, and other customized data relating to ASIC contain proprietary
information of both LSI and Customer, and such materials shall remain in the
custody of LSI at all times. Upon Customer request such materials produced for
Customers shall be destroyed and certification provided. The resulting mask set
is specific to LSI Logic Technology Only and is compatible with use in one of
the of here LSI logic water fabrication plants (two of the USA one in Japan)
with a second source always in place for die assembly and final test. In the
event of the failure of one manufacturing facility, LSI shall utilize its other
manufacturing facilities as required to provide continuity of supply of ASIC
10.5 Customer shall own invention discovered in the course of performing this
Agreement of solely discovered by Customer. The Customer shall then
automatically grant a nonexclusive fully paid, royalty free, perpetual,
worldwide license to use such invention in connection with manufacture and
supply of the ASIC. The parties shall be deemed joint owners of any invention
that is jointly discovered in the course of performing this Agreement.
10.6 All LSI IP is the exclusive property of LSI and shall be treated as
Confidential Information.
11. Warranty
LSI warrants the ASIC on behalf of EBV Elektronik and its customers in
accordance with it standard warranty as set forth in this clause below. EBV
Elektronik is authorized to pass this warranty through to EBV's customers
DISCLAIMER
----------
ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, WITH RESPECT TO ANY PRODUCT OR
OTHER ITEMS DELIVERED HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. NO COURSE OF DEALING AND NO PRODUCT
DESCRIPTION OR SPECIFICATION SHALL BE DEEMED A WARRANTY WITH RESPECT TO ANY
GOODS OR INFORMATION DELIVERABLE BY EBV or LSI. NO INDIVIDUAL IS AUTHORIZED TO
GIVE ANY OTHER WARRANTY ON BEHALF OR EBV or LSI.
INDEMNIFICATION
Subject to the conditions and limitations stated herein, LSI agrees to defend
Customer from and against any and all claims, demands and actions ("Claim")
brought against Customer based upon any alleged infringement of U.S. patent,
U.S. copyrights or U.S. mask work rights owned by third parties by any ASIC
purchased by Customer from EBV, or upon any alleged disclosure or misuse by LSI
of trade secrets of a third party in connection with the design of production of
any ASIC. In addition, LSI agrees to pay all reasonable money damages awarded
against Customer attributable solely to any such infringement, disclosure, or
misuse and to pay all costs and expenses associate with such claims (including
attorney's fees). As a conditions of such defense and indemnification,
Customer shall give EBV/LSI prompt written notice of any such Claims, grant full
authority to defend and settle such Claims, and make its best effort to assist
LSI (at LSI's expense) upon request from LSI. If, as a result of Claim,
Customer is enjoined from selling, using, or otherwise disposing of ASIC
purchased from EBV, LSI shall, at its election (i) procure for Customer the
right to sell and use the ASIC, (ii) provide Customer with replacement ASIC that
is non-infringing and meets the same functional specifications as the ASIC, or
(iii) if LSI cannot procure such rights or furnish such replacement ASIC on
commercially reasonable terms, arrange for a refund to Customer for the price
paid for such ASIC.
THIS SECTION STATE THE ENTIRE LIABILITY OF LSI AND THE EXCLUSIVE REMEDY OF
CUSTOMER WITH RESPECT TO INFRINGEMENT. EXCEPT AS EXPRESSLY STATE I N THIS
SECTION, ALL WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE HEREBY DISCLAIMED.
INDEMNIFICATION EXCLUSION
-------------------------
EBV or LSI shall have no obligation to indemnify or hold Customer harmless with
respect to any Claim or infringement, disclosure, or misuse of any intellectual
property rights arising out of or relating to (i) the combination of one or more
LSI library elements with any other circuitry in the design of any ASIC (ii) the
combination or incorporation of any ASIC or of elements of any library supplied
by LSI with any other product, end item, or subassembly, (iii) use or
incorporation in any ASIC of any design, technique, or specification furnished
by Customer, or (iv) any infringement based on protocols (including MPEG2)
established by standards bodies. Customer will defend at its own expense and
indemnify EBV and LSI from and against any liability, damages, cost or expense
(including attorney's fees) arising out of any such Claim asserted against EBV
or LSI in connection with any act or condition described in clauses (i), (ii),
(iii) or (iv) in the preceding sentence. EBV and LSI agree to promptly notify
Customer in writing of any such Claims. Grant full authority to defend and
settle such Claims, and offer all reasonable assistance to Customer (at
Customer's expense) upon request from Customer.
