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EXHIBIT 10.8
FORM OF MASTER TRANSACTION AGREEMENT
BETWEEN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
AND
MCDATA CORPORATION
Effective as of _______________, 2000
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TABLE OF CONTENTS
ARTICLE I THE DISTRIBUTION......................................................................... 2
Section 1.1 The Distribution........................................................ 2
Section 1.2 Actions Prior to the Distribution....................................... 2
Section 1.3 Sole Discretion of EMC.................................................. 3
Section 1.4 Conditions Precedent to Distribution.................................... 4
Section 1.5 Fractional Shares....................................................... 4
ARTICLE II COVENANTS AND OTHER MATTERS............................................................ 5
Section 2.1 Other Agreements........................................................ 2
Section 2.2 Agreement for Exchange of Information................................... 5
Section 2.3 Auditors and Audits; Annual and Quarterly
Statements and Accounting.............................................. 7
Section 2.4 Payment of Expenses..................................................... 10
Section 2.5 Dispute Resolution...................................................... 10
ARTICLE III MISCELLANEOUS......................................................................... 11
Section 3.1 Limitation of Liability................................................. 11
Section 3.2 Entire Agreement........................................................ 12
Section 3.3 Governing Law........................................................... 12
Section 3.4 Actions Necessary to Effectuate Obligations Under this
Agreement............................................................... 12
Section 3.5 Termination............................................................. 12
Section 3.6 Notices................................................................. 12
Section 3.7 Counterparts............................................................ 13
Section 3.8 Binding Effect; Assignment.............................................. 13
Section 3.9 Severability............................................................ 13
Section 3.10 Failure or Indulgence Not Waiver; Remedies Cumulative................... 14
Section 3.11 Amendment............................................................... 14
Section 3.12 Authority............................................................... 14
Section 3.13 Interpretation.......................................................... 14
Section 3.14 Conflicting Agreements.................................................. 14
ARTICLE IV DEFINITIONS............................................................................ 15
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Section 4.1 Affiliated Company...................................................... 15
Section 4.2 Effective Date.......................................................... 12
Section 4.3 EMC's Auditors.......................................................... 12
Section 4.4 EMC Group............................................................... 12
Section 4.5 Governmental Approvals.................................................. 12
Section 4.6 Governmental Authority.................................................. 13
Section 4.7 Information............................................................. 13
Section 4.8 IPO Closing Date........................................................ 13
Section 4.9 McDATA's Group.......................................................... 14
Section 4.10 McDATA Auditors......................................................... 14
Section 4.11 Person.................................................................. 14
Section 4.12 Record Date............................................................. 14
Section 4.13 Subsidiary.............................................................. 14
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MASTER TRANSACTION AGREEMENT
This Master Transaction Agreement (this "Agreement") is
entered into as of May , 2000, between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("EMC"), a
Massachusetts corporation, and McDATA Corporation ("McDATA"), a Delaware
corporation. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in Article V hereof.
RECITALS
WHEREAS, in connection with a corporate restructuring of
McDATA, EMC and McDATA entered into various agreements (the "1997 Agreements")
dated as of October 1, 1997, relating to the allocation of various assets and
liabilities between EMC and McDATA and as to certain continuing rights and
obligations of EMC and McDATA; and
WHEREAS, EMC and McDATA currently propose that McDATA sell
shares of its Class B common stock, $.01 par value, to the public in an
underwritten public offering (the "IPO"); and
WHEREAS, EMC currently proposes to distribute to the
stockholders of EMC (the "Distribution"), approximately six to twelve months
after the closing of the IPO, the Class A common stock, $.01 par value, of
McDATA (the "Class A Stock") that is currently held by McDATA Holdings
Corporation, a wholly owned subsidiary of EMC ("Holdings"); and
WHEREAS, the parties intend in this Agreement to further
delineate the relationship between EMC and McDATA following the IPO, set forth
certain rights and obligations of EMC and McDATA following the IPO, address
certain matters relating to the Distribution, and provide for the execution and
delivery of certain additional agreements in order to facilitate and provide for
the foregoing;
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements set forth below, the parties hereto agree as follows:
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ARTICLE I
THE DISTRIBUTION
Section 1.1 The Distribution.
