**Exhibit 10.1**

 

ANI and Vyyo Proprietary & Confidential

 

EQUIPMENT PURCHASE AGREEMENT

 

BETWEEN

 

VYYO INC.

 

AND

 

ARCADIAN NETWORKS INC.

 

Vyyo Inc. has requested confidential treatment pursuant to the rulesand regulations of the Securities Exchange of 1934, as amended, for certainportions of this exhibit identified by ***

 

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**THIS EQUIPMENT PURCHASE AGREEMENT**(this“Agreement”) is entered into effective as of March 31, 2006 (the “EffectiveDate”), by and between Vyyo Inc., a Delaware corporation, having its principalplace of business at 4015 Miranda Avenue, First Floor, Palo Alto, California94304, United States (hereinafter referred to as “Vyyo”), and Arcadian NetworksInc., a Delaware corporation, having its principal place of business at 26Broadway, 21st Floor, New York, New York 10004(hereinafter referredto as “ANI”).

 

**WHEREAS**, Vyyo isengaged in the business of manufacturing, selling and installing the Products,including the Spare Parts (as defined below) described in **Schedules A-1 and A-2**respectively.

 

**WHEREAS**, Vyyo alsoprovides certain Services (as defined below) relating to the Products.

 

**WHEREAS**, ANI desiresto purchase the Products (including the Spare Parts) and Services from Vyyo andVyyo desires to sell the Products (including the Spare Parts) and deliver theServices to ANI, upon the terms and conditions set forth herein.

 

**NOW THEREFORE**, theparties agree as follows:

 

# **ARTICLE 1.CERTAIN DEFINITIONS**

 

“Agreement” means this Agreement and the following schedules andexhibits which are attached hereto and form part of this Agreement:

 
| **Schedule A-1 -**          |   | Product (not including Spare Parts) list  and Pricing |
|----------------------------------|--------|-------------------------------------------------------|
| **Schedule A-2**-           |   | Spare Parts list and Pricing                          |
| **Schedule A-3**-           |   | New Product Pricing Procedure                         |
| **Schedule B-1 -**          |   | Minimum Product Purchase Amounts                      |
| **Schedule B-2 -**          |   | Forecast Amount                                       |
| **Schedule B-3 -**          |   | Exclusivity Amount                                    |
| **Schedule C-1**-           |   | Support Services and Rates                            |
| **Schedule C-2**-           |   | Maintenance Services and Rates                        |
| **Schedule C-3**** **- |   | Extended Warranty and Rates                           |
| **Schedule C-4**** **- |   | Training Services and Rates                           |
| **Schedule C-5**** **- |   | Miscellaneous Services and Rates                      |
| **Schedule D -**            |   | Escrow Agreement                                      |
| **Exhibit 1**** **-    |   | Initial Purchase                                      |
| **Exhibit 2 -**             |   | Insurance                                             |

 

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“Product” or “Products” shall mean (i) the products set forth in **Schedule A-1** and any revisions orupgrades thereto, including products intended to replace any products on **Schedule A-1**, (ii) new wirelessproducts introduced by Vyyo (other than revisions, replacements or upgrades tothe products set forth in **Schedule A-1**,which the parties agree are covered in item (i)**)** and any other new products as may be agreed upon by theparties in writing from time to time, and any revisions or upgrades thereto(collectively “New Products”), and (iii) Spare Parts (as defined below). Allsuch products (excluding Spare Parts) shall be added to **Schedule A-1**.

 

“Spare Part” or “Spare Parts” shall mean (i) the spare parts setforth in **Schedule A-2** and anyrevisions or upgrades thereto, including spare parts intended to replace anyspare parts on **Schedule A-2**, (ii) newspare parts introduced by Vyyo (other than revisions, upgrades or spare partsintended to replace any spare parts on **Schedule A-2**,which the parties agree are covered in item (i)) and any revisions or upgradesthereto, (iii) any spare parts necessary for New Products added to **Schedule A-1,** and (iv) any othernew spare parts as may be agreed upon by the parties in writing from timeto time (collectively, (ii) – (iv) referred to herein as “New SpareParts”). All such spare parts shall be added to **Schedule A-2**.

 

“Product End of Life” or “Product EOL” shall mean such time when (i) Vyyoreasonably concludes that it will no longer manufacture or procure a Product, (ii) suchProduct has been replaced by the next generation of such Product and Vyyo hasdetermined not to continue to manufacture or procure such earlier generationProduct, or (iii) Vyyo reasonably concludes that it can no longer obtainthe components it requires to manufacture a Product on a commerciallyreasonable basis.

 

“Material Component End of Life” or “Material Component EOL” shall meansuch time when (i) Vyyo reasonably concludes that it will no longer obtaina material Product component(s) it requires to manufacture a Product on acommercially reasonable basis, or (ii) a material Product component hasbeen replaced by the next generation of such component and the manufacturer hasdetermined not to continue to manufacture such earlier generation component.

 

“Minimum Product Purchase Amount” or “Minimum Product Purchase Amounts”shall have the meaning set forth in **Schedule B-1**.

 

“Forecast Amount” shall mean the amount for a specified period as setforth in **Schedule B-2**.

 

“Exclusivity Amount” shall mean the amounts set forth in **Schedule B-3**.

 

 “Price” or “Prices” shall meanthe prices payable to Vyyo in consideration for the sale of Products and/orServices as set forth in **Schedule A-1,A-2, C-1, C-2, C-3, C-4 and C-5**.

 

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“Product Purchase Amount” shall mean, for each year (or otherapplicable period) of the Term, the aggregate Prices paid or to be paid by ANIto Vyyo for Products shipped and to be shipped within such year (or otherapplicable period) based upon the shipping dates set forth in accepted PurchaseOrders, provided however that if any Products are shipped by Vyyo on a datethat is later than the shipping date set forth in an accepted Purchase Order asrequested by ANI pursuant to Section 6.4 below the relevant year (or otherapplicable period) shall be based on the actual shipping date for suchProducts.

 

“Relevant Market” shall have the meaning set forth in Article 18.

 

“Relevant Territory” shall have the meaning set forth in Article 18.

 

“Miscellaneous Services” shall have the meaning set forth in Section 2.3.

 

“Standard Services” means the Services described in **Schedules C-1**, **C-2**, **C-3,**and**C-4.**

 

“Services” means the Standard Services and the Miscellaneous Services.

 

“Software” shall mean the Vyyo proprietary and third party softwareprovided with any of the Products purchased hereunder, including withoutlimitation the network management software (“NMS”).

 

# **ARTICLE 2.SALE AND PURCHASE OF EQUIPMENT AND SERVICES**

 

2.1           ANImay, from time to time, purchase Products from Vyyo at the Prices set forth in **Schedules A-1 and A-2**. Vyyo agrees to sellto ANI and ANI agrees to purchase from Vyyo such Products in accordance withthe terms of this Agreement.

 

2.2           ANImay, from time to time, purchase the Standard Services from Vyyo at the Pricesset forth in **Schedules C-1, C-2, C-3**and**C-4**. Vyyo agrees to sell to ANI suchStandard Services in accordance with the terms of **Schedules C-1**,**C-2, C-3**,and **C-4** respectively and thisAgreement.

 

2.3           ANImay request, during the eighteen (18) months following the Effective Date,to purchase additional services to be performed by Vyyo employees whichservices are within such employees’ areas of expertise (the “MiscellaneousServices”). The Miscellaneous Services shall not include software or productdevelopment services. Vyyo shall provide Miscellaneous Services to ANI inaccordance with the hourly and/or daily (as applicable) Prices set forth in **Schedule C-5**, subject to suchemployees’ reasonable availability given such 

 

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employees’ work commitments for Vyyo. The parties shall negotiate ingood faith and set forth in a statement of work any such Miscellaneous Servicesto be performed by Vyyo employees hereunder, which statement of work shall beattached to the applicable Purchase Order for such Miscellaneous Services andshall include a performance schedule, any applicable deliverables and anyadditional terms applicable to such Miscellaneous Services. Any MiscellaneousServices shall be performed by Vyyo’s employees subject to the direction andcontrol of ANI.

 

2.4           Thereshall be an initial purchase (the “Initial Purchase”) of Products and Services,which Initial Purchase shall consist of the quantity, type and shipment schedule ofProducts and Services to be delivered and be subject to the additional termsand conditions set forth in **Exhibit 1**.The parties shall mutually agree upon shipment dates for the Productsidentified in the Initial Purchase.

 

2.5           Vyyoshall assist ANI, during the 12 months following the Effective Date, inidentifying any standard off-the-shelf test equipment which may be used totest and maintain the Products and in specifying any customization of such testequipment appropriate for such purpose.

 

2.6           Vyyomay only remove a Product from **Schedule A-1**or **A-2** at the Product EOL for suchProduct. Except as set forth below with respect to third party Products or Productscontaining material third party components (collectively “Third Party Products”),if a Product is approaching its Product EOL, Vyyo shall provide a minimum of 12months advance written notice of such Product EOL to ANI before such Productcan be removed from **Schedules A-1 or A-2**.Notwithstanding any Product EOL of such Product, Vyyo shall continue to supportany such Product for the lesser of (A) a period of 5 years from the lastdate of sale of such Product to ANI or (B) 2 years from the Product EOL ofsuch Product. Notwithstanding the foregoing, if a Third Party Product isreaching its Product EOL , Vyyo may remove such Third Party Products from **Schedules A-1** and **A-2** at such Third Party Product’s ProductEOL as determined by the third party manufacturer, but shall provide ANI with “back-to-back”advance written notice of the Product EOL of any such Third Party Productspromptly after Vyyo’s receipt of notice thereof from such third partymanufacturer(s) and will provide “back-to-back” support as provided by suchthird party manufacturers. Any Purchase Orders issued within the 12 monthnotice period or “back-to-back” notice period, as the case may be, for anyProduct (or Third Party Product, as the case may be) at its Product EOLshall be filled by Vyyo in accordance with the provisions of Article 4.

