Development And Technology License Agreement

EXHIBIT 10.21


Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [*]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.


Development and Technology License Agreement


Between


Samsung Electronics Co., Ltd.
Samsung Main Bldg. 250 2Ka
Taepyungro, Chungku, Seoul Korea


and


Metawave, Inc.
10735 Willows Road NE
Redmond, WA 98073-9769, USA


Section 1 Preamble


1.1 This Agreement, made and entered into as of the eighth day of February 2001, by and between Samsung Electronics Co., LTD., a Korean corporation with its principal place of business in Samsung Main Bldg. 250 2Ka, Taepyungro Chungku Korea, (hereinafter called "Samsung") and Metawave Inc., a Delaware corporation with its principal place of business at 10735 Willows Road NE P.O. Box 97069, Redmond, WA 98073-9769, USA (hereinafter called "Metawave").


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Section 2 Definitions


2.1 As used herein, the following terms shall have the meanings set forth
below:


a) "Prototype System" means [*].


b) "Prototype System Development" means the engineering services provided by
Metawave to Samsung to design the system specific components for [*].


c) "Prototype Components" means the deliverable components from Metawave as
defined in Annex A attached hereto.


d) "Commercial System Development" means the engineering services provided by
Metawave to Samsung to design the system specific components for a
commercial system incorporating Metawave's technology for Adaptive Antenna
Array capability based on the Samsung standard product.


e) "Commercial System" means the [*].


f) "Deliverable Items" means the Products and Services (hereinafter defined) to
be delivered by Metawave to Samsung pursuant to this Agreement, of which is
detailed and described in Annex A attached hereto.


g) "ASIC" means an application specific integrated circuits to be used with or
in the deliverable products under this Agreement.


h) [*] means Metawave [*] consisting of Metawave [*] and associated control and
processing software necessary to provide the [*].


i) "RF Front End" means the physical antenna array elements, tower mounted RF
distribution box, and phase matched cables connecting the antenna array
elements to the RF distribution box.


j) "Prototype System Test Plan" means the mutual developed and approved BTS
performance test plan defining the verification test methods and procedures
used to establish the performance of the modified prototype Samsung AAA BTS
products.


k) "Commercial System Test Plan" means the mutual developed and approved BTS
performance test plan defining the verification test methods and procedures
used to establish the performance of the modified Samsung Commercial system
AAA BTS products.


l) "Subsidiaries" means, with respect to any party, any entity which is under
the control of such party by means of at least [*] ownership of the entity,
whether directly or indirectly, or has been specifically included in this
section below.


Metawave shall approve subsidiaries of Samsung in which Samsung has less
than 40% ownership to be included in this agreement, such approval shall not
be unreasonably withheld.


m) "AAA" means Adaptive Antenna Array


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n) "Beamforming" means the process by which antenna patterns for both receive
and transmit antenna patterns are electronically generated.


o) "Samsung Products" means Samsung's Adaptive Antenna Array enhanced BTS
commercial products incorporating [*] and smart Antenna technology.


p) "Samsung Components" means [*] and or equivalent components, to be
included and used as part of and within the Samsung Products, that have been
exclusively designed by or for Samsung (which design is owned and used
exclusively by Samsung).


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Section 3 Effective Date of Agreement


3.1 The effective date of this Agreement (hereinafter called "EDA") shall be
the date when the Agreement has been signed by both Metawave and Samsung.


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Section 4 Services


4.1 Subject to the terms and conditions set forth herein, Metawave shall render
to Samsung the following services according to the schedule as set forth
herein (hereinafter collectively called "Services"):


a) [*].


b) [*].


4.2 Services shall include materials, fabrication, design support, system
integration support, field test support, documentation and associated
technology services in accordance with Annex A and Annex E attached hereto.


4.3 Details of Services are described in Annex A and Annex E attached hereto.
The Annexes constitute a part of this Agreement. If any Annexes are
contrary to this Agreement, this Agreement shall prevail.


4.4 Metawave represents and warrants that it has the full right and authority
to enter into and perform any and all applicable provisions of this
Agreement and further represents and warrants that there are no contracts,
regulations or restrictions that will prevent it from performing the
Services pursuant to this Agreement.