(a) Delivery of Shares for Distribution. Subject to
Section 1.4 hereof, on or prior to the date the Distribution is effective (the
"Distribution Date"), EMC will deliver or cause to be delivered to the
distribution agent (the "Distribution Agent") to be appointed by EMC to
distribute to the stockholders of EMC on a pro rata basis the shares of Class A
Stock held by Holdings, or if Holdings has been liquidated or merged into EMC
prior thereto by EMC, pursuant to the Distribution for the benefit of holders of
record of common stock of EMC on the Record Date, a stock certificate or
certificates, endorsed by EMC or Holdings, as appropriate, representing all of
the outstanding shares of Class A Stock then beneficially owned by EMC, and
shall cause the transfer agent for the shares of common stock of EMC to instruct
the Distribution Agent to distribute on the Distribution Date the appropriate
number of such shares of Class A Stock to each such holder or designated
transferee or transferees of such holder.
(b) Shares Received. Subject to Sections 1.4 and 1.5,
each holder of common stock of EMC on the Record Date (or such holder's
designated transferee or transferees) will be entitled to receive in the
Distribution a number of shares of Class A Stock equal to the number of shares
of common stock of EMC held by such holder on the Record Date multiplied by a
fraction the numerator of which is the number of shares of Class A Stock
beneficially owned by EMC on the Record Date and the denominator of which is the
number of shares of common stock of EMC outstanding on the Record Date.
(c) Obligation to Provide Information. McDATA and
EMC, as the case may be, will provide to the Distribution Agent all share
certificates and any information required in order to complete the Distribution
on the basis specified above.
Section 1.2 Actions Prior to the Distribution.
(a) Information Statement. EMC and McDATA shall
prepare and mail, prior to the Distribution Date, to the holders of common stock
of EMC, such information concerning McDATA and the Distribution and such other
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matters as EMC shall reasonably determine are necessary and as may be required
by law. EMC and McDATA will prepare, and McDATA will, to the extent required
under applicable law, file with the Commission any such documentation which EMC
and McDATA determine is necessary or desirable to effectuate the Distribution,
and EMC and McDATA shall each use its reasonable commercial efforts to obtain
all necessary approvals from the Commission with respect thereto as soon as
practicable.
(b) Blue Sky. EMC and McDATA shall take all such
actions as may be necessary or appropriate under the securities or blue sky laws
of the United States (and any comparable laws under any foreign jurisdiction) in
connection with the Distribution.
(c) Nasdaq Listing. McDATA shall prepare and file,
and shall use its reasonable commercial efforts to have approved, an application
for the additional listing of the common stock of McDATA to be distributed in
the Distribution on the Nasdaq National Market, subject to official notice of
distribution.
(d) Conditions. EMC and McDATA shall take all
reasonable steps necessary and appropriate to cause the conditions set forth in
Section 2.4 to be satisfied and to effect the Distribution on the Distribution
Date.
Section 1.3 Sole Discretion of EMC. [EMC currently intends to
complete the Distribution by six to twelve months following consummation of the
IPO. EMC shall, in its sole and absolute discretion, determine the date of the
consummation of the Distribution and all terms of the Distribution, including,
without limitation, the form, structure and terms of any transaction(s) and/or
offering(s) to effect the Distribution and the timing of and conditions to the
consummation of the Distribution. In addition, EMC may at any time and from time
to time until the completion of the Distribution, modify or change the terms of
the Distribution, including, without limitation, by accelerating or delaying the
timing of the consummation of all or part of the Distribution. McDATA shall
cooperate with EMC in all respects to accomplish the Distribution and shall, at
EMC's direction, promptly take any and all actions necessary or desirable to
effect the Distribution, including, without limitation, the registration under
the Securities Act of the Class A Stock on an appropriate registration form or
forms to be designated by EMC. EMC shall select any investment banker(s) and
manager(s) in connection with the Distribution, as well as any financial
printer, solicitation and/or exchange agent and outside counsel for EMC, any
such selection shall be reasonably acceptable to McDATA; provided, however, that
nothing herein shall prohibit McDATA from engaging (at its
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own expense) its own financial, legal, accounting and other advisors in
connection with the Distribution.]
