Exhibit 10.44
BROCADE / HP CONFIDENTIAL
AMENDMENT NO. 3 TO
OEM PURCHASE AGREEMENT
This Amendment No. 3 (the "Amendment") to the OEM Purchase Agreement (the
"Agreement") dated April 20, 2001 by and between HEWLETT-PACKARD COMPANY, a
Delaware corporation having its principal place of business at 3000 Hanover
Street, Palo Alto, California 94304 ("HP") and BROCADE COMMUNICATIONS SYSTEMS,
INC., a Delaware corporation, having its principal place of business at 1745
Technology Drive, San Jose, California 95110, and Brocade Communications Systems
Switzerland SarL, a corporation organized under the laws of Geneva, and having
its principal place of business at 29-31 Route de I'Aeroport, CH-1205 Geneva,
Switzerland (collectively "Supplier") is entered into by HP and Supplier
effective as of February 1, 2002 (the "Effective Date"). This Amendment is a
Product Addendum as described in Section 2.18 of the Agreement. The parties
hereby agree as follows.
Except as expressly amended herein all unmodified and remaining terms and
conditions of the Agreement shall remain in full force and effect. All
capitalized terms not defined in this Amendment shall have the meaning set forth
in the Agreement. In the event a conflict between the Agreement and this
Amendment, the terms of this Amendment shall govern.
WHEREAS, HP and Supplier wish to add additional OEM Products, and terms specific
to those additional products.
NOW THEREFORE, the parties hereto agree as follows:
1. TRAINING
1.1 Technical & Presales Training. Supplier shall provide to HP,
[ * ] in Supplier's technical training course on installation
and configuration of the SilkWorm 3200 (which is the same course
as that for the SilkWorm 3800). Such training shall take place
at Supplier's San Jose location and within [ * ] prior to, and
[ * ] after HP's product launch. In addition, Supplier shall
provide to HP, at [ * ] per HP's [ * ] for the term of this
Agreement, in Supplier's technical training course on
installation and configuration of the SilkWorm 3200.
All such training provided by Supplier will be [ * ] by Supplier
to HP. Supplier will maintain a designated training contact for
HP University personnel, and will provide technical support for,
and a qualified Supplier training resource to participate in,
the first [ * ] taught by HP utilizing the training provided
hereunder by Supplier. Such classes will be up to[ * ]in length.
HP will be responsible for reasonable travel and expenses
incurred by the Supplier training resource. Other training
(including without limitation [ * ] technical training) will be
provided upon mutually agreed terms and conditions.
1.2 HP Training Requirement. HP shall use its reasonable best
efforts to conduct, no later than May 30, 2002, internal
training courses on the SilkWorm 3200 sufficient to cover no
less than[ * ]HP personnel in order to allow HP to become fully
familiar with the SilkWorm 3200 and its market. The HP resources
may include but will not be
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AMENDMENT NO. 3
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BROCADE/HP CONFIDENTIAL
limited to field and inside sales personnel, customer engineers,
technical consultants, and HP University Trainers.
1.3 HP Training Demonstration Hardware. HP's Scalable Network
Solutions division ("SNS") will make its reasonable best efforts
to provide Supplier with [ * ] of HP Demonstration Equipment to
be hosted in Supplier's training facilities. For the purpose of
this Agreement. HP Demonstration Equipment shall refer to HP [*]
Hardware, of the current or recent generation of the applicable
HP product. Each piece of HP Demonstration equipment will be
provided under the terms of a separately executed HP Equipment
Loan Agreement, the term of which shall be no less than [ * ]
2. DOCUMENTATION
2.1 Preparation of Documentation. Supplier shall [ * ] of Supplier's
standard documentation for the SilkWorm 3200 ("Documentation")
[ * ] and in accordance with the provisions of Exhibit (A-5).
Such Documentation will include [ * ], as enumerated in Exhibit
(A-5). Supplier shall retain ownership of such Documentation.
2.2 License to Documentation. Supplier shall provide HP with [ * ]
in [ * ]form. Except as otherwise provided and subject to the
retention of all copyright notices and/or confidentiality
legends, HP shall have the right to [ * ] for [ * ]. HP shall
have the right to [ * ] from the [ * ] to it by Supplier for
[ * ] to purchasers of the HP version of the SilkWorm 3200. HP
shall not have the right to [ * ] except to [ * ]. HP shall
provide Supplier with a copy of such [ * ]Product documentation
for verification, and Supplier agrees to perform [ * ] on the
[ * ] of any release within [ * ] of receipt of such [ * ]
Supplier's [ * ] of the [ * ] is for Supplier's internal
purposes only, and HP will not rely on [ * ] for any purposes.
