J, Chris et al
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<PAGE> 1
Exhibit 10.9
Analog Devices, Aware, Westel International, Westell
Development Agreement
Low Cost DMT ADSL
Westell International Inc. (WIN), Westell Inc. (Westell), Analog Devices Inc.
(ADI) and Aware Inc. (Aware) have been cooperating with each other to provide
low cost DMT ADSL systems for British Telecom (BT) and other customers
worldwide. It has been determined by the parties that the intentions of the
Memorandum of Understanding dated 29 June 1994 should be modified given the
current delivery schedule.
The purpose of this Development Agreement is to identify the agreed commitments
of the parties necessary to accelerate the availability of low cost DMT ADSL
systems, enable WIN and Westell to complete proposals for pricing and product
availability as well as to communicate to customers the WIN and Westell ADSL DMT
systems architecture, transceiver performance commitments, planned product
migration as well as to provide commercial terms for the purchase of components
from ADI.
1. WIN will continue to act as prime contractor for BT and other international
customers.
2. WIN and Westell will continue to provide AWARE and ADI product definition
documentation and systems design information according to the deliverables
in the milestones schedule.
3. ADI and AWARE will supply WIN and Westell with relevant Digital Signal
Processor (DSP), Applications Specific Integration Circuits (ASIC's) and
standard ADI component parts with optimized AWARE ADSL firmware in order to
meet the attached milestones.
4. ADI and AWARE each will be responsible to direct its own resources in
connection with fulfilling the milestone schedules and will be responsible
for the availability of a low cost ADSL transceiver and systems
architecture and product offering.
5. ADI and AWARE will continue to participate in direct support of WIN and
Westell customer discussions for the purposes of clarifying product
requirements, support of worldwide standards activities and communication
of project schedule updates. As appropriate, WIN and Westell will invite
representatives from both ADI and AWARE to meetings in support of customer
requirements.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 1 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
6. ADI and AWARE will provide timely and mutually agreed reasonable levels
of technical assistance and support at agreed upon venues to WIN and
Westell that demonstrates progress being made towards agreed upon milestone
deliverables.
7. WIN or Westell may terminate this agreement based on the BT cancellation of
its development contract with WIN and/or ADI and AWARE failing to fulfill
the milestone requirements in this Development Agreement. If termination is
based on BT cancellation, payment by WIN or Westell to ADI and AWARE for
achieved milestones are due and payable according to the terms of this
agreement.
8. It is agreed by ADI, AWARE and WIN and Westell that pricing, technical
performance and product availability benefits which arise from this
Development Agreement can be made available to the ADI and AWARE
consortium, as per the Participation Agreement dated 20 October 1993,
unless specifically restricted under separate agreement by WIN, Westell,
ADI and AWARE.
9. Licenses and Proprietary Information
(a) This Agreement does not grant to WIN or Westell by implication, estoppel or
otherwise, a license to any patent or know-how owned by ADI or AWARE
("Developer"), other than the license to use such technology when resident
in the devices that will be purchased from ADI subsequent to the completion
of the work.
(b) All discoveries, developments, improvements, and inventions conceived or
first reduced to practice in the performance of this Agreement by a
Developer's employees shall be the sole and exclusive property of such
Developer.
(c) All discoveries, developments, improvements, and inventions conceived or
first reduced to practice in the performance of this Agreement by WIN or
Westell employees shall be the sole and exclusive property of WIN and
Westell.
(d) In the event that the employees of a Developer and WIN and/or Westell
jointly invent devices, circuits, processes, apparatus, or systems relating
to this Agreement, then the joint invention shall be jointly owned by the
parties without accounting to either party.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 2 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
In the event of a joint invention which is patentable, the patent expenses
shall be divided equally between the parties, unless one party states in
writing that it does not wish to join in the patent application in a given
country in which case the non-joining party shall have no rights in that
country.