12. Confidential Information
Each party acknowledges that materials received from the other party may be
considered confidential and proprietary ("Confidential Information"). Each party
agrees to maintain in confidence such information which, if disclosed in
writing, is identified and marked as confidential ( or with words of similar
import) at the time of its disclosure or which, if disclosed verbally, is
designate confidential at the time of disclosure and is summarized and
identified as confidential in writing delivered to the receiving part on or
before 30 days after the disclosure. Neither party shall disclosed such
information to any third part without the prior written consent of the other
party. Each part shall protect such information from disclosure to theirs with
at least the same degree of care as such party exercises to protect its own
information of similar type and importance. The obligations of confidentiality
and protection required by this Section 10 shall survive the expiration,
termination, or cancellation of this Agreement for a period of five years.
The obligation of confidentiality shall not apply, or shall cease to apply, to
any information which:
(a) was known to receiving par prior to its receipt hereunder
(b) is or becomes publicly available without breach of this Agreement;
(c) is receive from another party without an obligation of confidentiality of
the disclosing party and without breach of this Agreement.
(d) is disclosed by the disclosing party to another party without an obligation
of confidentiality
(e) is developed independently by employees of the receiving party not having
access to such information; or
(f) is disclosed by the receiving part pursuant to court order provided that the
originally disclosing party is given a reasonable opportunity to object to or
restrict such disclosure requirement to the extent practicable, and then such
disclosure shall be permitted only subject to the terms and conditions of such
order.
Notwithstanding the requirements for Confidential Information stipulated in this
section, Customer acknowledges that all LSI IP in any form whatsoever is
Confidential Information and shall be treated accordingly.
13. Limitation on Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR PAYMENT OF ANY
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE) RESULTING
FROM ANY BREACH OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER, REGARDLESS OF WHETHER
THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR
IN FACT KNEW OF THE POSSIBILITY THEREOF.
14. High Risk Applications.
CUSTOMER WARRANTS THAT IT WILL NOT USE, OR KNOWINGLY PERMIT ANY OF ITS DIRECT OR
INDIRECT CUSTOMERS TO USE, ANY ASIC IN ANY HIGH RISK APPLICATION WHERE THE
FAILURE OF THE PRODUCT COULD CAUSE A LIFE-THREATENING SITUATION, INCLUDING BUT
NOT LIMITED TO MEDICAL, NUCLEAR, AVIATION, NAVIGATION OR MILITARY APPLICATIONS,
CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD BY EBV HARMLESS AGAINST ANY LOSS,
LIABILITY, OR DAMAGE OF ANY KIND THAT EBV INCURS IN CONNECTION WITH A BREACH O
SAID WARRANTY.
15. Termination and Discontinuance
15.1 If either party breaches or defaults on a material provision of this
Agreement and fails to remedy such breach or default with 60 days after written
notice from the other party, the other party shall have the right to (a) suspend
performance or payment, in whole or in part, until such breach or default has
been remedied, (b) terminate the Agreement or purchase orders placed under the
Agreement, in whole or in part, or (c) employ a combination of (a) and (b).
Notwithstanding the foregoing, EBV may suspend this Agreement at any time on the
account of monetary default of Customer with respect to any amounts owed by
Customer to EBV under this Agreement, provided that prior to such suspension for
monetary default EBV shall first notify the Customer in writing of the default
and allow the Customer a period of 14 days to rectify such default. The parties
hereby agree to negotiate in good faith to resolved any such dispute.
