Exhibit 10.55
Amendment No. 2
Purchase Agreement
This Amendment No. 2 ("the Amendment") to the Purchase Agreement (the
"Agreement") dated January 25, 2000 by and among Brocade Communications Systems,
Inc., a corporation organized under the laws of the State of Delaware, U.S.A.,
and having its principal place of business at 1745 Technology Drive, San Jose,
California 95110 ("Brocade-US"), and Brocade Communications Switzerland SarL., a
corporation organized under the laws of Geneva, and having its principal place
of business at 29-31 Route de I'Aeroport, Case Postale 105 CH-1215 Geneva 15,
Switzerland ("Brocade-Switzerland"), (collectively "SUPPLIER") and EMC
Corporation, ("EMC"), a Massachusetts corporation, is made this 20 day of
December 2002 by and between SUPPLIER and EMC and commences on the date accepted
and executed by SUPPLIER("Effective Date"). [*]
WHEREAS, the parties wish to amend the Agreement so as to 1) modify the
responsibility of SUPPLIER 2) define the process for Forecasts, Purchase Orders,
3) modify certain change order terms, 4) modify the assignment terms and 7) add
new Products and pricing for these Products.
NOW THEREFORE, IN CONSIDERATION OF THE ABOVE AND THE OTHER RESPECTIVE PROMISES
OF THE PARTIES SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1)) Add: Section 1.8, the following new definition is added as Section 1.8:
"SUPPLIER Fiscal Year" means the fiscal year for SUPPLIER, which shall commence
on the first day of the month of November and conclude on the last day of
October.
2)) Add: Section 1.9, "Qualified Product" means the Brocade Product that has
been shipped to EMC in compliance with the EMC configuration of such Products.
Qualified Products may include but are not limited to those EMC products that
are made generally available. The parties agreed that general availability is
not a condition of precedent for the products to be considered Qualified
Products(s).
3)) Section 3.1 of the Agreement is hereby amended and replaced by the
following:
3.1 Subject to the provisions of subsection 3.2, 3.3, 3.4, 3.5 and 3.6, the
initial term of this Agreement commences on the Effective Date and continues in
effect for a period of two (2) years, unless sooner terminated pursuant to the
termination provisions in this Agreement. Thereafter, this Agreement may be
renewed upon mutual agreement for successive one (1) year terms, unless the
Agreement is cancelled by either EMC or
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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SUPPLIER by notifying the other party in writing of its intent to do so at least
[*] prior to the end of the initial term or any renewal term.
4) Section 6.4 is replaced in its entirety with the following:
Payment terms for all Products sold to EMC by SUPPLIER shall be either net [*]
or [*]% discount net [*] as the parties have agreed from [*]. Payment of an
invoice shall not constitute or imply acceptance of the Product or relieve
SUPPLIER of any obligations assumed under this Agreement, nor prevent EMC from
asserting any other rights it may have under this Agreement. All payments are to
be made to the following lock box:
Brocade Communications Systems, Inc.
[*]
San Jose, CA 95161-9026
5) SECTION 7 OF THE AGREEMENT IS HEREBY AMENDED AN REPLACED BY THE FOLLOWING:
7.1 FORECASTS. EMC agrees to use commercially reasonable efforts to provide
SUPPLIER with good faith [*] rolling forecasts for [*] of EMC's
estimated Product(s) and Spare(s) purchase requirements. EMC's
forecasts are for planning purposes only. EMC is under [*]and if EMC
[*]quantities, EMC shall have[*](except as detailed in this Agreement)
[*]unless otherwise agreed to [*]in writing. Accordingly, any
commitments to buy are [*]as defined in Section 7.2 below and as
detailed in this Agreement. SUPPLIER shall use [*] efforts to establish
a supply line that results in sufficient material being available at
the beginning of each [*] to support EMC's [*] rolling forecast.
SUPPLIER shall respond [*] within [*] of [*] of EMC's forecast if it
cannot support the requested quantities.