10. The revised and modified Development Agreement between BT and WIN contains
the following WIN Milestones:
WIN Milestones
A 25 Sep 95 Provide a platform to BT that allows core transceiver
testing including 2 Mbps and 6 Mbps operation with a 96 kbps
control channel including an active POTS filter. BT would
test this platform for DMT transmission performance results
and send the test results to WIN.
B 15 Dec 95 Provide a first prototype system to BT that includes an
access multiplexer and ADSL line cards to allow performance
testing of the line cards and functional testing of the
multiplexer in a static configuration. The system would
consist of 1 shelf, 2 sets of common equipment cards and 2
sets of ADSL line cards.
C 15 Mar 96 Provide a pre-production reference model that
passes performance testing and has been parametrically
tested. This system would consist of the same number and
type of components as milestone B and would be expected to
pass the acceptance test plan established by that time.
D 28 Jun 96 Provide pilot production systems to BT consisting of 2
multiplexers each equipped with two sets of line cards.
These systems would be representative of production systems.
11. In order to accomplish the WIN Milestones, WIN requires the performance of
ADI and AWARE to develop a DMT transceiver capable of at least 2.048 Mbps
and 6.144 Mbps downstream in addition to a 96 kbps bi-direction control
channel with associated ATM and ADSL overhead. This transceiver must be
capable of the performance specified in BT "ADSL Product Requirements for
BT/Westell Development Contract MC589932". In order to accomplish this, ADI
and AWARE commits to the following Milestones:
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 3 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
ADI and AWARE Commitment Milestones
1. 12 May 95 ADI to provide WIN with complete schematics for a
"generation one" DMT transceiver that includes the hybrid
(using the AD815), the AFE (using the AD 870), the Digital
Filter Integrated Circuit (DFIC), SHARC DSP (21061 or 21062)
and Digital Interface ASIC (DIA) chips.
2. 12 May 95 ADI to provide all required IC documentation including
pinouts and package mechanical data as well as electrical
specifications.
3. 21 Jul 95 Aware to provide WIN with 0.5 Software with DBE 2
and AFE2 boards to support the transceiver configuration and
operation at 2 Mbps and 6 Mbps (ATM) rates with 96 kbps bi-
directional control channel.
4. 12 Aug 95 Aware to provide WIN with TICL interface software in order
to support Westell hardware and software integration in
Aurora, Illinois.
5. 21 Aug 95 ADI to provide WIN with samples of all IC's necessary to
complete assembly of six transceivers (three lines).
6. 15 Sep 95 ADI to provide WIN with X-Grade IC's for eight
transceivers (four lines).
7. 28 Sep 95 AWARE to provide WIN with 1.0 software capable of
TICL controlled configuration, diagnostics and status
required to support transceiver performance in accordance
with the BT requirements.
The ADI and AWARE commitment milestones represent the minimum set of
milestones necessary to execute the commitments for WIN and Westell
DMT ADSL customers. Delay in keeping milestone commitments will impact
WIN competitiveness in the marketplace and customer satisfaction.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 4 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
12. While it is recognized by the parties that the ADI and AWARE
commitment milestones schedule do not represent an acceleration of
availability of low cost DMT ADSL in the marketplace, it has been
agreed that a level of remuneration based upon milestone achievements
is appropriate. Therefore, WIN and Westell agree to make the following
payments to ADI and AWARE based on milestone achievements and WIN's
success in delivering against the BT contract and other WIN and
Westell customer milestones:
Milestone Date ADI Payment Aware Payment
1, 2 [redact] [redact] [redact]
3 [redact] [redact]
4 [redact] [redact]
5 [redact]
6 [redact]
WIN-A [redact] [redact] [redact]
7 [redact] [redact]
WIN-B [redact] [redact] [redact]
WIN-C [redact] [redact] [redact]
WIN-D [redact] [redact] [redact]
Total potential payout [redact] [redact]
* A milestone payment of [redact] is due and payable to ADI
if ADI achieves milestone #5 on or before [redact].