Section 1.4 Conditions Precedent to Distribution. The
following are conditions that must take place prior to the consummation of the
Distribution. The conditions are for the sole benefit of EMC and shall not give
rise to or create any duty on the part of EMC or the EMC Board of Directors to
waive or not waive any such condition.
(a) IRS Ruling. EMC shall have obtained a private
letter ruling from the Internal Revenue Service in form and substance
satisfactory to EMC (in its sole discretion), and such ruling shall remain in
effect as of the Distribution Date, to the effect that (i) the distribution by
EMC of all of its Class A Stock to the stockholders of EMC, will qualify as a
tax-free distribution under Section 355 of the Code and (ii) no gain or loss
will be recognized by (and no amount will otherwise be included in the income
of) the stockholders of EMC upon their receipt of Class A Stock pursuant to the
Distribution.
(b) Government Approvals. Any material governmental
approvals and consents necessary to consummate the Distribution shall have been
obtained and be in full force and effect;
(c) No Legal Restraints. No order, injunction or
decree issued by any court or agency of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Distribution shall
be in effect and no other event outside the control of EMC shall have occurred
or failed to occur that prevents the consummation of the Distribution; and
(d) No Material Adverse Effect. No other events or
developments shall have occurred subsequent to the IPO Closing Date that, in the
judgment of the Board of Directors of EMC, would result in the Distribution not
being in the best interests of EMC or its stockholders.
Section 1.5 Fractional Shares. As soon as practicable after
the Distribution Date, EMC shall direct the Distribution Agent to determine the
number of whole shares and fractional shares of Class A Stock allocable to each
holder of record or beneficial owner of common stock of EMC as of the Record
Date, to aggregate all such fractional shares and sell the whole shares obtained
thereby at the direction of EMC, in open market transactions, at then prevailing
trading prices, and to cause to be distributed to each such holder or for the
benefit of each such benefi-
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cial owner to which a fractional share shall be allocable such holder's or
owner's ratable share of the proceeds of such sale, after making appropriate
deductions of the amount required to be withheld for federal income tax purposes
and after deducting an amount equal to all brokerage charges, commissions and
transfer taxes attributed to such sale. EMC and the Distribution Agent shall use
their reasonable commercial efforts to aggregate the shares of common stock of
EMC that may be held by any beneficial owner thereof through more than one
account in determining the fractional share allocable to such beneficial owner.
ARTICLE II
COVENANTS AND OTHER MATTERS
Section 2.1 Other Agreements. EMC and McDATA agree to execute
or cause to be executed by the appropriate parties and deliver, as appropriate,
such other agreements, instruments and other documents as may be necessary or
desirable in order to effect the purposes of the Indemnification and Insurance
Matters Agreement, the Master Confidential Disclosure Agreement, and the Amended
and Restated Tax Sharing Agreement, each, to be entered into between EMC and
McDATA as of the date hereof (collectively, the "Ancillary Agreements") and this
Agreement.
Section 2.2 Agreement for Exchange of Information.
(a) Generally. Each of EMC and McDATA agrees to
provide, or cause to be provided, to each other, at any time before or after the
Distribution Date, as soon as reasonably practicable after written request
therefor, any Information in the possession or under the control of such party
that the requesting party reasonably needs (i) to comply with reporting,
disclosure, filing or other requirements imposed on the requesting party
(including under applicable securities laws) by a Governmental Authority having
jurisdiction over the requesting party, (ii) for use in any other judicial,
regulatory, administrative or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation or other similar requirements or
(iii) to comply with its obligations under this Agreement or any Ancillary
Agreement, as the case may be; provided, however, that in the event that any
party determines that any such provision of Information could be commercially
detrimental, violate any law or agreement, or waive any attorney-client
privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.
