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Exhibit 10.120 STOCK PURCHASE PLAN AND AGREEMENT
This Stock Purchase Plan and Agreement (this " Plan ") made
this 13th day of August, 2008 by and between Morgan Stanley &
Co. Incorporated (" Broker ") and Brocade Communications
Systems, Inc., a Delaware corporation (" Purchaser ").
WHEREAS , Purchaser has
entered into a definitive agreement to purchase Foundry
Networks(R), Inc. (Nasdaq: FDRY) (the " Target ") for
consideration in the amount of a combination of $18.50 of cash plus
0.0907 shares of Brocade common stock in exchange for each share of
Foundry common stock (the " Acquisition ").
WHEREAS , Purchaser wishes to
enter into this Plan for the purpose of establishing and adopting a
written plan for trading securities that complies with the
requirements of Rule 10b5-1(c)(1) under the Securities and
Exchange Act of 1934, as amended (the " Exchange Act ").
WHEREAS , Purchaser is
establishing and adopting this Plan to provide for the orderly
purchase of a certain amount of shares of common stock of Foundry
Networks, Inc. (the " Stock ") prior to the consummation of
the Acquisition; and WHEREAS
, subject to the terms and conditions herein, Broker shall act as
agent on behalf of Purchaser in connection with this Plan.
NOW THEREFORE , the parties
hereto agree as follows: A. Purchaser’s
Representations, Warranties and Covenants . Purchaser
hereby represents and warrants to and agrees with Broker as
follows: 1. As of the date
hereof, Purchaser is not aware of any material nonpublic
information concerning itself, the Target, or any of its securities
or any of the companies whose securities it purchases, including
the Stock. Purchaser is entering into this Plan in good faith and
not as part of a plan or scheme to evade compliance with the
federal securities laws, including the provisions of
Rule 10b5-1(c)(1)(ii). Subject to Purchaser’s right to
terminate this Plan, Purchaser shall not alter or modify the terms
of this Plan while aware of any material non-public information
with respect to itself or its securities.
2. During any Period (as defined
on Exhibit A of this Plan), Purchaser shall not make
any purchase of Stock or otherwise enter into or alter any
corresponding or hedging transaction or position in the Stock that
is or would become effective during the Period of this Plan, except
for purchases of Stock by Broker, whether or not pursuant to
this Plan, or in accordance with the Acquisition.
3. Purchaser acknowledges and
agrees that the execution and delivery of this Plan by Purchaser
and the transactions contemplated by this Plan will not contravene
applicable law or any material agreement or other instrument
(including agreements relating to the Acquisition)
1.
binding on Purchaser or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
Purchaser. The transactions to be made by Broker for the account of
Purchaser pursuant to this Plan will not violate Purchaser’s
insider trading policies.
4. Purchaser agrees to notify
Broker orally or in writing at the addresses and facsimile numbers
set forth in paragraph E.4 hereof as soon as practicable after
Purchaser has knowledge of any material pending or threatened
legal, contractual or regulatory restriction that would restrict,
limit or prohibit the purchase of Stock pursuant to this Plan. Such
notice shall indicate, to the extent then known by Purchaser, the
anticipated onset and duration of the restriction, but shall not
include any other information about the nature of the restriction
or its applicability to Purchaser or Purchaser’s affiliates
and shall not in any way communicate any material nonpublic
information about the Purchaser or its securities to Broker. Any
such notice received by Broker from Purchaser shall operate to, as
indicated in such notice, suspend, amend or terminate this Plan.
5. Purchaser understands that
Broker may from time to time not be able to affect purchases of the
Stock under the Plan due to market conditions or legal, regulatory
or contractual restrictions applicable to Broker.
6. Purchaser agrees that it
shall not, directly or indirectly, communicate any material
non-public information relating to itself, the Target, its
securities or the securities of the companies whose securities it
purchases, including the Stock, to any employee of Broker or its
affiliates who is known by Purchaser to be involved, directly or
indirectly, in executing this Plan at any time while this Plan is
in effect. 7. Purchaser agrees
that, while this Plan is in effect, it shall comply with all laws,
rules and regulations applicable in connection with the execution
of this Plan and the transactions contemplated hereby.
8. Purchaser acknowledges and
agrees that, while this Plan is in effect, Purchaser does not have,
and shall not attempt to exercise, directly or indirectly, any
influence over how, when or whether to effect purchases of Stock
pursuant to this Plan. B. Implementation of the Plan
1. Purchase instructions are set
forth on Exhibit A of this Plan and shall be deemed a
part of this Plan. Broker shall commence purchases under this Plan
only during a Period (as defined on Exhibit A of this
Plan) and may effect such purchases on any day during a Period that
the principal market on which the Stock trades is open (each such a
potential " Trading Day ") under the ordinary principles of
best execution with no shares to be purchased during the term of
this Plan other than in accordance with the guidelines and
provisions set forth herein. 2.
Broker’s Execution . It is understood and agreed that
the acceptance of Purchaser’s orders herein by Broker does
not constitute a guarantee or other assurance of any kind that
purchases of Stock can or will be made at any particular price on
any Trading Day. Broker shall make purchases under this Plan under
ordinary principles of best execution. Broker will not be
2.
liable for any failure to purchase Stock, or to purchase Stock
at any particular price, on any Trading Day, so long as it
exercises reasonable efforts in good faith to execute this Plan in
accordance with its terms. Broker will comply with all applicable
laws, rules and regulations in its execution of the Plan.
3. Stock Splits, etc.
The Aggregate Dollar Amount, Daily Purchase Limitation, Limit Price
and Maximum Number of Shares (if applicable), each as defined on
Exhibit A of this Plan, or any other applicable share
references or price limits under applicable formulas and any other
applicable provisions of this Plan shall be adjusted automatically
on a proportionate basis to take into account any stock split,
reverse stock split or stock dividend with respect to the Stock or
any similar transaction with respect to the Stock that occurs
during this Plan. 4.
Compensation . Purchaser will pay to Broker the fees and
commissions set forth on Exhibit B attached hereto in
connection with this Plan and the transactions contemplated hereby.
5. Notification of
Purchases. Broker will provide Purchaser, as soon as reasonably
practicable but not less than daily, reports of purchases executed
under this Plan, at the number or address set forth in section E.4
hereof. 6. Amendment .
Any alteration, suspension, or modification of this Plan by
Purchaser will be made in good faith and not as part of a plan or
scheme to evade the prohibitions of Rule 10b5-1. In particular,
subject to Purchaser’s right to terminate this Plan,
Purchaser shall not alter, suspend, or modify from the terms of
this Plan while aware of any material
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