+ A milestone payment of [redact] is due and payable to ADI
if ADI achieves milestone #6 on or before [redact].
Each ADI and AWARE commitment milestone payout is based on performance versus
the milestone. If the milestone deliverable is achieved, payment will be made
within 45 days after receipt of an invoice from ADI and AWARE. If the milestone
deliverable is not achieved, payment for the milestone will not be made.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 5 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
The WIN Milestones payouts are provided to identify the critical nature of
the ADI and AWARE joint cooperation in achieving the WIN deliverables to
BT. Achieving the WIN deliverables will require ADI and AWARE to provide
appropriate and necessary levels of technical support to WEN. Category 1
and 2 is defined as ADSL product specifications according to the T1E1.4
ANSI standards committee.
13(a) In order to be competitive in the marketplace, WIN and Westell will
require transceiver pricing which meets customers requirements. ADI
agrees to supply WIN and Westell at an equivalent component purchase
price of [redact] per line for each Low Cost DMT ADSL transceiver
(Generation 1) ordered for delivery to WIN between the date of this
agreement and 28 June 1996.
(b) ADI agrees to supply WIN and Westell at an equivalent component
purchase price per line according to the price schedule below for each
Low Cost DMT ADSL transceiver (Generation 2 - a Category 2 compliant
DMT processor with DFIC DSP and an integrated Category 1 AFE)
ordered for delivery to WIN on or after 29 June 1996.
(c) ADI agrees to supply WIN and Westell at an equivalent component
purchase price per line according to the price schedule below for each
Low Cost DMT ADSL transceiver (Generation 3 - comprised of the digital
components of Generation 2 and a discrete category 2 AFE). Ordered for
delivery to WIN on or after 1 Jan 1997.
(d) ADI plans to supply WIN and Westell at an equivalent component
purchase price per line according to the price schedule below for each
Low Cost DMT ADSL transceiver (Generation 3+ - a reduced size Category
2 DMT processor with DFIC DSP and an integrated Category 2 AFE) with
an expected availability date of 30 June 1997. WIN and Westell is
authorized to make quotations in the marketplace for the Generation 3+
product offering based on the planned but not committed pricing and
availability schedule.
[redact]
Pricing is per line for ADI provided components only and does not include
any third party royalties to valid patent holders. Only Generation 1
pricing includes hybrid and line components and the line driving subsection
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 6 of 10
17 May 1995
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Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
14. ADI commits that its DMT Transceiver architecture with component parts, not
including the hybrid and line driving subsection, will have a power
consumption no greater than 3 watts per line effective June 30, 1996. This
commitment will allow WIN and Westell to complete systems architecture and
product development planning activities necessary to complete customer
requests for proposals during 1995 and thereafter in order to meet customer
requirements for systems level integration, network planning and product
roll-out during 1996 and thereafter.
15. Confidentiality
The parties agree that any information, technical data or know how, which
is furnished or has been already furnished to the other in written or
tangible form by either party under or in connection with this Agreement
and marked as "Proprietary Information" or "Confidential", will be
maintained by the receiving party in confidence during the term of this
Agreement and for a period of five (5) years thereafter and will not be
used by the receiving party except to fulfill the receiving party's
obligations under this Agreement.
Oral disclosure will be covered by this Agreement only if such disclosures
are reduced to writing and transmitted by the disclosing party to the other
within thirty (30) days of the original disclosure and marked as provided
above. Neither party shall be under any obligation to maintain in
confidence any portion of the information which is (i) already in the
possession of the receiving party or its subsidiaries; (ii) independently
developed by the receiving party or its subsidiaries; (iii) publicly
disclosed by the disclosing party; (iv) rightfully received by the
receiving party or its subsidiaries from a third party; (v) approved for
release by written agreement with the disclosing party; (vi) available by
the inspection of products marketed or offered for sale by either party
hereto or others in the ordinary course of business; or (vii) disclosed
pursuant to the requirement or request of a governmental agency or third
party to the extent such disclosure is required by operation of law,
regulation or court order.
