Contract

EXHIBIT 10.77 [IBM LOGO] 3039 Cornwallis Road RTP, NC 27709 October 6, 2004 Mr. Michael Harrison Brocade Communications Systems, Inc. 1745 Technology Drive San Jose, CA 95110 Subject: Amendment 18 to SOW#1 of the IBM/Brocade Goods Agreement ROC-P-68 This letter (the "Amendment") serves as Amendment Number 18 to SOW#1, including all amendments thereto ("SOW#1") of the Goods Agreement ROC-P-68 (the "Agreement"), which the parties hereto do mutually agree to amend as follows: 1. Section 2.10 (Notice of Product Withdrawal) is deleted in its entirety and replaced with the following: Supplier will provide Buyer with [**] written notice of its intent to withdraw any Product ("End of Life" or "EOL") prior to the last date of manufacture of a Product. Buyer shall provide to Supplier [**]for Products and FRUs [**]from the receipt of Supplier's notice of End of Life. Buyer will provide a [**]in each [**]during the [**]period, as requested by Supplier. Buyer shall provide to Supplier a non-cancelable last-time buy WA for forecasted Products no later than [**]prior to the End of Life date (last date of manufacture or sales/distribution date). Such Product purchases must be scheduled to ship no later than the End of Life date. For delivery requests outside of the Notice Period or order requests after Buyer's last-time buy purchase has been placed, Supplier will review on a case-by-case basis Buyer's request(s). 2. Section 9.4 entitled "TECHNICAL SUPPORT" is deleted in its entirety and replaced with the following: 9.4 TECHNICAL SUPPORT Technical Support services include [**] for Product, documentation and Maintenance and Minor Releases arising out of technical support responsibilities, and all such releases created or made available by Supplier. 9.4.1 LEVEL 1. Supplier will assist Buyer as [**], in performing the following Level 1 support responsibilities: - - create the PMR; - - obtain from Customer a description of the Problem; - - search for any known resolution(s) relevant to the Problem; - - if a resolution to the Problem is known, specify such resolution to Customer; - - pass the PMR to Level 2, and [**] Level 1 actions. 9.4.2 LEVEL 2. Supplier will assist Buyer, as [**] in performing the following Level 2 support responsibilities: - - receive the PMR from Level 1; - - analyze Problem symptoms and gather additional data from Customer as required; - - recreate Problem on the Developer Test System; - - determine if Problem is due to improper installation of the Product by Customer; - - determine if Problem is due to operationally related hardware or software at the Customer location; - - attempt a bypass or circumvention for high impact Problems (i.e., Severity 1 and 2); - - [**] Level 2 actions. 9.4.3 LEVEL 3. Supplier will provide Level 3 support during normal Business Hours, and will make commercially reasonable efforts to have Level 3 support [**]; - - receive the PMR number and supporting documentation and materials from Level 2; - ---------- [**] 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. 1 - - analyze Problem symptoms and diagnose Problem; - - notify Level 2 if additional information, materials or documentation are required; - - attempt to recreate Problem on the [**]; - - assist Level 2 in developing a bypass or circumvention for high impact Problem (i.e., Severity 1 and 2); - - deliver corrections to the Product and/or Product code to Buyer within the applicable Correction Times to fix Problems identified by Buyer; - - confirm resolution of Problem with Customer, and document Level 3 actions through regular communication; and - - answer Backline Support questions from Buyer [**]concerning the operation and use of Products. 9.4.4 LEVEL 4. Supplier will provide Level 4 Support to Buyer as the highest level of escalation support available at [**]for Problems that result from Supplier root cause. Level 4 support shall be available as required according to the severity of the Problem, and at Buyer's and Supplier's agreed upon discretion. If mutually agreed, Supplier will provide off-shift Level 4 support if Buyer indicates such support is required. The Level 4 Support escalation process is required for complex Problems and will provide engineering development assistance from Supplier. Level 4 Support includes but is not limited to the Level 3 activities defined in Section 9.4.3 and the following reengineering activities: - analyzing and reproducing, as necessary, the reported defect to understand root cause - developing a fix or workaround for the reported defect - setting up the test bed of appropriate Supplier hardware and software versions to test the defect fix - testing that the defect fix works with the other current Supplier products/release levels that may be running at the affected customer site(s) - continually retesting that the defect fix still works with each new version of other Supplier products/release levels that may be getting introduced at the affected customer site(s) Supplier root cause is defined as Problems resulting from defects in materials and workmanship and/or errors in conforming to Product Specifications according to Section 1.1 "Specifications" covering hardware, firmware, and software at time of Product shipment or subsequent releases as mutually agreed to by both parties according to Section 6.0 "Engineering Changes". Root cause will be demonstrated by test and problem determination analysis. If Buyer requires Level 4 Support for Problems that are demonstrated by Supplier through root cause analysis not to result from Supplier root cause, Supplier will provide technical support to Buyer at Supplier's then current at Time & Materials rates, [**], and as mutually agreed to by the parties. Brocade shall notify IBM of a planned EOL announcement for any Brocade Product or Software [**]before the published date or the date on which the [**]is planned to be [**]. Any consent by IBM shall not relieve Brocade of any obligations under this Agreement, including breach thereof [**]. 