EXHIBIT 10.81
OEM PURCHASE AGREEMENT
SECOND AMENDMENT
This Second Amendment ("Amendment") effective as of the 25th day of October 2004
amends the OEM Purchase Agreement dated December 16, 2002 ("Agreement") by and
between Hewlett-Packard Company a Delaware Corporation having a place of
Business located at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ("HP") and Brocade
Communications Systems, Inc., a Delaware corporation having its principal place
of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Brocade").
RECITALS
WHEREAS, HP and Brocade have entered into the Agreement pursuant to which HP
agreed to purchase and Brocade agreed to sell OEM Products in accordance with
the terms and conditions set forth therein; and
WHEREAS, HP and Brocade desire to add an additional product to the Agreement
pursuant to the attached Exhibit so that HP may offer such OEM Products for sale
to HP customers.
AGREEMENTS
NOW THEREFOR, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, HP and Brocade agree as follows:
1. Definitions
Terms used in this Amendment that are not defined herein shall have the
same meaning given thereto in the Agreement.
2. Confirmation and Ratification
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 same
meaning as set forth in the Agreement. In the event of a conflict between
the Agreement and the Amendment, the terms of the Amendment shall govern.
3. Amendments
HP and Brocade hereby agree that the Agreement is hereby amended to
include the following items:
Exhibit A-2-A is added to Exhibit A of the Agreement. Section 10 of
Exhibit A-2-A is added to Exhibit C of the Agreement.
The parties have caused this Amendment to be executed by their duly
authorized representatives as indicated below.
HEWLETT-PACKARD COMPANY BROCADE COMMUNICATIONS SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: DIRECTOR, NSS PROCUREMENT Title: VP, WW SALES
Date: 10-27-04 Date: OCTOBER 26, 2004
EXHIBIT A-2-A
PRODUCT ADDENDUM
HP CONFIGUATION SPECIFICATIONS
(Product Addendum with [**] to be attached)
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[**] 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.
PRODUCT ADDENDUM A-2-A
TO
EXHIBIT A-2
OF
OEM PURCHASE AGREEMENT
This Product Addendum by and between Hewlett-Packard Company ("HP"), and Brocade
Communications Systems, Inc. ("Brocade") is issued pursuant to Exhibit A-2 of
the OEM Procurement Agreement between the parties dated December 16, 2002
("Agreement") and is incorporated therein by reference.
1. SCOPE.
This Product Addendum sets forth the work efforts between HP and Brocade for the
Brocade SAN Switch for HP BladeSystem p-Class henceforth referred to as ("SAN
Switch") that incorporates the functionality and commands as defined in HP's
[**] (Attachment 1) [**].
2. DEFINITIONS.
Capitalized terms used but not defined herein shall have the meaning assigned to
them in the OEM Agreement. The following definitions shall apply to this Product
Addendum.
2.1 "General Availability" means, with respect to a particular product,
the date on which the product is initially introduced into the stream of
commerce for revenue by both companies.
2.2 "Milestone" means each of the various tasks to be accomplished by
Brocade and HP as set forth in Section 5, Deliverables, Schedule and
Milestones, below.
2.3 "Qualification Plan" means Qualification Plan for the SAN Switch. The
Qualification Plan will be developed by the parties according to the
timeline indicated in the [**] and based on the outline of Attachment 3 to
the [**].
2.4 "Specification" as referred to in this document means the [**]Brocade
Technical Specification(s) for SAN Switch that may be updated from time to
time.
2.5 [**], added hereto as Attachment 1 and shall include the [**]of the
OEM Product.
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
HP/Brocade Confidential
3. PROJECT MANAGEMENT.
Brocade and HP shall each assign a Project Manager who will act as the
primary point of contact for purposes of this Product Addendum. The
parties' Project Managers are:
Brocade: HP:
[**][**] [**]
[**] [**]
[**] [**]
Each party may change their designated Project Manager by providing
written notice to the other.
4. RESPONSIBILITIES.
4.1 Brocade shall:
4.1.1 Produce a fibre channel SAN Switch kit.
4.1.2 Modify existing revision of Brocade's fabric operating system
software to operate with the SAN Switch in the environment as
defined in the [**].
4.1.3 [**]necessary components to develop and manufacture SAN Switch
units.
4.1.4 Conduct appropriate qualifications before delivery as
specified in the [**].
4.1.5 Assemble and deliver the complete product solution.
4.2 HP shall:
4.2.1 [**] deliver requirements for the SAN Switch product.
4.2.2 [**].
4.2.3 Assist Brocade in the identification [**] of parts and
components to be used in the SAN Switch product.
4.2.4 Assist Brocade with technical issues related to BladeSystems
products.
4.3 Both parties shall provide their respective deliverables to the other
party in accordance with the Schedule and as further described in
Section 5.
5. DELIVERABLES, SCHEDULE, AND MILESTONES.
5.1 Brocade Deliverables:
5.1.1 SAN Switch assembly kit as defined in the [**]
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
HP/Brocade Confidential
5.1.2 Prototype units and any additional deliverables as described
in Attachment #2 to the [**].