7.2 PURCHASE ORDERS. EMC shall submit a binding, written purchase order for
all Product(s) and Spare(s) ordered from SUPPLIER. EMC may transmit
purchase orders by facsimile and/or e-mail. Purchase orders shall
specify part numbers, Product(s)and/or Spare(s) model numbers, quantity
ordered, shipping destination, carrier, and delivery dates, which dates
shall be no more than [*] from the date of [*]. SUPPLIER shall
acknowledge in writing to EMC its receipt of such purchase order within
[*] and acceptance or rejection of such purchase order within [*] of
SUPPLIER's receipt of each purchase order. [*] If within [*] from
SUPPLIER's receipt of a purchase order EMC does not receive written
notice from SUPPLIER rejecting the purchase order and specifying the
reasons for such rejection, the purchase order shall be deemed accepted
by SUPPLIER. In the event of a conflict between the provisions of this
Agreement and the terms and conditions of EMC's purchase order or
SUPPLIER's order acknowledgment, the provisions of this Agreement shall
prevail. Any additional terms contained in EMC's purchase orders or
SUPPLIER's order acknowledgements shall not be binding unless accepted
by
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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the other party in writing. These purchase order terms may be modified
per specific programs included for Products in Exhibit A.
7.3 LEAD-TIME, RESCHEDULING AND CANCELLATION.
7.3.1 LEAD-TIME. Lead-time for all Purchase Orders covered
under this Agreement will be [*] from [*] In some
cases, EMC may request delivery sooner than [*]
lead-time stated herein. In such cases, SUPPLIER will
make [*] effort to support these inside lead-time
requests
7.3.2 RESCHEDULING. EMC shall have the right and ability to
reschedule a purchase order [*]as long as the total
quantity of each Product stated on the purchase order
does not change within the SUPPLIER Fiscal Quarter.
Reschedules that reduce the quantity of each Product
on the purchase order within the current SUPPLIER
Fiscal Quarter are restricted to the terms documented
below.
- --------------------------------------------------------------------------------
Request made X business days
before PO delivery date Reschedule quantity allowed*
[*] days [*]
[*] days [*]
*If any reschedule results in reductions to the PO quantities for the current
SUPPLIER Fiscal Quarter, then EMC must reschedule such reduced quantities for
delivery within [*] after the end of the current quarter unless product is
cancelled..
- --------------------------------------------------------------------------------
7.3.3 CANCELLATION. EMC shall have the right to cancel delivery of any purchase
order by payment of the cancellation liability set forth below[*]SUPPLIER's
consent, provided SUPPLIER receives EMC's written notice [*] prior to shipment.
If no such notice is given and received, EMC is liable for the purchase orders.
- --------------------------------------------------------------------------------
X business days prior to PO delivery date EMC's liability
[*] days [*]
[*] days [*]
[*] days [*]
FOOTNOTE: All material referenced in the cancellation section beyond [*] days is
at [*]
- --------------------------------------------------------------------------------
7.4 PURCHASE ORDER NUMBERS. Purchase order numbers shall be
referenced on all correspondence, invoicing, and packing slips
relating to each order.
7) Section 8.8, shall be replaced in its entirety with the following:
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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8.8 SUPPLIER will provide the following information about its Product in
writing within [*] of receiving a written request from EMC: i) country of
origin; ii) NAFTA
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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preference criteria as applicable; iii) harmonized scheduled tariff
classification number; and iv) Export Control Classification Number ("ECCN").
8) Section 24.8 of the Agreement is hereby amended and replaced by the
following:
24.8 ASSIGNMENT. Neither party may assign this Agreement or any of its
rights or obligations under this Agreement without the prior written consent of
the other, such consent not to be unreasonably withheld or delayed, provided
that either party may withhold consent to assignment to a third party which the
party reasonably believes is or is likely to be a competitor, for any reason or
no reason. Notwithstanding the above, either party may assign this Agreement to
a surviving entity in connection with any merger, acquisition or consolidation
of not less than a majority ownership in the merged, acquired or consolidated
company by the surviving entity. Any assignment of rights shall not work as a
novation of obligations hereunder without written agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 to OEM
Purchase and License Agreement by their duly authorized representatives. Such
execution of the Amendment may be in three counterparts, each of which shall be
an original and together which shall constitute one and the same instrument.
Executed and agreed to: Executed and agreed to:
BROCADE COMMUNICATIONS SYSTEMS, INC. EMC CORPORATION (EMC)
(Brocade "SUPPLIER")
By:_________________ By:_______________________
Name: Jack Cuthbert Name:_____________________
Title: VP Worldwide Sales Title:____________________
Date: ____________________________ Date:_____________________
BROCADE COMMUNICATIONS SWITZERLAND SARL.