15.2 If either party: (a) becomes insolvent; (b) makes an assignment for the
benefit of creditors; (c) files or has filed against it a petition in bankruptcy
or seeking reorganization; (d) has a receiver appointed; or (e) institutes any
proceedings for liquidation winding -up (f) assigns or transfers either
voluntary or by operation of the law any or all rights or obligations under this
agreement without having prior written consent form the other part; Then the
other part may be written notice, in addition to other rights and remedies it
may possess, immediately terminate the Agreement or any purchase orders placed
here under.
16. General
16.1 Assignment. Except for EBV's right to payment accruing hereunder, neither
-----------
party shall assign any of its rights or privileges hereunder without the prior
written consent of the other party other than to successor in ownership of all
or substantially all of the assets of the assigning party, which successor
expressly assumes in writing the assignor's obligation hereunder.
16.2 Governing Law. This Agreement shall be governed and construed in
--------------
accordance with the laws of England and the parties submit to the exclusive
jurisdiction of the English Courts to determine any dispute arising hereunder.
16.3 Waiver. No failure or delay on the part of either part in the exercise of
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any right or privilege hereunder shall operate as a waiver thereof or of the
exercise of any other right or privilege hereunder nor shall any single or
partial exercise of any such right or privilege preclude other or further
exercise thereof or of any other right or privilege.
16.4 Severability. If any provision of this Agreement is held to be
-------------
ineffective, unenforceable or illegal for any reason, such decision shall not
affect the validity or enforcement of any of the remaining portions hereof. If
more than one product is covered by this Agreement, then the rights and
obligations of the parties wit respect to each such product shall be several and
independent from those with respect to any other product.
16.5 Survivorship. All obligations and duties hereunder which shall by their
------------
nature extend beyond the expiration or termination of this Agreement, shall
survive and remain in effect beyond any expiration or termination hereof.
16.6 Other Rights. Nothing contained in this Agreement shall be construed as
-------------
conferring by implication, estoppel or otherwise upon either part or any third
party any license or other right except, solely as to the parities hereto, the
rights expressly granted hereunder.
16.7 Force Majeure. Neither party shall be liable for damages resulting from a
-------------
default in the performance of its obligations under this Agreement when caused
by an act or occurrence that is beyond the reasonable control of such part,
including but not limited to fire, flood, earthquake or other natural disaster,
labor disputes, war or civil disturbance, shortage of materials, disruption of
normal production, yield failures, carrier strike or an interruption of electric
power, utility services, or means of transportation.
16.8 Notice. Any notice of claim provided for herein shall be in writing and
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shall be given (i) by personal deliver, effective upon delivery, (ii) by first
class mail, postage, addressed to the address state below for the recipient,
effective one (1) business day after proper deposit in the mail, or (iii) by
facsimile directed to the facsimile number indicated below for the recipient,
but only if accompanied by mailing of a copy in accordance with (ii) above,
effective as of the date of facsimile transmission. The addresses for notice
are as follows:
Address for notice to EBV: EBV Elektronik GmbH Tel: ▇▇▇▇▇ ▇▇▇▇▇▇
12 Interface Business Park Fax: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Address for notice to Customer Airspan Communications Ltd Tel:____________
Cambridge House Fax:____________
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attn:______________
16.9 US Export Control. EBV shall in no circumstances be liable for any
-----------------
damages, loss, or claim howsoever occasioned by an act or omission on the part
of the Customer in Contravention of any regulations issued by the United States.
Government concerning the export of goods, services or technology. Customer
shall be responsible for ensuring compliance with all export laws and regulation
of the United States Government.
16.10 Publicity. Neither party shall advertise or otherwise disseminated, by
written or oral publication, the existence of this agreement or its terms or use
the name of the other part in any pres release, public announcement ,
advertisement, or other form of publicity without the other party's written
consent.
16.11 Conflicting Terms. The parties agree that the terms and conditions of this
agreement shall prevail, notwithstanding contrary or additional terms in any
purchase order, sales acknowledgement, confirmation or any to the document
issued by either party effecting the purchase and/or sale of ASIC NRE,
Engineering Services, or ASIC
Products. In the event of any conflict between the terms of this Agreement and
any Exhibit or agreed separate writing attached to this Agreement, the
provisions of this Agreement shall control. In the event of any conflict between
or among Exhibits or agreed separate writings, the Exhibit or agreed separate
writing of the latest date shall control.