 

2.7           Inthe case of Material Component EOL that does not affect functionality (iffunctionality is affected, the event shall be treated the same as a ProductEOL), 

 

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Vyyo shall provide six (6) months advance written notice to ANIprior to changing such material component.

 

# **ARTICLE 3.PRICE**

 

3.1           Foreach Product set forth on **Schedules A-1 andA-2** as of the Effective Date there is a Price for such Productlisted on **Schedules A-1 or A-2, respectively**.For Products added to **Schedules A-1 or A-2**after the Effective Date the initial Prices for such Products will bedetermined in accordance with the New Product Pricing Procedure set forth on **Schedule A-3**. For the avoidance ofdoubt, Prices for Products shall be fixed upon acceptance of a Product PurchaseOrder without regard to the shipping date.

 

3.2           Forthe Products set forth on **Schedules A-1 andA-2** as of the Effective Date, the parties agree that the Prices setforth on **Schedule A-1 and A-2**are fixed for a period of 24 months after the Initial Purchase, and then shallbe adjusted as follows:

 

3.2.1        Providedthat ANI’s annual Product Purchase Amount between the first day of the 13thmonth after the Initial Purchase through and including the last day of the 24thmonth after the Initial Purchase (“Year 2”) is equal to or greater than *** butless than the Forecast Amount for Year 2, commencing as of the first day of the25th month after the Initial Purchase, (i) ANI shall be entitled to anaggregate credit equal to 2% of the total Product Purchase Amount for Year 2 (“Year2 Credit”), which credit shall be applied toward all new Product PurchaseOrders until the credit is fully used provided however that the credit appliedto any given Product Purchase Order shall not exceed 30% of the amount of suchProduct Purchase Order and any balance of such credit shall be carried forwardand applied to subsequent Product Purchase Orders in the same manner untilfully used, and (ii) the Prices for Product purchases during the twelve(12) months commencing on that date (“Year 3”) shall be reduced by 2%.

 

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*** *Denotes language for whichVyyo Inc. has requested confidential treatment pursuant to the rules andregulations of the Securities Exchange Act of 1934, as amended*

 

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3.2.2        Provided that ANI’s annualProduct Purchase Amount for Year 3 is equal to or greater than the MinimumProduct Purchase Amount for such year but less than the Forecast Amount forsuch year, commencing as of the first day of the next year (“Year 4”), (i) ANIshall be entitled to an aggregate credit equal to 4% of the total ProductPurchase Amount for Year 3 (“Year 3 Credit”), which credit shall be appliedtoward all new Product Purchase Orders until the credit is fully used providedhowever that the credit applied to any given Product Purchase Order shall notexceed 30% of the amount of such Product Purchase Order and any balance of suchcredit shall be carried forward and applied to subsequent Product PurchaseOrders in the same manner until fully used, and (ii) the Prices forProduct purchases during Year 4 shall be reduced by 4%.

 

3.2.3        Providedthat ANI’s annual Product Purchase Amount for Year 4 is equal to or greaterthan the Minimum Product Purchase Amount for such year but less than theForecast Amount for such year, commencing as of the first day of the next year(“Year 5”), (i) ANI shall be entitled to an aggregate credit equal to 4%of the total Product Purchase Amount for Year 4 (the “Year 4 Credit”), whichcredit shall be applied toward all new Product Purchase Orders until the creditis fully used provided however that the credit applied to any given ProductPurchase Order shall not exceed 30% of the amount of such Product PurchaseOrder and any balance of such credit shall be carried forward and applied tosubsequent Product Purchase Orders in the same manner until fully used, and (ii) thePrices for Product purchases during Year 5 shall be reduced by 4%.

 

3.2.4        Providedthat ANI’s annual Product Purchase Amount for Year 5 is equal to or greaterthan the Minimum Product Purchase Amount for such year but less than theForecast Amount for such year, commencing as of the first day of the next year(“Year 6”), (i) ANI shall be entitled to an aggregate credit equal to 4%of the total Product Purchase Amount for Year 5 (the “Year 5 Credit”), whichcredit shall be applied toward all new Product Purchase Orders until the creditis fully used provided however that the credit applied to any given ProductPurchase Order shall not exceed 30% of the amount of such Product PurchaseOrder and any balance of such credit shall be carried forward and applied tosubsequent Product Purchase Orders in the same manner until fully used, and (ii) thePrices for Product purchases during Year 6 shall be reduced by 4%.

 

3.2.5        Providedthat ANI’s annual Product Purchase Amount for Year 2 is equal to or greaterthan the Forecast Amount for such year, (i) the Year 2 Credit shall beequal to 4% of the total Product Purchase Amount for Year 2 rather than 2% and (ii) theamount of Price reduction for Product purchases in Year 3 shall be 4% ratherthan 2%. Provided that ANI’s annual Product Purchase Amount for Year 3 is equalto or greater than the 

 

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Forecast Amount for such year, (i) the Year 3 Credit shall beequal to 6% of the total Product Purchase Amount for Year 3 rather than 4% and (ii) theamount of Price reduction for Product purchases in Year 4 shall be 6% ratherthan 4%. Provided that ANI’s annual Product Purchase Amount for Year 4 is equalto or greater than the Forecast Amount for such year, (i) the Year 4Credit shall be equal to 6% of the total Product Purchase Amount for Year 4rather than 4% and (ii) the amount of Price reduction for Productpurchases in Year 5 shall be 6% rather than 4%. Provided that ANI’s annualProduct Purchase Amount for Year 5 is equal to or greater than the ForecastAmount for such year, (i) the Year 5 Credit shall be equal to 6% of thetotal Product Purchase Amount for Year 5 rather than 4% and (ii) theamount of Price reduction for Product purchases in Year 6 shall be 6% ratherthan 4%.

 

3.3           Foreach New Product added to **Schedule A-1**or New Spare Part added to Schedule **A-2**after the Effective Date, the parties agree that the initial Price for such NewProduct or New Spare Part (as determined in accordance with **Schedule A-3**) is fixed for a period of24 months after the initial accepted Purchase Order for such New Product and/orNew Spare Part, as applicable, and thereafter shall be reduced for theimmediately subsequent three (3) year periods in accordance with the samediscount structure as with respect to Products (as set forth in Sections 3.2.1through 3.2.5, above). By way of example, the Year 3 discount for existingProducts would apply during the third year after the initial accepted PurchaseOrder for a New Product.

 

3.4           Forpurposes of clarification, if ANI’s Product Purchase Amount for any given yearis less than the Minimum Product Purchase Amount for such year, ANI shall notqualify for the applicable credit for such year or the applicable reduction inPrice for the immediately subsequent year. Thereafter, if ANI’s ProductPurchase Amount for any given year meets or exceeds the Minimum ProductPurchase Amount for such year, ANI shall again qualify for the applicablecredit for such year and the applicable reduction in Price for the immediatelysubsequent year.

 

3.5           ThePrices of Standard Services are set forth in **SchedulesC-1, C-2, C-3**and**C-4**and the Prices for Miscellaneous Services shall be at the hourly or daily rates(as applicable) specified in **Schedule C-5**.

 

3.6           Theprices of Products shall be on an Ex-Works (EXW) basis packed for export atVyyo’s facility, and are exclusive of any and all taxes and/or import dutiesapplicable to the sale or use of the Products sold. Any such tax(es), excepttaxes based upon Vyyo’s net income shall be separately itemized on Vyyo’sinvoice(s) and ANI agrees to assume and pay or cause to be paid any and allsuch taxes and/or other charges incidental to the purchase or sale of suchProducts or, in lieu 

 

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thereof, ANI shall furnish Vyyo with aproperly executed tax exemption certificate prior to shipment. The prices ofProducts may be quoted by Vyyo on a CIP basis, at ANI’s request.

 

3.7           Vyyoagrees that the Product prices, excluding Spare Parts and NMS, set forth inthis Agreement shall, at all times, represent Vyyo’s best Product pricing termsavailable to any Vyyo customer that purchases, in the Relevant Territory,Products in similar or lesser quantities to those purchased by ANI hereunderfor reasonably similar types of usage (a “Vyyo Comparable Customer”). In the eventVyyo grants a Vyyo Comparable Customer a better Product price than thatprovided to ANI hereunder, Vyyo shall, unless prohibited by law, (i) promptlynotify ANI of such lower Product price, and (ii) extend to ANI the morefavorable Product price effective as of the date on which such more favorableProduct prices became effective with respect to such Vyyo Comparable Customer,which more favorable price will be available to ANI to the extent that ANI (x)commits to purchase at least the same volume as committed to purchase by theVyyo Comparable Customer and (y) accepts all of the other terms and conditionsoffered to the Vyyo Comparable Customer and reasonably applicable to a purchaseby ANI (other than terms not reasonably related to the pricing of suchProducts). This Section 3.6 shall not apply retroactively, nor shall it beconstrued as entitling ANI to the return of or credit for any money paid by itprior to the date such more favorable Product price became effective. If morefavorable prices for the Products are added pursuant to this Section 3.7the parties shall promptly amend **Schedule A-1**to include such more favorable Product prices for the length of time as suchmore favorable Product price is available to the Vyyo Comparable Customer. Forthe avoidance of doubt, all provisions of this Agreement relating to Productprices shall continue to apply to such revised Price, including withoutlimitation Sections 3.2 and 3.3.

 

## **ARTICLE 4. PURCHASE ORDERS**

 

4.1           Salesof Products by Vyyo to ANI shall be subject to the terms and conditions of thisAgreement. The terms and conditions of this Agreement shall not be modified orsupplemented by any communication, purchase order, or other document from ANIor Vyyo unless such communication is in writing, identified as an amendment tothis Agreement, and subsequently accepted in writing by an authorized officerof Vyyo and ANI, as applicable.