(Brocade "Supplier")
By: _______________________________
Print Name: Philippe Bernard
Title: Director, EMEA Sales & Support
Place: Geneva, Switzerland
Date: ___________
EMC/BROCADE CONFIDENTIAL
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EXHIBIT A
PRODUCT AND REPAIR PRICING
PRICING
Model # Description Unit Price
- ------- ----------- ----------
[*] 16 Port Switch 2Gb, 2 P/S, 16 SWL SFP, [*], Color,
Label
Software License Keys Enabled:
Web Tools , Advanced Zoning
SUPPLIER OS Upgrades Included up to 3.X
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*] SWL SFP 4-pack [*]
[*]
[*] LWL SFP single [*]
[*]
[*] SWL SFP single (2Gb universal) [*]
[*]
[*] Power Supply FRU, [*] [*]
[*] Fan Assembly [*]
[*] Quick loop License Upgrade key [*]
[*]
[*] Extended Fabric License upgrade key [*]
[*]
[*] Trunking License upgrade key [*]
[*]
[*] Fabric Watch License upgrade key [*]
[*]
[*] Advanced Performance Monitor [*]
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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[*]
[*] EMC Custom Enterprise Bundle: (EF,PM,FW,T) [*]
[*]
EMC Unique Products as described in section 7.3.3 (as of January 20, 2003):
[*]
EXHIBIT A1
PRODUCT AND REPAIR PRICING
PRICING
Model # Description Unit Price
- ------- ----------- ----------
[*] 64 Port Switch 2Gb, 4 P/S, 2 CP, 64 SWL SFP
[*] Software License Keys Enabled:
Web Tools, Advanced Zoning
Software Maintenance (Note 1)
[*] Warranty [*]
[*]
[*] 128 Port Switch 2Gb, 4 P/S, 2 CP, 128 SWL SFP
<Superceded with Software License Keys Enabled:
- -0001 above> Web Tools, Advanced Zoning
Software Maintenance (Note 1)
[*] Warranty [*]
[*] SWL SFP single (2Gb universal) [*]
[*]
[*] Blade w/ Media [*]
[*] [*]
[*] CP Card [*]
[*]
[*] Power Supply [*]
[*]
[*] Blower Assembly [*]
[*]
[*] WWN Card [*]
[*]
[*] PWR Cord NA [*]
[*] PWR Cord UK/IRE [*]
[*] PWR Cord CONT EU [*]
[*] PWR Cord AUS/NZ [*]
[*] PWR Cord Other 230v [*]
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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[*] Chassis [*]
[*] WWN Bezel [*]
[*] Chassis Door [*]
[*] Port Card Slot Filler [*]
[*] Cable Management Tray [*]
[*] Trunking License [*]
[*]
[*] Extended Fabric License [*]
[*]
[*] Fabric Watch License [*]
[*]
[*] Performance Monitoring License [*]
[*]
[*] EMC Software Bundle License (EF,PM,FW,T) [*]
[*]
[*]
EMC Unique Products as described in section 7.3.3 (as of January 20, 2003):
Note 1. The annual fee for Software Maintenance is [*]. The above price includes
the purchase of Software Maintenance for an initial term of [*], commencing on
the date of purchase, and [*] renewal for a subsequent [*] term. [*] Thereafter,
Software Maintenance may be renewed for additional [*] periods[*] for an annual
fee of [*]
EXHIBIT A2
PRODUCT AND REPAIR PRICING
PRICING
Model # Description Unit Price
- ------- ----------- ----------
[*] 32 Port Switch 2Gb, 2 P/S, 16 SWL SFP, [*], Color,
Label
Software License Keys Enabled:
Web Tools , Advanced Zoning
Software Maintenance (Note 1)
[*]
[*] SWL SFP 4-pack [*]
[*] LWL SFP single [*]
[*]
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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[*] SWL SFP single (2Gb universal) [*]
[*]
[*] Power Supply FRU, [*] [*]
[*] Fan Assembly [*]
[*] Quick loop License Upgrade key [*]
[*]
[*] Extended Fabric License upgrade key [*]
[*]
[*] Trunking License upgrade key [*]
[*]
[*] Fabric Watch License upgrade key [*]
[*]
[*] Advanced Performance Monitor [*]
[*]
[*] EMC Software Bundle License (EF,PM,FW,T) [*]
[*]
[*]
Note 1: The annual fee for Software Maintenance is [*]. The above price includes
the purchase of Software Maintenance for an initial term of [*], commencing on
the date of purchase, and [*] renewal for a subsequent [*] term. [*] Thereafter,
Software Maintenance may be renewed for additional [*] periods[*] for an annual
fee of [*]
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EMC/BROCADE CONFIDENTIAL
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