5.1.3 Other deliverables as specified in the [**].
5.2 HP Deliverables:
5.2.1 Licensed Materials as specified in the MLA.
5.2.2 Deliverables as specified in the [**].
5.3 Schedule and Milestones.
The Schedule of Milestones ("Schedule"), target dates, and
associated deliverables is set forth in the [**].
Brocade and HP understand and agree that adherence to the Schedule
is a material term of this Product Addendum. The parties recognize
that unforeseen factors may necessitate changes to the Schedule, and
such changes will be made with the mutual agreement of the Project
Managers for each party and executed in writing by the parties.
6. COMPATIBILITY REQUIREMENTS.
Compatibility Requirements shall be defined [**].
7. PERFORMANCE CRITERIA, ACCEPTANCE.
7.1 Acceptance testing shall commence as set forth in the [**], Schedule
and Milestones. Acceptance testing shall be conducted in accordance
with the procedures and criteria set forth in the Qualification
Plan. The OEM Product shall be deemed accepted after successful
completion of the acceptance testing and a determination by the
parties that the OEM Product complies with the [**] requirements set
forth in the [**] and the Qualification Plan.
7.2 In the event that the OEM Product fails to meet the acceptance
criteria, Brocade agrees to make commercially reasonable changes to
the OEM Product to correct identified errors or non-compliance. The
corrected OEM Product shall be delivered within [**] after
determination that the OEM Product has not been accepted, unless the
parties mutually agree to a different time period. If Brocade fails
to make such changes or perform such changes within the required
time period, or the OEM
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HP/Brocade Confidential
Product still is not accepted, then HP may [**] written notice to
Brocade.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1 License Grants to HP.
License Grants to HP related to the SAN Switch are described in
Section 13 of the Agreement.
8.2 License Grant
License grants made to Brocade by HP, pursuant to HP deliverables in
the [**], (if any) shall be as provided in the Materials License
Agreement with an effective date of August 29, 2004 and Transmittal
#2 to the Materials License Agreement both of which shall be
incorporated herein by reference.
9. FEES.
9.1 In the event HP cancels the program for any reason, HP agrees to pay
Brocade cancellation fees [**], not to exceed $[**]. The calculation
for determination of the fees is based on the [**]. Once a schedule
has been provided to HP and a POR date has been agreed to, the [**]
POR to GA will be divided in to [**] to establish the [**]. Fees
will begin at [**] and [**], based on the [**]. No monies are due to
Brocade should [**].
10.0 COSTS.
Production Costs
Model Cost
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VL2 [**]
Full Fabric [**]
Power Pack [**]
Note: The definitions for VL2, Full Fabric and Power Pack shall be as
described in the [**]. These units include [**] and [**]described above.
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HP/Brocade Confidential
Cost of the [**] (estimated at approximately [**]), plus [**] of the [**]
cost to [**], will be added to the Full Fabric and Power Pack models
above. The [**]in all three models will be the currently HP-Brocade
supported [**]without specialized branding (standard Brocade [**]stock).
If in the event HP determines additional requirements are that HP labeled
[**] must be used, HP agrees that Brocade will be able to source them via
[**]at a cost of [**] or less, per [**]. If the cost to [**] is more than
[**], HP agrees to accept increase to material cost that [**]
Pre-Production Costs
Qualification Units - [**] "Alpha" units provided by Brocade to HP at
[**]. Any quantity in excess of [**]units will be provided per Attachment
2 of the [**].
11.0 QOQ COST REDUCTIONS
Shall be determined by the current process as described in the OEM
Agreement dated December 2002.
12.0 WARRANTY, MAINTENANCE AND SUPPORT:
Shall be as described in the current OEM Agreement as of December 2002.
13.0 TERM AND TERMINATION.
13.1 Term. The term of this Product Addendum shall commence on the
Effective Date and shall continue in effect until HP General
Availability, unless earlier terminated in accordance with Section
10 of the Master Agreement.
13.2 Effect of Termination. Unless this Product Addendum is terminated
[**], all licenses granted to HP hereunder as of the date of such
termination shall [**]this Product Addendum. Notwithstanding,
Termination as defined in Section 24 of the OEM Agreement shall
remain in effect and will apply to this Product Addendum.
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[**] 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.
HP/Brocade Confidential
14.0 SIGNATURES.
The parties have caused this Product Addendum to be executed by their duly
authorized representatives and made effective as of the date of the last
signature below (the "Effective Date").
HEWLETT-PACKARD COMPANY BROCADE COMMUNICATIONS
SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: DIRECTOR, NSS PROCUREMENT Title: VP, WW SALES
Date: 10-27-04 Date: OCTOBER 26, 2004
HP/Brocade Confidential
ATTACHMENT 1
TO
PRODUCT ADDENDUM NO. 1
TO
OEM PURCHASE AGREEMENT
[**]
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[**] 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.
HP/Brocade Confidential
APPENDIX A
QUALIFICATION PLAN
HP/Brocade Confidential
[**]
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[**] This attachment to Exhibit 10.81 has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to this attachment.