16.12 Entire Agreement. This Agreement with Exhibits hereto and agreed separate
writings together with any Non-Disclosure Document signed between the parties,
embodies the final, complete understanding and exclusive statement of the terms
upon by the parties with respect to the subject matter hereof and supersedes any
prior or contemporaneous representations, descriptions, courses of dealing, or
agreements in regard to such subject matter. No amendment or modification of
this agreement or any Exhibit, or agreed separate writing hereto shall be valid
or binding upon the parties unless sin writing an signed by an authorized
representative of each party.
NO EBV EMPLOYEE OR REPRESENTATIVE HAS ANY AUTHORITY OR OTHERWISE TO BIND EBV TO
ANY OBLIGATION OR LIABILITY NOT EXPRESSLY STATED HEREIN
16.13 Relationship of the Parties. The relationship of the parties is that of
independent contractors. Neither party, nor its agents or employees, shall be
deemed to be the agent, employee, joint venture partner, partner or fiduciary of
the other party, Neither party shall have the right to bind the other party,
transact any business on behalf of or in the name of the other party, or incur
any liability for or on behalf of the other party.
16.14 Exhibits. The following Exhibits are attached hereto and incorporated
herein by this reference:
Exhibit A - Description of ASIC
Exhibit B - Statement of Work
Exhibit C - NRE and Engineering Services Schedule
16.5 Term. The Term of this agreement shall last throughout the Program until
delivery of any ordered Extra Prototypes or RISK pre-production devices. The
Agreement may be extended by agreement of the parties to include further ASIC
Development work.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
effective Date.
EBV ELETRONIK GmbH Customer
By:______________________ By:_________________________
Name: ▇. ▇▇▇▇▇ Name: ▇. ▇▇▇▇▇
Title: ASIC Manager Title: Chief Operations Officer
Date: 19/7/00 Date: 13/7/00
EXHIBIT A
Preliminary ASIC Description
Name: Trinity 2
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Estimated Die Size: 8.2mm/side
------------------
Package: 272PBGA
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Part No: L5A9545
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Preliminary details as per quote PLAIRSPAN 9600A
Final details to be confirmed at TLR or FDR sign-off milestones
---------------------------------------------------------------
Exhibit B
Preliminary
Statement of Work
For
Trinity 2 ASIC
Customer Address: Airspan Communications Limited
Cambridge House
Oxford Road, Uxbridge
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Introduction
This Statement of Work (SOW) describes the activities and key development
milestones of the Trinity 2 ASIC for Airspan Communications Limited. The key
deliverables and responsibilities are defined (X denotes primary
responsibility). Any item not explicitly state in this SOW is not an implied
service.
This SOW assumes Airspan will order the Engineering Services for Synthesis and
Test Insertion as detailed in Exhibit C.
Acceptance of the work done at each relevant milestone is also defined in this
SOW as 'Checklist Sign-off". Every time a Sign-off milestone is reached, the
two parties review the work done at that specific date, approve all relevant key
deliverables, and agree on proceeding to the next phase of the project.
This SOW will be updated and complimented by a Project Plan document, which is
released at the Design Kick-Off Review Milestone, and is updated and approved at
every milestone mentioned in this SOW.
Agreement to SOW
EBV Technical Project Leader:
Signature: Date:
Program Manager: ▇. ▇▇▇▇▇ Date: 17/7/00
Signature:
Airspan Technical Project Leader: ▇▇▇▇▇▇ ▇▇▇▇▇
Signature: Date: 13/7/00
Program Manager
Signature Date: 13/7/00
RESPONSIBILITY
DESIGN DESCRIPTION OF WORK EBV AIRSPAN
STAGE
1 Place an order with EBV Elektronik (PO Milestone) X
Purpose: Allows EBV to allocate resources
and start Project activities.
2 Design Kick-off Review (DKR Milestone) X X
Purpose: Allows the Airspan and EBV to review
the system design for partitioning, discuss
the design flow and review the project plan.