 

4.2           Vyyoagrees to sell to ANI the Products and Services in accordance with purchaseorders (each a “Purchase Order”) placed by ANI and accepted by Vyyo pursuant tothis Agreement. All Purchase Orders submitted by ANI to Vyyo shall:  (i) reference this Agreement and specifya delivery date for Products no sooner than 90 days from the date of thePurchase Order; (ii) contain definitive list prices 

 

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(based on **Schedules A-1 and A-2**),Product and Service numbers, quantities, discounts and credits to the extentapplicable; and (iii) shall be signed and dated by an authorizedrepresentative of ANI. Purchase Orders shall be binding on Vyyo only whenaccepted in writing (including by facsimile notification) by Vyyo; provided,however, that Vyyo will accept Purchase Orders if by using reasonablecommercial efforts it could fill the Purchase Orders in accordance with thedelivery schedules set forth therein (subject always to the EOL provisions setforth in Section 2.6 and 2.7). During the first two (2) years of theAgreement Vyyo agrees to extend ANI a credit line of 5 million dollars($5,000,000). The amount of the credit line that Vyyo will extend to ANI afterthe initial two (2) years of the Agreement shall be discussed in goodfaith by the parties and mutually agreed upon in writing prior to the end ofthe initial two (2) years of the Agreement. For purposes of clarification,notwithstanding anything to the contrary herein, if at any time during the Termof the Agreement the amount of ANI’s outstanding invoices to Vyyo hereunder,together with the Price for any submitted Purchase Order, exceeds ANI’sthen-current credit line extended by Vyyo to ANI, Vyyo may reject suchPurchase Order unless ANI is willing to pre-pay for such Purchase Order. In noevent shall the foregoing permit Vyyo to reject, or require ANI to pre-pay, theInitial Purchase; provided however, the parties acknowledge and agree that Vyyomay, upon notice to ANI, delay the shipment of Product pursuant to such InitialPurchase to the extent that the then-current outstanding amount owed by ANIpursuant to such Initial Purchase is greater than 5 million dollars ($5,000,000)until such time as the then-current outstanding amount owed by ANI pursuant tosuch Initial Purchase is less than 5 million dollars ($5,000,000).

 

ANI’s forecasts do not bind either party, andVyyo will conduct such preparation towards the fulfillment of Purchase Ordersto an extent and manner as decided by Vyyo. Vyyo will confirm acceptance ofeach Purchase Order by notifying ANI in writing (including by facsimilenotification) of the anticipated date of delivery within seven (7) businessdays of receipt of the Purchase Order. If Vyyo cannot reasonably meet adelivery schedule requested in a Purchase Order, Vyyo may reject suchPurchase Order and notify ANI in writing of Vyyo’s commercially reasonable schedule forfulfillment of such Purchase Order. ANI may, in its discretion, promptlyresubmit such Purchase Order with a revised delivery schedule. If a PurchaseOrder submitted by ANI does not conform to the requirements of thisArticle, Vyyo shall promptly inform ANI of such fact and shall provide ANIwith the opportunity to submit a corrected Purchase Order. Each acceptedPurchase Order shall be governed by this Agreement.

 

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**ARTICLE 5. FORECASTS**

 

5.1.          ANIshall provide Vyyo non-binding forecasts of its anticipated purchase ofProducts as set forth in this Section 5.1. Each forecast submittedhereunder shall state ANI’s anticipated purchase of Products for the succeeding12 month period based on (i) ANI’s actual signed contracts with customers(high-level abstracts of which shall be provided to Vyyo, subject to any ANIconfidentiality obligations) and (ii) other anticipated Product purchasesforecasted by ANI. The first such forecast shall be provided within 60 daysafter the execution of this Agreement. Thereafter, subsequent 12 monthforecasts will be provided on March 1 and September 1 of each year,commencing on September 1, 2006.

 

# **ARTICLE 6.DELIVERY**

 

6.1           Vyyo’s delivery periodof Products from the effective date of the Purchase Order hereunder to the dateof delivery shall be as stated in the Purchase Order accepted by Vyyo asspecified in Article 4.

 

6.2           Vyyoshall inform ANI of the readiness of the shipment of Products ten (10) businessdays in advance of the expected date for shipment by fax / e-mail which shallcontain the following information:

 

(a)           PurchaseOrder number and description of the Product;

(b)           Unitprice and total value of the Product to be shipped;

(c)           Estimatednet, gross weight and measurement of the packages to be shipped (if on an EXWbasis).

 

6.3           Vyyoshall ship the Products to ANI at the location designated by ANI in theapplicable Purchase Order, which may be the premises of ANI’s customer. Theparties shall mutually agree upon the method of shipment for Products. Thetitle as well as the risk of the loss or damage to Products shall pass to ANIfrom Vyyo at the time of EXW delivery at Vyyo’s facility as defined inINCOTERMS 2000. Further, for the avoidance of doubt, all shipping and handlingcosts incurred to ship the Products to ANI at the location designated by ANI inthe applicable Purchase Order, which may be the premises of ANI’scustomer, will be borne by ANI. In the event of a CIP price quote by Vyyo andan acceptance of the CIP price quote by ANI, the risk of loss shall pass inaccordance with CIP as defined in INCOTERMS 2000.

 

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6.4           ANImay reschedule Product deliveries in advance of Vyyo’s scheduleddelivery dates as follows:

 
| **Days prior to original** | ** ** | **Rescheduled Product Delivery** |
|-------------------------------------------|------------|--------------------------------------------|
| **Product Delivery Date**       | ** ** | **(“push out”) Dates** |
|                                      |       |                                       |
| 0-30                                      |       | None                                       |
| 31-60                                     |       | up to 15 days from original date           |
| 61-90                                     |       | up to 30 days from original date           |
| 91+                                       |       | up to 60 days from original date           |

 

providedhowever that no rescheduled Product delivery dates shall be permitted if theeffect of such rescheduling is to change the calendar quarter in which suchdelivery was originally scheduled.

 

6.5           AProduct delivery date may only be rescheduled (whether in whole or inpart) once from its original Product delivery date, except for the shipment anddelivery dates for the Initial Purchase which may be rescheduled by ANImore than once provided that ANI shall notify Vyyo of any rescheduled shippingdate for Product covered by the Initial Purchase at least three (3) monthsin advance of the scheduled shipping date for such Product and provided furtherthat 70% of the Products contained in the Initial Purchase are shipped within2006 and 100% of the Products contained in the Initial Purchase are shippedwithin 12 months from the Effective Date.

 

6.6           UponANI’s request Vyyo will use its commercially reasonable efforts to accelerateProduct delivery dates and subject to ANI agreeing to meet any increased costsas a result of such activity.

 

6.7           ANIshall have the right to re-sell the Products within the Relevant Territory toend-users (and only to end-users) in the Relevant Market.

 

6.8           ANIagrees that following completion of the fourth year of the Term of thisAgreement, ANI shall use all commercially reasonable efforts to re-sell theProducts (or obtain contracts for the provision of services that ANI offersbased on the Products) in the Relevant Territory to end-users in the RelevantMarket. ANI agrees that its commercially reasonable efforts shall include, inaccordance with such priorities as ANI may reasonably establish andconsistent with the size of ANI’s business and then-existing sales force,seeking to re-sell the Products (or services) throughout the Relevant Territoryand to end-users in all portions of the Relevant Market.

 

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### **ARTICLE 7. ACCEPTANCE TEST**

 

7.1           Vyyoshall provide ANI (or its customers or designees) with the opportunity fromtime to time to observe factory processes and procedures with respect to theProducts, upon reasonable advance request and during normal business hours andsubject to normal confidentiality procedures.

 

7.2           AcceptanceTests:

 

7.2.1        Withrespect to the Initial Purchase, ANI shall accept the “A-Band Base Stations” asand when such base stations are accepted by Great River Energy (“GRE”)according to the GRE “SAT” field test that was agreed to by Vyyo and GRE (andreasonably acceptable to ANI). Thereafter, there shall not be any fieldacceptance requirements for the Initial Purchase and the Products shall bedeemed accepted when delivered, subject to Sections 7.2.2 (regarding the V-290iProduct) and 7.2.3 (regarding the New Products).

 

7.2.2        Withrespect to the V-290i Product, such V-290i Product shall be accepted by ANI atsuch time as Vyyo delivers the first V-290i Product to ANI (or its designee)and demonstrates that such V-290i Product performs in accordance with itsspecifications.

 

7.2.3        IfVyyo develops New Products to be added to **SchedulesA-1 or A-2** hereunder, the parties shall agree on an initial purchaseacceptance procedure for such New Products.

 

7.3                           Specifications foreach Product shall be initially generated by Vyyo in the ordinary courseconsistent with its customary practices based on the expected performance ofsuch Product in actual use. If ANI reasonably requests, Vyyo shall provide moredetailed specifications for a Product if such specifications can be providedthrough commercially reasonable means, including by addressing types of Productfunctionality not part of the original specification for such Product (butwithin the then-current design capability of the Product - this requirement toprovide additional detail will not require Vyyo to redesign or modify theProduct).

 

7.4           ANI,from time to time, either for itself or for its customer, may request thatVyyo develop new functionality for an existing Product or develop one or moreNew Products. In such a case, ANI shall notify Vyyo in writing of such arequest. If Vyyo agrees to develop such new functionality or New Products, Vyyowill, within a commercially reasonable period, provide ANI with a changeproposal. Such change proposal shall include: (i) the technical changesrequired as a result 

 

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of the change request; (ii) any corresponding changes in deliveryschedule; (iii) any corresponding change in the price; and/or (iv) theengineering costs associated with such change request. ANI may at its solediscretion, approve the change proposal, or reject the change proposal, byproviding written notice thereof to Vyyo. Upon written approval of the changeby the parties, **Schedule A-1 and****A-2** as applicable, shall beamended to reflect the new Product, new specification and/or Price.

