EXHIBIT 10.89
OEM PURCHASE AGREEMENT
THIRD AMENDMENT
This Third Amendment effective as of the 1st day of February, 2003, (the
"Effective Date") amends the OEM Purchase Agreement (the "Agreement") dated
December 16, 2002, by and between HEWLETT-PACKARD COMPANY, a Delaware
corporation having its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 ("HP") and BROCADE COMMUNICATIONS SYSTEMS, INC. a
Delaware corporation having its principal place of business at 0000 Xxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, and BROCADE COMMUNICATIONS SYSTEMS
SWITZERLAND SARL., a corporation organized under the laws of Geneva, and having
its principal place of business at 29 Route de l'Aeroport Xxxx Xxxxxxx 000,
XX-0000 Xxxxxx 00, Xxxxxxxxxxx (collectively "Supplier").
RECITALS
WHEREAS, HP and Supplier have entered into the Agreement pursuant to which HP
agreed to purchase, and Supplier agreed to sell OEM Products in accordance with
the terms and conditions set forth therein; and
WHEREAS, HP and Supplier desire to enter into this Third Amendment to amend
certain provisions of the Agreement.
AGREEMENTS
NOW, THEREFORE, 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 Supplier agree as follows:
1. DEFINITIONS. Terms used in this Third Amendment that are not defined
herein shall have the 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
Third Amendment shall have the meaning set forth in the Agreement. In the
event a conflict between the Agreement and this Third Amendment, the terms
of this Third Amendment shall govern.
3. AMENDMENTS. HP and Supplier hereby agree that the Agreement is hereby
amended as follows:
3.1. Delete the following language from section 9.1:
Product Warranties. Supplier represents and warrants to HP that, for
a period of [**] from the date of [**] for each [**] OEM Product
unit (excluding [**]) and [**] from each [**] and [**] OEM Product,
that all OEM Products under this Agreement will:
3.2. Insert the following language at section 9.1:
9.1. Product Warranties.
** 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.
9.1.1. For [**] purchased by HP prior to [**], Supplier
represents and warrants to HP that, for a period of
[**] from the date of [**] for each [**] OEM Product
unit (excluding [**]) and [**] for each [**] and [**]
OEM Product, that all OEM Products under this Agreement
will meet the requirements stated at subsection [**]
below.
9.1.2. For [**] purchased by HP on or after [**], Supplier
represents and warrants to HP that, for a period of
[**] from the date of [**]for each [**] OEM Product
unit (excluding [**]) and [**] for each [**] and [**]
OEM Product, that all OEM Products under this Agreement
will meet the requirements stated at subsections [**]
below.
4. COUNTERPARTS. This SecondThird 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.
IN WITNESS WHEREOF, HP and Supplier have entered into this Third Amendment as of
the Effective Date as provided above.
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS INC. ("SUPPLIER") ("HP")
By: /s/ Xxxxxxx Xxxxxx By: [**]
------------------ ------------------------------
Name: Xxxxxxx Xxxxxx Name: [**]
Title: VP Title: Director, SWD Procurement
BROCADE COMMUNICATIONS
SWITZERLAND, SARL. ("SUPPLIER")
By: /s/ Xxx Xxxxxxx
------------------
Name: Xxx Xxxxxxx
Vice President EMEA
Title: 22 November 2004
** 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.
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