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(b) Internal Accounting Controls; Financial
Information. After the Effective Date, (i) each party shall maintain in effect
at its own cost and expense adequate systems and controls for its business to
the extent necessary to enable the other party to satisfy its reporting,
accounting, audit and other legal obligations, and (ii) each party shall
provide, or cause to be provided, to the other party and its Subsidiaries in
such form as such requesting party shall request, at no charge to the requesting
party, all financial and other data and information as the requesting party
determines necessary or advisable in order to prepare its financial statements
and reports or filings with any Governmental Authority.
(c) Ownership of Information. Any Information owned
by a party that is provided to a requesting party pursuant to this Section 2.2
shall be deemed to remain the property of the providing party. Unless
specifically set forth herein, nothing contained in this Agreement shall be
construed as granting or conferring rights of license or otherwise in any such
Information.
(d) Record Retention. To facilitate the possible
exchange of Information pursuant to this Section 2.2 and other provisions of
this Agreement after the Distribution Date, each party agrees to use its
reasonable commercial efforts to retain all Information in its respective
possession or control on the Distribution Date substantially in accordance with
the policies of each of EMC and McDATA as in effect on the Effective Date. No
party will destroy, or permit any of its Subsidiaries to destroy, any
Information that exists on the Effective Date (other than Information that is
permitted to be destroyed under adopted record retention policies) and that
falls under the categories listed in Section 2.2(a), without first using its
reasonable commercial efforts to notify the other party of the proposed
destruction and giving the other party the opportunity to take possession of
such Information prior to such destruction.
(e) Limitation of Liability. No party shall have any
liability to any other party in the event that any Information exchanged or
provided pursuant to this Section 2.2 is found to be inaccurate, in the absence
of gross negligence or willful misconduct by the party providing such
Information. No party shall have any liability to any other party if any
Information is destroyed or lost after reasonable commercial efforts by such
party to comply with the provisions of Section 2.2(d).
(f) Other Agreements Providing for Exchange of
Information. The rights and obligations granted under this Section 2.2 are
subject to any specific limitations, qualifications or additional provisions on
the sharing, exchange
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or confidential treatment of Information set forth in this Agreement and any
Ancillary Agreement.
(g) Production of Witnesses; Records; Cooperation.
After the Distribution Date, except in the case of a legal or other proceeding
by one party against another party, each party hereto shall use its reasonable
commercial efforts to make available to each other party, upon written request,
the former, current and future directors, officers, employees, other personnel
and agents of such party as witnesses and any books, records or other documents
within its control or which it otherwise has the ability to make available, to
the extent that any such person (giving consideration to business demands of
such directors, officers, employees, other personnel and agents) or books,
records or other documents may reasonably be required in connection with any
legal, administrative or other proceeding in which the requesting party may from
time to time be involved, regardless of whether such legal, administrative or
other proceeding is a matter with respect to which indemnification may be sought
hereunder. The requesting party shall bear all costs and expenses in connection
therewith.
Section 2.3 Auditors and Audits; Annual and Quarterly
Statements and Accounting. Each party agrees that, for so long as EMC is
required in accordance with United States generally accepted accounting
principles to consolidate McDATA's results of operations and financial position:
(a) Selection of Auditors. McDATA shall not select a
different accounting firm from that used by EMC to serve as its (and its
Subsidiaries') independent certified public accountants ("McDATA's Auditors")
for purposes of providing an opinion on its consolidated financial statements
without EMC's prior written consent.
(b) Date of Auditors' Opinion and Quarterly Reviews.
McDATA shall use its reasonable commercial efforts to enable the McDATA Auditors
to complete their audit such that they will date their opinion on McDATA's
audited annual financial statements no later than a date to be provided by EMC,
and to enable EMC to meet its timetable for the printing, filing and public
dissemination of EMC's annual financial statements. McDATA shall use its
reasonable commercial efforts to enable the McDATA Auditors to complete their
quarterly review procedures such that they will provide clearance on McDATA's
quarterly financial statements no later than a date to be provided by EMC.
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(c) Annual and Quarterly Financial Statements. McDATA
shall provide to EMC, no later than a date to be provided by EMC, all
Information that EMC reasonably requires for the preparation, printing, filing,
and public dissemination of EMC's annual and quarterly financial statements.