 

### **ARTICLE 8. PAYMENT**

 

8.1           Asto all Product purchases, payment shall occur no later than 30 days after thefirst day of the calendar month following the date of shipment (as stated inthe related invoice which shall accompany each Product shipment). All Productsshall be shipped in accordance with Article 6. Payments made later than 30days after the first day of the calendar month following the date of shipmentwill be subject to interest at a rate of 15% per year.

 

8.2           AllPayments shall be in U.S. dollars.

 

8.3           Allinvoices shall be prepared by Vyyo in good faith and in accordance with thisAgreement. Notwithstanding anything to the contrary herein, if ANI reasonablydisputes any amounts invoiced hereunder in good faith, ANI shall (i) provideVyyo with written notice of such dispute, (ii) pay to Vyyo the undisputedamount, if any, on or before the due date, and (iii) (subject to thefollowing) shall have the right to place the disputed amount in escrow on orbefore the due date rather than paying such amount to Vyyo. The parties shalluse good faith efforts to resolve any such dispute within thirty (30) days, butat any time either party may refer such matter to expedited arbitration. Inthe event that ANI deposited the disputed amount into escrow and it isdetermined in such arbitration that such amount was due and owing as invoiced,the disputed amount shall be released to Vyyo with interest earned while in theescrow account from the initial due date. If an arbitrator determines more thanonce in any two year period that ANI did not have a reasonable basis for anydispute where ANI deposited the disputed amount into escrow, then ANI shall nolonger have the ability to withhold and deposit into escrow any payments inaccordance with this process. For the avoidance of doubt, an arbitrator’sfinding in favor of Vyyo regarding a disputed amount shall not be automaticallyconstrued to mean that ANI’s dispute was unreasonable nor shall ANI’s use ofthe dispute mechanism set forth in this Section 8.3 be deemed a breach ofthis Agreement. ANI is not obligated to withhold and escrow payment to disputeany amount. ANI always has the right to pay any amount when due, dispute suchamount within a reasonable time frame thereafter, and receive a refund of anyimproperly invoiced amount. Similarly, if the arbitrator determines more thanonce in any two year period that Vyyo did not have a reasonable basis 

 

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for the submission of an invoice, then ANIshall no longer need to deposit payment for a disputed amount into escrow todispute an invoice in accordance with this Section.

 

### **ARTICLE 9. PACKING AND MARKING**

 

9.1           Unlessotherwise instructed by ANI in writing, the packing and marking of Productsshall be made for U.S. shipment in accordance with then current Vyyo standardfor shipment, which is and shall be proper and sufficient to withstand allmodes of shipment under normal transportation conditions.

 

9.2           Vyyoshall not be responsible for any damage or loss caused by any instructedpacking and/or marking by ANI, except to the extent caused by Vyyo’s negligenceor willful misconduct.

 

### **ARTICLE 10. INSURANCE**

 

10.1         ANIis responsible to arrange and obtain all insurance covering the shipment fromEXW delivery to ANI’s (or ANI’S designated) facilities at ANI’s own cost.

 

10.2         Inthe event of an accepted CIP price quote for a Product, Vyyo is responsible toarrange and obtain all insurance covering the shipment of the Product from theCIP point of shipment/delivery to ANI’s (or ANI’s designated) facilities.

 

**ARTICLE 11. INTELLECTUAL PROPERTY**

 

11.1         Nothingherein contained shall be construed as the transfer or grant of license of anytrade names, trademarks, patents, designs, copyrights and/or any otherintellectual property rights that Vyyo owns in connection with Products orServices, except for those license rights specifically set forth herein.

 

11.2         Inthe event any improvements, revisions, or changes are made to any Products orin connection with any Services, whether offered by Vyyo or requested and/orsuggested in anyway by ANI, shall be the sole property of Vyyo. At Vyyo’sdiscretion, ANI agrees to cooperate in any manner necessary (and at Vyyo’sexpense), including, but not limited to the execution of documents to assignand/or secure, in Vyyo’s name, any and all Intellectual Property rights relatedto such improvements, revisions, or changes. Vyyo hereby grants to ANI aperpetual, nonexclusive, fully paid-up right and license to use any suchProduct improvements, revisions or changes to which ANI is entitled pursuant tothis Agreement (either pursuant to Vyyo’s warranty obligations or through thepurchase of applicable Maintenance Services) and the results of any suchServices as necessary to use, operate, maintain and support the Products aspermitted 

 

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herein or for any other purpose for whichthey were developed, with the right to sublicense any such rights (i) toANI’s customers that use the Product in connection with products and servicesprovided by ANI or to any one that purchases the Product directly from ANI, and(ii) to third party agents of ANI that assist ANI in connection with theProduct.

 

# **ARTICLE 12.WARRANTY**

 

12.1         LimitedWarranty. Vyyo warrants that the Products sold by it hereunder shall befree of defects in materials and workmanship and shall perform inaccordance with their specifications for a period of eighteen (18) months fromthe date of delivery. Vyyo’s obligations under this limited warranty arelimited to promptly and on a priority basis replacing or repairing any Productwhich fails to conform to this warranty. Vyyo shall not be responsible forany warranty failures caused by misuse, neglect, improper installation, repair,alteration or accident relating to the applicable Product which is material andnot consistent with ordinary wear and tear, unless caused by any act oromission of Vyyo, its agents or employees. Any Product which has either beenrepaired or replaced by Vyyo under the terms of the warranty provisions of thisAgreement shall have warranty coverage for the greater of (i) three (3) monthsfrom the date of return to ANI, or (ii) the remaining warranty periodcalculated from the date of original delivery. ANI will pay transportation andinsurance costs to ship the Products to the repair depot designated by Vyyo. Vyyowill reimburse ANI for such costs and pay the transportation cost of returningProducts if the Products, or a component of the Products, were defective. If aProduct is determined to be out of warranty or not defective, Vyyo willpromptly advise ANI and, if repairable, offer to repair the Product at Vyyo’sstandard out-of-warranty rates as set forth on **Schedule C**, all shipping to be paid by ANI.

 

Vyyo warrants that all Services performedpursuant to this Agreement shall be performed in a professional and workmanlikemanner, by experienced individuals, and in accordance with generally acceptedindustry standards.

 

12.2         Limitationsand Exclusions. THE WARRANTY PROVIDED IN THIS AGREEMENT IS PERSONAL TO ANIAND IS A LIMITED WARRANTY, BUT IT MAY BE ASSIGNED BY ANI TO ANY CUSTOMEROF ANI OR ANY TRANSFEREE OF SUCH PRODUCT. IT IS THE ONLY WARRANTY MADE BY VYYOTO ANI. VYYO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL WARRANTIES OFMERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.

 

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12.3         Limitationof Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ANDWHETHER ASSERTED BY ANI OR ANY OTHER THIRD PARTY UNDER CONTRACT, STRICT ORPRODUCT LIABILITY, ACTIVE OR PASSIVE NEGLIGENCE, OR OTHER TORT CLAIMS, OROTHERWISE:  (i) EXCEPT FOR VYYO’SINDEMNITY OBLIGATIONS HEREUNDER AND VYYO’S OBLIGATIONS TO REPAIR OR REPLACEPRODUCTS, VYYO’S LIABILITY AND OBLIGATION IN ANY WAY RESULTING OR ARISING FROMOR RELATING TO THE PRODUCTS SOLD OR SERVICES PROVIDED TO ANI UNDER THISAGREEMENT SHALL IN NO EVENT EXCEED THE CUMMULATIVE TOTAL AMOUNTS PAID BY ANIFOR THE PRODUCTS FROM THE EFFECTIVE DATE OR **$10,000,000.00**IN THE AGGREGATE, WHICHEVER IS LESS; AND (ii) NEITHER PARTYSHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR, BUSINESS INTERRUPTION,LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA OR TRANSMISSIONS, LOSS OFCUSTOMERS, OR OTHER INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIALDAMAGES OF ANY KIND WHATSOEVER, RESULTING OR ARISING FROM OR RELATING TO THISAGREEMENT OR THE PRODUCTS AND WHETHER OR NOT THE OTHER PARTY IS ADVISED OF THEPOSSIBILITY OF ANY OF THE FOREGOING. EACH PARTY WAIVES ALL REMEDIES FOR BREACHOR NONPERFORMANCE BY THE OTHER PARTY TO THE EXTENT INCONSISTENT WITH THEFOREGOING. NOTHING IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT BETWEEN VYYO ANDANI RELATING TO THE PRODUCTS OR ANY SERVICES SHALL BE CONSIDERED FOR THEBENEFIT OF ANY THIRD PARTY OR AS GIVING ANY THIRD PARTY ANY RIGHTS AGAINSTEITHER PARTY.

 

# **ARTICLE 13.INFRINGEMENT AND OTHER INDEMNIFICATION**

 

13.1         If a third party raises aclaim of an alleged infringement of patent, trade name, trademark, design,copyright or any other intellectual property rights against ANI or any ANIcustomer in connection with the Products, ANI shall:

 

(a)           inform Vyyopromptly of such claim,

(b)           not,of its own accord, admit or settle such claim, and

(c)           providereasonable assistance to Vyyo, at Vyyo’s expense, to defend against such claim,and

(d)           actonly in accordance with written instructions of Vyyo with respect to suchclaim.

 

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13.2         Incase of a claim set forth in this article 13, Vyyo will at its own costand expenses:

 

(a)           defendagainst such claim and indemnify and hold ANI and its affiliates, directors,officers, employees, agents and direct customers harmless from and against anyand all damages, losses, liabilities, costs, expenses and fees incurred inconnection with any such claim (including reasonable attorneys’ fees), and

(b)           acquirethe right for ANI and ANI’s customers to continue to use such Product,including without limitation by obtaining any necessary patent licenses fromthe person or company entitled to enforce such patent, or

(c)           modifythe Product so as to become non-infringing provided that such modified Productmaintains substantially the same functionality as the original Product.

