Amendment Number 2 to OEM Purchase and License Agreement



 Exhibit 10.12 
 Amendment Number 2 
 to 
 OEM Purchase and License Agreement 
 Between EMC Corporation and Brocade Communications, Inc. 
 OEM Agreement
Number OEM 051208 Dated May 20, 2008 
 This Amendment Number 2 (“the Amendment”) to the OEM Purchase and License Agreement
(the “Agreement”) dated May 20, 2008 BROCADE Communications Systems, Inc., a Delaware corporation with an office located at 1745 Technology Drive, San Jose, California 95110, and BROCADE Communications Switzerland SarL., a Geneva
corporation with principal offices at 29 Route de l’Aeroport, Case Postale 105, CH-1215, Geneva 15, Switzerland, and BROCADE Communications Services Switzerland, SarL,, a Geneva corporation with principal offices at 29 Route de l’Aeroport,
Case Postale 105, CH-1215, Geneva 15, Switzerland (collectively, “BROCADE”), and EMC Corporation, 176 South Street, Hopkinton, MA 01748 together with its designated Subsidiaries (“EMC”), and commences on the date accepted
and executed by BROCADE (“Effective Date”). 
 RECITALS 
 WHEREAS, the parties wish to amend the Agreement so as to 1) define Marketing Development Funding; and 2) revise Product Discontinuance requirements;

 NOW THEREFORE, in consideration of the above and the other respective promises of the parties set forth herein, the parties hereto
agree as follows:  
  

	1.0	Add the following terms and conditions to Section 5.4, Marketing Development Funds. 

 Brocade and EMC have agreed to marketing development funding for the period October 1, 2009 through September 30, 2011 and will automatically renew
for additional successive one-year terms unless either party provides [**] days’ notice of termination prior to any renewal periods. The terms and conditions for the program are contained in the “EMC Marketing Development Fund (MDF)
Program Guidelines” effective October 1, 2009 (“MDF Guidelines”). Key terms included in the MDF Guidelines as of October 1, 2009 are: 
  

	 	•	 	 Brocade will provide to EMC MDF funds in the amount of [**]% of EMC’s previous calendar quarter’s net sell-through of Brocade hardware and
software, exclusive of service and maintenance, as calculated by Brocade. Brocade agrees to provide EMC an itemized breakdown of EMC’s net quarterly sell-through no later than (10) business days after the close of EMC’s quarter. Net
revenue is defined as gross sell through revenue less Sales Promotions, Deals desk, Growth Programs, Rebates and current funded headcount. Current funded headcount is defined as the [**] program management resources presently employed at EMC that
support Brocade activity. Brocade will remit payment to EMC thirty (30) days after the close of the previous EMC quarter end. 


  

	 	•	 	 EMC will hold the MDF funds. 


  

	 	•	 	 EMC will provide Brocade a monthly report of all approved MDF expenditures no later than ten business days’ after the end of the previous month.
If MDF expenditures have not been pre-approved by Brocade for such submitted expenses, Brocade reserves the right to withhold crediting EMC for such unapproved expenditures on the next quarterly payment to EMC. 


  

	[**]	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. 









	 	•	 	 MDF funds expire at the end of each [**] month period from issuance. If EMC and Brocade fail to spend the funds [**] months from the time of issuance,
Brocade will withhold crediting EMC for the value of the expired funds on the next quarterly payment to EMC. 


  

	 	•	 	 Partner Agreement Termination. For MDF funds not expended upon termination of this MDF Program, EMC shall have [**] months from the termination
effective date to reconcile activities conducted prior to the termination effective date and to expend all remaining funds. EMC agrees to return such unexpended funds to Brocade, in the form of a check, no later than [**] calendar days after the end
of such [**] month period. Upon termination of our OEM PURCHASE AND LICENSE AGREEMENT, dated May 20, 2008, EMC agrees to return unexpended funds to Brocade within [**] calendar days of the termination effective date.



 If there is conflict between the terms and conditions in this Section 5.4 and the “EMC Marketing Development Fund
(MDF) Program Guidelines effective October 1, 2009” (“MDF Guidelines”) as updated from time to time by mutual agreement of the parties, the MDF Guidelines shall prevail. 
  

	2.0	Delete Section 8.4, Product Discontinuance, in its entirety, and replace with the following language: 

 8.4 Product Discontinuance: Brocade reserves the right to discontinue Products by notifying EMC in writing at least [**] days prior to the
discontinuance date, subject to a mutually agreed upon end of life plan. Prior to such discontinuance date, EMC may place with Brocade [**] purchase order for such discontinued Product including Spares. Such [**] purchase orders may specify
that the requested Products be shipped to EMC or EMC’s Customers over the [**] day period following the discontinuance date. 
 IN WITNESS WHEREOF, the parties hereto have executed this Amendment Number 2 to OEM Purchase and License Agreement by their duly authorized representatives. This Agreement shall not be effective until executed by Brocade and accepted
by an authorized representative of EMC. 
  

									
	 Executed and agreed to:
	 		 	Accepted and agreed to:
	 BROCADE Communication Systems, Inc.
 “BROCADE”
	 		 	EMC Corporation (EMC)
					
	By:	 	 /s/ Charles Leeming
	 		 	By:	 	 /s/ Michael P. Kerovac

	Name:	 	Charles Leeming	 		 	Name:	 	Michael P. Kerovac
	Title:	 	VP, OEM Sales	 		 	Title:	 	Sr. VP GPO
			
	Signed & Effective Date: 1/29/10	 		 	Date: 2/02/10

  

			
	BROCADE Communication Switzerland, SarL
		
	By:	 	 /s/ Ulrich Plechschmidt

	Name:	 	Ulrich Plechschmidt
	Title:	 	Vice President EMEA
	
	Date: 01- February - 2010

  

	[**]	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.