Without limiting the generality of the foregoing, McDATA will provide all
required financial Information with respect to McDATA and its Subsidiaries to
McDATA's Auditors in a sufficient and reasonable time and in sufficient detail
to permit McDATA's Auditors to take all steps and perform all reviews necessary
before a date to be provided by EMC in order to provide sufficient assistance to
EMC's Auditors with respect to financial Information to be included or contained
in EMC's annual and quarterly financial statements. Similarly, EMC shall provide
to McDATA on a timely basis all financial Information that McDATA reasonably
requires to meet its schedule for the preparation, printing, filing, and public
dissemination of McDATA's annual and quarterly financial statements. Without
limiting the generality of the foregoing, EMC will provide all required
financial Information with respect to EMC and its Subsidiaries to EMC's Auditors
in a sufficient and reasonable time and in sufficient detail to permit EMC's
Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to McDATA's Auditors with respect to Information to be
included or contained in McDATA's annual and quarterly financial statements.
(d) Identity of Personnel Performing the Annual Audit
and Quarterly Reviews. McDATA shall authorize McDATA's Auditors to make
available to EMC's Auditors both the personnel who performed or will perform the
annual audits and quarterly reviews of McDATA and work papers related to the
annual audits and quarterly reviews of McDATA, in all cases within a reasonable
time prior to McDATA's Auditors' opinion date, so that EMC's Auditors are able
to perform the procedures they consider necessary to take responsibility for the
work of McDATA's Auditors as it relates to EMC's Auditors' report on EMC's
financial statements, all within sufficient time to enable EMC to meet its
timetable for the printing, filing and public dissemination of EMC's annual and
quarterly statements. Similarly, EMC shall authorize EMC's Auditors to make
available to McDATA's Auditors both the personnel who performed or will perform
the annual audits and quarterly reviews of EMC and work papers related to the
annual audits and quarterly reviews of EMC, in all cases within a reasonable
time prior to EMC's Auditors' opinion date, so that McDATA's Auditors are able
to perform the procedures they consider necessary to take responsibility for the
work of EMC's Auditors as it relates to McDATA's Auditors' report on McDATA's
statements, all within sufficient time to enable McDATA to meet its timetable
for the printing, filing and public dissemination of McDATA's annual and
quarterly financial statements.
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(e) Access to Books and Records. McDATA shall provide
EMC's internal auditors and their designees such access to McDATA's and its
Subsidiaries' books and records that EMC may reasonably require in connection
with the conduct of reasonable audits relating to the financial statements
provided by McDATA pursuant hereto as well as to the internal accounting
controls and operations of McDATA and its Subsidiaries. Similarly, EMC shall
provide McDATA's internal auditors and their designees such access to EMC's and
its Subsidiaries' books and records that McDATA may reasonably require in
connection with the conduct of reasonable audits relating to the financial
statements provided by EMC pursuant hereto as well as to the internal accounting
controls and operations of EMC and its Subsidiaries
(f) Notice of Change in Accounting Principles. McDATA
shall give EMC as much prior notice as reasonably practical of any proposed
determination of, or any significant changes in, its accounting principles from
those in effect on the Effective Date. McDATA will consult with EMC and, if
requested by EMC, McDATA will consult with EMC's independent public accountants
with respect thereto. EMC shall give McDATA as much prior notice as reasonably
practical of any proposed determination of, or any significant changes in, its
accounting principles from those in effect on the Effective Date.
(g) Conflict with Third-Party Agreements. Nothing in
Sections 2.2 and 2.3 shall require McDATA or EMC to violate any agreement with
any third party regarding the confidentiality of confidential and proprietary
information relating to that third party or its business; provided, however,
that in the event that McDATA or EMC is required under Sections 2.2 and 2.3 to
disclose any such Information, McDATA and EMC shall use all commercially
reasonable efforts to seek to obtain such third party's consent to the
disclosure of such information.
Section 2.4 Payment of Expenses. [Except as otherwise provided
in this Agreement, the Ancillary Agreements or any other agreement between the
parties relating to the IPO or the Distribution, all costs and expenses of the
parties hereto in connection with the IPO (including underwriting discounts and
commissions) shall be born by McDATA and all costs and expenses of the parties
in connection with the Distribution shall be allocated between the parties on
such basis as may be mutually agreed.