9.4.5 OTHER TECHNICAL SUPPORT RESPONSIBILITIES. Supplier will provide to Buyer the name and phone numbers of Supplier Personnel to contact for all technical support matters related to the Product. Supplier will provide [**]by Buyer to enable Buyer to perform technical support functions for the Product and will keep Buyer informed of any known Problems and their associated solutions. Supplier shall [**]directly in the event IBM [**]Supplier for Product support services. No other support shall be provided unless [**]for these Products. 9.4.6 TECHNICAL SUPPORT TRAINING. Supplier shall make available to Buyer technical training for support of end user implementation of the Product. Buyer shall not use any training materials in a manner [**]from the use of these materials to IBM. Technical training requested by Buyer will be made available by Supplier to Buyer as mutually agreed upon. Buyer acknowledges that the materials distributed by the Supplier during the technical training are protected by copyright, and that Buyer shall have no rights to reproduce such materials without the prior written consent of Supplier, such consent shall not be unreasonably withheld. - ---------- [**] 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. 2 9.4.7 SEVERITY. Upon Buyer sending an incident report to Supplier, Buyer shall assign the incident report a severity level in accordance with the severity level assigned to each defect or Problem in accordance with the table below. Due to varying complexity of Problems, the target defect resolution times listed in this section are goals, and not firm deadlines.
DEFECT SEVERITY SERVICE OBJECTIVE LEVEL DEFINITION RESPONSE TIME TARGET DEFECT RESOLUTION TIME ----- ---------- ------------- ----------------------------- SEVERITY 1 Product or system is not operational Supplier provide Buyer with Supplier will ensure resources will be and/or all data inaccessible or [**] Response to its initial request applied [**] with a goal of providing a lost. Data flow may be stopped or after receiving notification of solution or acceptable work-around within errors occur that significantly Problem from Buyer, such Response [**]. Supplier will provide a [**] plan impact Customer's operation. These time not to exceed [**]. For the within [**] from the date of Problem issues will be regarded as having a purpose of this Agreement a "Response" intake. Critical Situations may require critical impact to the end user's is defined as a telephone call from the Customer, Supplier, and Buyer be at data. Supplier support personnel Supplier acknowledging that an their respective work locations or will require continuous availability incident report has been received and available [**] of Buyer contact until resolution. that an appropriate technical resource has been assigned and is available to work with IBM product field engineering support. SEVERITY 2 Product or system is Provide Buyer with a Response Supplier resources will be applied operational, but has to its initial request within continuously, during Supplier's normal severely restricted [**], and during normal Business Hours, until [**]. Supplier will functionality and/or Business Hours. provide a work-around, fix or patch or degradation that end-user resolve the defect in less than [**] from regards as is impacting his the date of Problem intake. If Supplier business. provides a work-around, fix or patch, the severity level of the Problem will be downgraded. SEVERITY 3 Product or system is Provide Buyer with a Response Supplier provide a work-around, fix, or operational with functional to its initial request within patch or resolve the defect in less than limitations or restrictions [**], and during normal [**] from the date of Problem intake. that end user does not Business Hours. Supplier resources will be applied on an regard as critical to its as available basis. If Supplier provides a overall operations. work-around, fix or patch the severity level of the Problem may be downgraded. SEVERITY 4 Low or no impact Problems Provide Buyer with a Response Supplier will provide a work-around, fix, or questions associated to its initial request within or patch or resolve the defect in less with Product usage, [**], and during normal than [**] from the date of Problem intake. implementation, performance Business Hours. Supplier resources will be applied on an or any other inquiries. as available basis. If Supplier provides a work-around, fix or patch the severity level of the Problem may be downgraded.