Deliverables: 1. Design Specification to include;
a) Electrical and environmental specification. X
b) Overall system definition and higher level X
block diagram.
c) List of ASIC I/O pins. X X
d) Chip level diagram of the clock distribution. X
e) Synthesis strategy. X X
f) Chip test strategy. X X
2. Design Flow to include tools and
deliverables e.g. RAM models.
3. An agreed SOW that EBV will
undertake.
4. An agreed project plan to include resources
and time scales.
5. Design review process
Checklist: Complete DKR Checklist Sign-off X X
3 Intermediate Design Review (IDR Sign-Off Milestone) X X
Purpose: Review block design coding at RTL level
prior to chip level integration/synthesis
Deliverables: 1. EBV presents RTL guidelines and X
detailed RTL coding methodology
documentation.
2. ▇▇▇▇ analysis reports reviewed X X
Checklist: Block level Checklist Sign-off X X
4. Top Level Integration and Verification X
Purpose: To produce a chip level RTL description
and to fully simulate the design using Airspan generated
test benches.
Deliverables: 1. Preliminary RTL code release for X
preliminary synthesis and trial layout
to "prepare netlist for layout".
2. Final (frozen) RTL code that has been X
fully verified to Airspan generated test benches.
3. Chip level test bench. X
RESPONSIBILITY
DESIGN DESCRIPTION OF WORK EBV AIRSPAN
STAGE
5. Synthesis Review and RTL Chip Level Code Check X X
Purpose: Risk management by finalizing systhesis strategy
and EBV performing a detailed RTL code check
to ensure EBV's RTL coding methodology have
been followed. Objective is to ensure RTL code
is systhesisisable.
Deliverables: 1. Finalize synthesis strategy. X X
2. EBV performs a detailed RTL codeX
analysis.
3 . Final (frozen) RTL code that has been X
fully verified to AIRSPAN generated test benches
and has been reviewed against EBV's
coding guide lines.
6. Chip Level Synthesis and Test Insertion X X
Purpose: To produce a netlist with test insertion for final
layout. As part of a risk management strategy
preliminary code shall be used for preliminary
synthesis and trial layout in order to prepare
the final netlist for final layout.
Deliverables: 1. Gate Level netlist X
2. Bondout/floor planning/clocking. X
3. Gate level verification. X
4. Test insertion (RAM BIST, X
(JTAG and Scan Logic).
5. Spare gates insertion. X
6. Static Timing, margin analysis X X
7. Initial Netlist Review (INR Milestone) X X
Purpose: The initial gate level netlist will be used to initiate
the package bonding and design floorplan. Netlist
DRC checking programs will also be un and
results will be reviewed.
Checklist: Complete INR Checklist Sign-off X X
8. Trial Layout Review (TLR Milestone) X X
Purpose: The TLR is performed once EBV completes
a trial layout. The trial layout is used to
establish the die size needed as well as any
specific layout related requirements (e.g., clock
tree synthesis, power routing, special cell
placement). The TRR is recognized as the NRE
billing.
Deliverables: Trial layout
Checklist: TLR Checklist Sign-off
RESPONSIBILITY
DESIGN DESCRIPTION OF WORK EBV AIRSPAN
STAGE
9. Test Vector Generation and X X
Placement Timing Review (PTR Milestone)
Purpose: The PTR is performed once EBV has completed
the final cell placement, placement timing
optimization and clock tree synthesis using the
final froze functional Airspan netlist.
Deliverables: 1. Back-annotation files from cell X
placement.
2. Test vectors; X
a) Functional vectors. X
Note: Vectors are only required to achieve
100% toggle of all outputs and bi-directs
b) Scan ATPG, IDDQ, JTAG, X X
RAM BIST, PLL, VIL/VIH, Static IDD
(Y), High-Z (Z).
Checklist: PTR Checklist Sign-off X X
10. Final Design Review (FDR Milestone) X X
Purpose: The Final Design Review is performed once
post-layout timing closure is completed. It is expected
that all layout drc and netlist verification steps have been
performed and all test vectors have been checked and
finalized for release. FDR is recognized as the NRE
billing milestone previously known as CDR.