Section 2.5 Dispute Resolution.
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(a) Arbitration. If a dispute, controversy or claim
("Dispute") arises between the parties relating to the interpretation or
performance of this Agreement or the grounds for the termination hereof, unless
otherwise mutually agreed, it shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in New York, New York.
Such arbitrators shall be selected by the mutual agreement of the parties or,
failing such agreement, shall be selected according to the aforesaid AAA rules.
The arbitrators will be instructed to prepare and deliver a written, reasoned
opinion stating their decision within thirty (30) days of the completion of the
arbitration. [The prevailing party in such arbitration shall be entitled to
expenses, including costs and reasonable attorneys' and other professional fees,
incurred in connection with the arbitration (but excluding any costs and fees
associated with prior negotiation or mediation).] The decision of the arbitrator
shall be final and non-appealable and may be enforced in any court of competent
jurisdiction. The use of any alternative dispute resolution procedures will not
be construed under the doctrine of laches, waiver or estoppel to adversely
affect the rights of either party.
(b) Court Action. Any Dispute regarding any of the
following is not required to be arbitrated prior to seeking relief from a court
of competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others.
ARTICLE III
MISCELLANEOUS
Section 3.1 Limitation of Liability. IN NO EVENT SHALL ANY
MEMBER OF THE EMC GROUP OR MCDATA GROUP BE LIABLE TO ANY OTHER MEMBER OF THE EMC
GROUP OR MCDATA GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR
PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THE INDEMNIFICATION
AND INSURANCE MATTERS AGREEMENT.
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Section 3.2 Entire Agreement. This Agreement, the Ancillary
Agreements and the Exhibits and Schedules referenced or attached hereto and
thereto constitute the entire agreement between the parties with respect to the
subject matter hereof and thereof and shall supersede all prior written and oral
and all contemporaneous oral agreements and understandings with respect to the
subject matter hereof and thereof.
Section 3.3 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New York
as to all matters regardless of the laws that might otherwise govern under
principles of conflicts of laws applicable thereto. The parties submit to the
jurisdiction of the federal and state courts of the Borough of Manhattan in the
city of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
Section 3.4 Actions Necessary to Effectuate Obligations Under
this Agreement. McDATA agrees to cause the Persons in the McDATA Group and EMC
agrees to cause the Persons in the EMC Group to take such actions as may be
necessary for such person to comply with its obligations under this Agreement.
Section 3.5 Termination.
(a) Termination. This Agreement and all Ancillary
Agreements may be terminated and the Distribution abandoned at any time prior to
the IPO Closing Date by and in the sole discretion of EMC without the approval
of McDATA. This Agreement may be terminated at any time after the IPO Closing
Date and before the Distribution Date by mutual consent of EMC and McDATA. In
the event of termination pursuant to this Section 3.5(a), no party shall have
any liability of any kind to the other party except as provided by Section
3.5(b) below.
(b) Survival. The provisions in Section 2.2(c) and
2.2(f) shall survive the termination of this Agreement.
Section 3.6 Notices. Notices, offers, requests or other
communications required or permitted to be given by either party pursuant to the
terms of this Agreement shall be given in writing to the respective parties to
the following addresses:
if to EMC:
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President of Business Development
cc: Office of the General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to McDATA:
McDATA Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
cc: Corporate Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
Section 3.7 Counterparts. This Agreement, including the
Ancillary Agreement and the Exhibits and Schedules hereto and thereto and the
other documents referred to herein or therein, may be executed in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
Section 3.8 Binding Effect; Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective legal representatives and successors, and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. This
Agreement may be enforced separately by each member of the EMC Group and each
member of the McDATA Group. Neither party may assign this Agreement or any
rights or obligations hereunder, without the prior written consent of the other
party, and any such assignment
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shall be void; provided, however, either party may assign this Agreement to a
successor entity in conjunction with such party's reincorporation.