Buyer will use [**] to resolve Severity Level 3 and 4 problems prior to contacting Brocade for assistance. Either Buyer or Supplier may require that a certain Problem be managed as a higher Severity Level than as classified. If either party requires such higher Severity Level, then the Problem will be managed as [**] Severity Level. In the event Buyer and Supplier disagree on the severity level of a given defect, Buyer and Supplier agree to promptly review defect reports related to potential Buyer-Customer impact. Buyer agrees to provide data on failures, as available, with specific Buyer platforms, Customer captures, re-configurations with test data and other information that may be needed to accurately classify the defect. - ---------- [**] 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. 3 3. The last paragraph of Section 9.3 (Post Warranty Services), which is entitled "PRODUCT SUPPORT" is deleted in its entirety and replaced with the following: Supplier will continue to provide technical support as defined in Section 9.4, for [**] after the termination of SOW 1 or [**] an End of Life notice provided by Supplier pursuant to Section 2.10, whichever is earlier. 4. The pricing table in Section 2.1 is deleted from Section 2.1 and moved to a newly created exhibit to the Agreement, entitled Pricing Exhibit, and attached as Exhibit A. The Pricing Exhibit may be updated from time to time upon mutual written agreement by authorized representatives of each party. Please have your authorized representative indicate acceptance thereof by signing both copies of the Amendment and returning one copy to the attention of Robert Tice at 3039 Cornwallis Road Research Triangle Park, NC 27709. The effective date of this Amendment shall be the date on the top of this Amendment (the "Effective Date"). The parties acknowledge that they have read this Amendment, understand it, and agree to be bound by its terms and conditions. All capitalized terms not defined herein shall have the meaning set forth in the Goods Agreement or the SOW #1. All other terms and conditions of the Goods Agreement and SOW#1 that are unaffected by the revisions set forth in this Amendment shall remain in full force and effect. Further, the parties agree that this Amendment and the Goods Agreement and SOW#1 are the complete and exclusive statement of the agreement between the parties, superseding all proposals or other prior agreement, oral or written, and all other communications between the parties relating to this subject. ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO: INTERNATIONAL BUSINESS MACHINES BROCADE COMMUNICATIONS SYSTEMS, INC. CORPORATION By: /s/ WALTER PAWLOWSKI 10/5/04 By: /s/ MICHAEL KLAYKO 10/4/04 -------------------- ------- ------------------ ------- Authorized Signature Date Authorized Signature Date WALTER PAWLOWSKI MICHAEL KLAYKO - ------------------------ ---------------------- Type or Print Name Type or Print Name STORAGE OEM PROCUREMENT MGR. VP WW SALES - ---------------------------- ---------------------- Title & Organization Title & Organization - ---------- [**] 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. 4 EXHIBIT A PRICING
IBM P/N / NUMA-Q P/N BROCADE P/N DESCRIPTION UNIT PRICE - ---------------- ----------- ----------- ---------- [**] [**] 8-Port Fibre Channel [**] Switch Single Power Supply (SW2400) Includes [**]- whole unit switch Product [**] [**] 16 Port Fibre Channel [**] Switch Single Power Supply (SW2800) Includes [**]- whole unit switch Product [**] [**] Silkworm 2000 Power Supply [**] [**] [**] Mainboard, SW 2400 [**] [**] (8-port) [**] [**] Fan Tray, SW 2400 [**] (8-port) [**] [**] Chassis, SW 2400 (8- port) [**] [**] [**] Mainboard, SW 2800 [**] [**] (16-port) [**] [**] Fan Tray, SW 2800 (16-port) [**] [**] [**] Chassis, SW 2800 (16- port) [**] with operator panel / LCD [**] [**] Quick Loop License [**] [**] [**] Fabric Watch License [**] [**] [**] Extended Fabrics [**] [**] [**] Extended Fabrics [**] [**] [**] Remote Switch [**] [**] [**] Remote Switch [**] [**] [**] 8 Port Fibre Channel [**] Switch Single Power [**] Supply (SW3200) [**] Includes [**] (to be [**] included prior to [**] 10/28/03 for [**] availability for Buyer customer shipments) [**] [**] 8 Port Fibre Channel [**] Switch Single Power [**] Supply (SW3200) [**] Includes [**] [**] [**] [**] [**] Full Fabric Upgrade [**] Includes [**] [**] [**] [**]