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Section 5 Delivery


5.1 Metawave at its [*] shall provide under this Agreement all the necessary
[*] to perform the Services.


5.2 Metawave shall perform Services and deliver to Samsung the Deliverable
Items pursuant to Annex A attached hereto according to the following
delivery schedule("Schedule"):
Delivery
Item No. Description (Months AEDA)/1/
-------- ----------- ------------
Basic Agreement


1. AAA Prototype System Development per Annex A [*] 2. Quantity [*] per Annex A [*] 3. Quantity [*] per Annex A [*] 4. [*] per Annex A [*] 5. Prototype Integration Test Support per Annex A [*] following
Completion of Item 1 6. Prototype Field Trials Test Support per Annex A [*] following
Completion of Item 5 7. Prototype documentation per Annex A [*] following
Completion of Item 6 8. Commercial Product AAA System Development per Annex E TBD 9. Commercial Product Integration Support per Annex E TBD 10. Commercial AAA Product Documentation per Annex E TBD 11. [*] TBD


5.3 The delivery point of Deliverable Items shall be [*] Sunnyvale, California
(Incoterms 1990). Metawave shall pack all Deliverable Items for air freight
shipping. Metawave shall ship all documentation to Samsung via FEDEX or
equivalent service.


5.4 Metawave represents and warrants that the documentation to be submitted to
Samsung pursuant to this agreement shall [*]


----------------------- /1/ Months After EDA


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Section 6 Prototype Component Verification


6.1 Within [*] after the delivery of the prototype components from Metawave,
Samsung shall integrate the components into the prototype system, and
conduct a test which determines through a mutually agreed test procedure,
that the Metawave Prototype components (hereinafter called "Prototype
Components"), meet the requirements pursuant to Annex A attached hereto.


6.2 Samsung shall determine whether the Prototype System including the Metawave
Prototype components conforms to the Performance Targets specified in Annex
A attached hereto (hereinafter called "Specifications"), and satisfactory
integration in its system and submit a written report to Metawave within
[*] after completion by Samsung of the Prototype Verification Test. [*]


6.3 In the event that Samsung rejects the Prototype components by reasonable
judgment within the [*] period set forth in Section 6.2 hereof, the parties
shall spend the [*] to discuss a mutually agreeable solution. If the
parties cannot agree on a solution during such period, Samsung may, at its
sole discretion, terminate this Agreement subject to Section 23.2 hereof.
Section 6.2 above shall apply mutatis mutandis to the any revised Prototype
Verification Testing conducted by Samsung.


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Section 7 Completion of the Prototype System


7.1 Within [*] after the completion of the field trial, Samsung shall submit to
Metawave a field test report (hereinafter called "Field Test Report") which
describes the result of the field trials of the prototype Systems
(hereinafter called "Field Trials"), pursuant to Annex A attached hereto.
In the event Samsung was not able to submit a Field Test report in the
above time limit, and Metawave agrees that the cause was reasonable, such
time limit shall be adjusted by mutual agreement.


7.2 Samsung and Metawave shall examine the Field Test results to determine
whether the Prototype System conforms to the requirements, and Samsung
shall submit a written acceptance or rejection to Metawave within [*] after
review of the Field Test Results. If no written rejection is submitted by
Samsung within the said [*] period, the development shall be deemed
completed on the expiration date of such period.


7.3 In the event that Samsung rejects the Field Test Results due to the
Metawave Prototype System's components non-conformity to the Specifications
within the [*] period set forth in Section 7.2 hereof, the parties shall
spend the next [*] to discuss a mutually agreeable solution. If the parties
cannot agree on a solution during such period, Samsung may, at its sole
discretion, terminate this Agreement subject to Section 24.4 hereof.
Section 7.2 above shall apply mutatis mutandis to the revised Field Test
Results developed by Samsung.


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Section 8 Price


8.1 In consideration for the faithful performance and completion of the
Services by Metawave hereunder, Samsung shall pay the fees as follows: Item No. Description Price (U.S.D.) ------- ----------- --------------
Basic Agreement Prototype 1. Prototype System Development per Annex A $[*] 2. Quantity [*] per Annex A $[*] 3. Quantity [*] per Annex A $[*] 4. Prototype Components Documentation per Annex A [*] 5. Prototype Integration and Test Support per Annex A $[*] 6. Prototype Field Trials Support per Annex A $[*]


Prototype Agreement Price (Items 1 through 6) $[*]


Basic Agreement Commercial Development


7. Commercial System Development per Annex E [*] 8. Commercial System Documentation per Annex E [*]
--------- Commercial Agreement Price (Items 7 and 8) $ [*]


Options 9. In House Engineering Support (per man week) $[*] 10. Field Support (per man day) $[*] 11. Field Support Travel (per man trip) $[*]
Software [*] 12. Software [*] $[*] 13. Annual Maintenance Fee $[*]


8.2 The Price of item 7 in section 8.1 shall be based on Metawave's reasonable
standard and customary rates for the scope of services defined and agreed
as part of the commercial system development.


