Asic Development Agreement

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 Cambridge House, Oxford Road, Uxbridge, Middlesec UK, 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 1551 McCarthy Blvd Milpitas California USA (`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 Ware(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 ...