- ----------------- [**] 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. 5 [**] [**] 16 Port Fibre Channel [**] Switch Single Power [**] Supply (SW3800) [**] Includes [**] - whole [**] unit switch Product [**] [**] [**] [**] [**] [**] [**] Fan (SW3800) [**] [**] [**] [**] [**] [**] [**] [**] [**] Power Supply [**] (SW3800) [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] Mainboard FRU [**] (SW3800) [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] 32 Port Fibre Channel [**] Switch Double Power [**] Supply (SW3900) [**] Includes, [**] - whole [**] unit switch Product [**] [**] [**] Fan (SW3900) [**] [**] [**] [**] [**] Power Supply [**] (SW3900) [**] [**] [**] [**] Mainboard FRU [**] (SW3900) [**]
- ----------------- [**] 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. 6 [**] [**] [**] [**] [**] Secure Fabric OS [**] (SW3200) [**] [**] Secure Fabric OS [**] (SW3800) [**] [**] 1Gb Secure Fabric OS [**] [**] [**] Secure Fabric OS [**] (SW12000) [**] [**] Performance Bundle [**] ([**]) [**] [**] Performance Bundle [**] [**] [**] [**] 32 Port Fibre Channel [**] Core Switch [**] (SW12000) Includes [**] [**] [**] [**] Rack Mounting Kit [**] 14U, FRU [**] [**] [**] [**] Switch Blade 16 port, [**] 2GB [**] [**] [**] [**] [**] Switch Blade 16 port, [**] 2GB, FRU [**] [**] [**] [**] Chassis Door, Includes [**] Plastic and Metal door [**] Components and IBM [**] Front Badge [**] [**] Control Processor [**] Blade [**] [**] [**] [**] [**] Stiletto Port Blade Slot [**] Filler Panel, [**] SW12000, FRU [**] [**] [**] Power Supply , 180- [**] 264VAC, 1000W, [**] FRU [**] [**] [**] [**] Blower Assembly, [**] FRU [**] [**] [**] [**] Cable Management [**]
- ----------------- [**] 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. 7 Pillar, FRU [**] [**] [**] [**] WWN Card [**] [**] [**] [**] [**] Power Plug, Switch [**] and Distribution Panel [**] [**] Chassis FRU, includes [**] [**]. [**] [**] [**] [**] Rear WWN Bezel [**] Assy [**] [**] [**] [**] Cable Management [**] Tray [**] [**] [**] [**] AC Power Cord, FRU [**] [**] [**] [**] [**] AC Power Cord, [**] UK/Ireland, 250V, [**] FRU [**] [**] [**] AC Power Cord, Cont. [**] Europe CEE7/7, FRU [**] [**] [**] [**] AC Power Cord, [**] AUST/INZ, 250V [**] [**] [**] [**] AC Power Cord, Intl [**] IEC [**] [**] [**] [**] Remote Switch [**] software [**] [**] Extended Fabric [**] software [**] [**] Fabric Manager 3.x [**] [**] [**] ISL Trunking [**] (SW3200) [**] [**] ISL Trunking [**] (SW3800)
[**] [**] [**] [**] [**] [**] [**] Fabric Manager 4.x-Enterprise [**] [**] ([**]) [**] [**] Fabric Manager 4.x - 3.0 to 4.x [**] [**] Upgrade to Enterprise ([**]) [**] [**] Fabric Manager 4.x with 10 [**] [**] Domains [**] [**] Fabric Manager 4.x[**] [**] [**] [**] [**] Secure Fabric OS [**] [**] (SW12000/24000) [**] [**] 32 Port Fibre Channel [**] [**] Director (SW24000) Includes [**] [**] [**] [**] Meteor, 16 Port Upgrade [**] [**]
- ----------------- [**] 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. 