 

13.3         Vyyoshall have no liability in the case of a patent infringement which results frommodification made by ANI in or to the Products or from the combination ofProducts with other product not sold hereunder.

 

13.4         Eachparty shall indemnify and hold the other party and its affiliates, directors,officers, employees, agents and customers harmless from and against any and alldamages, losses, liabilities, costs, expenses and fees (including reasonableattorneys’ fees) arising out of or resulting from any third party claim causedby personal injury or physical property damage caused by the negligence orwillful misconduct of such party or its employees or agents.

 

13.5         Vyyoshall obtain and maintain in effect the insurance coverage set forth in Exhibit 13.5.

 

# **ARTICLE 14.CONFIDENTIALITY**

 

14.1         Allnon-public documentation, technical information, software, businessinformation, or other materials that are disclosed by one party (the “DisclosingParty”) to the other (the “Receiving Party”) in the course ofperforming this Agreement shall be considered the proprietary information (“ProprietaryInformation”) of the Disclosing Party, provided that such information isidentified or marked as confidential at the time of disclosure or otherwiseshould be reasonably understood by the Receiving Party to be confidential tothe Disclosing Party based upon the manner and means of disclosure or the typeof information or materials disclosed.

 

14.2         TheReceiving Party shall: (a) hold the Disclosing Party’s ProprietaryInformation in strict confidence; (b) use the Disclosing Party’sProprietary Information solely 

 

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for the purposes of performing thisAgreement; and (c) not disclose the Disclosing Party’s ProprietaryInformation except to the Receiving Party’s employees and agents havinga need-to-know such information for purposes of performing this Agreement andprovided that such employees and agents are bound by written obligations ofconfidentiality with respect to such Proprietary Information that arecomparable to those set forth herein).

 

14.3         Therestrictions set forth in this **Article 14**shall not apply to any information that (i) is independently developed bythe Receiving Party without use of the Disclosing Party’s ProprietaryInformation; (ii) is lawfully received by the Receiving Party free of anyobligation to keep it confidential; or (iii) is or becomes generallyavailable to the public other than by breach of this Agreement. In addition,either party may disclose the other party’s Proprietary Information to theextent required by law or regulation provided that, prior to disclosure, theReceiving Party provides written notice to the Disclosing Party to the extentlegally permissible and practicable so that the Disclosing Party may seek aprotective order or other limitations on disclosure.

 

# **ARTICLE 15.TERM AND TERMINATION**

 

15.1         ThisAgreement shall become effective as of the Effective Date and shall remain ineffect for a period of ten (10) years (the “Initial Term”). Thereafter,this Agreement may be renewed by the mutual written agreement of theparties. The Initial Term and any renewal term shall collectively be referredto as the “Term”.

 

15.2         ANImay terminate this Agreement in the event of a material breach of theterms and conditions contained in this Agreement by Vyyo following ANI sendingnotice in writing to Vyyo demanding that Vyyo rectify any breach specified inthe said notice within sixty (60) days from the date of receipt of such noticeand failure of Vyyo to rectify such breach. Following receipt of any suchproposed termination notice, the parties shall attempt in good faith to reachagreement with respect to the cure of the matter underlying the materialbreach, and upon reaching such agreement and such cure being effected, thenotice of termination shall be deemed rescinded and of no further force oreffect. If such material breach is not rectified within such period, and noagreement is reached by the parties to defer or cancel such termination, ANI may effecttermination of this Agreement by giving Vyyo another written notice specifyingthe date on which the termination is to take effect.

 

15.3         Duringthe first two years of the Term, in consideration of ANI making a substantialup-front payment for the exclusive rights granted pursuant to **Article 18.2** hereof, Vyyo may suspendperformance, but may not terminate this 

 

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Agreement, inthe event of a material breach of the terms and conditions contained in thisAgreement by ANI. Thereafter, Vyyo may terminate the Agreement in theevent of a material breach of the terms and conditions contained in thisAgreement by ANI. Any such suspension or termination, as applicable, formaterial breach shall follow Vyyo sending notice in writing to ANI demandingthat ANI rectify any breach specified in the said notice within sixty (60) daysfrom the date of receipt of such notice and failure of ANI to rectify suchbreach. Following receipt of any such proposed suspension or terminationnotice, as applicable, the parties shall attempt in good faith to reachagreement with respect to the cure of the matter underlying the materialbreach, and upon reaching such agreement and such cure being effected, thenotice of suspension or termination, as applicable, shall be deemed rescindedand of no further force or effect. If such material breach is not rectifiedwithin such period, and no agreement is reached by the parties to defer orcancel such termination or suspension, Vyyo may effect termination orsuspension, as applicable, of this Agreement by giving written notice to ANIspecifying the date on which such suspension or termination is to take effect.

 

15.4         Eitherparty may terminate this Agreement at any time if insolvency orreorganization proceedings or any other proceedings analogous in nature oreffect are instituted by or against the other party hereto, the other party isdissolved or liquidated whether voluntarily or involuntarily, a receiver ortrustee is appointed for all or a substantial part of the assets of theother party or the other party makes an assignment for the benefit orcreditors.

 

### **ARTICLE 16. EFFECT OF TERMINATION**

 

16.1         Noexpiration or termination of this Agreement shall release either party from anyliability that at such time has already accrued to the other party, or in anyway affect the survival of any right, duty or obligation of either party thatis contemplated to be performed as of the date of or after such expiration ortermination.

 

### **ARTICLE 17. LICENSING AND ESCROW**

 

17.1         Vyyohereby grants to ANI a perpetual, nonexclusive, fully paid-up right and licenseto use any Software provided in connection with a Product as necessary to use,operate, maintain and support such Product, with the right to sublicense anysuch rights (i) to ANI’s customers that use the Product in connection withproducts and services provided by ANI or to any one that purchase the Productdirectly from ANI, and (ii) to third party agents of ANI that assists ANIin connection with the Product. ANI agrees that it will not sublicense theSoftware provided in connection with the Products except as permitted in (i) or(ii) above, 

 

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without Vyyo’s prior written consent. ANIagrees not to reverse engineer, disassemble or decompile the Software.

 

17.2         Withintwo business days after the execution of this Agreement, the parties shallexecute the Escrow Agreement set forth on **Schedule D**among themselves and an independent escrow agent selected by mutual agreementof the parties. The Escrow Agreement will require Vyyo to place on deposit withthe escrow agent complete engineering design documentation, software sourcecode and manufacturing documentation relating to the Products and any vendorauthorization (such materials collectively called the “BOM Documentation”)reasonably required for ANI to acquire tooling and components and tomanufacture the Products (including any Software) with minimal delay. Theescrow agreement shall also require Vyyo to update the deposited materials onan annual basis or more frequently if there is a change in any Product or Softwareto include any updates or upgrades to same.

 

17.3         Inthe event Vyyo ceases to manufacture the Products for any reason or Vyyo is inmaterial breach of this Agreement then ANI may, without in any manner limitingits legal and equitable remedies in the circumstances, serve upon Vyyo awritten notice requiring Vyyo to continue to manufacture the Products or causesuch default to be corrected forthwith, and ANI shall be entitled to specificperformance therefor. Unless within ten business days after the service of suchnotice upon Vyyo such default shall be corrected or arrangements for thecorrection thereof reasonably satisfactory to ANI shall be made, ANI shall beentitled to the remedies set forth in the Escrow Agreement and ANI shallpossess a perpetual, non-exclusive, royalty-free fully-paid up license underall Vyyo intellectual property (other than trademarks) to develop, havedeveloped, manufacture, have manufactured, use and sell the Products and tosublicense the Software. Vyyo agrees that ANI shall have the right to designatethird party customers of ANI as beneficiaries of the escrow agreement entitledto receive the deposited materials under the escrow agreement and to have thesame license under Vyyo intellectual property.

 

### **ARTICLE 18. EXCLUSIVITY**

 

18.1         Duringthe Term of this Agreement, so long as ANI (i) pays the Exclusivity Amountfor the first two years, and (ii) meets the Minimum Product PurchaseAmounts and (iii) for the first two (2) years has no undisputedoutstanding invoice payment to Vyyo hereunder which is larger than $2,000,000for more than 90 days after the required payment date**and**after the first two (2) years of the Term****has no undisputed outstanding invoicepayment to Vyyo hereunder which is larger than $250,000 for more than 90 daysafter the required payment date, Vyyo shall be prohibited from selling Products(i) in the Relevant Territory and (ii) to the 

 

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RelevantMarket. Further, for the avoidance of doubt, nothing in this Agreement shallprohibit Vyyo from (i) selling Products outside of the Relevant Territory;(ii) selling Products within the Relevant Territory to end users orresellers other than those engaged in the Relevant Market (and without limitingthe foregoing but for the avoidance of doubt cable television customers are notconsidered to be engaged in the Relevant Market); and (iii) sellingnon-wireless products or non-wireless equipment other than the Products withinthe Relevant Territory to end users or resellers in the Relevant Market.

 

18.2         Forpurposes of this Agreement, the term “Relevant Territory” shall mean the UnitedStates, Canada and the Gulf of Mexico (whether deemed U.S. or Mexicanterritorial waters).

 

18.3         Forpurposes of this Agreement, the term “Relevant Market” shall mean end usersengaged in or resellers selling long range data communications products******to the followingbusinesses, industries or governmental functions:  (i) electricity generation, transmissionor distribution (both downstream and upstream); (ii) oil or gasexploration, manufacture, transportation or distribution; (iii) waterutility; (iv) chemical manufacture; (v) mining; (vi) environmentalmonitoring or protection; (vii) transportation facilities (includingrailroads); (viii) border control, and (ix) public safety **(**e.g., police, fire departments, rescue,but not general public communications such as broadband internet, cable,consumer level entertainment, etc.**)**.Vyyo shall use commercially reasonable efforts to ensure that any sale of itsproducts to resellers within the Relevant Territory are not intended for resaleto end users within the Relevant Market.

