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Exhibit 10.8.1
ENTERASYS - RIVERSTONE FMA PRODUCTS AGREEMENT
This FMA Products Agreement (the "Agreement") is entered into as of September
29, 2000 between Enterasys Networks, Inc., a Delaware corporation ("Enterasys")
and Riverstone Networks, Inc., a Delaware corporation ("Riverstone"). Riverstone
and Enterasys are controlled subsidiaries of Cabletron Systems, Inc., a Delaware
corporation ("CSI").
Whereas, CSI, Flextronics International USA, Inc., a California corporation
("Flextronics") and Flextronics International Ireland Limited, a limited
liability company organized under the laws of Ireland ("Flextronics Ireland")
are parties to: (a) and Asset Purchase Agreement dated January 18, 2000 (the
"Asset Purchase Agreement'); and (b) a Flextronics International Manufacturing
Services Contract, dated March 1, 2000 (the "Flextronics Manufacturing
Agreement" or the "FMA") under which Flextronics and Flextronics Ireland
manufacture and sell certain Products to CSI and its Affiliates;
Whereas, Enterasys and Riverstone as Affiliates of CSI have enjoyed the benefits
of the FMA;
Whereas, CSI and Enterasys entered into an Assignment and Assumption Agreement
dated June 3, 2000 under which CSI transferred and assigned all of its rights,
interests and obligations under the FMA to Enterasys, and Enterasys assumed all
such rights, interests and obligations; and
Whereas, it is the intention of Enterasys and Riverstone that Riverstone should
continue to have the benefits of obtaining Products manufactured and sold
pursuant to the FMA;
Now, Therefore, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Enterasys and Riverstone hereby agree as follows:
1. Definitions
1.1. The terms "Affiliate," "Customer," "Purchase Orders," and "Product"
shall have the meanings defined in the Flextronics Manufacturing
Agreement
1.2. "Parties" shall mean Enterasys and Riverstone, each of which may be
referred to as a "Party."
2. Access to Manufactured Products - Enterasys agrees that Riverstone may
obtain all Products manufactured under the FMA either directly from
Flextronics or Flextronics Ireland as an Affiliate of CSI or Enterasys or
indirectly by resale from Enterasys.
3. Prices - Products purchased by Riverstone directly from Flextronics or
Flextronics Ireland shall be purchased at prices determined by the FMA. All
other terms and conditions relating to the sale of Products directly by
Enterasys to Riverstone shall be governed by the Memorandum of Agreement
Regarding Enterasys-Riverstone Inter-Company Operations dated June 3, 2000
or a superceding agreement.
4. Riverstone's Support Obligations - Riverstone agrees that it shall pay or
reimburse for payments required by Section 4.3 of the FMA caused by
Riverstone's cancellation of Purchase Orders and a proportionate share of
any Product price savings rebate paid pursuant to Section 12.6 of the FMA.;
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5. Obligations of Enterasys - For so long as Riverstone continues, directly or
indirectly, to purchase Products under the FMA, Enterasys shall promptly pay
to Riverstone its proportionate share of any operating profit rebate paid
pursuant to Section 12.7 of the FMA, with the proportionate share being
determined by the relative dollar volumes of Products purchased by the
Parties during the relevant period.
6. Successors and Assignment - This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors,
transferees and assigns. This Agreement may be assigned by either Party
only: (i) in connection with any sale or merger of such Party (or a major
group or division of such Party), provided that written notice is provided
to the non-assigning Party at least thirty (30) days before such transaction
closes; (ii) in whole or in part to one or more controlled subsidiaries of
the assigning Party; or (iii) with the written consent of the non-assigning
Party.
7. Governing Law - This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware notwithstanding any
contrary conflicts or choice of law principles.
8. Counterparts - This Agreement may be executed in two counterparts, each of
which shall be deemed an original but which together will constitute one and
the same instrument.
In Witness Whereof, the undersigned have caused this Agreement to be signed by
their respective duly authorized officers as of the date first above written.
Enterasys Networks, Inc Riverstone Networks, Inc.
By: /s/ Enrique P. Fiallo By: /s/ Romulus S. Pereira
Title: President and CEO Title: President and CEO
Date: September 29, 2000 Date: September 29, 2000
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