Further, HP shall have the right to [ * ] its Resellers and End
User Customers. The Licenses granted in this Article 2.2 shall
continue during the Term of this Agreement and for [ * ] after
the date of last shipment by HP of the Products purchased under
this Amendment.
3. ENVIRONMENTAL
Notwithstanding the provisions of Article 16 of the Agreement Supplier shall use
its reasonable best efforts to ensure that the SilkWorm 3200 and its packaging
will comply with HP's General Specifications for Environment, [ * ] attached
hereto as Exhibit (B) and incorporated herein by reference, provided however
that those provision(s) of HP's General Specifications for Environment relating
to batteries shall not apply.
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AMENDMENT NO. 3
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4. PRICING
4.1 [ * ]. If HP meets all the following conditions by the specified
due dates, then the [ * ] in this Section 4 shall apply:
4.1.1 Launch. HP must formally launch and make generally
available for sale [ * ].
4.1.2 Certification. HP must provide to Brocade by April 1,
2002, subject to the provisions of Article (19) of the
Agreement, a copy of the [ * ]. For [ * ] and high
availability [ * ] must generate a [ * ] including the
[ * ] configuration of the SilkWorm 3200.
Sections 4.2 and 4.3 shall not apply if HP does not meet all of the
conditions in this Section 4.1 by the specified due dates.
4.2 [ * ] The unit prices listed in Exhibit C for the Base configuration of
the SilkWorm 3200 (not the Entry configuration) shall be [ * ].
4.3 [ * ]HP will [ * ] for the completed purchase of [ * ] of the
[ * ]configuration of the SilkWorm 3200 (not the [ * ] configuration),
up to [ * ] in each Supplier [ * ] for use in promoting [ * ] products
as more specifically described in the Supplier[ * ]the current revision
of which is attached hereto as Exhibit D-1, and subject to the terms and
conditions of the [ * ] as they may be provided and amended [ * ] from
time to time. HP and Supplier agree that the [ * ] shall be [ * ] to
allow for a [ * ] of [ * ] as described in Exhibit D-2.
5. TERMINATION
In addition to the provisions in Article 22 of the Agreement, HP agrees that if
this Amendment or the Agreement is terminated due to HP's breach, then HP will
reimburse Supplier for its [ * ] to rework HP-customized SilkWorm 3200 units
back to Supplier's standard product, as described in exhibit (A-2) hereto. HP's
duty to reimburse shall extend only to units within the [ * ] and to units for
which HP-requested customization has begun or is completed, up to the number of
units in the HP Forecasts as of the termination date.
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6. HP MARKETING [ * ]
In [ * ] of Supplier's marketing activities related to Supplier's 2Gb fibre
channel switching technology, HP shall provide [ * ] in the form of (1) an HP
[ * ] in [ * ] of Supplier's 2Gb technology specifically as it relates to the 2
SilkWorm 3200 models HP is [ * ], which [ * ] shall be delivered in accordance
with HP's standard [ * ] policy and no later than 3/1/02 and (2) an HP [ * ],
delivered to Supplier no later than 3/1/02 in support of Supplier's SilkWorm
3200 2Gb technology, which [ * ] may be referenced by Supplier in Supplier's
[ * ]
7. [ * ] DATA
As a clarification, Section 6 of Amendment No. 2 to the Agreement ("HP [ * ]
DATA") shall apply to all OEM Products, including the SilkWorm 3200.
8. EXHIBITS
Each of the following Exhibits referred to in this Amendment is incorporated in
full in this Amendment wherever reference to it is made:
AMENDMENT 3 - EXHIBIT (A) - OEM PRODUCTS AND SPECIFICATIONS
(A-1) Supplier Product Specifications
(A-2) HP Configuration Specification Documents
(A-3) HP Supplier Quality System Requirements
(A-4) Packaging
(A-5) Documentation
AMENDMENT 3 - EXHIBIT (B) HP's General Specifications for Environment, [ * ]
AMENDMENT 3 - EXHIBIT (C) - PRICING AND FEES
AMENDMENT 3 - EXHIBIT (D) -[ * ]
(D-1) Brocade [ * ] - January 2002
(D-2) Changes to [ * ]
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AMENDMENT NO. 3
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This Amendment may be executed in counterparts each of which will be deemed an
original, but both of which together will constitute one and the same
instrument. The parties agree that facsimile signatures of the parties will be
binding.