 

### **ARTICLE 19. ASSIGNMENT**

 

19.1         Vyyomay assign its rights and obligations under this Agreement and/or anyindividual Purchase Order without ANI’s consent including, without limitation,in whole or in part, to any affiliate or successor in interest of Vyyo or inconnection with any financing, in each case upon prior written notice to ANI;provided that any such assignee of Vyyo’s obligations is reasonably capable offulfilling Vyyo’s obligations under this Agreement. If Vyyo consummates atransaction or series of transactions whereby its wireless assets and/orbusiness are assigned or otherwise transferred to a successor in interest, thisAgreement must be assigned to such successor in interest. If this Agreement isassigned or otherwise transferred to a successor in interest of Vyyo’s wirelessassets and/or business, the exclusivity provisions of Section 18 and the intellectualproperty licenses from Vyyo in Sections 11 and 17 of this Agreement shall applyonly to that portion of Vyyo’s wireless assets and/or business that has beenassigned or transferred (including any updates, upgrades, modifications andenhancements thereto), and such exclusivity provisions shall not apply to anyother assets or business or 

 

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intellectualproperty of the successor in interest or of the remaining businesses of Vyyo. ANImay assign its rights and obligations under this Agreement and/or anyindividual Purchase Order without Vyyo’s consent including, without limitation,in whole or in part, to any affiliate or successor in interest of ANI or inconnection with any financing, in each case upon prior written notice to Vyyo,and also to any third party (including any ANI customer); provided that anysuch assignee of ANI’s obligations is reasonably capable of fulfilling ANI’sobligations under this Agreement. Except as provided in this paragraph, neitherparty may, in whole or in part assign this Agreement hereunder nor anyrights or obligations created there under without the prior written consent ofthe other party. Any assignment in violation of this Article shall be nulland void and of no effect between the parties.

 

### **ARTICLE 20. FORCE MAJEURE**

 

20.1         Neitherparty shall be responsible for failure or delay to comply with this Agreementand/or any individual Purchase Order hereunder, in case such failure or delayis caused by any acts that are beyond their reasonable control and the partieshereto have used their best endeavor to carry out their obligation under thisAgreement.

 

### **ARTICLE 21. RESOLUTION OF DISPUTE**

 

21.1         Anydispute arising out of or relating to this Agreement which can not be resolvedwithin a reasonable time directly by the parties shall be settled byarbitration, by a panel of three (3) arbitrators (unless otherwise agreedby the parties) in accordance with the Rules & Regulations of theAmerican Arbitration Association (“AAA”), and judgment upon the award renderedby the arbitrator(s) may be entered in any court having jurisdictionthereof. Each party shall select one arbitrator and those arbitrators shallselect the third arbitrator. If they cannot agree on the third arbitrator, thensuch arbitrator shall be selected by the AAA. The location of any sucharbitration shall be New York, New York. All discussions and correspondenceamong the representatives, during said arbitration shall be treated asconfidential information, exempt from discovery, and shall not be admissible inany lawsuit without the agreement of the parties. The cost of the arbitration,including the fees and expenses of the arbitrator(s), shall be shared equallyby the parties unless the arbitration award provides otherwise. Each partyshall bear the cost of preparing and presenting its case. The arbitrator(s) arenot empowered to award damages in excess of compensatory damages and each partyirrevocably waives any damages in excess of compensatory damages. The partiesagree to undertake all reasonable steps to expedite the arbitration process.Judgment upon any award rendered by the arbitrator may be entered in anycourt having jurisdiction.

 

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### **ARTICLE 22. NOTICE**

 

22.1         Allnotices, Purchase Orders, acceptances thereof, requests, demands, claim lettersand other communications to be given or made under this Agreement or individualPurchase Orders hereunder shall be given by airmail, telex or facsimileaddressed to the party to be notified at the addressed and to the attention asset

forth below :

 
| If to Vyyo:     | Vyyo Inc.                              |
|-----------------|----------------------------------------|
|            | 4015 Miranda Ave., First Floor         |
|            | Palo Alto, CA 94304                    |
|            | Attention                              | : |
|            | Telephone                              | : |
|            | Facsimile                              | : |
|            |                                   |
| With a copy to: | Vyyo Inc.                              |
|            | 4015 Miranda Ave., First Floor         |
|            | Palo Alto, CA 94304                    |
|            | Attention:                             | General Counsel |
|            | Telephone:                             | 650.319.4021 |
|            | Facsimile:                             | 650.319.4022 |
|            |                                   |
| If to ANI:      | Arcadian Networks, Inc.           |
|            | 26 Broadway                            |
|            | 21st Floor                             |
|            | NY, NY 10004                           |
|            | Attn:  Gil Perez, CEO             |
|            |                                   |
| With a copy to: | Arcadian Networks, Inc.           |
|            | 26 Broadway                            |
|            | 21st Floor                             |
|            | NY, NY 10004                           |
|            |                                   |
|            | Attn: Andrew Fradkin, General  Counsel |

 

or tosuch other address or addresses as the respective party hereto may designatefrom time to time. Such notices shall be considered to have been sufficientlygiven on the fifth ( 5th ) business day following transmission, ifby mail, and on the next business day if by telex or facsimile.

 

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### **ARTICLE 23. LAW APPLICABLE**

 

23.1         This Agreement and each individualPurchase Order hereunder shall be governed by and construed in accordance withthe laws of the State of New York, excluding its conflicts of law principles(other than Section S-1401 of the New York General Obligations Law).

 

### **ARTICLE 24. SEVERABILITY ANDPUBLICITY**

 

24.1         The parties hereto agree that invalidityor unenforceability of any of the provisions, in part or in whole of thisAgreement or any individual Purchase Order hereunder shall not in any wayaffect the validity or enforceability of any other parts or provisions thereofexcept those which comprise an integral part of or those which areotherwise clearly inseparable from such invalid or unenforceable parts orprovisions.

 

24.2         Neither party shall issue any pressrelease, public announcement, news release or, except as may be requiredby law, any other public announcement, written or oral, whether to the publicpress, stockholders or otherwise, relating to this Agreement, any amendmenthereto or performance hereunder, or use the other party’s trademark, tradename, service mark and domain name, and any visual representations thereof(including logos, designs, symbols, word marks, images, colors and colorcombinations, trade dress and characters) in any publicity, news release orother public announcement without the written consent of the other party, whichwritten consent shall not be unreasonably withheld.

 

24.3         Vyyo shall ensure that all Products soldto ANI under this Agreement contain the “Arcadian Networks” name and logo inthe manner and format reasonably designated by ANI, provided that ANI agrees topay for any additional costs associated with inclusion of such name and/or logoas notified by Vyyo to ANI in advance of expenditure. Vyyo shall ensure thatthe “Dallager” name and logo does not appear on any of the Products.

 

### **ARTICLE 25. COMPLIANCEWITH LAWS**

 

25.1         In connection with this Agreement, eachparty will comply with all laws, rules and regulations applicable to itsbusiness. As between the parties, ANI shall be responsible to obtain andmaintain in effect all permits, licenses and approvals required for ANI tooperate a communications network and to act as a communications serviceprovider, including without limitation any required FCC spectrum licenses. Asbetween the parties, Vyyo shall be responsible to obtain and maintain in effectall permits, licenses and approvals required for Vyyo to manufacture, sell anddistribute the Products and to provide the Services. Vyyo 

 

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shallensure that all Products which are required to comply with FCC regulationscomply with such regulations, including without limitation the obtaining of anyrequired approvals needed before commercial sale of the Products, and areproperly labeled in compliance with FCC and other applicable laws, except thosespecifically set forth on Schedule A-1 or A-2.

 

### **ARTICLE 26. RE-BANDING**

 

Vyyo acknowledges that ANI’s spectrum lessor(s) may seek to “re-band”the existing “A band” by replacing it with another band in the upper 700-MHzspectrum as required by law or otherwise (the “New Band”). In the event of anysuch “re-banding” during the first three (3) years of the Agreement, andsolely to the extent that ANI is required (by contract or law) to support such “re-banding,”and to the extent that ANI requests it from Vyyo during the first three (3) yearsof the Agreement, Vyyo agrees to use all commercially reasonable efforts todevelop Product re-banding kits and Spare Parts (“Product Re-Banding Kits”) forProducts that have been purchased by ANI that when applied to such Productswill allow ANI to utilize the ~~ ~~New Band in a mannerconsistent with the use of the “A-band” and that will comply with the FCCregulations for the New Band. The Product Re-Banding Kits will be added toSchedules A-1 and A-2 and shall be subject to the terms of this Agreement. Vyyoagrees to take into account “re-banding” requirements while developing NewProducts in the first three (3) years of the Agreement with the intentionto reduce Product Re-banding Kits cost. The parties will work together in goodfaith, with such advance notice to each other as can reasonably be given underthe circumstances, to minimize the costs of such “re-banding”  and of services outages, delays or othersimilar effects resulting from implementation of a Re-banding. Each party shallbear one-half of the direct costs of efforts dedicated specifically andexclusively to developing Product Re-Banding Kits and incurred from and afterthe Effective Date of this Agreement, provided that ANI’s share of suchexpenses shall not exceed an aggregate amount of $500,000. In any event, Vyyoshall provide ANI in writing in advance a description of all such developmentefforts to be undertaken by Vyyo, and shall provide to ANI an itemized list ofall such costs incurred within [60] days after they are incurred. In the eventthat any such re-banding occurs after the first three (3) years of theAgreement, the parties shall discuss in good faith any support in connectiontherewith to be provided by Vyyo and the fees relating thereto.