Section 3.9 Severability. If any term or other provision of
this Agreement is determined by a court, administrative agency or arbitrator to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
Section 3.10 Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of either party hereto in the
exercise of any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation, warranty or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 3.11 Amendment. No change or amendment will be made to
this Agreement except by an instrument in writing signed on behalf of each of
the parties to such agreement.
Section 3.12 Authority. Each of the parties hereto represents
to the other that (a) it has the corporate or other requisite power and
authority to execute, deliver and perform this Agreement, (b) the execution,
delivery and performance of this Agreement by it have been duly authorized by
all necessary corporate or other actions, (c) it has duly and validly executed
and delivered this Agreement, and (d) this Agreement is a legal, valid and
binding obligation, enforceable against it in accordance with its terms subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and (ii) general equity
principles.
Section 3.13 Interpretation. The headings contained in this
Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any
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capitalized term used but not otherwise defined therein, shall have the meaning
assigned to such term in this Agreement. When a reference is made in this
Agreement to an Article or a Section, such reference shall be to an Article or
Section of this Agreement unless otherwise indicated.
Section 3.14 Conflicting Agreements. Except to the extent
superceded hereby or addressed herein or in any Ancillary Agreement, the
provisions of the 1997 Agreements shall continue in full force and effect. In
the event of conflict between this Agreement or any Ancillary Agreement and any
1997 Agreement, the provisions of this Agreement or the Ancillary Agreement, as
applicable, shall prevail.
ARTICLE IV
DEFINITIONS
Section 4.1 Affiliated Company. "Affiliated Company" of any
Person means any entity that controls, is controlled by, or is under common
control with such Person. As used herein, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such entity, whether through ownership of voting
securities or other interests, by contract or otherwise.
Section 4.2 Effective Date. "Effective Date " means the date
of the closing of the IPO.
Section 4.3 EMC's Auditors. "EMC's Auditors" means EMC's
independent certified public accountants.
Section 4.4 EMC Group. "EMC Group" means EMC, each Subsidiary
and Affiliated Company of EMC immediately after the Effective Date and each
Person that becomes a Subsidiary or Affiliate Company of EMC after the Effective
Date, other than in any such instance, any member of the McDATA Group.
Section 4.5 Governmental Approvals. "Governmental Approvals"
means any notices, reports or other filings to be made, or any consents,
registrations, approvals, permits or authorizations to be obtained from, any
Governmental Authority.
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Section 4.6 Governmental Authority. "Governmental Authority"
shall mean any federal, state, local, foreign or international court,
government, department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.
Section 4.7 Information. "Information" means information,
whether or not patentable or copyrightable, in written, oral, electronic or
other tangible or intangible forms, stored in any medium, including studies,
reports, records, books, contracts, instruments, surveys, discoveries, ideas,
concepts, know-how, techniques, designs, specifications, drawings, blueprints,
diagrams, models, prototypes, samples, flow charts, data, computer data, disks,
diskettes, tapes, computer programs or other software, marketing plans, customer
names, communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
Section 4.8 IPO Closing Date. "IPO Closing Date" means the
date of the closing of the IPO.
Section 4.9 McDATA Group. "McDATA Group" means McDATA, each
Subsidiary and Affiliated Company of McDATA immediately after the Effective Date
and each Person that becomes a Subsidiary or Affiliate Company of McDATA after
the Effective Date other than in any such instance EMC or any Subsidiary of EMC
other than McDATA or any Subsidiary of McDATA.
Section 4.10 McDATA's Auditors. "McDATA's Auditors" means
McDATA's independent certified public accountants.
Section 4.11 Person. "Person" means an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
Section 4.12 Record Date. "Record Date" means the close of
business on the date to be determined by the Board of Directors of EMC as the
record date for determining the stockholders of EMC entitled to receive shares
of Class A Stock in the Distribution.
Section 4.13 Subsidiary. "Subsidiary" of any Person means a
corporation or other organization whether incorporated or unincorporated of
which at least a
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majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
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WHEREFORE, the parties have signed this Master Transaction Agreement
effective as of the date first set forth above.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ MCDATA CORPORATION
By:_________________________________ By:_________________________________
Title: Title:
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