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: /s/ Mark E. Favreau By:
-----------------------------
Name: Mark E. Favreau Name:
--------------------------
Title: V.P. Global OEM Sales Title:
--------------------------
BROCADE COMMUNICATIONS
SWITZERLAND, SARL.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
AMENDMENT NO. 3
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EXHIBIT (A-1)
Supplier Product Specifications
AMENDMENT NO. 3
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EXHIBIT (A-2)
HP Configuration Specification Documents
AMENDMENT NO. 3
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EXHIBIT (A-3)
HP Supplier Quality System Requirements
TO BE ADDED SUBJECT TO BROCADE / HP REVIEW AND APPROVAL
AMENDMENT NO. 3
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EXHIBIT (A-4)
Packaging
AMENDMENT NO. 3
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EXHIBIT (A-5)
DOCUMENTATION
[ * ]
October 8, 2001
CONTENT CHANGES
1. [ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
STYLE AND FORMAT
1. [ * ]
[ * ]
[ * ]
[ * ]
[ * ]
PROCESS
1. [ * ]
[ * ]
[ * ]
[ * ]
DELIVERY
1. [ * ]
[ * ]
[ * ]
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AMENDMENT NO. 3
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EXHIBIT (B)
HP's General Specifications for Environment, [ * ]
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AMENDMENT NO. 3
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EXHIBIT (C)
PRICING
ENTERPRISE - SILKWORM 3200 SWITCH OEM PRODUCT PRICING.
HP PART DESCRIPTION: [HP private-label name pending] (8-Port Fibre Channel
Fabric Switch)
SUPPLIER MODEL NO./DESCRIPTION: [*]
- ------------------------------------ ------------------------------------------
[ * ] HP PURCHASE PRICE
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
ENTRY SILKWORM 3200 SWITCH OEM PRODUCT PRICING.
HP PART DESCRIPTION: [HP private-label name pending] (8-Port Fibre Channel
Fabric Switch)
SUPPLIER MODEL NO./DESCRIPTION: [*]
- ------------------------------------ ------------------------------------------
[ * ] HP PURCHASE PRICE
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
[ * ] [ * ]
- ------------------------------------ ------------------------------------------
BROCADE SILKWORM SWITCH UPGRADE
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO./DESCRIPTION: [*]
- ------------------------------------ ------------------------------------------
HP Upgrade Purchase Price [ * ]
- ------------------------------------ ------------------------------------------
BROCADE FABRIC SOFTWARE OEM PRODUCT PER-COPY FEES.
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO./DESCRIPTION:
[*]
- ------------------------------------ ------------------------------------------
HP per-license fee: [ * ]
- ------------------------------------ ------------------------------------------
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AMENDMENT NO. 3
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EXHIBIT (D-1)
BROCADE [ * ]
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AMENDMENT NO. 3
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EXHIBIT (D-2)
CHANGES TO [ * ]
BACKGROUND: HP and Supplier would like to amend the [ * ] to allow HP to use its
[ * ] for a [ * ] until Brocade issues the end of life notice for the SilkWorm
3200 ("3200 EOL"). Thereafter, HP and Brocade intend for HP to use its [ * ]
only as described in the unmodified [ * ]. Except as modified by the Amended
Terms below, the [ * ] remain unchanged.
AMENDED TERMS:
- -------------
The provisions of this Amendment governing [ * ] DATA shall supercede the
section of the Guideline titled [ * ] Reports.
During the pre-approval process for each [ * ] Activity, HP and Brocade will
mutually agree upon whether a [ * ] or [ * ] will be used to [ * ] the
initiative.
From the Effective Date of this Amendment until 3200 EOL, the section of the
[ * ] entitled [ * ] is replaced with the following. After 3200 EOL the
original, unmodified section shall apply:
[ * ]
To qualify for Brocade [ * ] the marketing activity must be directed at
promoting and supporting Brocade products. To the extent that an activity
promotes a SAN solution and involves other vendor offerings, Brocade must be
shown as the [ * ].
Brocade [ * ] is available to [ * ] general types of marketing activities with
HP worldwide. These are [ * ] known as [ * ] marketing and [ * ] known as [ * ]
marketing. Up to [ * ] of the prior [ * ] with a maximum of [ * ] per [ * ] can
be used for pre-approved [ * ] marketing activities.
All activities must be mutually agreed upon in writing by Brocade and the OEM
prior to moving forward on them in order for Brocade [ * ] to be used for [ * ].
The following [ * ] activities qualify under the Brocade [ * ] when pre-approved
in writing by Brocade:
[ * ] qualifying marketing activities:
-------------------------------------
- [ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
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- [ * ]
[ * ] qualifying marketing activities:
-------------------------------------
- [ * ]
[ * ]
[ * ]
Any activity that does not fall within these [ * ], yet which the OEM views as
[ * ] Brocade solutions, should be discussed with the Brocade OEM account team
to determine if that activity could be designated as a qualifying activity.
Brocade may determine if such proposed activities are qualifying activities at
its sole discretion on a case-by-case basis.
Detailed information regarding eligible reimbursable activities can be found on
PAGES 4-9 of the [ * ]
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AMENDMENT NO. 3
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