 

### **ARTICLE 27. ENTIREAGREEMENT**

 

27.1         This Agreement contains the entireagreement between both parties concerning the subject matter hereof andsupersedes all previous negotiations, commitments and writings in respect tosuch subject matter and no provision of this Agreement 

 

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may be waived, modified or amended, in whole or in part, except bya writing executed by duly authorized representatives of both parties.

 

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**IN WITNESSWHEREOF**,the parties hereto have caused this Agreement to be executed as of the day andyear first above written, by their duly authorized representatives.

 

 
| Signed for and on behalf of **VYYO INC.**              |
|--------------------------------------------------------|
|                                                   |
|                                                   |
| Signature                                              | : /s/ Arik Levi |   |
| Name                                                   | : Arik Levi |
| Title                                                  | : CFO |
| Date                                                   | : 3/31/2006 |
|                                                   |   |
|                                                   |   |
| Signed for and on behalf of **ARCADIAN NETWORKS INC.** |
|                                                   |
|                                                   |
| Signature                                              | : /s/ Gil Perez |   |
| Name                                                   | : Gil Perez |
| Title                                                  | : President & CEO |
| Date                                                   | : 3/31/06 |

 

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**Schedule A-1**

**Product list and Pricing**

 

Products shall be uniquelyidentified by their Vyyo Part Number (P/N).

 
| ** ** | ** ** | **P/N**   | ** ** | **Description**                                                            | ** ** | **Price per unit*** |
|------------|------------|-----------|------------|----------------------------------------------------------------------------|------------|-------------------------------|
| 1          |       | 4KT0001-A |       | Single Sector Band A Base  Station                                         |       | $***                          |
| 2          |       | 4KT0004-A |       | Dual Sector Band A Base  Station                                           |       | $***                          |
| 3          |       | 4KT0007-A |       | Triple Sector Band A Base  Station                                         |       | $***                          |
| 4          |       | 4RF0037-A |       | Dual panel, tuned sector  directional vertical antenna with mounting kit   |       | $***                          |
| 5          |       | 4RF0056-A |       | Dual panel, tuned sector  directional horizontal antenna with mounting kit |       | $***                          |
| 6          |       | 4RF0033-A |       | Vertical Omni Antenna with  mounting Kit                                   |       | $***                          |
| 7          |       | 4RF0057-A |       | Antenna Bracket                                                            |       | $***                          |
| 8          |       | 9VY002-A  |       | V290i                                                                      |       | $***                          |
| 9          |       | 4RF0054-A |       | CPE Yagi antenna                                                           |       | $***                          |
| 10         |       | 4RF0050-A |       | CPE flat antenna                                                           |       | $***                          |

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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Each base station purchased byANI hereunder shall be shipped with the results of the Factory AcceptanceTest(s) performed on such base station.

 

Each V290i provided by Vyyohereunder shall perform in accordance with the following performancemetrics:

 
| **Layer 3  Throughput(2)**          | Downstream: 1 Mbps |
|-------------------------------------|--------------------|
|                                | Upstream: 200 Kbps |
| **Round trip  delay (Ethernet)(3)** | 90 ms              |
| **Round trip  delay (Serial)(4)**   | 170 ms             |

 

Under the following conditions:

 
| **Sector  configuration**                                    |   | Downstream: 330 KHz @ 64QAM

Upstream: 325 KHz @ 16QAM                                                                           |
|--------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------|
| ** **                                                   |   |                                                                                                                             |
| **Radio link  quality**                                      |   | Downstream RF SNR: 27 dB

Upstream RF SNR**(5)**: 24 dB                                                                          |
| ** **                                                   |   |                                                                                                                             |
| **Number of  active modems / sector**                        |   | 1                                                                                                                                |
| ** **                                                   |   |                                                                                                                             |
| **Demarcation  points**

Base station side

 

CPE side |   |  

WMTS Ethernet port connected  to   the backbone network  V290iA Ethernet port                                            |
| ** **                                                   |   |                                                                                                                             |
| **Configuration**                                            |   | V290iA default configuration:  Single best effort serviceNo classification, filters, firewall or other per  packet functionality |

 

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(2) Tested with DOS FTPrunning on Windows 2003 server

(3) Round trip delay istested as the average time of at least 10 measurements of ICMP ECHO (PING) withsmallest packet size,

(4) Additional latency isintroduced by the serial port

(5) RF SNR measured at thereceiver input

 

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**Schedule A-2**

**Spare Parts list and Pricing**

 

Spare Parts shall be uniquelyidentified by their Vyyo Part Number (P/N).

 
| ** ** | ** ** | **P/N**          | ** ** | **Description**                      | ** ** | **Price*** |
|------------|------------|------------------|------------|--------------------------------------|------------|------------|
| 1          | ** ** | **4RF0036-A**    |       | Up converter                         |       | $***       |
| 2          | ** ** | **4RF0010-A**    |       | Down convertor (Cadco)               |       | $***       |
| 3          | ** ** | **9 VY0003-A**   |       | V3100-A Down Converter (Vyyo)        |       | $***       |
| 4          | ** ** | **4RF0035-A**    |       | 40 Watts Power amplifier             |       | $***       |
| 5          | ** ** | **4RF0034-A**    |       | UHF combiner/splitter (Diplexer)     |       | $***       |
| 6          | ** ** | **4GN0010-A**    |       | RCU                                  |       | $***       |
| 7          | ** ** | **4GN0011-A**    |       | Uninterrupted power supply (UPS)     |       | $***       |
| 8          | ** ** | **4RF0039-A**    |       | Band Pass Filter                     |       | $***       |
| 9          | ** ** | **4RF0041-A**    |       | First stage preamplifier             |       | $***       |
| 10         | ** ** | **4RF0040-A**    |       | Second stage preamplifier            |       | $***       |
| 12         | ** ** | **4RF0042-A**    |       | Multy Sector Modem Sample Port       |       | $***       |
| 13         | ** ** | **6290-070**     |       | Band-A base station monitoring modem |       | $***       |
| 14         | ** ** | **7290-4200-01** |       | WMTS IP AC 200W                      |       | $***       |
| 15         | ** ** | **3290-610**     |       | UC Card                              |       | $***       |
| 16         | ** ** | **3290-616**     |       | Hex Card                             |       | $***       |
| 17         | ** ** | **3290-617**     |       | Quad Card                            |       | $***       |
| 18         | ** ** | **3290-618**     |       | Host Master                          |       | $***       |
| 19         | ** ** | **1191-030**     |       | PS 200W                              |       | $***       |

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule A-3**

**New Product Pricing Procedure**

 

For a New Product (notincluding a Spare Part) added to **Schedule A-1**after the Effective Date, and except as set forth below withrespect to Product Re-Banding Kits the following process will apply:

 

The parties will jointly engagean Independent Party to determine the initial New Product Price for any NewProduct added to **Schedule A-1**after the Effective Date. Such Price shall be determined as follows: (i) the“Product’s Average Gross Margin” shall be calculated as Vyyo’s average grossmargin for all **Schedule A-1**Products other than the NMS or other Software for the calendar year precedingthe year in which the New Product was added to Schedule A-1, (ii) The“New Product Cost” shall be Vyyo’s cost of manufacturing or procuring the NewProduct, (each of (i) and (ii), as determined by the Independent Party),and (iii) the New Product Price shall be calculated by dividing the NewProduct Cost by [one (1) minus the Product’s Average Gross Margin].Example: Assume that the New Product Cost is $130 and that the Products AverageGross Margin is 35%. The Price for the New Product shall be equal to $130divided by (1-.35) or $200.

 

Notwithstanding the foregoing the “Product’s Average Gross Margin” forProduct Re-Banding Kits is set to 35%.

 

For a New Spare Part addedto **Schedule A-2** after theEffective Date, and except as set forth below with respect toProduct Re-Banding Kits thefollowing process will apply:

 

The parties will jointly engagean Independent Party to determine the initial new Spare Part Price for anynew Spare Part added to **Schedule A-**2after the Effective Date. Such Price shall be determined as follows: (i) the“Spare Part’s Average Gross Margin” shall be calculated as Vyyo’s average grossmargin for all **Schedule A-2**SpareParts for the calendar year preceding the year in which the New Spare Part wasadded to Schedule A-2, and (ii) The “New Spare Part Cost” shallbe Vyyo’s cost of manufacturing or procuring the New Spare Part, (each of (i) and(ii), as determined by the Independent Party), and (iii) The New Spare Part Priceshall be calculated by dividing the New Spare Part Cost by [one (1) minusthe Products Average Gross Margin minus 5%].Example: Assume that the New Product Cost is $75 and that the Products AverageGross Margin is 20%. The Price for the New Product shall be equal to $75divided by (1 -.20 -.05) or $100.

 

Notwithstanding the foregoing the “Spare Part’s Average Gross Margin”for Product Re-Banding Kits is set to 35%.

 

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The parties shall instruct suchIndependent Party to make a determination as to Price within thirty (30) days.Vyyo will reasonably cooperate with such Independent Party to provide anyrecords, books and information deemed necessary by such Independent Party tomake the determination required herein. The Independent Party shall be subjectto reasonable obligations of confidentiality with respect to such books,records and information. The determinations of the Independent Party shall bebinding on the parties unless there is a manifest error in such determinations.If either party reasonably believes that the Independent Party committed suchan error, such party can request the Independent Party to promptly reexaminethe matter, and if an error has been committed, the Independent Party shallmake the appropriate correction. The fees and expenses of the Independent Partyshall be borne 50%/50% by ANI and Vyyo.

 

“Independent Party” shall meanDuff & Phelps or any other accounting, financial consulting or similarfirm reasonably capable of reviewing Vyyo’s financial records and making adetermination regarding Vyyo’s costs and profits margin relating to a Productthat has not performed a significant amount of work for ANI or Vyyo, asselected by the parties from time to time.