8.3 Samsung may exercise option items 9, 10 and 11 by notifying Metawave in
writing of the level of required effort and duration. Option items 9, 10
and 11 shall remain valid and exercisable by Samsung until [*] After EDA.


8.4 The fees specified in this Section 8 (item 1 to 11) shall be deemed to
cover all the compensation and expenses to be paid or reimbursed by Samsung
to Metawave in connection with the performance of Services by Metawave
under this Agreement, including the Services provided as option.


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8.5 The parties agree that the price of items 5 and 6 assumes subsistence costs
and travel cost based on field testing at Samsung facilities in Korea. When
a field trial location has been selected, prices for travel and subsistence
shall be adjusted as mutually agreed based on Metawave's reasonable
standard and customary rates.


8.6 [*].


8.7 Samsung shall pay to Metawave [*] in accordance with item 13 above. The [*]
shall be due beginning [*] following the initial delivery of the software
[*] as defined in item 8.6, and thereafter [*] as long as this license
agreement is in effect. This fee shall provide for up to [*] for the [*]
provided under and in accordance with section 11 of this License Agreement.
Samsung shall have the right to terminate the software [*] support by
providing written notification Metawave [*] prior to the beginning of the
annual term of renewal. In the event that Samsung terminates the software
[*] support Metawave shall no longer be responsible for supporting Samsung
[*] configuration.


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Section 9 Payments


9.1 Payment for Items 1 through 6 of Section 8.1 hereof shall be made in
accordance with the following schedule:


[*]


* AEDA means After Effective Date of Agreement


9.2 Payment for items 7 and 8 of Section 8.1 shall be made as follows:


[*]


9.3 The [*] for the Prototype Agreement Price defined in Section 8.1 hereof
(hereinafter called "Agreement Price") shall be made by Samsung to Metawave
[*] following the signing of this Agreement and after Samsung's receipt of
appropriate invoice issued by Metawave. Payment shall be made in U.S.
dollars [*]. All other payments under Section 9.1 hereof, except as
otherwise specifically agreed upon between the parties hereto in writing
shall be made within [*] after Samsung's receipt of appropriate invoice
issued by Metawave. Payments of the amounts specified in section 9.1 shall
be made in U.S. dollars [*]


9.4 If Samsung's payment as specified in section 9 is delayed and such [*]


9.5 If for fault of Samsung, the start of the Prototype Field Trials are [*]


9.6 If for fault of Samsung the start of the Field Trials is delayed or the
duration of the Field Trials is extended for more than [*],[*] as specified
under the Agreement shall be paid forthwith.


9.7 [*] shall bear and pay all United States taxes that may be imposed on
payments made to Metawave according to the terms of this agreement. [*]
shall pay all other fees and taxes.


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Section 10 Samsung Furnished Equipment and Services


10.1 Samsung shall furnish to Metawave for use in connection with and under the
terms of this Agreement, the equipment and services described in Annex B
attached hereto, together with such related data and information as
Metawave may request and as may reasonably be required for the intended
use of such equipment (hereinafter called "Samsung Furnished Equipment and
Services").


10.2 Title to the equipment to be delivered pursuant to Section 10.1 above
shall remain with Samsung. Upon delivery of the equipment specified in
item 10.1 above, Metawave shall assume risk of loss for such equipment
excluding normal wear and failures do to normal operation while the
equipment is at Metawave's facilities. Title to such equipment shall not
be affected by the incorporation or attachment thereof of any property not
owned by Samsung.


10.3 The schedule of the performance of the Services are based upon the
expectation that Samsung Furnished Equipment and Services will be
furnished by Samsung at the times stated in Annex B attached hereto. In
the event the Samsung Furnished Equipment and Services are not delivered
to Metawave by such time or times, the schedule of the performance of the
Services, or the applicable price therefore or both shall be mutually
adjusted accordingly.


10.4 At the completion of Metawave's obligation under the terms of this
Agreement or upon earlier termination of this Agreement, Samsung furnished
equipment shall be returned to Samsung, FOB Metawave's Facilities.


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Section 11 Intel ...