Deliverables: 1. Post-route timing verified and approved X
2. All post-route test vector timing verified X
3. Timing margin report for core and I/O for X
each clock domain
4. Prototype package marking requirements X
5. All proto delivery orders submitted to Sales X
6. Review PVT (Process, Voltage, Temp) X
conditions X
7. Final run of Isidrc X
8. Signal integrity checks complete X
9. Formal verification complete X
10. Full-timing test vector checks
complete X
11. Test Program extracted from test X
vectors
12. Test readme file complete X
13. Layout QA, DRC, NVI, and EBEAM X
Complete
Checklist: FDR Checklist Sign-off
11. Prototype Manufacture X
--
Purpose: Manufacture of prototype silicon.
Deliverables: Prototype silicon to test floor.
RESPONSIBILITY
DESIGN DESCRIPTION OF WORK EBV AIRSPAN
STAGE
12. Test Program & Proto Ship (TPR Milestone) X
---
Prupose: TPR is Performed once all prototype testing has been
Completed and parts have been shipped to Airspan. Proto-ship
Occurs when a prototype passes all test per sign-off
Requirements and all prototype units are delivered to Airspan
Deliverables: Prototypes to Airspan.
13. Prototype Approval (PAR Mileestone) X
---
missing text
evaluated prototype units and has authorized production
fabrication. Test Program Release is performed to support
production testing.
Deliverables: 1. Prototype Approval Form X
2. Production Release Agreement and X
Airspan Marking Specification.
EXHIBIT C
NRE and Engineering Services Schedule
NRE SERVICES
NRE *
NRE Biling Stages
----------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT APO DKR TLR FDR TPR Total NRE
SIGN-OFF Milestone Charge
----------------------------------------------------------------------------------------------------------------------------
20% NRE 40% NRE 30% NRE 10% NRE 100% NRE
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Billing Amount $* $* $* $* $*
----------------------------------------------------------------------------------------------------------------------------
NRE to include full application support throughout the design phase (EBV/LSI's 7
stage design flow), ARM9E and HM_cx4000 Hard Macro Integration support,
Floorplanning, Timing Closure, Layout, Test Program Development, Masks, LSI
Logic FlexStream Design Tools and 20 fully tested prototypes.
Prototype delivery 40-45 days after FDR and EBEAM complete
The design flow is to be RTL interface with EBV performing synthesis suns and
timing closure but Airspan performing final verification and sign-off using UNIX
Modelsim.
Detailed in the SOW Exhibit B.
ENGINEERING SERVICES
Synthesis $*
Test Insertion and ATPG $*
Billing 100% on order entry
The Synthesis option activities are details in the SOW Exhibit B, which include;
a pipe cleaning exercise on individual modules, trial synthesis run(s) and final
synthesis.
The Synthesis charge above includes up to man months of activity. If the
Synthesis activities are seen to be exceeding this budgeted time then EBV
reserves the option of charging extra work on an agreed (in writing) time and
materials basis.
Estimated elapsed time to cover the synthesis tasks is 2 months dependant on
Airspan following RTL coding guidelines, Airspan providing correct achievable
synthesis constraints, and on Airspan completing task in a timely manner.
Estimated elapsed time for Test Insertion activities is 1 month dependent on
timely completion of Airspan tasks.
It is understood by all parties that Airspan agree to use the Hm_cx4000 hard
macro as currently developed with the performance stated in the G12 HM_cx4000
Specification and Implementation document version 1.4 dated April 29, 1999
(attached) and the Characterization Report version 1.1 dated January 18, 2000
without any modification.
RISK (RSK/PRE) Device Planning
Number of Risk Devices: Minimum 1000pcs
LSI Part no: L5A9545
Price each $*
Shipment 4-6 weeks after prototype shipment
Additional Prototypes
Number of Additional Prototypes (PRAs): 100
LSI Part No: L5A9545
Price each $*
Shipment: 2-3 weeks after prototype shipment
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.