 

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**Schedule B-1**

**Minimum Product Purchase Amounts**

 

The “Minimum Product PurchaseAmount” for each year of the Term shall have the following meaning:

 

| **Year**       | ** ** | **Minimum Product********Purchase Amount** |
|----------------|------------|------------------------------------------------------|
| Year 1         |       | $***                                                 |
| Year 2         |       | $***                                                 |
| Year 3         |       | $***                                                 |
| Year 4 (and +) |       | $***                                                 |

 

The Minimum Product PurchaseAmount relates only to purchases of Products and is used in this Agreementsolely to determine ANI’s exclusivity rights in relation to the Products anddoes not represent a commitment by ANI to purchase Products in any particularamount.

 

The Minimum Product PurchaseAmounts set forth above are non-cumulative except as follows:  in the event ANI submits accepted ProductPurchase Orders for Products with shipment dates designated in a given year(provided such shipment dates are not pushed back by ANI) for an amount inexcess of the Minimum Product Purchase Amount for such  year, such excess shall “roll over” to thenext successive year, provided however that such amount rolled over shall notexceed 25% of such successive year’s Minimum Product Purchase Amount (theresult being that the successive year’s Minimum Product Purchase Amount will beno less than 75% of the amount stated above). For the avoidance of doubt, the “rollover” only applies for the immediate successive year and cannot serve to createor increase a “roll over” for the next year. For purposes of example only:  if the Product Purchase Amount for year 1 isequal to $20.0, $2.5 million would roll over (25% of the year 2 Minimum ProductPurchase Amount). If the accepted Product Purchase Orders with shipment datesdesignated in year 2 equaled $9 million, the minimum in year 2 would besatisfied due to the roll over from year 1, but no amount would roll over toyear 3.

 

In order to maintain itsexclusivity rights hereunder, ANI shall purchase at least 25% of the MinimumProduct Purchase Amount for each year within the first half of such applicableyear. The parties acknowledge and agree that the 25% in the foregoing sentenceshall instead equal 32% for any year if ANI purchases in the preceding yearmore than fifteen percent (15%) of products with similar functionality to theProducts from a third party. For purposes of this paragraph, the term “purchase”shall mean 

 

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submission by ANI of acceptedProduct Purchase Orders for Products with shipment dates designated for thefirst half of such applicable year.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule B-2**

**Forecast Amounts**

 

| **Year**       | ** ** | **Forecast Amounts** |
|----------------|------------|---------------------------|
| Year 1         |       | $***                      |
| Year 2         |       | $***                      |
| Year 3         |       | $***                      |
| Year 4         |       | $***                      |
| Year 5 (and +) |       | $***                      |

 

The Forecast Amounts relateonly to purchases of Products and are used in this Agreement solely todetermine any applicable Price discounts and do not represent a commitment byANI to purchase Products in any particular amount.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule B-3**

**Exclusivity Amounts**

 

| **Year**       | ** ** | **Exclusivity Amount** |
|----------------|------------|-----------------------------|
| Year 1         |       | $4.0 million                |
| Year 2         |       | $4.0 million                |
| Year 3 (and +) |       | None                        |

 

In order to maintainexclusivity in accordance with Section 18, the Exclusivity Amount shall bepaid in accordance with the following schedule:

 

The first Exclusivity Amountpayment of $4.0 million shall be paid by ANI to Vyyo within ten (10) daysof the Effective Date of this Agreement.

 

The second Exclusivity Amountpayment of $4.0 million shall be paid by ANI to Vyyo no later than twelve (12)months after the Effective Date of this Agreement.

 

These Exclusivity Amounts areused in this Agreement solely to determine ANI’s exclusivity rights in Year 1and Year 2 only in relation to the Products and do not represent a commitmentby ANI to purchase Products in any particular amount. For purposes ofclarification, there is no Exclusivity Amount after Year 2.

 

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**Schedule C-1**

**Support Services**

 

Generalterms:

 

1.     All servicecalls will be made by ANI to Vyyo. There shall be no services calls initiatedby ANI’s customers to Vyyo.

 

2.     ANI technicalstaff will have the required knowledge to reasonably try to address thecustomer issues.

 

3.     ANI technicalstaff will reasonably try to address the customer issues prior to calling uponVyyo.

 

4.     ANI willapproach Vyyo for support if it reasonably suspects that the problem is with amalfunction of Vyyo equipment or software.

 

5.     Any contact byVyyo with ANI’s customers regarding Customer support issues shall include arepresentative of ANI’s technical staff, unless expressly agreed otherwise byVyyo and ANI.

 

6.     Every request byANI for support will include, but not be limited to, the following informationto the extent necessary: a detailed description of the problem, a detaileddescription of the configuration of the network at the relevant site and theactions taken to resolve the problems or  find workarounds prior to the request forsupport.

 

Call Center services:

Prices quoted are for 36 monthsfollowing the Effective Date.

 
| **Part Number (P/N)** | ** ** | **Service description**                   | ** ** | **Rate**                                                                                                                                                                                                                                                                                               |
|---------------------------------|------------|------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| TBD                             |       | Regular hours (9AM-6PM EST)  per call payment. |       | $*** per hour, $*** minimum  per call.                                                                                                                                                                                                                                                                 |
| TBD                             |       | 24*7, 365 days                                 |       | $*** yearly payment for up to  250 hours. Any additional hours will be charged in accordance with the  following:$*** per hour during Regular Hours, with a $*** minimum per call  during Regular Hours; and $*** per hour outside Regular Hours, with a $***  minimum per call outside Regular Hours. |

 

On-Site services:

Priced quoted are for 24 monthsfollowing the Effective date.Expenses (transportation, accommodation and hospitality will be charged on topof that.

 

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Time will be measured in fulldays starting at arrival to site and ending at departure  from site and adding one day for travel

 
| **Part Number (P/N)** | ** ** | **Service Description**                                                                                               | ** ** | **Rate**                                                                                  |
|---------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------|
| TBD                             |       | Best effort                                                                                                                |       | $*** a day                                                                                |
| TBD                             |       | Departure within 6 hours of  call, pending transportation availability. No more than one person in the  field at one time. |       | $*** yearly payment for up to  50 days. Any additional day will be charged at $*** a day. |

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

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**Schedule C-2**

**Maintenance Services**

 

Vyyo will be releasing fromtime to time and upon its own discretion software and firmware updates, asappropriate, to the Products. Such updates will include both fixes andenhancements and will be made available to ANI for such products undermaintenance. Vyyo shall make commercially reasonable efforts to meet ANIrequests for Product enhancements but makes no commitments to do so unlessotherwise agreed upon by the parties in writing. Vyyo shall use commerciallyreasonable efforts to promptly provide fixes or workarounds for any bugsidentified in the Products (including applicable software).

 

Initial Maintenance Services may bepurchased for a Product only at the time ANI purchases such Product from Vyyo,unless otherwise agreed upon by the parties. Maintenance can only be purchasedfor one year at a time and renewal Maintenance Services may be purchasedonly prior to the expiration of prior maintenance period.

 

Cost of 12 months maintenancefor all base station Products (without antenna) is ***% of the price for suchProduct set forth in **Schedule A-1**.

 

Cost of 12 months maintenancefor all CPE Products (without antenna) is ***% of the price for such Productset forth in **Schedule A-1**.

 

Cost of 12 months maintenancefor the Network Management Software is ***% of the NMS Software price set forthin **Schedule A-1**.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule C-3**

**Extended Warranty and Rates**

 

Vyyo offers Extended Warrantyservice (the “Extended Warranty”) for the Hardware Products at ***% (flat rate)of the product list price for one (1) twelve (12) months beyond theinitial 18 month Standard Warranty period, subject to the same terms andconditions as set forth in the Standard Warranty.

 

This Extended Warranty isapplicable only as an extension/continuation of the Standard Warranty.

The Extended Warranty must bepurchased prior to the expiration of the Standard Warranty period.

The Extended Warranty repairservice is rendered upon customer’s request according to Vyyo’s RMA (ReturnMaterial Authorization) policy.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule C-4**

**Training Services and Rates**

 

Vyyowill offer Product Training which will target ANI technical personnel and willprovide them the required knowledge on how to operate and maintain theProducts.

 

Costof course (up to 20 trainees) - $*** per day, minimum 3-days

Reasonableand Documented Expenses (meals, travel, and accommodations) of Vyyo’s trainerwill be charged in addition to the above.

Pricingis limited for 24 months following the Effective Date.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Schedule C-5**

**Miscellaneous Services and Rates**

 

Vyyo will offer other servicesto ANI for the 18 months after the signing of this Agreement.

ANI shall provide a PO forthose services.

 
| **Vyyo employee** | ** ** | **Price per day** |
|------------------------|------------|-----------------------------|
| Engineer               |       | $***, minimum 3-days        |
| Senior Engineer        |       | $***, minimum 3-days        |

 

**Notes:**

 

1.     The rates do not include expenses such as meals, transportation(flights and ground) and accommodation. ANI shall also be responsible toreimburse Vyyo for such reasonable and documented expenses incurred inconnection with the performance of Miscellaneous Services.

2.     The parties acknowledge and agree that Vyyo’s employees shall perform anysuch Miscellaneous Services under the direction and control of ANI (or itsdesignee). Vyyo makes no representation or warranty with respect to theprovision of any such miscellaneous services.

3.     Vyyo will provide such services only if the required engineer isavailable.

 

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*** *Denotes language for which Vyyo Inc. has requestedconfidential treatment pursuant to the rules and regulations of theSecurities Exchange Act of 1934, as amended*

 

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**Exhibit 1**

**Initial Purchase**

 

*** *Denotes language for whichVyyo Inc. has requested confidential treatment pursuant to the rules andregulations of the Securities Exchange Act of 1934, as amended*

 

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