8 Blade [**] [**] Meteor Upgrade kit. Includes: [**] [**] [**] [**] [**] 8 Port Fibre Channel Two [**] [**] Domain Switch Single Power Supply (SW3250), Includes [**] [**] [**] 8 Port Fibre Channel Two [**] [**] Domain Switch Single Power [**] Supply (SW3250), [**] Includes [**] [**] [**]. [**] [**] [**] [**] 16 Port Fibre Channel Four [**] [**] Domain Switch, Two Fixed [**] Power Supplies (SW3850), Includes [**] [**] [**] 16 Port Fibre Channel Four [**] [**] Domain Switch, Two Fixed [**] Power Supplies (SW3850), [**] Includes [**] [**] [**] [**] [**] [**] [**] [**] Secure Fabric OS (SW3850) [**] [**] [**] [**] Secure Fabric OS (SW3250) [**] [**] [**] [**] Meteor FRU Chassis , [**] [**] includes [**] [**] [**] Meteor FRU, Chassis Door. [**] [**] Includes [**] [**] [**] Meteor Switch Blade 16 port, [**] [**] 2Gb, FRU [**] [**] Meteor Control Processor [**] [**] Blade, FRU [**] [**] FRU, Power Supply Filler [**] [**] Panels [**] [**] Extended Fabric [**] [**] [**] [**] Remote Switch [**] [**] [**] [**] Performance Bundle ([**]) [**] [**] [**] [**] Four Domain to Full Fabric [**] [**] Upgrade [**] [**] Extended Fabric [**] [**] [**] [**] Remote Switch [**] [**] [**] [**] Performance Bundle ([**]) [**] [**] [**] [**] Two Domain to Full Fabric [**] [**] [**] [**] [**] [**] 8 port Switch FRU [**] [**] COO - United States [**] [**] [**] 8 port Switch FRU [**] [**] COO - China
- --------------- [**] 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 [**] [**] 16 port Switch FRU [**] [**] COO - United States [**] [**] [**] 16 port Switch FRU [**] [**] COO - China [**] [**] 16 active ports, 4g Fiber [**] [**] Channel Switch (SW4100) with two power supplies; includes [**] [**] [**] 16 port 4g switch FRU [**] [**] (SW4100); includes [**] [**] [**] Power Supply FRU (SW4100) [**] [**] [**] [**] Fan FRU (SW4100) [**] [**] [**] [**] Performance Monitoring [**] [**] (SW4100) [**] [**] ISL Trunking (SW4100) [**] [**] [**] [**] Extended Fabric (SW4100) [**] [**] [**] [**] Remote Switch (SW4100) [**] [**] [**] [**] Secure Fabric OS (SW4100) [**] [**] [**] [**] 16-24 port upgrade [**] [**] [**] [**] 24-32 port upgrade [**] [**] [**] [**] 16 to 32 port upgrade (Plant [**] [**] only) [**] [**] 16 to 32 port upgrade (Field [**] [**] only) [**] [**] CUP for 2109-F32 (single [**] [**] switch fabric) [**] [**] CUP for 2109-F32 (in [**] [**] cascaded fabrics) [**] [**] CUP for 2109-M12 (single [**] [**] switch fabric) [**] [**] CUP for 2109-M12 (in [**] [**] cascaded fabrics) [**] [**] CUP for 2109-M14 (single [**] [**] switch fabric) [**] [**] CUP for 2109-M14 (in [**] [**] cascaded fabrics)
- --------------- **For purpose of calculating the fees for the [**] Software Maintenance Support Program as described in Section 9.4, the [**] Software Maintenance Fee per Unit for each part number where it is applicable as follows:
IBM ANNUAL SOFTWARE PART BROCADE PRODUCT PART MAINTENANCE FEE PER NUMBER NUMBER PRODUCT DESCRIPTION UNIT - ------ -------------------- ------------------------------ ------------------- [**] [**] 32 Port Fibre Channel Director [**] (SW24000) Includes [**] [**] [**] Meteor Upgrade kit. [**] Includes: [**]
- --------------- [**] 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. 10 [**] [**] 8 Port Fibre Channel Two Domain Switch Single [**] Power Supply (SW3250), Includes [**] [**] [**] 8 Port Fibre Channel Two Domain Switch Single [**] Power Supply (SW3250), Includes [**] [**] [**] 16 Port Fibre Channel Four Domain Switch, Two [**] Fixed Power Supplies (SW3850), Includes [**] [**] [**] [**] 16 Port Fibre Channel Four Domain Switch, Two [**] Fixed Power Supplies (SW3850), Includes [**] [**] [**] [**] Fabric Manager 4.x-Enterprise ([**]) [**] [**] [**] Fabric Manager 4.x-3.0 to 4.x Upgrade to [**] Enterprise ([**]) [**] [**] Fabric Manager 4.x with 10 Domains [**] [**] [**] Fabric Manager 4.x [**] [**] [**] [**] Secure Fabric OS (SW3850) [**] [**] [**] Secure Fabric OS (SW3250) [**] [**] [**] Secure Fabric OS (SW12000/24000) [**] [**] [**] 16 active ports, 4g Fiber Channel Switch [**] (SW4100) with two power supplies; includes [**] [**] [**] Secure Fabric OS (SW4100) [**] [**] [**] CUP for 2109-F32 (single switch fabric) [**] [**] [**] CUP for 2109-F32 (in cascaded fabrics) [**] [**] [**] CUP for 2109-M12 (single switch fabric) [**] [**] [**] CUP for 2109-M12 (in cascaded fabrics) [**] [**] [**] CUP for 2109-M14 (single switch fabric) [**] [**] [**] CUP for 2109-M14 (in cascaded fabrics) [**]
OUT OF WARRANTY REPAIR PRICING: [**] [**] [**] [**] [**] [**] - ------------- [**] 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. 11