16. Limitation of Claims
Except for warranty claims, No suit or action shall be brought against any
party more than one (1) year after the related cause of action has occured.
As to warranty claims the applicable period shall be one year after the
product warranty period which shall be one year.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 7 of 10
17 May 1995
<PAGE> 8
Analog Devices, Aware, Westell International, Westell
Development Agreement
Low Cost DMT ADSL
In no event, shall the accrued total liability of any party from any
lawsuit, claim, warranty or indemnity exceed the aggregate sum paid or due
to ADI and Aware under this development agreement. No party provides any
indemnity from and against any liabilities, losses, damages and expenses
(including attorney's fees) relating to claims for personal injuries, death
or property damage.
In no event shall any party be liable for indirect, special, incidental, or
consequential damages due to any breach of this Agreement or of any
warranty or any other cause whatsoever.
17. Notices
Written notices hereunder are deemed to be given when telexed, faxed or
mailed first class, postage prepaid, to the addresses of the parties as set
forth herein, or such other addresses as shall be furnished in writing, by
either party. All parties shall be copied on any notice for such notice to
be effective.
Analog Devices Inc. Aware Inc.
181 Ballardvale Street One Memorial Drive
Wilmington, MA 01887-1024 Cambridge, MA 02142-1301
Facsimile: +1-617-937-1022 Facsimile: +1-617-577-1710
Westell International Inc. Westell Inc.
2701 N. Rocky Point Drive 101 Kendall Point Drive
Suite 530 Oswego, IL 60543
Tampa, FL 33607 Facsimile: +1-708-851-5299
Facsimile: +1-813-286-1957
18. Non - Assignability
Except for WIN assignments to Westell, this Agreement is not assignable by
either party without the prior written consent of the other party. Any
attempt to assign this Agreement without the prior written consent of the
other party shall be void.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 8 of 10
17 May 1995
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ANALOG DEVICES, AWARE, WESTELL INTERNATIONAL, WESTELL
DEVELOPMENT AGREEMENT
LOW COST DMT ADSL
19. Other Agreements
This Agreement contains the entire understanding of the parties with
respect to the subject mater hereof and supersedes the June 29, 1994 MOU
and all other agreements and understandings relating thereto, written or
oral, between the parties, except for the Participation Agreement dated 20
October 1993. Amendments to this Agreement must be in writing, signed by
the duly authorized officers of the parties. Except as provided herein, the
parties agree that the terms and conditions of this Agreement shall
prevail, notwithstanding contrary or additional terms, in any purchase
order, sales acknowledgment, confirmation or any other document issued by
either party including the Schedules attached hereto.
20. Miscellaneous Provisions
(a) This Agreement shall be construed, governed, interpreted and applied in
accordance with the laws of the Commonwealth of Massachusetts, USA, except
that questions affecting the construction and effect of any patent shall be
determined by the law of the country in which the patent was granted.
(b) No provision of this Agreement is intended to conflict with any law, and
the provisions should be construed in a manner that will uphold their
validity. In the event that any provision is found to be contrary to any
law, it shall be deemed unenforceable, and the parties or the court shall
substitute a lawful provision in its place which is equitable and which, to
the extent possible, reflects the original intent of the parties. Unless it
would be inequitable to do so, all other provisions of this Agreement shall
remain in full force and effect.
(c) The failure of either party to assert a right hereunder or to insist upon
compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other party.
21. Force Majeure
Neither party shall be liable for delay in performance or failure to
perform in whole or in part the terms of this Agreement due to strike,
labor dispute, act of war, labor shortage, riot or civil commotion, act of
public enemy, fire, flood or act of God or other cause beyond the control
of such party.
Analog Devices Inc., Aware Inc., Westell International Inc., Westell Inc.
Proprietary and Confidential
Page 9 of 10
17 May 1995
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